The Oregon Department of Justice decided today to appeal a ruling handed down yesterday by a panel of three Clackamas County Circuit Court judges, invalidating a law intended to reduce jail sentences.

"We will appeal the panel's decision," says Michael Kron, special counsel to Attorney General Ellen Rosenblum. (Disclosure: Rosenblum is married to the co-owner of WW's parent company.)

The judge's ruling, as WW reported yesterday, found that House Bill 3078, which lawmakers passed in 2017, is unconstitutional.

The judges said that bill, now law, which reduced the sentences for certain property crimes, failed to meet the constitutional requirement that when the Legislature wants to change sentences approved by voters, they must do so by a two-thirds vote of each chamber.

Late last year, Clackamas County District Attorney John Foote, acting in a private capacity as a citizen and two other plaintiffs, Mary Elledge and Deborah Mapes-Stice, sued the state in Clackamas County Court, arguing that House Bill 3078 was illegally providing shorter sentences than voters approved under Measure 57, which passed in 2009.

Although the case nominally pitted three private citizens against the state, it was a proxy for a larger disagreement between prosecutors, who believe Measure 57 is the law, and legislators and anti-incarceration advocates, who supported the reduced sentences outlined in House Bill 3078.

Prior to trial, the Department of Justice told the plaintiffs in an email that it if a criminal defendant sentenced under Measure 57 were to appeal and argue he or she deserved the lighter sentence spelled out by House Bill 3078, the DOJ would not fight the appeal.

"The Department has concluded HB 3078 is constitutional. Thus I do not anticipate we would authorize a state's appeal to argue the statute is unconstitutional," a DOJ lawyer wrote. "I also anticipate [the law] would preclude the District Attorney's office from seeking to represent the state in a criminal case on appeal."

All that meant there was a deep split between prosecutors, who represent the state in criminal prosecutions and the DOJ, which represents the state in criminal appeals.

Now, that disagreement will head to a higher court.

Kron says that whatever the outcome of the appeals process is, the DOJ will honor that ruling. That means if appellate courts find HB 3078 is unconstitutional—which is a question of civil law—the DOJ will uphold that position in criminal court and will argue that Measure 57 sentences should apply to the relevant property crimes.

"There should be a consistent rule of law," Kron says.

Foote applauded the DOJ's position.

"This is new information from the Attorney General's office which we are pleased to receive," Foote says. "If this is the way they have decided to proceed, we think it is the right way to move forward."

Until the state's appeal is decided, however, a conflict remains. Offenders sentenced under Measure 57 can argue that the appropriate sentences are those shorter sentence spelled out in House Bill 3078. Kron says the DOJ is still considering what it will do if those convicted under Measure 57 appeal.

"We don't know yet how we will handle that," he says.