64 September 12, 2013 No. 37

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

TIFFANY LEE SAVASTANO,

Respondent on Review.

(CC C081586CR; CA A141053; SC S059973)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 20, 2012; resubmitted 

January 7, 2013.

Mary H. Williams, Deputy Attorney General, Salem, 

argued the cause and filed the brief for petitioner on review. 

With her on the brief were John R. Kroger, Attorney General, 

and Anna M. Joyce, Solicitor General.

Ernest G. Lannet, Chief Deputy Defender, Salem, argued 

the cause and filed the brief for respondent on review. With 

him on the brief was Peter Gartlan, Chief Defender, Office 

of Public Defense Services.

Charles F. Hinkle, Portland, filed the brief for amicus

curiae ACLU Foundation of Oregon, Inc.

BALMER, C. J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is affirmed.

______________

* Appeal from Washington County Circuit Court, Thomas Kohl, Judge. 243 

Or App 584, 260 P3d 529, adh’d to on recons, 246 Or App 566, 266 P3d 176 (2011).
Cite as 354 Or 64 (2013) 65

Defendant was accused of embezzling money from her employer in numerous 

transactions over a period of 16 months, and the prosecutor aggregated those 

transactions by month to provide clarity for the jury, indicting defendant on 

16 counts of theft. Defendant moved to dismiss the indictment, arguing that it 

violated Article I, section 20, of the Oregon Constitution because the prosecutor 

did not apply a coherent, systematic policy when aggregating defendant’s theft 

transactions. The trial court denied defendant’s motion, defendant entered 

a conditional guilty plea, and, on appeal, the Court of Appeals reversed and 

remanded. Held: (1) State v. Freeland, 295 Or 367, 667 P2d 509 (1983) is overruled; 

(2) Article I, section 20, places the same limitation on other branches of government 

that it places on the legislature; (3) to bring an individual-based claim under 

Article I, section 20, a defendant must initially show that the government in fact 

denied defendant individually an equal privilege or immunity with other citizens 

of the state similarly situated; (4) an agency or official’s decision will comply with 

Article I, section 20, as long as no discriminatory practice or illegitimate motive 

is shown and the use of discretion has a defensible explanation in the individual 

case, meaning there is a rational explanation for the differential treatment that 

is reasonably related to the official’s task or to the person’s individual situation; 

and (5) the prosecutor in this case had a reasonable and permissible basis for 

aggregating the theft transactions.

The decision of the Court of Appeals is reversed. The judgment of the circuit 

court is affirmed.
66 State v. Savastano

BALMER, C. J.

This case requires us to examine Article I, section 20,

of the Oregon Constitution—the privileges or immunities 

provision—in the context of prosecutorial discretion. Specifically, we must determine whether Article I, section 20, 

applies to prosecutors’ charging decisions and, if so, whether 

a prosecutor must consistently adhere to a coherent, systematic policy in making charging decisions.

Defendant was accused of embezzling money from 

her employer in numerous transactions over a period of 16 

months, and the prosecutor aggregated those transactions to

indict defendant on 16 counts of theft—one count for each 

month. Although the prosecutor’s office did not have a 

“policy” for aggregating theft transactions, the prosecutor 

aggregated the transactions by month to create “a clear 

organizational outline for the jury.” Defendant moved to 

dismiss the indictment, arguing that it violated Article I, 

section 20, because this court’s decision in State v. Freeland, 

295 Or 367, 375, 667 P2d 509 (1983), required the prosecutor 

to apply a “coherent, systematic policy” when aggregating 

theft transactions. The trial court denied that motion, and 

defendant entered a conditional guilty plea. On appeal, 

the Court of Appeals reversed, holding that the state had 

violated Article I, section 20, because the prosecutor’s office 

had no policy providing consistent guidance for prosecutors 

regarding whether and how to aggregate multiple theft 

transactions. State v. Savastano, 243 Or App 584, 589-90, 

260 P3d 529 (2011).1

 For the reasons set out below, we reverse 

the decision of the Court of Appeals and affirm defendant’s 

conviction. In doing so, we overrule Freeland and reaffirm 

this court’s decision in State v. Clark, 291 Or 231, 630 P2d 

810, cert den, 454 US 1084 (1981).

I. FACTS AND PROCEEDINGS BELOW

Defendant was accused of embezzling more than 

$200,000 from her employer over a period of 16 months in 

numerous theft transactions. The prosecutor relied on an 

1 The state sought reconsideration to clarify the court’s disposition of the 

case. The court clarified that it had not intended to dictate any particular remedy, 

and instead had intended to remand the case for further proceedings. State v. 

Savastano, 246 Or App 566, 568, 266 P3d 176 (2011).
Cite as 354 Or 64 (2013) 67

aggregation statute to aggregate those theft transactions: 

“The value of single theft transactions may be added together 

if the thefts were committed *** [a]gainst the same victim, 

or two or more persons who are joint owners, within a

180-day period.” Former ORS 164.115(5) (2007), renumbered 

as ORS 164.115(6) (2011). The prosecutor aggregated the

individual theft transactions by month and charged defendant with 16 counts of theft, including 10 counts of firstdegree aggravated theft and six counts of first-degree theft.2

Defendant filed a motion to dismiss the indictment, 

arguing that her rights under Article I, section 20, of the 

Oregon Constitution3

 had been violated, because there was no

“coherent, systematic policy” guiding the prosecutor’s exercise of his discretion to aggregate multiple theft transactions. 

During the hearing on defendant’s motion, the prosecutor 

explained how the aggregation decision had been made:

“We don’t have a policy for the way that these theft cases 

are aggregated. What we look at is a number of factors that 

are as unique as defendants are unique and as particular 

criminal acts are unique. ** * [I]n this particular case, as 

a side note, it was a decision based on clarity for a jury. 

It made a lot of sense. There are a number of acts in any 

of the—in every one of those months we’re talking about. 

*** We could have charged every, single one of those acts 

and we could have had an indictment with several hundred 

charges, I imagine. But what made sense in this particular 

case was to lump everything together by month and have a 

clear organizational outline for the jury when they’re looking at the case.”

The trial court denied defendant’s motion, stating that the 

prosecutor was “well within [his] discretionary authority in

charging the case in the way that [he] did.” Defendant entered

2 A person commits first-degree aggravated theft if “[t]he value of the property

in a single or aggregate transaction is $10,000 or more.” ORS 164.057. A person 

commits first-degree theft if “[t]he total value of the property in a single or aggregate transaction is *** $750 or more.” ORS 164.055(1)(a) (2007). ORS 164.055(1)(a)

was amended in 2009, and, among other changes, the legislature increased the 

threshold value of property from $750 to $1000. Or Laws 2009, ch 16, § 3. We apply 

the 2007 version of the law here—as did the Court of Appeals—because defendant’s 

theft transactions and the indictment occurred before the 2009 amendment.

3 Article I, section 20, of the Oregon Constitution provides, “No law shall be passed

granting to any citizen or class of citizens privileges, or immunities, which, upon 

the same terms, shall not equally belong to all citizens.”
68 State v. Savastano

a conditional guilty plea and appealed the trial court’s denial 

of her motion.

The Court of Appeals reversed. The court began 

by reviewing this court’s Article I, section 20, case law. The

court noted that Article I, section 20, protects both individuals and classes of individuals. Savastano, 243 Or App at 

588; see also Clark, 291 Or at 237 (noting that Article I, 

section 20, “forbids inequality of privileges or immunities 

not available ‘upon the same terms,’ first, to any citizen, and 

second, to any class of citizens”). This court’s cases have 

analyzed separately individual-based claims—those focused 

on whether the government has granted or denied privileges 

or immunities “without legitimate reasons related to [a] person’s individual situation”—and class-based claims—those 

focused on whether the government has granted or denied 

privileges or immunities to a class of citizens based on 

“unjustified differentiation.” Clark, 291 Or at 239. Because 

defendant raised an individual-based claim, rather than a 

class-based claim, the Court of Appeals relied on the case 

law involving those claims and concluded that Article I, 

section 20, applies to prosecutorial discretion, including 

prosecutorial charging decisions. Savastano, 243 Or App 

at 588 (citing Oregon cases applying Article I, section 20, 

analysis to decisions of prosecutors). The court then set out 

a two-part test for analyzing individual-based claims under 

Article I, section 20, drawing, in part, from this court’s 

decision in Freeland:

“First, has a state actor made a decision that confers a privilege or imposes an immunity of constitutional magnitude? 

Second, if so, has the person claiming a constitutional 

violation shown that the decision did not result from the 

application of ‘sufficiently consistent standards to represent 

a coherent, systematic policy[’]?”

Id. (quoting Freeland, 295 Or at 375).4

4 As we discuss below, the Court of Appeals did not read Freeland to require 

defendant to show that she had been treated less favorably than any other 

particular defendant, and she in fact made no such showing. Rather, the court 

appears to have concluded that it was sufficient for defendant to show that there 

were multiple ways in which the charges against her could have been aggregated, 

at least some of which would have been more favorable to her than the aggregationby-month that the prosecutor used, see 243 Or App at 587 (noting that defendant 

could have been charged with as few as three counts or as many as one count for 
Cite as 354 Or 64 (2013) 69

Applying that two-part test, the Court of Appeals 

first concluded that the way in which multiple theft transactions are aggregated into a smaller number of criminal 

charges is of constitutional magnitude because of a defendant’s possible burden to defend against “a multitude of 

minor charges” and because of the range of possible penalties 

that could accompany different charging decisions. Id. at 

589. Addressing the second inquiry, the court determined 

that, although defendant did not provide evidence showing 

that a coherent, systematic policy was lacking in this case,

the prosecutor conceded that the charging decision was 

unsystematic. Id. (“Although the prosecutor cited a criterion—

clarity for the jury—he did not argue that the criterion 

was a department-wide or consistent policy[.]”). Moreover, 

although the prosecutor said that he considered a number of 

factors in making charging decisions, the court determined 

that that was not enough to satisfy the requirements in 

Freeland, because the “factors must remain constant from 

case to case.” Id. Therefore, the court reversed and remanded 

the case to the trial court. Id. at 590.

II. ISSUES ON REVIEW

On review, the state makes two arguments. The 

state first argues that application of the methodology set 

forth in Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 

(1992), demonstrates that Article I, section 20, does not 

apply to prosecutors’ charging decisions. Instead, the state 

argues, the text, history, and at least some of the case law 

surrounding that provision demonstrate that Article I,

section 20, was intended to be a “narrow limitation on 

the legislature’s authority to enact laws granting special 

privileges—largely economic privileges—to individuals or 

classes of individuals.” The state reasons that, in this case, 

neither former ORS 164.115(5) (2007) nor any other statute 

at issue grants privileges or immunities. In advancing its

interpretation of Article I, section 20, the state invites this

each of the alleged theft transactions), and that the prosecution’s choice was not 

the result of a coherent, systematic policy. That analysis and result is consistent 

with Freeland, where the defendant was charged by what the court viewed as 

the permissible but less favorable grand jury indictment, although the prosecutor 

could have charged the defendant by means of the more favorable preliminary 

hearing procedure. 295 Or at 372-74.
70 State v. Savastano

court to reconsider and significantly narrow its prior analysis of both individual-based and class-based claims under 

Article I, section 20. To narrow that analysis, the state advocates overturning some of this court’s prior cases, including 

Clark and Freeland.

Alternatively, the state argues, even if Article I, 

section 20, does apply to individual-based claims arising 

from a prosecutor’s charging decisions, a prosecutor is not 

required to make those decisions according to a coherent, systematic policy. Rather, the prosecutor merely has to show

that the decision was rational and was not based on impermissible criteria. Moreover, the state asserts, the prosecutor 

has to make that showing only after the defendant has 

demonstrated that he or she in fact was treated differently 

from similarly situated defendants.

Defendant responds that examination of Article I, 

section 20, using the Priest methodology reveals that that provision was intended to prevent the government from granting privileges or immunities in an inequitable or arbitrary 

way, which would include a prosecutor arbitrarily aggregating 

theft transactions. In addition to relying on the text and 

history of Article I, section 20, defendant traces this court’s 

cases—including Clark, Freeland, and others—to support her 

argument that the prosecutor violated Article I, section 20,

because he exercised his discretion to aggregate the theft 

transactions in the absence of any policy to guide that discretion. Defendant argues that the state has not met its 

burden of showing why this court should overturn its prior 

cases, including Freeland. Moreover, defendant argues, even 

if this court, considering the facts in Freeland anew, would 

have reached a different result, the rationale behind that 

decision remains sound.

At the outset, we note that the Court of Appeals was 

correct to apply Freeland in this case, because Freeland also 

involved an individual-based Article I, section 20, challenge 

to prosecutorial discretion involving charging decisions. 

Specifically, Freeland involved the prosecutor’s discretion in 

determining whether to charge a defendant by indictment 

or by preliminary hearing. 295 Or at 372-73. Moreover, as 

discussed more fully below, although this court’s application 
Cite as 354 Or 64 (2013) 71

of Freeland has not always been easy to square with the text 

of that opinion, the Court of Appeals relied on the standard 

articulated in Freeland. That is, after the court determined 

that a privilege or immunity was at issue, the court analyzed 

whether the prosecutor had applied “‘sufficiently consistent 

standards to represent a coherent, systematic policy[.]’” 

Savastano, 243 Or App at 588 (quoting Freeland, 295 Or at

375).5

 Although defendant here did not identify anyone 

who had received more favorable treatment than she did, 

the court read Freeland to dispense with that requirement:

“[U]nlawful discrimination occurs when the state distributes 

a benefit or burden in a standardless, ad hoc fashion, without 

any ‘coherent, systematic policy.’” Id. (quoting Freeland, 295 

Or at 375). Rather than requiring a showing of a similarly 

situated defendant who had been treated more favorably, the 

court held that a defendant could prevail if he or she could 

“establish[] the lack of criteria or, if there are criteria, the 

lack of consistent enforcement.” Id. That reading of Freeland

seems correct, as the defendant there did not identify any 

particular, similarly situated individual who was charged by 

means of a preliminary hearing rather than by grand jury 

indictment—although no one disputed that some defendants 

in Multnomah County were charged by the former procedure. 

It was sufficient in Freeland for the defendant to show that 

he might have received less favorable treatment than some 

other defendants, and that the prosecutor’s choice to provide 

that less favorable treatment was not made pursuant to a 

coherent, systematic policy.

The Court of Appeals applied Article I, section 20, 

as interpreted in Freeland, and concluded that, because the 

prosecutor admitted that no policy for aggregating theft 

5 In undertaking the privilege or immunity analysis, the Court of Appeals 

reasoned,

“[T]he state’s decision has obvious and serious consequences; depending on how 

the prosecution chooses to aggregate the theft transactions, defendant could 

have been burdened, or not, with the need to defend against a multitude of 

minor charges, and could have faced possible penalties of varying seriousness. 

*** [T]he privileges or immunities faced by defendant here are clearly of 

constitutional magnitude.”

Savastano, 243 Or App at 588-89. We agree with the Court of Appeals that the 

privileges or immunities at issue in this case are of constitutional magnitude and 

therefore do not address that issue further.
72 State v. Savastano

transactions existed, and because he did not indicate that the 

criteria that he used in this case were consistently applied, 

defendant’s Article I, section 20, rights were violated. Id. at 

589-90. We cannot say that the Court of Appeals’ application 

of Freeland was incorrect.

III. RECONSIDERATION OF FREELAND

That does not end our inquiry, however. Because 

defendant would prevail under Freeland, as the Court of

Appeals concluded, we must next address the state’s argument that application of the Priest methodology to Article I, 

section 20, demonstrates that Freeland should be overruled 

because Article I, section 20, does not require a prosecutor to 

apply a “coherent, systematic policy” to a charging decision 

like the one at issue here. Thus, we turn to examining the 

meaning of Article I, section 20, and specifically to whether 

it requires government entities to apply such a “policy” in 

granting a privilege or immunity.6

In undertaking the inquiry outlined in Priest, our 

goal is to identify the historical principles embodied in the 

text of Article I, section 20, and to apply those principles 

faithfully to modern circumstances as they arise. Coast 

Range Conifers v. Board of Forestry, 339 Or 136, 142, 117 P3d

990 (2005). Put differently, the historical inquiry set out 

in Priest invites us to identify the principles that Article I, 

section 20, was intended to advance, while recognizing that 

the scope of that provision is not limited to the historical 

circumstances surrounding its adoption. See Hewitt v. SAIF, 

294 Or 33, 46, 653 P2d 970 (1982) (recognizing that Article I,

section 20, extends protection to classes of citizens who were 

not protected when Oregon adopted its constitution in 1859).

6 Although we reconsider Freeland, as requested by the state, we reject 

the state’s argument that we should reconsider and “realign the entirety of the 

court’s Article I, section 20, analysis with the intent of the framers.” This case 

does not require us to reconsider the application of Article I, section 20, to claims 

of discrimination against classes of individuals. Moreover, as discussed later, 

we reject the state’s suggestions that Article I, section 20, applies only to the 

enactment of laws and not to their implementation and that it applies only to 

economic privileges. For those reasons, we agree with several of the arguments set 

out in the brief of amicus curiae ACLU Foundation of Oregon, Inc., and find others 

unnecessary to address in this case.
Cite as 354 Or 64 (2013) 73

A. Text and History of Article I, Section 20

We begin with the text of Article I, section 20, which 

provides: “No law shall be passed granting to any citizen or class 

of citizens privileges, or immunities, which, upon the same terms, 

shall not equally belong to all citizens.”

That section consists of an independent clause and a dependent clause. The independent clause is directed to the legislature. It provides that “[n]o law shall be passed granting 

to any citizen or class of citizens privileges, or immunities[.]”

The dependent clause qualifies what would otherwise be an

almost absolute prohibition on lawmaking, because lawmaking almost always involves or establishes some advantage 

or disadvantage for some group of citizens. The dependent 

clause permits laws granting privileges or immunities to any

citizen or class of citizens as long as the privileges or 

immunities belong “equally” to all citizens “upon the same 

terms.”

At first blush, the two clauses in Article I, section 20,

appear antithetical. Read together, they prohibit a law granting a privilege or immunity to one citizen or a class of 

citizens unless the privilege or immunity is available to all 

citizens upon the same terms. As this court has recognized, 

the inclusion of the word “equally” resolves the tension 

between the two clauses and permits the legislature to draw

classifications among citizens in granting privileges and 

immunities. Specifically, the court has recognized that 

requiring privileges or immunities to be granted “equally” 

permits the legislature to grant privileges or immunities to

one citizen or class of citizens as long as similarly situated 

people are treated the same. In re Oberg, 21 Or 406, 410-

11, 28 P 130 (1891). Accordingly, this court held in Oberg

that a statute exempting sailors but no one else from arrest 

for debt did not run afoul of Article I, section 20, because it

“prescribe[d] the same rule of exemption to all persons placed 

in the same circumstances.” Id. at 408.7

 Thus, the text of 

7 In explaining why the legislature could conclude that other debtors were not 

similarly situated to sailors, the court offered three rationales. First, it explained 

that, at least on its face, the law was open ended: “[A]ny citizen desiring such 

immunity may have it in the words of the constitution, ‘upon the same terms,’ by 

becoming a sailor.” Oberg, 21 Or at 408. Second, the court reasoned that, because 

different occupations may pose separate concerns, the legislature can enact laws 
74 State v. Savastano

Article I, section 20, places a limit on the legislature’s ability 

to draw classifications among citizens in enacting laws, 

but a requirement that the government apply a coherent, 

systematic policy—or any policy at all—in all decisions 

involving its citizens is not apparent from the text.

Similarly, the history of Article I, section 20, does 

not support a general requirement that the government must

make decisions according to a “systematic policy.” No record 

exists of any discussion of Article I, section 20, in the 

debates over the Oregon Constitution. See Claudia Burton 

and Andrew Grade, A Legislative History of the Oregon 

Constitution of 1857 - Part I (Articles I & II), 37 Willamette

L rev 469, 532-33 (2001). We know, however, that the provision was taken from the Indiana Constitution of 1851, 

Clark ̧ 291 Or at 236, 236 n 7, and that it finds its roots in 

early colonial declarations of rights. See David Schuman, The 

Right to “Equal Privileges and Immunities”: A State’s Version 

of “Equal Protection,” 13 Vt L rev 221, 223 (1988) (tracing 

the history of equal privileges and immunities clauses). We 

also know that state constitutions drafted between 1840 and 

1880 sought to address abuses that included “revealed fraud 

and corruption in public-land dealings and in the getting and

granting of franchises, subsidies, and rate privileges for turnpikes, canals, river improvements, toll bridges, and, of course,

especially railroads and street railways.” James Willard 

Hurst, The Growth of American Law: The Law Makers 241-

42 (1950).

The historical usage of the phrase “privileges, or

immunities” points in the same direction. Before the revolution,

one legal dictionary defined a “privilege” as consisting of four 

elements: “(1) a benefit or advantage; (2) conferred by positive 

law; (3) on a person or place; (4) contrary to what the rule 

would be in absence of the privilege.” Robert G. Natelson, The 

Original Meaning of the Privileges and Immunities Clause, 43 

that apply only to a single occupation without engaging in prohibited “class legislation.” Id. at 409-10. The third rationale was a variation on the second. The court 

observed that, because the “object of the act *** was to aid and extend our foreign 

commerce by protecting sailors and preventing such burdens or exactions from 

being laid upon shipping as would discourage vessels from frequenting our ports,” 

Article I, section 20, did not prevent the legislature from enacting an exemption for 

sailors that advanced only that legislative objective. Id. at 410.
Cite as 354 Or 64 (2013) 75

Ga L rev 1117, 1130 (2009) (summarizing prerevolutionary 

legal dictionary definition). It also appears that

“‘immunity’ and ‘privilege’ were reciprocal words for the same

legal concept. Because an immunity was a benefit, otherwise contrary to law, given to a person or place by special 

grant, it was a privilege.”

Id. at 1133-34; accord Campbell v. Morris, 3 H & McH 535, 

553 (Md 1797) (explaining that the terms “[p]rivilege and 

immunity are synonymous, or nearly so”).

In the period leading up to the Civil War, the phrase 

“privileges and immunities” ordinarily referred to statecreated rights. See Kurt T. Lash, The Origins of the Privileges 

or Immunities Clause, Part I: “Privileges and Immunities” as 

an Antebellum Term of Art, 98 Geo LJ 1241, 1253, 1260-61

(2010).8

 A grant of privileges and immunities was not always 

viewed positively, however. During the Jacksonian era, newspaper editorials “commonly decried ‘the possession of privileges or immunities, in which ninety-nine hundredths of the

community, by the very nature of their situation, are denied 

all participation,’ and they vilified the ‘“privileged order” ** * 

on whom the law confers certain privileges or immunities 

not enjoyed by the great mass of the people.’” Id. at 1256-

57 (quoting editorials) (ellipses in Lash; footnote omitted). 

Consistent with that concern, state constitutional privileges 

and immunities clauses drafted during and shortly after 

that period sought to prevent the government from granting 

benefits only to a favored few. See id. at 1257. Article I, 

section 20, was no exception to that trend. See Clark, 291 Or 

at 236 (explaining that the “language [of Article I, section 

20,] reflects early egalitarian objections to favoritism and 

special privileges for a few”).

The history reveals that, in borrowing Article I,

section 20, from Indiana, the framers were acting in response

8 In Salem College & Academy, Inc. v. Emp. Div., 298 Or 471, 488 n 13, 695 P2d 25 

(1985), this court explained that the phrase “privileges, or immunities” in Article I,

section 20, is not limited to the fundamental rights that Justice Washington 

identified in Corfield v. Coryell, 6 Fed Cas 546 (1823). More recently, commentators 

have questioned whether Justice Washington’s identification of the fundamental 

rights protected by the federal Privileges and Immunities Clause is consistent with 

other cases from that period recognizing that the federal clause protects a limited 

set of state-created rights. See Lash, 98 Geo LJ at 1271 (summarizing discussion).
76 State v. Savastano

to legislative grants of privileges to a favored few. Viewed 

more abstractly, Article I, section 20, limited the criteria that 

government can use in granting privileges and immunities. 

It is difficult, however, to go beyond that and find in the 

history of that provision a requirement that executive agencies (or other branches of government, for that matter) 

standardize their decision making.

The state argues that Article VII (Original), section 

17, of the Oregon Constitution provides additional historical 

context that clarifies how Article I, section 20, interacts with

the role of prosecutors. Article VII (Original), section 17, 

creates the office of district attorney:

“There shall be elected by districts comprised of one, or more 

counties, a sufficient number of prosecuting Attorneys, who 

shall be the law officers of the State, and of the counties 

within their respective districts, and shall perform such 

duties pertaining to the administration of Law, and general 

police as the Legislative Assembly may direct.”

The state argues that prosecutors historically had discretionary authority regarding whether and how to bring 

charges and that attempts to limit that discretion did not

emerge until well after the Oregon Constitution was adopted.

Therefore, the state reasons, the framers intended prosecutors

to have discretion that would not be limited by Article I, 

section 20. Defendant responds that the decision to create 

the office of district attorney in no way indicates an intent to 

exempt district attorneys from the requirements of Article I,

section 20; in fact, defendant notes, the district attorneys’ 

duties were to be set by the legislature, and even the state 

accepts that the legislature is subject to Article I, section 20.

The additional historical context of Article VII 

(Original), section 17, does not change the historical analysis 

of Article I, section 20. Similarly to Article I, section 20, 

Article VII (Original), section 17, does not indicate an intent 

to require consistency or policies in prosecutorial decisions; 

but neither does it indicate an intent for prosecutors to 

have unbridled discretion outside the bounds of Article I, 

section 20, particularly given the legislature’s control over 

prosecutors’ duties.
Cite as 354 Or 64 (2013) 77

B. Early Cases Interpreting Article I, Section 20

Having considered the text and history of Article I,

section 20, we turn to this court’s cases interpreting it. 

Most of this court’s decisions have addressed challenges to 

legislative classifications.9

 As such, they did not address the 

issue raised here. We begin with five of this court’s early 

decisions involving individual-based claims, which addressed 

either laws or executive decisions granting privileges or 

immunities to a single citizen. We then discuss Clark and 

Freeland. Finally, we discuss this court’s decisions applying 

Freeland.

The first five decisions divide into two groups: One 

decision treated Article I, section 20, as a counterpart to 

constitutional provisions prohibiting special or local laws, 

see Altschul v. State, 72 Or 591, 596-97, 144 P 124 (1914), 

and the other four decisions addressed situations where the 

government had granted one person a monopoly. In Altschul, 

the legislature had granted one person (the plaintiff) the 

right to bring a suit against the state to determine his 

interest in land held by the state. Id. at 595. The state 

demurred to the plaintiff’s suit on the ground that the statute authorizing that suit violated Article IV, section 24, 

which prohibits “special act[s]” permitting suits to be brought

against the state; Article IV, section 23, which prohibits 

“special or local laws” in certain classes of cases; and Article I,

section 20. The court held that the statute violated all three 

constitutional provisions. Id. at 596-97.

The court’s analysis under Article I, section 20, consisted of a single sentence. It held that the statute “grant[ed] 

to the plaintiff [t]here a privilege which [was] not extended 

to any other person in the state, and hence [was] in conflict

with Article I, section 20.” Id. at 596. In grouping Article I,

9 For much of this court’s history, it analyzed challenges to legislative classifications under Article I, section 20, and the Equal Protection Clause of the 

Fourteenth Amendment the same way. See City of Klamath Falls v. Winters, 289 

Or 757, 769-70 n 10, 619 P2d 217 (1980), appeal dismissed, 451 US 964, 101 S Ct 

2037, 68 L Ed 2d 343 (1981) (explaining that “[t]his court has consistently held 

that the scope of these two provisions is the same”). In Clark, the court interpreted 

Article I, section 20, independently from the federal constitution, while recognizing 

that “for most purposes analysis under Article I, section 20 and under the federal 

equal protection clause will coincide” in the result, if not the reasoning. 291 Or at 

243.
78 State v. Savastano

section 20, with Article IV, sections 23 and 24, the court 

appears to have treated the prohibition against laws granting a privilege or immunity to “any citizen” as a species of 

constitutional provisions prohibiting special or local laws. Cf. 

Jeffrey M. Shaman, Equality and Liberty in the Golden Age of 

State Constitutional Law 31 (2008) (noting the relationship 

between privileges and immunities clauses and clauses prohibiting special or local laws). To the extent that Altschul

holds that Article I, section 20, prohibits laws addressed to 

only a single person, that decision seems inapposite when 

applied to executive acts, which, by definition, often require 

acting only in individual cases.

As noted, the other four decisions addressed either 

statutes or agency decisions giving one person a monopoly. 

The first and most comprehensive of those decisions was 

White v. Holman, 44 Or 180, 74 P 933 (1904). In that case, the 

legislature had authorized a board to issue licenses to run

sailors’ boarding houses to “any person, firm, or corporation” 

that presented “satisfactory evidence ** * of the respectability 

and competency of such applicant, and of the suitableness of 

his or their accommodations, and of his or their compliance 

with all the provisions of this act.” Id. at 182-83 (describing 

the statutory criteria for issuing licenses) (internal quotation 

marks omitted). The board, however, had not followed those 

statutory criteria in denying a license to the plaintiffs in 

White. Id. at 183. Rather, the board had denied the plaintiffs 

a license based on the wishes of shipping companies, which 

had directed the board “to limit the business to only one 

sailors’ boarding house at Portland.” Id. at 181-82.

The question, as this court framed it in White, was 

whether the board could grant a monopoly consistently with 

Article I, section 20.10 In resolving that question, the court 

explained that a board charged with implementing a statute 

“can exercise no greater power than was possessed by the 

legislative assembly” in enacting it. Id. at 192. In holding 

that a board could not grant a license to only one applicant, 

the court concluded that the board had used a criterion that 

10 The court could have decided the case on the ground that the board had not 

followed the statutory criteria in denying the license. It did not take that course, 

however.
Cite as 354 Or 64 (2013) 79

Article I, section 20, did not permit either the legislature or 

the board to use.

Specifically, the court started from the premise that 

“[t]he keeping of a sailors’ boarding house is, in our opinion, a 

legitimate business, in the performance of which any citizen 

may engage as a matter of common right[.]” Id. at 191. It 

followed that the legislature could deny a license to run such 

a house only if it had a reasonable ground for doing so. See 

id. at 191-92. On that point, the court explained that the 

legislature could seek to deny licenses to persons who might 

take advantage of sailors’ susceptibility to temptations once 

they reached shore. See id. at 189-91 (describing, at some 

length, the temptations to which sailors habitually fell 

prey while on shore). The board, however, had not based its 

decision to deny a license to the plaintiffs on that ground. 

Rather, the board arbitrarily had excluded what otherwise 

may have been qualified applicants from receiving a license 

based only on the wishes of the shipping industry. Id. at 

192. Under Article I, section 20, this court held, neither the 

legislature nor the board could do that. Id.

11

The other three decisions held that neither the 

legislature nor a board may grant an exclusive right to 

fish in one area of a navigable stream, because the right 

to fish in those waters is held in common by all citizens. 

Monroe v. Withycombe, 84 Or 328, 341, 165 P 227 (1917); 

Eagle Cliff Fishing Co. v. McGowan, 70 Or 1, 15, 137 P 766 

(1914), appeal dismissed, 248 US 589, 39 S Ct 5, 63 L Ed 435 

(1918); Hume v. Rogue River Packing Co., 51 Or 237, 259, 

92 P 1065 (1907). Citing White and Article I, section 20, the 

court reasoned in Hume that granting an exclusive right to 

fish was comparable to granting a monopoly, without any 

legitimate basis for giving only one person a right that the 

people held in common. 51 Or at 259-60. Following Hume

and Eagle Cliff Fishing, the court reasoned in Monroe that, 

in light of the public’s right to fish for salmon, neither the 

legislature nor the Fish Warden could “authorize only one 

person to fish for salmon for his own personal benefit and 

11 The court reasoned that, because the legislature “could not create a monopoly of a legitimate business in which every person can engage of common right,

a fortiori, its creatures, the board, are likewise prohibited from doing so.” White, 

44 Or at 192.
80 State v. Savastano

private profit without any advantage to the public.” 84 Or at 

338, 341.

White and Monroe thus recognized that Article I,

section 20, applies not only to the legislature but also to 

other branches of government. Both White and Monroe also

made clear that, under Article I, section 20, the same limitations that apply to the legislature in enacting laws apply 

to other government entities when they take action in an 

individual case. That is, the government may not use a classification or criterion to decide an individual case that the

legislature could not use in enacting a law. Neither White nor

Monroe went beyond that, however. None of the early decisions

interpreting Article I, section 20, held or suggested that that

section requires systematic consistency in government decision making, which is the lynchpin of the Court of Appeals

decision, applying Freeland, in this case. Savastano, 243 Or 

App at 590 (“We require only consistent, systematic criteria, 

and that those criteria be permissible.”).

One other case deserves discussion because it is 

sometimes cited as precedent for the individual branch of 

Article I, section 20, analysis. In State of Oregon v. Cory, 204 

Or 235, 237, 282 P2d 1054 (1955), the defendant challenged 

a statute that authorized increased punishment for persons 

convicted of two or more felonies within five years. See Or 

Laws 1947, ch 585, §§ 1, 2. As amended in 1951, the statute 

provided that, if, within two years of a defendant’s conviction, 

the prosecutor learned that the defendant previously had 

been convicted of a nonviolent felony, the prosecutor “‘may, 

immediately file an information accusing the person of the 

previous convictions.’” See Cory, 204 Or at 237-38 (quoting 

the amended statute).

The defendant in Cory focused on the phrase “may 

* * * file.” He argued that giving a prosecutor discretion to 

charge him as an habitual offender violated “the Equal 

Protection Clauses of the state and federal constitutions.” Id. 

at 237. Relying on an earlier case that had been decided on

the basis of the federal Equal Protection Clause, the court

held that the statute “giv[ing] the district attorney unlimited 

authority to proceed or not to proceed at all against a convicted
Cite as 354 Or 64 (2013) 81

felon in personal, nonviolent cases ** * [was] unconstitutional.” 

Id. at 239-40.

Cory’s precedential value for interpreting Article I,

section 20, is limited. Although the court mentioned “the

Equal Protection Clauses of the state and federal constitutions,” id. at 237, it undertook no independent analysis of

Article I, section 20. Rather, it relied on the decision issued

one month earlier in State of Oregon v. Pirkey, 203 Or 697,

281 P2d 698 (1955), which had described the two constitutional provisions as “similar limitations upon legislative 

action” and which had relied almost exclusively on federal 

equal protection decisions in holding another statute 

unconstitutional. See id. at 703-04. Cory’s persuasive value 

also is suspect. The statute providing that prosecutors “may

*** file” an information, which the court held unconstitutional 

in Cory, is difficult to distinguish from the discretion that 

prosecutors customarily enjoy to file or not file charges. Not 

only would Cory’s reasoning, taken to its logical conclusion, 

render all prosecutorial discretion to bring or not bring 

criminal charges unconstitutional, but the United States 

Supreme Court unanimously has rejected the federal equal 

protection theory on which both Pirkey and Cory rested. See 

United States v. Batchelder, 442 US 114, 124-25, 99 S Ct 2198,

60 L Ed 2d 755 (1979).

C. Clark and Freeland

Having considered the primary cases involving the

individual branch of Article I, section 20, that preceded Clark

and Freeland, we turn to those decisions. In Clark, the defendant raised two separate Article I, section 20, challenges. 

He argued initially that the prosecutor had denied him a 

privilege afforded other defendants, because the prosecutor 

had charged him by indictment rather than by means of a 

preliminary hearing. The defendant argued that the state 

had violated his Article I, section 20, rights because both 

procedures were available, one of them (the preliminary 

hearing) was a “privilege” of constitutional magnitude, and

the state had denied him that privilege. The defendant contended that he was not required to show that any similarly 

situated defendant had been given a preliminary hearing. 

Alternatively, he argued that the prosecutor had violated 
82 State v. Savastano

Article I, section 20, when he granted immunity to two of 

his potential codefendants but not to him.

In resolving the defendant’s arguments, the court 

explained that Article I, section 20, is “a guarantee against 

unjustified denial of equal privileges or immunities to individual citizens at least as much as against unjustified differentiation among classes of citizens.” Clark, 291 Or at 239. 

Regarding the denial of equal privileges or immunities to an

individual citizen, the court explained that Article I, section 

20, calls for an “analysis whether the government has made or 

applied a law so as to grant or deny privileges or immunities 

to an individual person without legitimate reasons related

to that person’s individual situation.” Id. In stating the applicable standard in Clark, the court focused on the legitimacy of 

the government’s reasons in an individual case; that is, Clark

explained that an executive decision granting or denying a 

person privileges or immunities “without legitimate reasons 

related to that person’s individual situation” would be an 

“unjustified denial of equal privileges or immunities to [an] 

individual citizen[].” Id.

Applying that standard, the court rejected the defendant’s first argument—that the mere existence of discretion 

to charge a defendant by means of a preliminary hearing or 

an indictment violated Article I, section 20. On that issue, 

the court held:

“Without a showing that the administration of [those two

charging procedures] in fact denied [the] defendant individually, or a class to which he belongs, the equal privilege 

of a preliminary hearing with other citizens of the state 

similarly situated, the circuit court did not err in denying 

the motion to dismiss the indictment.”

Id. at 243. Because the defendant had made no such showing 

regarding the prosecutor’s decision to proceed by indictment, 

the court had no need to decide—and did not decide—when 

the “administration” of those procedures would violate the 

state equal privileges or immunities clause. That is, because 

the defendant had not shown that he was denied “the equal 

privilege of a preliminary hearing with other citizens of the 

state similarly situated,” the court did not further examine 
Cite as 354 Or 64 (2013) 83

the prosecutor’s decision to proceed by indictment. Id.; see 

also id. at 242 (rejecting the conclusion that the difference 

between “two available procedures necessarily represents a 

denial of equal protection of the laws, regardless of showing 

which defendants receive one or the other procedure”).

In contrast, the court did review the merits of the 

defendant’s immunity argument because the defendant had

shown that he in fact was treated differently from his potential codefendants. As noted, the defendant argued that the

prosecutor’s decision to grant immunity to two of his potential codefendants but not to him violated Article I, section 

20. Specifically, he contended that Article I, section 20, prohibited the prosecutor from exercising discretion without 

previously stated standards. The court disagreed, explaining 

that a prosecutor would comply with Article I, section 20,

“as long as no discriminatory practice or illegitimate motive

is shown and the use of discretion has a defensible explanation.” Id. at 246. On that issue, the prosecutor explained 

that he had treated the defendant differently from his potential codefendants because the defendant had been the instigator of the crime, and the court held that the prosecutor’s 

explanation satisfied Article I, section 20. Id. Not only had the 

defendant failed to show a discriminatory practice or motive,

but the reason that the prosecutor gave was “defensible.” Id.

To be sure, Clark recognized that an individual citizen can argue under Article I, section 20, that the prosecutor 

either acted for a discriminatory or illegitimate motive or

had no “defensible explanation” for his or her action. But

defendant here does not argue that the prosecutor aggregated the theft transactions based on a discriminatory or

illegitimate motive, and the Court of Appeals did not base

its decision on the prosecutor’s failure to provide an explanation as “defensible” as the one provided in Clark. In fact, 

the Court of Appeals noted that the prosecutor cited the 

criterion of jury clarity, and the court did not indicate that 

the use of that criterion was impermissible under Clark; 

however, in this case, the Court of Appeals went on to note 

that the prosecutor “did not argue that the criterion was 

a department-wide or consistent policy.” Savastano, 243 Or 

App at 589. Thus, the Court of Appeals’ decision was not 
84 State v. Savastano

grounded in the interpretation of Article I, section 20, set 

forth in Clark.

Instead, the Court of Appeals in this case applied 

the interpretation of Article I, section 20, in Freeland, and 

we turn to that case. In Freeland, as in Clark, the defendant 

was indicted by a grand jury and denied a preliminary hearing. In contrast with the defendant in Clark, however, who 

had made no showing regarding the district attorney’s 

practice in submitting cases to the grand jury rather than 

having a preliminary hearing, the defendant in Freeland

adduced testimony from the district attorney and a deputy 

district attorney regarding the factors they considered in 

making those decisions. Those individuals testified that the 

district attorney’s office had a written policy that, in cases 

of rape or sexual assault and in cases involving youthful 

victims, the prosecution generally would avoid preliminary 

hearings in deference to the victims. Freeland, 295 Or at

379. In other cases, the decision was entrusted to the deputy

district attorney assigned to the case, who would apply 

various criteria, including whether the defendant was in 

custody, whether the crime was a property crime or a person 

crime, the complexity of the case, the amount of judicial 

time required for a preliminary hearing, the availability of 

witnesses, and many other factors. See id. at 379-80; see also 

State v. Freeland, 58 Or App 163, 166-69, 647 P2d 966 (1982) 

(both summarizing testimony). Both the district attorney 

and the deputy district attorney assigned to the case testified 

that “the treatment of [the] defendant’s case was no different from that of any other similar case.” Freeland, 58 Or App 

at 168-69.

The trial court applied what it stated was its “understand[ing]” of Clark and State v. Edmonson, 291 Or 251, 630 

P2d 822 (1981),12 concluding that, in Multnomah County, the

12 State v. Edmonson, 291 Or 251, 630 P2d 822 (1981) was a brief opinion 

issued the same day as Clark in which this court followed Clark and rejected a 

defendant’s claim that “the simple coexistence” of the grand jury and preliminary 

hearing procedures violated Article I, section 20. 291 Or at 253. As in Clark, the 

court stated that the defendant had failed to show how the administration of the 

choice of procedure denied him, as an individual or a class member, any privilege or 

immunity. Id. at 253-54. The case contains no legal analysis of the equal privileges 

or immunities provision beyond that in Clark, but does use different phrasing than 

Clark in requiring that government actions must “uniformly rest on meaningful 

criteria” that make the benefit equally available to all similarly situated people and
Cite as 354 Or 64 (2013) 85

choice between proceeding by indictment or preliminary 

hearing did not “‘“uniformly rest on meaningful criteria 

thatindeed make the privileges of a preliminary hearing 

equally available to all persons similarly situated.”’”

Freeland, 295 Or at 381 (quoting trial court opinion (quoting 

Edmonson, 291 Or at 254)). The trial court explained that, 

because the decision was made at the discretion of the prosecutor and based, at least in part, on “logistical” and “tactical” 

criteria, the “‘choice of procedure is administered “purely 

haphazardly or otherwise on terms that have no satisfactory 

explanation”’” under Article I, section 20. Id. (quoting trial 

court opinion (quoting Edmonson, 291 Or at 254)).

The Court of Appeals reversed, noting that although 

Clark and Edmonson were susceptible of different readings, 

in its view those decisions did not “require clearly delineated 

categories” that would determine the choice of indictment or

preliminary hearing in every case. Freeland, 58 Or App at

171. The Court of Appeals observed that the criteria described

at trial “[did] not, on their face, classify or treat persons differently on the basis of personal characteristics or as members of a disfavored minority or, for that matter, any impermissible class.” Id. at 172. Indeed, based on the record, the 

court concluded, “Defendant ha[d] not shown that he was 

treated differently from other defendants similarly situated 

(at least in Multnomah County) ** *.” Id.

On review, this court reversed the Court of Appeals.

The court recognized that the case called for “a further analysis” of Article I, section 20, than the court had undertaken in 

Clark. Freeland, 295 Or at 372. In Freeland, the defendant 

did not argue, as the defendant in Clark had, that the 

existence of discretion to charge a defendant by indictment 

or preliminary hearing was sufficient, without more, to violate Article I, section 20. Rather, he “challenge[d] *** the 

terms upon which the prosecution based its refusal of a 

preliminary hearing to [him].” Id. This court allowed review 

“to address the issues of administering preliminary hearings 

‘upon the same terms’ for similarly situated defendants” that 

prohibiting privileges that are administered “purely haphazardly or otherwise on 

terms that have no satisfactory explanation” under Article I, section 20. Id. The trial

court in Freeland relied on those statements, as did this court in affirming the trial 

court. Freeland, 295 Or at 381.
86 State v. Savastano

it had not been able to reach in its earlier cases. Id. at 369. 

The court thus confronted the defendant’s challenge to the 

prosecutor’s administration of the two different charging 

procedures.

In resolving that challenge, the court focused on 

whether, in the absence of prior rulemaking, the individual 

decisions made by the district attorney’s office reflected a 

sufficiently consistent pattern or policy to satisfy Article I,

section 20. Relying on Clark and Edmonson, the court held

that Article I, section 20, prohibits “‘[h]aphazard’ or standardless administration, in which the procedure is chosen ad hoc

without striving for consistency among similar cases.” Id. at 

374. The question, the court stated, was whether the prosecutor’s decision of which charging procedure to use “adhere[d]

to sufficiently consistent standards to represent a coherent, 

systematic policy, even when not promulgated in the form of 

rules or guidelines.” Id. at 375 (emphasis added).13 Although 

the defendant did not complain of discrimination against him

because of any personal characteristic and did not identify 

any particular person similarly situated to him who was given 

a preliminary hearing when he was not, this court nevertheless held that the case

“[fell] within the principle that equal treatment may not be 

denied ‘haphazardly’ by ad hoc decisions that *** do not 

‘uniformly rest on meaningful criteria that indeed make 

the privileges of a preliminary hearing equally available 

to all persons similarly situated, or, in the constitutional 

phrase, “upon the same terms.”’”

Id. at 381 (quoting Edmonson, 291 Or at 254 (quoting Article I,

section 20)).14

13 The court also observed that some criteria for making the procedural 

decision—even apart from discrimination for or against an identifiable social 

group—may be “valid” or “permissible,” and other criteria may not be. Freeland, 

295 Or at 373 (identifying “permissible” criteria); id. at 375 (considering whether 

reasons for using one procedure rather than another would be “valid”). And some 

aspects of the court’s opinion suggest that certain of the considerations identified 

by the district attorney’s office may not be permissible criteria. Id. at 381-82 (questioning reliance on, among other things, insufficient time to complete a preliminary 

hearing). However, the unambiguous holding of Freeland, as discussed in the text, 

is that the potential for haphazard and inconsistent application of the criteria is 

sufficient to constitute an Article I, section 20, violation.

14 Justice Jones dissented, arguing, inter alia, that the defendant had failed to 

show that the prosecutor’s decision to proceed by indictment was based on some 
Cite as 354 Or 64 (2013) 87

Elsewhere in the opinion, the court appeared to 

respond to the state’s argument—and the testimony from 

the district attorney’s office—that the defendant had failed 

to show that he was denied a privilege that a similarly situated person had been granted. Rather than requiring a showing of unequal treatment, the court seemed instead to take 

the position that, in the absence of a “coherent, systematic 

policy”—and given the wide range of factors identified by the

district attorney’s office as relevant to the decision—the

risk of unequal treatment was sufficient to violate Article I,

section 20. For example, the court stated that, unless “sufficiently consistent standards” are applied, the “administration of the system ‘upon the same terms’ toward similarly 

situated defendants cannot be assured.” Id. at 375. Similarly, 

in describing the potential for treating similarly situated 

defendants differently because of the myriad criteria identified by the district attorney’s office, the court observed that 

one person accused of participating in a robbery “might” be

afforded a preliminary hearing and another, under identical 

circumstances, “might” be denied one because the assigned 

deputy district attorney did not wish to subject his witnesses 

to cross-examination. Id. at 381. Again, in the court’s view,

the requirement of consistently applied standards would prevent that potential problem. Thus, the “coherent, systematic 

policy” test announced by the court apparently was intended 

as a prophylactic rule to prevent the possibility of differential 

treatment of similarly situated persons.

Applying the standard that it had articulated, this 

court in Freeland concluded that the district attorney’s decision to proceed against the defendant by way of indictment, 

rather than preliminary hearing, violated Article I, section 20,

and it affirmed the trial court’s dismissal of the indictment. 

Id. at 381, 384.

D. The Post-Freeland Cases

Freeland was the first case to hold that Article I, 

section 20, requires, in addition to the use of permissible 

“discriminatory motive” or “other arbitrary classification” or that he “was singled 

out, not dealt with on substantially the ‘same terms’ as others similarly situated 

or was the victim of a ‘haphazardly’ arrived at ad hoc decision.” Freeland, 295 Or at

394-96 (Jones, J., dissenting).
88 State v. Savastano

criteria, evidence of a policy that standardizes an agency’s 

exercise of its discretion. Since Freeland, this court has 

reiterated the latter requirement, but it has never found 

that any government agency has violated it. See, e.g., City 

of Salem v. Bruner, 299 Or 262, 270-71, 702 P2d 70 (1985).15

Indeed, no decision since Freeland—other than the Court of

Appeals decision in this case—has held that government 

action in providing a burden or a benefit to a particular 

individual violated Article I, section 20, because it was made 

in a “standardless, ad hoc fashion, without any ‘coherent, 

systematic policy.’” Savastano, 243 Or App at 588 (stating 

that test and quoting Freeland). Moreover, this court’s postFreeland decisions involving prosecutorial discretion and 

Article I, section 20, are not always easy to reconcile with the

reasoning in Freeland. We turn to a consideration of several 

of those cases.

In State v. Farrar, 309 Or 132, 786 P2d 161, cert den,

498 US 879 (1990), a death penalty case, the defendant 

argued that the district attorney’s office had refused to enter

into plea negotiations with him on the same terms that it had

entered into plea negotiations with other persons charged 

with aggravated murder. 309 Or at 138-42. The defendant 

observed that, in three aggravated murder cases, the district attorney had considered a shifting mix of factors, that

not all the same factors applied in each case, and that 

even when the same factors applied the district attorney 

had sometimes given them different weight. See id. at 139-

40.16 This court rejected the defendant’s Article I, section 

15 In Bruner, for example, the court reiterated the reasoning in Freeland and 

stated that a government decision to charge a defendant in one, rather than the 

other, of two different courts, each of which had a different appeals procedure, 

“present[ed] a choice of ‘privileges’ which must be made by defensible criteria, that 

is, by criteria which ensure consistency in treatment.” 299 Or at 270. The court’s 

holding was more limited, however. The defendant in Bruner had argued only 

that an officer’s discretion to charge him into municipal or circuit court, with the 

resulting selection of different routes of appellate review, was sufficient by itself 

to establish a violation of Article I, section 20, and the court rested its holding on 

the more limited ground that, as in Clark, the existence of discretion to proceed 

in one of two ways, standing alone, did not give rise to an equal privileges or

immunities violation. Id. at 271. Not only was the preceding discussion of Freeland

unnecessary to the court’s holding and thus dicta, but it also imposed a requirement 

of “ensur[ing] consistency” in addition to “defensible criteria,” id. at 270, which was 

absent in Clark.

16 Among other things, the district attorney considered the defendant’s age, 

prior record, mitigating evidence, and the strength of the proof in deciding whether 
Cite as 354 Or 64 (2013) 89

20, challenge, reasoning that in each case the factors that 

the district attorney considered “had a rational relation 

to the prosecutorial decision” whether to engage in plea 

negotiations and that the district attorney’s decision in each 

case “was reasonable under the circumstances.” Id. at 141. 

The court concluded that the district attorney had offered 

a “clear, rational, consistent, and consequently sufficient 

justification for treating [the] defendant differently from [the

other two persons charged with aggravated murder].” Id.

Implicit in Farrar was the recognition that many 

decisions that prosecutors and other executive officials make 

involve multiple variables. Not all decisions involve the same 

variables, the variables in each case may cut in different 

directions, and the priority or weight that each variable 

deserves may differ from one case to the next. Although a

prosecutor’s different treatment of similarly situated persons 

may not be “merely ‘haphazard,’ i.e., without any attempt 

to strive for consistency among similar cases,” id. at 140, it 

need only be “rational and consistent.” Id. at 141. Instead of 

the “coherent, systematic policy” test of Freeland, this court 

in Farrar applied a less rigorous standard that focused on 

rational, reasonable, and consistent decisions.

A second decision, State v. Buchholz, 309 Or 442, 788 

P2d 998 (1990), looks in the same direction. In that case, the 

prosecutor did not offer a plea agreement to the defendant 

but did offer a plea agreement to a codefendant. 309 Or at 

446-47. In response to the defendant’s argument that the 

district attorney’s office lacked a coherent, systematic policy 

for offering plea bargains, this court noted that ORS 135.415 

specified the criteria for offering a plea bargain and reasoned 

that those statutory criteria provided “consistent standards 

representing a coherent, systematic policy” regarding plea 

agreements. Id. at 445, 447 (citing ORS 135.415).

Similarly to Farrar, the court’s reasoning in Buchholz

is not easy to square with Freeland. The statute on which the 

court relied in Buchholz listed multiple criteria that “may 

to enter into plea negotiations. Farrar, 309 Or at 139. In concluding that those 

considerations were permissible, the court reasoned that the “district attorney’s 

actions were not based on class discrimination, animus to [the] defendant or his

attorney, or on concerns collateral to fair prosecution of [the] defendant for aggravated murder.” Id. at 140-41.
90 State v. Savastano

be take[n] into account,” permitting a prosecutor to apply

one criterion in one case and another criterion in a different case, which could lead to different results being reached

in similar cases. Beyond that, the statute did not limit the 

criteria (or “considerations,” as the statute called them) that

a prosecutor could take into account; it explicitly recognized that prosecutors could take into account additional, 

unspecified considerations in deciding whether to offer a

plea bargain. See ORS 135.415 (providing that a prosecutor

“may take into account, but is not limited to, any of the 

following [six] considerations”); cf. Schmidt v. Mt. Angel 

Abbey, 347 Or 389, 409, 223 P3d 399 (2009) (Walters, J., 

concurring) (explaining that “the phrase ‘including but not 

limited to,’ followed by a list of examples, [often] conveys an 

intent to illustrate or to broaden, rather than to limit the 

meaning of a general term”). Finally, the statute provided no 

guidance as to how a prosecutor should weigh or prioritize 

those considerations when the decision whether to offer a plea 

agreement turned on multiple conflicting considerations.

If a coherent, systematic policy that guides agency 

decision making is a constitutional requirement, the nonexclusive list of statutory considerations in ORS 135.415 did

little to advance it. Despite those problems, the court in Buchholz

cited Freeland and held that the existence of those statutory considerations, without more, represented a coherent, 

systematic policy that satisfied Article I, section 20.17 It is difficult to reconcile Buchholz with the reasoning in Freeland, 

which envisioned either prior rulemaking that standardized 

prosecutorial discretion or the ability to identify a consistent 

practice retrospectively. See Freeland, 295 Or at 378 (noting 

that either “internal rules or guidelines” or “consistency in 

practice” could satisfy Article I, section 20, requirements). In

our view, Buchholz is best understood as standing for the proposition that Article I, section 20, requires that the considerations that a prosecutor takes into account in an individual 

17 The defendant in Buchholz did not argue that the standards in ORS 135.415, 

standing alone, were not consistent standards representing a coherent, systematic 

policy, and instead challenged the application of those standards. 309 Or at 447. 

Nonetheless, the court stated that the prosecutor’s application of one of the criteria 

in the statute to the two codefendants, without further explanation regarding his 

practice in other cases, was sufficient to satisfy the requirement in Freeland of a 

“coherent, systematic policy.” Id.
Cite as 354 Or 64 (2013) 91

case have “a rational relation to the *** decision” and that

the decision in each case be “reasonable under the circumstances.” See Farrar, 309 Or at 141.

This court again rejected a claim that a prosecutor 

improperly had refused to consider a plea offer in another 

death penalty case, State v. McDonnell, 313 Or 478, 492, 837 

P2d 941 (1992). The prosecutor testified that because the 

facts of the defendant’s case fit one of the aggravated murder 

categories and were “strong,” he charged the defendant with

aggravated murder and thereafter refused to plea bargain. 

Id. at 490. He also analyzed the case in terms of the nonexclusive factors identified in ORS 135.415, which were held in 

Buchholz to meet the requirements of Article I, section 20. 

Id. at 492. The parties disputed whether the prosecutor’s 

conduct demonstrated a “systematic policy” concerning plea 

bargaining aggravated murder cases. This court concluded 

that “the decision not to plea bargain in aggravated murder 

cases was based on rational and proper grounds * * *.” 

Id. at 491. Although the court quoted the “coherent, systematic policy” language from Freeland and found that the

prosecutor’s conduct met that standard, it also quoted and

followed the arguably looser standard of Farrar and Buchholz,

which upheld decisions on plea bargains that were consistent 

with ORS 135.415 and were “reasonable” and “rational.” See 

McDonnell, 313 Or at 490-92 (citing and quoting Farrar and 

Buchholz).

E. The State’s Arguments Regarding Article I, Section 20

With that background in mind, we turn to the state’s

argument that Article I, section 20, applies only to the legislature and only to economic benefits. That argument sweeps 

too broadly. For over 100 years, this court has recognized 

that Article I, section 20, applies not only to the legislature 

but also to other branches of government. See, e.g., Clark, 

291 Or at 239 (detailing application of Article I, section 20, 

to “administration of laws under delegated authority” and 

prosecutorial discretion); White, 44 Or at 192 (“[T]he board 

of commissioners for licensing sailors’ boarding houses can

exercise no greater power than was possessed by the legislative assembly[.]”). Indeed, in State v. Stevens, 311 Or 119, 

125, 806 P2d 92 (1991), the court assumed that Article I, 
92 State v. Savastano

section 20, applies to the judicial branch, but held that no violation had been shown.

In applying Article I, section 20, moreover, this court 

has similarly recognized that “privileges, or immunities,” 

are not limited to economic benefits. See, e.g., Clark, 291 

Or at 241 (“There is no question that the opportunity of a 

preliminary hearing is a ‘privilege’ within the meaning of 

the constitutional guarantee[.]”); State v. Reynolds, 289 Or 

533, 541, 614 P2d 1158 (1980) (applying Article I, section 

20, to prosecutor’s charging decision). The state is correct 

that many early privileges or immunities cases involved 

monopolies or other economic benefits, but nothing in the 

words of the provision or the historical definitions of those 

words indicates that they do not also apply to noneconomic 

privileges or immunities conferred by the government.

We accordingly disagree with the state’s argument 

that Article I, section 20, places no limitation on the decision 

that the prosecutor made. We conclude, as the court did in 

White, that Article I, section 20, places the same limitation 

on other branches of government that it places on the legislature: An executive agency cannot use a criterion in acting 

in an individual case that the legislature cannot use in 

enacting a law. See White, 44 Or at 192. That same limitation 

applies even if no economic benefit is involved. See Clark, 

291 Or at 241.

We recognize, however, as the state argues, that 

Freeland goes beyond White and Clark and imposes the 

additional requirement of a consistently applied “coherent, 

systematic policy” to guide every instance of agency decision 

making. The parties’ competing positions require us to 

decide whether, in grounding that requirement in Article I, 

section 20, the decision in Freeland went beyond the text of 

Article I, section 20, its history, and the cases interpreting 

it.

In considering that question, we note that Freeland

stands alone. No case that preceded Freeland announced the

requirement of a “coherent, systematic policy” that Freeland

drew from Article I, section 20. Similarly, although a number
Cite as 354 Or 64 (2013) 93

of cases coming after Freeland have cited that standard, 

no case decided after Freeland has held that an executive 

agency (or the legislature or judiciary) violated the requirement that the court recognized in Freeland, and the reasoning in those cases is sometimes difficult to square with 

Freeland’s. As explained above, Farrar and Buchholz did 

not require a “coherent, systematic policy,” as Freeland did, 

for the court to conclude that an official’s decision to treat 

one person differently from another in an individual case 

was “defensible.” See Clark, 291 Or at 246. Similarly, in 

McDonnell, the court cited the “coherent, systematic policy” 

standard, but also held that the prosecutor’s refusal to plea 

bargain was consistent with Article I, section 20, because 

it was “based on rational and proper grounds” and was 

consistent with nonexclusive factors set out in statute. 313 

Or at 491-92.

Not only does Freeland appear to go further, by 

requiring a coherent and systematic policy, than the cases 

that both preceded and followed it, but the support it 

identified for the conclusion that it reached is not immune 

from question. As noted, the court recognized in Freeland

that the issue before it required “further analysis” than 

the court undertook in Clark, but it appeared to treat the 

holding that it reached as if it were a foregone conclusion 

from the decision in Clark. The holding in Clark is narrow, 

however. The court neither considered nor decided in Clark

the issue that it later resolved in Freeland, and it is difficult 

to find support in Clark’s holding for the conclusion that 

Freeland reached. Moreover, the standards that the court 

announced in Clark can (and we think should) be read consistently with this court’s earlier decisions: A prosecutor may

not use criteria in administering charging procedures that 

the legislature could not use in enacting laws. As the court 

explained in Clark, in making an individual decision, a prosecutor will comply with Article I, section 20, “as long as no 

discriminatory practice or illegitimate motive is shown and 

the use of discretion has a defensible explanation.” 291 Or 

at 246.

We acknowledge that some of the statements in 

Clark—and in Edmonson, which relied upon and paraphrased 
94 State v. Savastano

Clark—can be read more broadly, and that is how the court 

interpreted them in Freeland. However, in doing so, the 

court in Freeland read more into those statements than was 

warranted by the issue that Clark resolved, and the court’s 

reading of those statements went beyond the text, history, 

and other cases interpreting Article I, section 20. Freeland

adopted a broad prophylactic rule that might well further 

the rights protected by Article I, section 20, and protect 

against their violation. In our view, however, that rule is not 

required by Article I, section 20.

Finally, we note that, in explaining why requiring 

consistency in agency decision making was compatible with 

prosecutorial discretion, the court in Freeland discussed at 

some length administrative law decisions and quoted from an 

article reasoning that administrative law principles should

be applied to prosecutorial decision making. See Freeland, 

295 Or at 376-78. To the extent that the court viewed Article I,

section 20, as requiring the consistent, systematic policies 

characteristic of administrative regulatory schemes, we think

it went farther than the text of that provision, its history, and 

the cases interpreting it warrant. We do not disagree with 

some of the statements in Freeland (and the commentators 

and administrative law principles discussed there) about the

value of policies to guide prosecutorial discretion and limit 

the potential for discriminatory enforcement or different 

treatment of similarly situated persons. And the articles, 

studies, and guidelines cited in Freeland provide models for 

improving the prosecutorial function and the administration 

of justice that might profitably be adopted by policy or statute. For the reasons discussed, however, we conclude that 

the failure to adopt or adhere to such policies does not violate 

Article I, section 20.

We also reject the related notion in Freeland that a 

defendant can satisfy his or her initial burden in bringing 

an individual-based claim under Article I, section 20, merely

by showing that the government lacks a coherent, systematic 

policy. Without any showing by the defendant that he was

denied a privilege or immunity that was granted to a similarly situated person, the court required the state to show a 

“coherent, systematic policy” and the absence of “haphazard”
Cite as 354 Or 64 (2013) 95

administration.18 Those requirements, the court said, would

“assure[]” equal treatment and prevent inconsistent application of the policy that “might” otherwise occur. Freeland, 

295 Or at 375, 381. Freeland, in effect, relieved the defendant 

of the burden of demonstrating a prima facie violation of 

Article I, section 20, by showing that he or she was treated 

differently than a similarly situation person, and instead 

required the state to prove that it had adopted and uniformly 

applied policies that would prevent such violations. Cf. Wayne

R. LaFave et al., 4 Criminal Procedure § 13.4(b), 172 (3d ed 

2007) (defendant bears burden of demonstrating selective or

discriminatory enforcement); see also Freeland, 295 Or at 

397 (Jones, J., dissenting) (defendant bears burden of making 

prima facie showing of differential treatment). Freeland did 

not identify any constitutional or statutory basis for imposing 

that obligation on the state—in the absence of any showing 

by the defendant of discrimination or the use of improper 

criteria—and we are aware of none.

This court explained in Stranahan v. Fred Meyer, 

Inc., 331 Or 38, 53, 11 P3d 228 (2000), that

“[t]he question [whether to overrule a prior constitutional 

decision] is one of stare decisis, a doctrine that attempts 

to balance two competing considerations. On one hand is 

the undeniable importance of stability in legal rules and 

decisions. That consideration applies with particular force 

in the arena of constitutional rights and responsibilities, 

because the Oregon Constitution is the fundamental document of this state and, as such, should be stable and reliable. 

On the other hand, the law has a similarly important need 

to be able to correct past errors. This court is the body with 

the ultimate responsibility for construing our constitution, 

and, if we err, no other reviewing body can remedy that 

error. See Hungerford v. Portland Sanitarium, 235 Or 412, 

415, 384 P2d 1009 (1963) (‘[t]he pull of stare decisis is 

strong, but it is not inexorable’).”

We do not lightly decide to overrule an earlier constitutional 

decision. See Farmers Ins. Co. v. Mowry, 350 Or 686, 693-94,

261 P3d 1 (2011) (reviewing the considerations that will 

18 The dissent in Freeland also made this point, noting that it had found no 

other judicial decision that placed the burden on prosecutors to make such a showing. 295 Or at 394-95 (Jones, J., dissenting).
96 State v. Savastano

warrant overruling an earlier constitutional precedent). In 

our view, however, application of the court’s methodology in 

Priest for interpreting constitutional provisions persuades 

us that Freeland went beyond the cases that preceded it, 

and Freeland’s holding finds little support in the text or 

history of Article I, section 20. Moreover, the cases that 

have followed Freeland have eroded its precedential value 

and effectively returned to the more limited and historically 

grounded principle stated in Clark.

In these circumstances, we conclude that it is appropriate to overrule the decision in Freeland and reaffirm the 

decision in Clark. To bring an individual-based claim under 

Article I, section 20, a defendant must initially show that the 

government “in fact denied defendant individually * * * [an] 

equal privilege ** * with other citizens of the state similarly 

situated.” Clark, 291 Or at 243. An agency or official’s decision 

will comply with Article I, section 20, “as long as no discriminatory practice or illegitimate motive is shown and the

use of discretion has a defensible explanation” in the individual case. Id. at 246. An executive official’s decision will 

be “defensible” when there is a rational explanation for 

the differential treatment that is reasonably related to the 

official’s task or to the person’s individual situation. See id. 

at 239, 246.

To summarize, the Priest analysis—and particularly this court’s long history of cases interpreting Article I,

section 20—confirms the conclusion that that provision applies

to government actions generally, including prosecutors making charging decisions. Article I, section 20, does not require 

consistent adherence to a set of standards or a coherent, systematic policy, as defendant contends; that provision does, 

however, require government to treat similarly situated 

people the same. A government decision-maker will be in 

compliance with Article I, section 20, as long as there is a 

rational explanation for the differential treatment that is 

reasonably related to his or her official task or to the person’s 

individual situation.

IV. APPLICATION OF ARTICLE I, SECTION 20

We return to the facts of this case, viewed in light of 

this court’s interpretation of Article I, section 20, in Clark.
Cite as 354 Or 64 (2013) 97

The prosecutor aggregated the theft transactions into 16

counts of theft, organizing the charges by month to provide

clarity for the jury. Defendant does not challenge the prosecutor’s aggregation of the theft transactions on grounds that 

the prosecutor engaged in a discriminatory practice or based 

his decision on impermissible criteria, such as race or gender. 

Nor does defendant challenge the prosecutor’s decision 

because the prosecutor in fact treated defendant differently 

from a similarly situated individual or inconsistently applied 

a policy to defendant. Instead, defendant asserts that the 

prosecutor acted arbitrarily when he aggregated the theft 

transactions by month, because there was no policy for aggregating theft transactions.

When a defendant does not demonstrate differential 

treatment, but, as here, claims only that the prosecutor acted 

arbitrarily in a manner that denied the defendant a privilege 

or immunity, the prosecutor violates the defendant’s Article I,

section 20, rights if the prosecutor lacks a rational basis for 

his or her decision. On this record, defendant’s assertion that 

the prosecutor’s decision was arbitrary because it was not 

based on a coherent, systematic policy for aggregating theft 

transactions fails under Clark and the cases that preceded 

it. Like the prosecutor’s decision to grant immunity to one 

potential codefendant but not to another in Clark, and the 

similar decisions in Farrar, Buchholz, and McDonnell, the 

prosecutor here did have a rational basis for his decision. As

the prosecutor explained, he aggregated the theft transactions by month for purposes of jury understanding of the 

case. That was a reasonable and permissible basis for his 

action and, in this case, satisfies the requirements of Article I,

section 20.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is affirmed.