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Snider v. Production Chemical Manufacturing, Inc.

S056494

oregon

Oregon Supreme Court

FILED: April 29, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON GARLAND SNIDER, Respondent on Review, v. PRODUCTION CHEMICAL MANUFACTURING, INC., a California corporation, Petitioner on Review. (CC 0502-01434; CA A131621; SC S056494) En Banc On review from the Court of Appeals.* Argued and submitted May 18, 2009. Timothy R. Volpert, Davis Wright Tremaine LLP, Portland, argued the cause and filed the brief for petitioner on review.  With him on the brief was Marlin Ard, Sisters. Richard A. Carlson, Drakulich & Carlson PC, Lake Oswego, argued the cause and filed the brief for respondent on review. Scott A. Shorr, Stoll Stoll Berne Lokting & Shlachter PC, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. KISTLER, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Multnomah County Circuit Court, Robert S. Gardner, Judge. 221 Or App 593, 191 P3d 691 (2008). KISTLER, J. ORS 36.730 provides that an appeal "may be taken" from an interlocutory order denying a petition to compel arbitration.  In this case, defendant did not take an appeal pursuant to that statute.  Instead, defendant appealed from the general judgment and, as part of that appeal, assigned error to the trial court's order denying its petition to compel arbitration.  The Court of Appeals held that it did not have jurisdiction to consider defendant's assignment of error.  Snider v. Production Chemical Manufacturing, Inc., 221 Or App 593, 600, 191 P3d 691 (2008).   We allowed defendant's petition for review to consider the effect of not taking an interlocutory appeal pursuant to ORS 36.730(1) and now affirm the Court of Appeals decision. Plaintiff worked for defendant as its national sales manager.  The parties entered into a four-year employment agreement in 1999, which they renewed in 2003.  Section 9.02 of that agreement provided: "Any controversy between [defendant] and [plaintiff] involving the construction or application of any of the terms, provisions, or conditions of this agreement shall on the written request of either party served on the other be submitted to arbitration.  Arbitration shall comply with and be governed by the provisions of the California Arbitration Act." On January 30, 2005, defendant terminated plaintiff's employment.  Approximately one week later, plaintiff filed a breach of contract action against defendant in Multnomah County Circuit Court.  Over the next seven months, defendant challenged plaintiff's complaint, plaintiff filed amended complaints, defendant answered and filed affirmative defenses, and the parties engaged in discovery. Trial was scheduled for October 6, 2005.  On September 30, defendant moved to postpone the trial.  The trial court granted the motion on October 3 and rescheduled the trial for mid-November.  On October 7, defendant asked plaintiff to submit their dispute to arbitration.  Plaintiff refused and, on October 12, defendant filed a petition to compel arbitration.  Defendant's petition came approximately eight months after plaintiff had filed his complaint and approximately five weeks before the rescheduled trial date.  At no point before October 7 had defendant invoked its right to arbitration under the employment agreement. The trial court denied defendant's petition, reasoning that defendant had unduly delayed in seeking arbitration and thus waived its right to arbitrate the parties' dispute.  The court entered an order denying the petition on December 23, 2005, and the case proceeded to trial on January 17, 2006.  The jury returned a verdict for plaintiff.  The trial court entered a general judgment in plaintiff's favor on February 13, 2006.  Defendant filed a timely notice of appeal from the general judgment and, in its opening brief on appeal, assigned error to the trial court's order denying its petition to compel arbitration.  Plaintiff responded that defendant had to file an interlocutory appeal pursuant to ORS 36.730 if it wanted to challenge that order.  Plaintiff argued alternatively that defendant's delay in requesting arbitration waived whatever right it had to arbitrate their dispute. In resolving defendant's assignment of error, the Court of Appeals ruled initially that ORS 36.730 applied to the parties' arbitration agreement.  Snider, 221 Or App at 598.(2) The court then ruled that an interlocutory appeal pursuant to ORS 36.730 provided the exclusive means for appealing from a trial court order denying a petition to compel arbitration.  Id. at 600.  It followed, the court concluded, that it lacked jurisdiction to consider defendant's assignment of error.  Id.  On review, defendant challenges both rulings.  We begin with defendant's argument that ORS 36.730 does not apply to this litigation before turning to the question whether an interlocutory appeal pursuant to that statute provided the exclusive means for appealing from an order denying a petition to compel arbitration. In 2003, the Oregon legislature adopted the Revised Uniform Arbitration Act.  Or Laws 2003, ch 598.  Much of that act provides procedures for initiating and conducting arbitration proceedings.  See Or Laws 2003, ch 598, §§ 9, 11, 15 (providing procedures for initiating arbitration, appointing arbitrators, and conducting the hearing).  Section 28 of that act, now codified as ORS 36.730, provides that a party may appeal from an interlocutory order denying a petition to compel arbitration and an interlocutory order staying arbitration.  Or Laws 2003, ch 598, § 28.  Sections 3 and 31 of that act specify the agreements to which sections 1 to 30 of the act apply.  Or Laws 2003, ch 598, §§ 3, 31. Defendant argues that sections 3 and 31 of the 2003 arbitration act establish that that act (more specifically, section 28 of that act) does not apply to this litigation.  Defendant reasons that, because section 28 of that act (codified as ORS 36.730) does not apply to this litigation, it could not have taken an interlocutory appeal from the trial court's order denying its motion to compel arbitration.(3)  It follows, defendant contends, that we need not decide whether, if ORS 36.730 applied, that statute would have provided the exclusive means for appealing from the trial court's order.  In analyzing defendant's argument, we begin with section 3 and then turn to section 31. Section 3 of the 2003 arbitration act specifies which arbitration agreements are subject to the act.  It provides: "(1) Sections 1 to 30 of this 2003 Act govern an agreement to arbitrate made on or after the effective date of this 2003 Act [January 1, 2004]. "(2) Sections 1 to 30 of this 2003 Act govern an agreement to arbitrate made before the effective date of this 2003 Act if all the parties to the agreement or to the arbitration proceeding so agree in a record. "(3) On or after September 1, 2004, sections 1 to 30 of this 2003 Act govern an agreement to arbitrate whenever made." Or Laws 2003, ch 598, § 3.  Section 3 divides arbitration agreements into two categories.  The first category consists of arbitration agreements made after the effective date of the act, January 1, 2004.  The 2003 arbitration act governs all those agreements.  Or Laws 2003, ch 598, § 3(1).  The second category consists of arbitration agreements made before the effective date of the 2003 arbitration act and divides into two subcategories.  Between January 1 and August 31, 2004, the 2003 arbitration act will not govern arbitration agreements made before the act's effective date, unless the parties agree that the act applies.  Or Laws 2003, ch 598, § 3(2).   Beginning on September 1, 2004, the 2003 arbitration act will govern all arbitration agreements, including those made before the act's effective date.  Or Laws 2003, ch 598, § 3(3). In this case, the parties renewed their employment agreement, which included an agreement to arbitrate, before January 1, 2004.  Section 3(1) accordingly does not apply; either section 3(2) or section 3(3) does.  Defendant did not discharge plaintiff until 2005.  Because the opportunity to arbitrate any dispute arising out of plaintiff's discharge did not arise until after September 1, 2004, section 3(3) of the 2003 arbitration act applies and provides that sections 1 to 30 of the act, including the section now codified as ORS 36.730, apply.  The remaining question is whether the savings clause in section 31 of the act leads to a different conclusion.  Section 31 provides: "Sections 1 to 30 of this 2003 Act do not affect an action or proceeding commenced or right accrued before the effective date of this 2003 Act.  Subject to section 3 of this 2003 Act, an arbitration agreement made before the effective date of this 2003 Act, continues to be governed by [former] ORS 36.300 to 36.365 [(2001)] as though those sections were not repealed by section 5[7] of this 2003 Act." Defendant raises two arguments under that section.  Defendant argues initially that, under the second sentence of section 31, the former arbitration statutes (former ORS 36.300 to 36.365 (2001)) apply to its dispute with plaintiff.  The second sentence, however, begins with the phrase, "[s]ubject to section 3."  That introductory phrase makes clear that the former arbitration statutes will govern agreements to arbitrate made before January 1, 2004, but will do so only until August 31, 2004, and only if the parties do not agree that the 2003 arbitration act applies.  See Or Laws 2003, ch 598, § 3(2) (so providing).  Beginning on September 1, 2004, the 2003 arbitration act governs all agreements to arbitrate without regard to when they were made.  See Or Laws 2003, ch 598, § 3(3). Defendant also relies on the first sentence of section 31, which provides that sections 1 to 30 of the 2003 arbitration act "do not affect an action or proceeding commenced or right accrued before [January 1, 2004]."  In this case, no action or proceeding was commenced before January 1, 2004; so, that part of the first sentence does not advance defendant's position.  Additionally, defendant has identified no right that accrued to it before January 1, 2004.  Defendant did not file a petition to compel arbitration until October 2005, and the trial court did not deny defendant's petition until December 2005.  Defendant's right to appeal did not arise (or "accrue" in statutory terms) until long after the effective date of the 2003 arbitration act. Defendant argues, however, that some of plaintiff's rights accrued before January 1, 2004, and that, as a result, the former arbitration statutes apply.  Plaintiff has not invoked the savings clause of the 2003 arbitration act, and we fail to see how defendant can invoke the savings clause to protect plaintiff's accrued rights when plaintiff declines to do so.  We accordingly conclude that, under sections 3 and 31 of the 2003 arbitration act, section 28 of that act (now codified as ORS 36.730) applied and authorized defendant to take an interlocutory appeal from the trial court's order. Having concluded that ORS 36.730 authorized defendant to take an interlocutory appeal, we turn to the question whether that statute provides the exclusive means for appealing from an order denying a petition to compel arbitration.  In answering that question, we think it is helpful initially to put ORS 36.730 in its historical context.  Before 2003, the Oregon statutes did not authorize a party to take an interlocutory appeal as a matter of right from an order denying a petition to compel arbitration.  See Bush v. Paragon Property, Inc., 165 Or App 700, 702, 997 P2d 882 (2000) (so concluding).  Appellate review of an order denying a petition to compel arbitration was available as a matter of right only on appeal from the general judgment at the end of the trial.  See Industra/Matrix Joint Venture v. Pope & Talbot, 341 Or 321, 327-28, 142 P3d 1044 (2006) (reviewing trial court's order denying a petition to compel arbitration on appeal from the general judgment).(4) Specifically, before 2003, a timely appeal from a final judgment gave an appellate court jurisdiction of the cause.  ORS 19.205(1) (2001) (authorizing an appeal from a judgment); ORS 19.270(1) (providing that an appellate court will have jurisdiction of the cause when a timely notice of appeal is filed and served properly).  Having acquired jurisdiction, an appellate court could "review any intermediate order involving the merits or necessarily affecting the judgment * * * appealed from."  ORS 19.425 (2001).  Although the issue was not litigated in Industra/Matrix Joint Venture, that was presumably the basis on which the Court of Appeals and this court reviewed the trial court's order denying the plaintiff's petition to compel arbitration in that case; that is, the Court of Appeals and this court had authority to review the order in Industra/Matrix Joint Venture because it was "an intermediate order * * * [that] necessarily affect[ed] the judgment appealed from."  See ORS 19.425 (authorizing review of intermediate orders). In 2003, the Oregon legislature provided for the first time that "[a]n appeal may be taken from [a]n order denying a petition to compel arbitration."  Or Laws 2003, ch 598, § 28.  The legislature, however, did not specify what consequences would follow from declining to take an interlocutory appeal.  Specifically, the legislature did not expressly state whether the failure to take an interlocutory appeal pursuant to ORS 36.730 would preclude a party from later appealing from the general judgment and assigning error, as part of that appeal, to the trial court's order. In addressing that issue, defendant argues that the legislature's use of the word "may" implies permission to take an appeal and that, without some clear evidence of a contrary legislative intent, we should not assume that the legislature intended to require parties to pursue what is phrased only as a permissive appeal.  Plaintiff, for his part, responds that an order denying a petition to compel arbitration must be appealed within 30 days and that, after the passage of ORS 36.730, an order denying a petition to compel arbitration is not an "intermediate order" within the meaning of ORS 19.425.  Implicit in plaintiff's argument is the proposition that there would have been little reason for the legislature to permit an interlocutory appeal as a matter of right if it did not intend to require that the question of arbitrability be finally resolved before the parties went to the expense and effort of a trial. It is true, as defendant argues, that the phrase "may be taken" is permissive, but the legislature could have used that phrase in one of two ways.  On the one hand, the legislature could have used "may," as defendant argues, to signal its intent to permit an interlocutory appeal without foreclosing a party's right to raise the issue on a later appeal from a general judgment.  See Salsitz v. Kreiss, 198 Ill 2d 1, 761 NE2d 724 (2001) (interpreting "may" that way).  On the other hand, the legislature could have used "may" merely to signal that it did not intend to require an appeal from an order denying a petition to compel arbitration; that is, a party may but need not appeal from such an order.  See ORS 19.205(1) (a "general judgment * * * may be appealed as provided in this chapter").  Put differently, providing that an interlocutory appeal "may be taken" does not reveal the consequences of failing to do so. The Court of Appeals found more guidance in the text of ORS 36.730(2).  Snider, 221 Or App at 600. That subsection provides that "[a]n appeal under this section must be taken as provided in ORS chapter 19."  That means, among other things, that a notice of appeal pursuant to ORS 36.730 must be filed within 30 days of the date that an order denying a petition to compel arbitration is entered in the register.  See ORS 19.255(1) (stating the time for filing a notice of appeal).  ORS 36.730(2) makes clear that the time to take an interlocutory appeal pursuant to ORS 36.730 is limited.  Defendant's position is at odds with that time limitation.  If a party were free to wait until the entry of the general judgment to challenge an order denying a petition to compel arbitration, as defendant argues, it would undercut the legislature's directive that an appeal from that order must be taken within 30 days. Another aspect of the text points in the same direction.  ORS 36.730 authorizes an appeal from two interlocutory orders:  an order denying a petition to compel arbitration and an order granting a petition to stay arbitration.  It does not authorize an appeal from an interlocutory order granting a petition to compel arbitration or an interlocutory order staying a trial pending arbitration.  Textually, ORS 36.730 is a one-way street.  It authorizes an interlocutory appeal if a trial court rejects arbitration in favor of trial, but it does not authorize an interlocutory appeal if a trial court sends the case to arbitration instead of trial.  We infer from that choice that the legislature wanted to have the issue of arbitrability be decided quickly and finally before the parties went to the expense and effort of trying their case in court.  There would be little point in waiting until the trial was over before finding out that the case should have been arbitrated rather than tried. Defendant does not identify any context that supports its position, other than the general right to appeal from the judgment, which we have already considered, and there is no legislative history that bears on this issue.  See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) ("Legislative history may be used to confirm seemingly plain meaning and even to illuminate it * * *.").  As noted, the 2003 legislature enacted what is now codified as ORS 36.730 as part of a larger bill adopting the Revised Uniform Arbitration Act.  See Or Laws 2003, ch 598, § 28.  The Oregon State Bar sponsored that bill.  See Testimony, House Judiciary Committee, HB 2279, Jan 30, 2003, Ex B (statement of James Damis).  In discussing the need for the bill, a representative from the Bar explained that the bill, modeled on the Revised Uniform Arbitration Act, was necessary to modernize Oregon's arbitration procedures.(5)  Id. In discussing the bill, no one mentioned that, in adopting the Revised Uniform Arbitration Act, the legislature would authorize an interlocutory appeal as a matter of right, nor was there any discussion of what the consequences would be if a party failed to take an interlocutory appeal pursuant to the bill.  Not only was there no discussion of that issue in the legislative history, but there is no commentary to that section of the Revised Uniform Arbitration Act that might shed light on what the legislature intended.  Cf. Datt v. Hill, 347 Or 672, 682, 227 P3d 714 (2010) (looking to the commentary to another uniform act that Oregon had adopted to determine the Oregon legislature's intent). Considering the text and context of ORS 36.730, we hold that the legislature intended that ORS 36.730 would provide the exclusive means for appealing from an order denying a petition to compel arbitration.  The Court of Appeals reached the same conclusion but reasoned that, as a result of ORS 36.730, it lacked jurisdiction to consider defendant's assignment of error.  Snider, 221 Or App at 600.  In our view, defendant's failure to take an interlocutory appeal did not deprive the Court of Appeals of jurisdiction to consider defendant's assignment of error.  Rather, defendant's timely appeal from the general judgment gave the Court of Appeals jurisdiction "of the cause," which included all requests for relief incorporated in the general judgment.  See ORS 19.270 (defining appellate jurisdiction); ORS 18.005(7) (defining general judgment).  Under ORS 36.730, defendant's failure to take an interlocutory appeal from the trial court's order meant that the order was not reviewable on appeal.  In effect, ORS 36.730 reflects the legislature's intent to remove orders denying petitions to compel arbitration from the category of intermediate orders that otherwise would be reviewable on appeal from the general judgment. Although we view the effect of ORS 36.730 differently from the Court of Appeals, we agree that defendant's challenge to the trial court's order was not properly before that court on appeal from the general judgment.  Accordingly, we do not reach the question whether the trial court correctly held that defendant's delay in invoking the arbitration provisions in its agreement waived its right to arbitrate. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. In its petition for review, defendant asked us to consider other issues that the Court of Appeals decided.  We decline that request and limit review to the issue stated above and to a related issue that defendant raises. 2. ORS 36.730 provides, in part: "(1) An appeal may be taken from: "(a) An order denying a petition to compel arbitration. "(b) An order granting a petition to stay arbitration. "* * * * * "(2) An appeal under this section must be taken as provided in ORS chapter 19." 3. The parties' agreement provides that "[a]rbitration shall comply with and be governed by the provisions of the California Arbitration Act."  It may be that, under the parties' choice-of-law provision, the California Arbitration Act, not Oregon's 2003 arbitration act, would govern the procedures by which any arbitration between them would be conducted.  It does not follow, however, that California law also governs the procedures for taking an appeal from an Oregon circuit court's ruling, nor have the parties argued that it would.  See Equitable Life Assurance v. McKay, 306 Or 493, 760 P2d 871 (1988) (recognizing that, even when foreign law applies, the law of the forum will govern judicial procedures).  Rather, both parties' arguments on this point start from the proposition that Oregon law applies. 4. When the plaintiff filed the action in Industra/Matrix Joint Venture, the 2001 version of the Oregon Arbitration Act was in effect and continued to apply to that action because of the savings provision in section 31 of the 2003 arbitration act.  See 341 Or at 326 n 2 (so stating). 5. The Oregon legislature had adopted the previous arbitration provisions in 1925.  Peter Kiewit v. Port of Portland, 291 Or 49, 54, 628 P2d 720 (1981).  It did not adopt the Uniform Arbitration Act, which the Commissioners on Uniform State Laws had promulgated in 1955.   Id. at 56.

a65a3567d227e04d0e278b26e6603728bbea23b2508cae6947958a35d410abba

2010-04-29T00:00:00Z

efec08e8-5b8a-43b6-b2ae-799ce0255b29

Parmele v. Mathews

233 Or. 616, 379 P.2d 868

oregon

Oregon Supreme Court

Reargued January 8, 1963. Reversed and remanded March 20, 1963. *617 Thomas E. Brownhill, Eugene, argued the cause for appellant. On the brief were Riddlesbarger, Pederson, Brownhill & Ingerson, Eugene. W.P. Mumford, Eugene, argued the cause for respondent. On the brief were Thompson, Mumford & Woodrich, Eugene. *618 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices. REVERSED AND REMANDED. GOODWIN, J. This is a child-custody contest that was tried as a guardianship matter. The appeal is from an order denying a petition to revoke letters of guardianship. Ethel Jean Parmele is the natural mother of two teen-age boys. Their father is dead. The parents had been divorced. Each had had a turn at custody. The father had custody at the time of his death. Mabel C. Mathews became acquainted with the boys during the lifetime of their father. Immediately upon the death of the father Mrs. Mathews assumed de facto custody of the two boys. She then filed a petition in the circuit court praying the appointment of herself as guardian of the persons and estates of the children. Both children joined in the petition of Mrs. Mathews. The petition was granted ex parte. No notice of this proceeding was given the natural mother. None was then required by ORS 126.135, as the children were over fourteen years of age and had consented to the guardianship. (ORS 126.135 was repealed January 1, 1962.) Four days after Mrs. Mathews was thus appointed, Mrs. Parmele filed her petition, which was accompanied by a show-cause order seeking the removal of Mrs. Mathews as guardian. Mrs. Parmele thought it necessary to seek the substitution of herself in that office, and accordingly prayed for her own appointment. Throughout this litigation, Mrs. Parmele has contested only the guardianship of the persons, and *619 has disclaimed any interest in the estates of the children. On the issues framed by the order to show cause, the contest was between a fit parent and a fit stranger. The trial court decided that the best interests of the children would be served by permitting the surrogate mother to continue as their guardian. The appeal presents these questions: Was the probate court, under the facts of this case, the proper forum in which to try the child-custody contest? If not, may the parties, by waiving the irregularity, invoke the power of the circuit court in another of its capacities, i.e., its general equity jurisdiction, to grant relief in this case? Finally, if the court had jurisdiction to act, and if the jurisdiction was properly invoked, did the court err when it denied the custody of the children to a fit parent and awarded custody to the guardian? The parties themselves have not questioned the jurisdiction of the probate court to act as it did. Indeed, a recent reargument in banc was essentially a joint request for a decision upon the merits under a stipulation waiving all procedural irregularities. Unfortunately for the expeditious termination of this affair, however, we are not at liberty to arrive at what may be a desirable result simply because the parties want us to do so. 1, 2. Jurisdiction to appoint guardians was vested in certain courts by ORS 126.105. The Lane County circuit court is such a court. ORS 3.130. The measure of the court's authority in the administration of statutory remedies is to be found in the statute creating the procedure. Belmont v. Black et al, 218 Or 514, 520, 346 P2d 367 (1959). To invoke the jurisdiction of the *620 court it is necessary to file a petition which will set forth the facts upon which the court can act. Dean et al v. First Nat'l Bank et al, 217 Or 340, 349, 341 P2d 512 (1959). Such averments may be statutory prerequisites to the exercise of jurisdiction, or they may be required by common-law rules. Thus, in Wright and Jones v. Edwards, 10 Or 298 (1882), it was held that a petition which failed to allege material facts essential to invoke the exercise of jurisdiction deprived the court of authority to act. See also Mumper v. Matthes, 186 Or 357, 377, 206 P2d 82 (1949); State et al v. Young, 180 Or 187, 193, 174 P2d 189 (1947). 3. In the case at bar, the jurisdictional facts which must exist before the court may exercise its power to appoint a personal guardian were: (1) that the proposed ward is a minor; (2) that he is a resident of the county; (3) that the proposed guardian is qualified; and (4) that the proposed ward needs the care of a guardian. ORS 126.120 (repealed Jan. 1, 1962). These elements must be alleged before any hearing can be held. Further, if any such element is not established, the court may not grant letters of guardianship. Guardianship of Kentera, 41 Cal2d 639, 262 P2d 317 (1953); and see Estate of Ott, 228 Wis 462, 466, 279 NW 618, 619 (1938). 4. Mrs. Mathews' petition did not allege a need for a guardianship of the persons. While the petition was thus defective as a petition for the appointment of a guardian for the persons of the two children, it did state grounds for the appointment of a guardian of their respective estates. Inasmuch as the guardian was appointed ex parte, the defect in the petition was never called to the court's attention. When the letters of guardianship were issued, therefore, the situation was analogous to a default judgment granting the *621 prayer of a complaint which had contained both a good cause of action and a defective one. In such cases, if the court has jurisdiction of the general class of litigation it has the power to enter the judgment. In the absence of a direct attack, such a judgment is no doubt final. See Altman v. School District, 35 Or 85, 56 P 291, 76 Am St Rep 468 (1899). The court below obviously had jurisdiction to hear and decide guardianship matters. The guardianship of the estates was properly before the court. The petition to appoint a guardian of the persons was also before the court, improperly so because it was defective, but it was, nonetheless, pending in a court of competent jurisdiction. The appointment of the personal guardian, however, was subject to direct attack upon the motion of the natural mother. The petition for the removal of the guardian of the persons was such a direct attack. The fact that the natural mother's petition also contained a totally unnecessary prayer that she be appointed as substitute guardian does not vitiate her petition insofar as it asked the removal of the previously appointed guardian. 5. Nothing in the guardianship code authorizes, much less makes necessary, the appointment of a personal guardian when a living parent is fit, ready, willing, and able to take the custody of his child. A fit parent needs no court to authorize him to rear his own children. See Volz et ux v. Abelsen, 190 Or 319, 327, 224 P2d 213, 225 P2d 768 (1950); Ellenburg v. Woodson, 131 Or 440, 283 P 27 (1929); Bryant v. Dukehart, 106 Or 359, 369-370, 210 P 454 (1922). (Statutes declaratory of the common law also could have been cited in Ellenburg v. Woodson and in Bryant v. Dukehart. See § 11-1305, Oregon Code 1930, and § 1314, Oregon Laws (Olson) 1920.) *622 The appearance in court of the natural mother (against whom there had been no allegation of disability or unfitness) was analogous to a situation in which a person assumed to be dead appears in court and thereby puts an end to the probate of his estate. In such a case, since there is no factual basis for the probate proceedings, orders previously entered by mistake are null and void. They should be vacated whenever the true facts appear. Estate of Ott, 228 Wis 462, supra; Melia v. Simmons and another, 45 Wis 334 (1878). In the case at bar, the court was originally called upon to act as a court administering the guardianship laws under the guardianship code. When it appeared to the court, as a matter of law, that the need for guardianship of the persons of the two children did not exist, because of the availability of a fit parent, the court should have vacated the order appointing Mrs. Mathews as guardian and dismissed the guardianship proceedings insofar as personal guardianship was concerned. Had it done so, most of the confusion which has followed would have been avoided. If it later became necessary to obtain a decision concerning the best interests of the children as that issue might bear upon the ultimate right of rival parties to physical custody, other procedures would be open to them at such time as jurisdictional facts would be alleged and proven in an appropriate case, and upon proper pleadings. See, e.g., Ettin v. Robinson et ux, 221 Or 193, 349 P2d 1097 (1960) (habeas corpus), and ORS 419.476, which provides for children found in circumstances which bring them within the jurisdiction of the juvenile court. The issues actually tried in the case at bar were not, however, issues that can be tried in guardianship proceedings. *623 The guardianship court was not the proper forum in which to try the equitable issue concerning the best interests of the two children, because that issue was not before the court so long as the court was considering the natural mother's petition to set aside the ex parte letters of guardianship. Upon the pleadings before it, the guardianship court had jurisdiction either to continue or to revoke the appointment of Mrs. Mathews. The court exercised its jurisdiction erroneously. The court had, obviously, jurisdiction to err, but having erred (in not granting the mother's request to vacate its former order), the court did not by its own error acquire jurisdiction to consider other matters which it might have considered as a circuit court if the mother had petitioned for a writ of habeas corpus challenging the custody in a stranger. There is language in such cases as In re Going's Estate, 183 Or 346, 353, 193 P2d 529 (1948), and In re Pittock's Estate, 102 Or 47, 201 P 428 (1921), to the effect that a circuit court can proceed to decide legal and equitable questions which arise in connection with pending probate matters. These cases do not, however, authorize a court, merely because as a circuit court it could have jurisdiction of a particular subject, to assume jurisdiction of, and then proceed to decide, cases that are not properly before it. As noted, the relative fitness of the two rivals was not before the court, because the first guardian's only standing to dispute the natural mother's right to custody would have evaporated as a matter of law if the trial court had ruled correctly upon the natural mother's petition to revoke the letters of guardianship. Had the court ruled correctly, the condition of these proceedings would have been as follows: The natural mother would have been entitled to a court order vacating *624 the personal guardianship. The custody of the children, presumptively, would not then have required further litigation. As noted, a natural parent ordinarily does not need a court order before he can assert his parental right to custody. In fairness to the learned trial court, it should be noted that the presumptive right of the natural mother to the immediate control of her children in the case at bar may indeed have been presumptive only. It is to be remembered that this unhappy case had its foundation in an antecedent divorce. It is suggested in the record that the children would have defied their mother. They said they preferred to remain in the de facto custody of their erstwhile guardian. Such a factual situation, if it should arise and were pleaded, might be cause for the issuance of a writ of habeas corpus. There was no need for an anticipatory writ, however. 6. The fact that the parties and the court below apparently treated this litigation as a continuation of the original divorce case between the natural parents of the children, as is shown by the authorities cited in the briefs, does not justify our approval of such an over-simplification. The instant case is not a continuation of the divorce case. It is a contest between a natural parent and a third party who is, in the eyes of the law, a stranger to the children. Under such circumstances, a body of substantive law quite different from that of divorce-custody litigation is called upon during the decision-making process. Opinions written in divorce suits, where the only issue before the court was the welfare of children, are not necessarily relevant authority in a custody contest between a parent and a third party. The best interest of the child may indeed be a relevant factor in the ultimate *625 decision, but this factor must be considered in a very different light when only one of the litigants comes into court with the natural rights of parenthood on his side of the case. See, for a discussion of the best-interest rationale in a slightly different context, Simons et ux v. Smith, 229 Or 277, 280-281, 366 P2d 875 (1961). The case at bar illustrates the substantive errors into which counsel (and the trial court) may be led when proper attention is not given to procedural matters. In the case at bar, the court was led to decide issues that lay beyond the jurisdiction the court was originally called upon to exercise. 7. Part of the confusion surrounding the subject of jurisdiction in these cases is the result of the failure of litigants to recognize the dual operation of the principle of coram non judice. A judgment rendered in a court of competent jurisdiction upon a case which is not properly before the court is just as void as a judgment rendered upon a case before a court which has no jurisdiction to enter it. See Spoors v. Coen, 44 Ohio St 497, 9 NE 132 (1886). 8. We are asked to take advantage of general principles of equity in order to come to a decision on the merits in this case. To do so we must decide a question that was never properly before the trial court. Attractive as the procedural shortcut might appear to be, a decision on the ultimate merits between the two contesting women would accomplish nothing in this case except to make bad law. If we were to affirm an admittedly irregular decree of the trial court because it reached what may be a desirable result, we would be compounding the confusion that already exists in the statutory and case law concerning parent and child. If we were to reverse the case on the merits, we would *626 likewise be approving loose procedure. Further, the record suggests no guarantee that there would be realistic relief for the mother in any event. Some future court may tell the children where to live, if that becomes necessary, but courts cannot make grown boys love their mother if they choose not to. Whatever the future may hold, however, this court should not be on record approving a void guardianship. The cause is reversed and remanded with instructions to vacate the order appointing a guardian of the persons of the children, without prejudice to the continuation of the guardianship of their estates, if appropriate. Neither party is to recover costs in this court. Reversed and remanded. O'CONNELL, J., dissenting. Both parties have waived all procedural defects in the present case and have urged us to decide whether Mrs. Parmele is entitled to the custody of her two sons. The majority opinion refuses to decide the issue presented. The ground for its refusal is that the circuit court of Lane county did not have jurisdiction to decide the issue presented and that the parties could not waive a jurisdictional defect. I have very great difficulty following the reasoning in the majority opinion. Consequently, it is quite possible that I have not correctly interpreted it. It first appears to say that the circuit court never obtained jurisdiction to appoint a guardian of the person (as distinguished from a guardian of the estate) of the two children because the petition failed to allege facts sufficient to give the court jurisdiction. The reasoning seems to run as follows: (1) To invoke the jurisdiction of a court the petition must set forth the facts upon which the court is empowered to act. (2) One of the *627 facts necessary to be recited is that "the proposed ward needs the care of a guardian." (3) This fact was not alleged in Mrs. Mathews' petition for the appointment of a guardian and therefore the court did not acquire jurisdiction to appoint her as guardian of the person of the Parmele children. Since Mrs. Mathews was not legally appointed guardian of the person of the children, she has no right to their custody and her lack of capacity as guardian can be adjudicated by making a direct attack on the judgment. Is a court's jurisdiction dependent upon the recitation in a petition or complaint of all of the facts necessary to state a cause of action or basis for relief? It is generally held that a court's jurisdiction is invoked if the pleading shows that the case belongs to a general class of cases with which the court has the power to deal. The principle is well stated in St. Louis I.M. & S. Ry. Co. v. State, 55 Ark 200, 205, 17 SW 806 (1891): The statement in the majority opinion that "To invoke jurisdiction of that [Lane County Circuit Court] court it is necessary to file a petition which will set forth the facts upon which the court can act" is, at best, misleading. It seems clear that the majority opinion regards the recitation of all of the essential facts as necessary to invoke jurisdiction. I admit that support for this conclusion can be found in some cases, including our own.[1] But it is my opinion that these *628 cases are not carefully reasoned and cannot be supported. This is true whether the rule is applied to courts of general jurisdiction or to courts of special or limited jurisdiction.[2] The criticism of the view expressed in the majority opinion and in the other Oregon cases cited above is adequately made elsewhere and I shall not attempt to restate it here.[3] I have commented upon the point simply because I feel that we should not perpetuate erroneous notions of "jurisdiction" and because I am hopeful that my criticism at this stage may lay the foundation for eliminating the error at some future date. My reason for dissenting rests upon another ground. The majority seems to say that the decree of the Lane county circuit court appointing Mrs. Mathews guardian of the persons of the Parmele children was valid until it was declared invalid upon direct attack by Mrs. Parmele. The opinion indicates that the decree is subject to attack on jurisdictional grounds only if the court appointed a guardian at a time when there was a fit parent ready, willing, and able to take the custody of his children. I gather this from the part of the opinion which reads: "Nothing in the guardianship *629 code authorizes, much less makes necessary, the appointment of a personal guardian when a living parent is fit, ready, willing, and able to take custody of his child," and which continues, "A fit parent needs no court to authorize him to rear his own children." This would appear to say that the court has jurisdiction to appoint a guardian if the parent is not fit. Thus, in the present case, the decree would not be subject to attack on jurisdictional grounds if Mrs. Parmele was an unfit mother at the time Mrs. Mathews petitioned for her appointment as guardian. But if the validity of the decree rests upon the resolution of the question of fact of fitness, how was that question resolved in the present case? I am not sure. It seems to say that jurisdiction disappeared when the mother appeared. Thus, the mere fact of the mother's appearance in the proceeding was enough to resolve the question of fitness. The reasoning supporting this apparently is that the mother is to be deemed fit because there was "no allegation of disability or unfitness" made in Mrs. Mathews' petition for the appointment of a guardian. Consequently, the majority opinion says, the case "was analagous to a situation in which a person assumed to be dead appears in court and thereby puts an end to the probate of his estate." This is so because "there being no factual basis for the probate proceedings, everything undertaken to that end is null and void." In the first place I think it is erroneous to say that a probate court loses jurisdiction when it is shown that the person whose estate is being probated is living. The termination of a proceeding under such circumstances is simply the resolution of a decisive issue in the case warranting the entry of a judgment or decree by a court which has the jurisdiction to do so. But a more important criticism is that the *630 analogy does not support the majority's reasoning. In the probate example there is no issue of fact in need of resolution when the "decedent" makes his appearance. Not so with the parent who attacks a guardianship proceeding. She may be fit or unfit. If she proposes to attack the decree, it would be her burden to show that the decree was entered erroneously on the ground that she was a fit parent at the time the guardian was appointed. She does not carry this burden simply by making an appearance in the proceeding. The issue of Mrs. Parmele's fitness was raised in this case by her petition for the removal of Mrs. Mathews as guardian and the latter's answer to that petition denying the allegations of fitness therein. The majority never reaches the question of whether Mrs. Parmele's petition invoked the jurisdiction of the court. If it did, then of course, the parties could waive all procedural defects which they attempted to do and which the majority says cannot be done. It is my opinion that we must decide whether Mrs. Parmele's petition in this case invoked the jurisdiction of the circuit court. It will be noted that she filed her petition for the removal of Mrs. Mathews as guardian in the guardianship proceeding already instituted. Did that invoke the jurisdiction of the court? I shall assume, as the majority does, that the guardianship statutes do not invest the court with the power to adjudicate the question of a parent's right to his minor child if the parent is available, willing, and capable of having custody of his child. Consequently, if this question had been presented to a county court it would have no jurisdiction to decide it. But in the present case the question was presented to the circuit court. The issue would be litigable in the circuit court. The litigation would ordinarily be initiated through a petition *631 for a writ of habeas corpus.[4] The problem of jurisdiction becomes more complicated where the judicial jurisdiction of the county court has been transferred to the circuit court, as it has been in Lane county. Where such a transfer is made the jurisdiction to decide guardianship matters is vested in the same court which has jurisdiction to decide questions of parental fitness. Issues of parental fitness are normally presented in habeas corpus proceedings, as I have just noted. Is it necessary that these two aspects of the same court's jurisdiction be kept separate to the extent that the institution of a proceeding invoking one aspect of its jurisdiction precludes the exercise in that proceeding of the court's power in the other aspect of its jurisdiction? The petition which Mrs. Parmele filed in the guardianship proceedings in the present case asserted in substance the right to obtain custody of her children. Therefore, it presented a question of her fitness to have such custody, a matter which we have assumed is not within the guardianship aspect of the court's jurisdiction. Thus the question is whether Mrs. Parmele's petition brought this case within that aspect of the circuit court's general jurisdiction under which it has the power to adjudicate the question of parental fitness. It seems inappropriate to say that the court lacks jurisdiction over the subject matter simply because Mrs. Parmele petitioned for the appointment of herself as guardian instead of petitioning for a writ of habeas corpus in view of the multiple aspects of the court's jurisdiction. The real question in cases of this *632 type is not whether the court has jurisdiction, but whether, as a matter of sound procedure, it is desirable in a particular proceeding to permit a party to raise issues which are not germane to that proceeding or which cannot conveniently be treated as a part of that proceeding. Arnold et al. v. Arnold, 193 Or 490, 237 P2d 963, 239 P2d 595 (1952) illustrates the confusion which may arise where the traditional method of raising an issue is disregarded. In that case the administrators of an estate in the process of administration commenced a proceeding in the probate department of the Multnomah county circuit court by filing a petition which prayed for certain relief. The character of the petition was described by the Supreme Court as follows: The court held that the probate department did not have jurisdiction to try the cause of action in ejectment and, therefore, the parties could not waive the procedural irregularities by stipulation.[5] I would say *633 that the circuit court sitting in probate has jurisdiction to decide questions of title, but that in the interest of orderly procedure (as it was in the Arnold case) the parties may be required to litigate that question in a separate proceeding with the usual forms of pleadings and in accordance with traditional procedure. Whether the matter should be separately litigated in a particular case will depend upon the facts of that case. The ultimate decision as to whether the issue raised should be litigated separately will ordinarily rest in the discretion of the court. The court may, upon proper motion by a party or upon its own motion, refuse to consider the issue tendered. This is, in effect, the conclusion reached in In re Going's Estate, 183 Or 346, 193 P2d 529 (1948). In that case the question was whether a widower could enforce his right of curtesy in a probate proceeding. The court said: Approaching the present case on the foregoing basis, the question is whether the issue of parental *634 right to custody of a minor child is properly shaped up by a petition and answer, or whether that issue should be framed as issues are usually framed, i.e., by pleadings in the form ordinarily used to define the issue. Both the court and counsel in the instant case proceeded upon the assumption that the issue of parental right was properly raised. The record discloses that Mrs. Parmele rejected the remedy of habeas corpus as a method of attacking the order appointing Mrs. Mathews as guardian and elected instead to directly attack the order in the guardianship proceedings.[6] The case then proceeded in precisely the same way as it would have if the proceeding had been initiated by way of a petition for a writ of habeas corpus. It would have been proper for the trial court to require the mother in this case to initiate a separate habeas corpus proceeding. Nevertheless, no error was committed in trying the case as if it were a part of the guardianship proceedings and the irregularity in so proceeding should be regarded as waived. I turn then to the only question raised on appeal: Was there sufficient evidence to support the decree depriving Mrs. Parmele of the custody of her children? There is no evidence to show that Mrs. Parmele is not a person morally fit to have custody of her children. Nor is there evidence of her mental incompetency or inability to provide for the children. There *635 is no evidence of abandonment. There is evidence that the house to which the mother seeks to bring the children is under construction and as a consequence has certain shortcomings. As one witness testified, it was "all torn up, they was building on it, fixing it up." The house was described as "crowded," without adequate heating facilities (apparently due to the remodeling project), and in general as being "not very good." It would appear that by comparison Mrs. Mathews' home would provide superior shelter. The children in question emphatically express their preference for Mrs. Mathews as their guardian. As one of them put it, he preferred her because "she has given me more love, and she don't scream at me all the time, and she takes part in my schooling, and she takes us places." Both children testified that they loved Mrs. Mathews. It seems evident that they do not love their mother. When they lived with their mother they ran away from home on several occasions. They had cause for dissatisfaction with their home life during that period. Mrs. Parmele and her husband frequently quarreled, often screamed at each other, and occasionally engaged in acts of physical violence. As Gerald Lyons testified, "it was just an awful mess, and it would terrify us seeing them throw things back and forth. And they would break lamps and that. And then they would break up a lot of times over there, and she would get mad at him and throw his clothes into the fireplace. And they would burn up." These forays prompted Mrs. Parmele's husband to leave on several occasions but he always returned. There was some evidence that the boys were physically maltreated. Gerald Lyons testified that his mother "dunked" him head first into a tub of water *636 to punish him. On another occasion she kicked her son Harold "in the seat" causing a bruise. The foregoing evidence adequately portrays the setting in which these children will be forced to live if Mrs. Parmele is entitled to their custody. By contrast Mrs. Mathews' home would appear to provide a more peaceful and stable environment. The choice would clearly favor the latter's custodianship if we were permitted to consider only the best interest of the child in these contests between the parent and a third person. The boys' chance for happiness and spiritual fulfillment would appear to be greater if they were permitted to remain in the home of Mrs. Mathews. But the best interest of the child is not the sole test for allocating custody in this class of cases. The interest of the parent must also be considered. A fit parent has the right to the custody of his minor children unless there are compelling reasons for depriving him of that custody. The parental right is not absolute. Under some circumstances it may be necessary in the interest of the child's welfare to deprive a fit parent of his custodial right. It is possible that in some circumstances the uprooting of a child from his surroundings would be so inimical to his well-being that the parental claim to custody would have to be denied.[7] It is not necessary for this court to now state more specifically what those circumstances must be; it is necessary only to explain why the circumstances in the present case do not warrant the application of the exception to the rule. Here it may be assumed that the children love Mrs. Mathews and not their mother; that they will be unhappy if forced to live with their mother; and that it would be to their *637 best interest, spiritually, emotionally, and economically to remain with Mrs. Mathews. However, these are not grounds for depriving a fit parent of the custody of his child. Although children are in many respects regarded as the special wards of the state, our law has not yet reached the point where the state will acknowledge a parent-substitute simply because the child has lost his affection for his parent. Nor has it guaranteed children that they will be free from family quarrels, even when they are carried on with frequency and are accompanied by physical violence as in the present case. When the circumstances become sufficiently aggravated there may be the basis for the appointment of a guardian under the juvenile code[8] or by a petition for habeas corpus. But that is not shown to be the situation in the present case. The physical surroundings in the mother's home are far from ideal and it appears that they are inferior to those which Mrs. Mathews' home would provide. However, a parent will not be deprived of the custody of his child merely because the child's standard of living would be higher under another person's care.[9] Thus it may be seen that the adverse effects on the interest of the children spiritually, emotionally and economically do not outweigh the parent's right in this case. Little help is found in the cases from other jurisdictions. Those cases are in conflict. The conflict results from a choice of competing social interests; one emphasizing the parental interest and the importance *638 of the family unity;[10] the other emphasizing the child's individuality apart from his blood relationship to his parent and regarding the child's best interest as the more important factor.[11] Each of these interests must be put in the balance. The parental interest should not be disregarded merely to serve the best interest of the child.[12] The majority refused to deal with this important issue the only issue presented to us on appeal. If Mrs. Parmele had not included in the heading of her petition the words "In the Matter of the Guardianship of * * *" and had eliminated the file designation "Guardianship No. 14951," her petition would have been sufficient to initiate a proceeding in habeas corpus and the court would have had jurisdiction. Thus the case is made to turn on a requirement which is purely technical in nature. This is the kind of empty formalism which brings the law into disrepute. The apologia at the end of the majority opinion stating that we would "make bad law" and that "we would be compounding the confusion that already exists in the statutory and case law concerning parent and child" are generalities which do not carry conviction. This case can be disposed of expeditiously and *639 by the application of the principles stated in this dissenting opinion, none of which would make "bad law" nor create confusion. The decree of the lower court should be reversed and the cause remanded with directions to enter a decree for Mrs. Parmele. SLOAN and DENECKE, JJ., join in this dissent. [1] See, e.g., Dean v. First Nat'l. Bank, 217 Or 340, 349-350, 341 P2d 512 (1959); McDonough v. Southern Or. Mining Co., 177 Or 136, 155, 159 P2d 829, 161 P2d 786, 164 ALR 788 (1945); Dippold v. Cathlamet Timber Co., 98 Or 183, 193 P 909 (1920) (extensive collection of cases from the various jurisdictions is found at 98 Or 189-90); cases in 36 Yale L J 553, 555, n. 9 (1927). It is interesting to note that we just recently decided that the failure of an indictment or information to state the facts necessary to allege a crime does not constitute a jurisdictional defect. [2] See for example, Fox et ux v. Lasley, 212 Or 80, 318 P2d 933 (1957); Anderson, Adm. v. Clough et al., 191 Or 292, 230 P2d 204 (1951). [3] An excellent discussion of the question is found in LRA 1916E, 316-326, Annotation: Collateral attack upon judgment because of insufficiency of pleadings. [4] See, e.g., Bartlett v. Bartlett, 175 Or 215, 152 P2d 402 (1944); Turner v. Hendryx, 86 Or 590, 167 P 1019, 169 P 109 (1917); Ex parte Barnes, 54 Or 548, 104 P 296, 25 LRA (NS) 172 (1909). [5] Some doubt is cast on the holding of the Arnold case by McColloch v. U.S. National Bank, 207 Or 508, 511, 297 P2d 1076 (1956). In that case this court said: "As clearly appears from an examination of these statutes, there is only one Circuit Court for Multnomah County, and each of the judges thereof, regardless of the department to which he is assigned, is vested with the entire jurisdiction of that court, though for convenience in administration one of them is especially charged with probate duties." But see the discussion of these two cases in Fox v. Lasley, 212 Or 80, 87, 318 P2d 933 (1957). [6] This choice was made because plaintiff's counsel regarded In re Henkle, 153 Or 337, 56 P2d 343 (1936) as a pronouncement of this court's preference for direct rather than collateral attack upon the order sought to be set aside. But cf., Quinn v. Hanks, 192 Or 254, 233 P2d 767 (1951). In the Henkle case the parents of the child were dead and the question of the suitability of the guardian was properly a part of the guardianship proceedings. [7] See Langenberg v. Steen, 213 Or 150, 322 P2d 1087 (1958). [8] See for example ORS 419.476. [9] See e.g., Phifer v. Phifer, 198 Ark 567, 129 SW2d 939 (1939); People ex rel Portnoy v. Strasser, 303 NY 539, 104 NE2d 895 (1952). Cf., In re Guardianship of Baldwin, 130 Or 206, 278 P 1078 (1929); McKay v. McKay, 77 Or 14, 149 P 1032 (1915). [10] Walker v. Gehring, 172 Neb 398, 109 NW2d 724 (1961); People ex rel Kropp v. Shepsky, 305 NY 465, 113 NE2d 801 (1953); Skeadas v. Sklaroff, 84 RI 206, 122 A2d 444 (1956), cert. denied 351 US 988, 76 S Ct 1051, 100 L Ed 1501 (1956); Walker v. Brooks, 203 Va 417, 124 SE2d 195 (1962). [11] Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 158 NE2d 613 (1959); Thein v. Squires, 250 Iowa 1149, 97 NW2d 156 (1959); McCormick v. Lewis, 328 SW2d 415 (Ky 1959); In re Adoption of a Minor, ___ Mass ___, 178 NE2d 264 (1961). [12] Ellenburg v. Woodson, 131 Or 440, 283 P 27 (1929). The question presented in the Ellenburg case and in the case at bar is to be distinguished from the case where the contest is between competing parents. In the latter case the best interest of the child is the sole criterion in determining the right to custody.

810f0d7bf0e1d803cbc7dab9d3e06f47a49cb0e624a403ac00068edde03c348e

1963-03-20T00:00:00Z

53ee3176-faf1-4c6e-bf4e-d73b048be3bf

In re Newell

S057231

oregon

Oregon Supreme Court

FILED: June 10, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of ROBERT D. NEWELL, Accused. (OSB No. 07-142; SC S057231) On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted January 8, 2010. Mark J. Fucile, Fucile & Reising LLP, Portland, argued the cause and filed the briefs for the accused. Mary A. Cooper, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar. Before De Muniz, Chief Justice, and Gillette, Durham, Balmer, Kistler, and Linder, Justices.* PER CURIAM The accused is publicly reprimanded. *Walters, J., did not participate in the consideration or decision of this case. PER CURIAM In this attorney discipline case, the Bar charged the accused with violating Rule of Professional Conduct (RPC) 4.2.  Generally, that rule prohibits a lawyer from communicating on certain subjects with a person whom the lawyer knows is represented on those subjects.  The trial panel found that the accused had violated Rule 4.2 and publicly reprimanded him.(1)  The accused has requested review from this court. Greenwood Forest Products was in the business of buying, processing, and selling lumber products.  James Fahey began working as an accountant for Greenwood in 2000.  While working for Greenwood, Fahey embezzled money from the company and disguised his actions in a number of ways, including creating fraudulent inventory accounts. In 2002, Jewett-Cameron, a lumber manufacturer and wholesaler, sought to purchase Greenwood, and the two businesses entered into an asset-purchase agreement.  The agreement required Jewett-Cameron to purchase all of Greenwood's inventory at cost plus two percent.  The transfer of Greenwood's inventory was scheduled to take place over a period of time.  In an attempt to facilitate the process, the companies agreed to put Fahey in charge of the books of both companies.  After the final transfer of Greenwood's inventory, Greenwood claimed that Jewett-Cameron still owed it additional sums for inventory sales.  Jewett-Cameron acceded to Greenwood's claim and paid the full price that Greenwood sought. In late 2003, Jewett-Cameron's auditors discovered that numerous accounting errors by Greenwood had resulted in Greenwood overstating its inventory.  Jewett-Cameron's auditors also discovered that Fahey had embezzled money from both Jewett-Cameron and Greenwood by transferring funds from the companies' accounts directly into his own personal banking account.  The auditors concluded that Fahey had altered Greenwood's inventory records, which made it appear that Greenwood had transferred more inventory to Jewett-Cameron than it actually had. Those events gave rise to three legal actions and ultimately this disciplinary proceeding.  In the first action, Greenwood sued Fahey for conversion.  Specifically, upon being informed of the accounting irregularities and believing that Fahey was at least partially responsible, Greenwood brought a civil action against Fahey on September 7, 2004, for conversion and sought no less than $340,000 in damages from him.  Greenwood moved for summary judgment.  The trial court granted Greenwood's summary judgment motion and entered a judgment of approximately $370,000 plus interest against Fahey on May 23, 2005. In the second action, Jewett-Cameron sued Greenwood on March 11, 2005, claiming that it had overpaid Greenwood by approximately $820,000 because of Greenwood's accounting errors.  The accused represented Jewett-Cameron in that action.  The accused testified in the disciplinary proceeding that Fahey's actions gave rise, in part, to Jewett-Cameron's claim against Greenwood; that is, Fahey's actions in embezzling the funds from Greenwood and overstating its inventory caused, in part, Jewett-Cameron to pay too much for Greenwood's assets. The third action arose out of criminal charges that the state brought against Fahey.  Greenwood contacted the district attorney, who brought criminal charges for theft against Fahey on April 18, 2005.  Fahey retained Andrew Coit to represent him in the criminal action.  On January 18, 2006, Fahey pled guilty to ten counts of theft.  As part of the plea agreement, Fahey agreed to cooperate with Greenwood's efforts to locate missing assets, and the trial court delayed the sentencing hearing to give Fahey time to carry out his part of the plea agreement. Jewett-Cameron's civil action against Greenwood was set for trial on May 8, 2006.  Initially, the accused did not believe that Fahey's testimony would be needed to prove Jewett-Cameron's claims against Greenwood.  The accused described it as "one of those situations where, here's a guy who really is at the center of the action but he's in some [sense] irrelevant to our case."  The accused, however, told his associate to try to arrange a meeting with Fahey to "see what he has to say."  At that point, Greenwood's civil action against Fahey had ended.  The criminal action against Fahey was still ongoing, however, because Fahey was awaiting sentencing.  The accused testified that he "knew [that] Coit was representing [Fahey] in the criminal case and * * * figured that would be the easiest way to get in touch with him."  Accordingly, the accused's associate contacted Coit to discuss meeting with Fahey. On April 27, 2006, the accused received the following email from his associate: "I talked to Fahey's attorney [Coit], who wasn't too happy to talk with me.  He said that Fahey gets sentenced on Tuesday of next week [May 2, 2006] and is going to the big house.  He is going to talk with Fahey about meeting with us before then, but said he would require us to waive any claims against Fahey before we talk to him.  I am supposed to call him tomorrow to see if Fahey is even willing to talk to us." The accused believed that Fahey would be imprisoned before trial and, at that point, decided that he did not need to interview Fahey. On May 1, 2006, Coit moved to continue Fahey's sentencing.  On Thursday, May 4, the accused learned that Greenwood had subpoenaed Fahey to testify in Jewett-Cameron's action against Greenwood, and the accused decided that he needed to talk to Fahey before he testified at trial.  The accused's associate attempted to contact Coit so that they could speak to Fahey.  On that day, at 4:54 pm, the associate sent an email to the accused saying that he had left a message for Coit but that, given Coit's failure to return his earlier calls, he did not expect Coit to return his most recent call.  A half-hour later, the associate sent the accused a second email, confirming that Fahey had appeared in court with Coit to set over the sentencing hearing in the criminal action and that Greenwood had subpoenaed Fahey to testify in Jewett-Cameron's action against Greenwood. On Friday, May 5, the accused had a subpoena served on Fahey for a deposition scheduled for 9:00 a.m. on Saturday, May 6.  Fahey received the subpoena at 6:35 p.m. on Friday, approximately 14 hours before the deposition was scheduled to begin.  Pursuant to ORCP 39, the accused served Greenwood's counsel with notice of the deposition.  The accused, however, did not attempt to notify Coit that he had subpoenaed Fahey. The next morning at Fahey's deposition, the accused and Greenwood's counsel were present.  Coit was not there.  At the beginning of the deposition, Fahey asked to make a statement and said: "For the record, I was served yesterday evening at 6:35 p.m.  I have not had a chance to contact my counsel.  As there is a pending criminal case on this in Washington County, anything alluding to any of those areas I will be taking the Fifth Amendment." After asking some background questions, the accused began questioning Fahey about his work at Greenwood. "[The accused]:  What process did you see in your role as senior accountant when corporate inventory was purchased?  What paperwork did you see? "[Fahey]:  The most I would have seen was an invoice coming in that went into payables. "[The accused]: So an invoice from Jones Lumber for eight truckloads of raw plywood? "[Fahey]:  That's correct. "[The accused]: And if that went someplace to be processed, how would you know that? "[Fahey]: On this one I'm going to assert my Fifth Amendment privilege until I've consulted counsel." The accused then began to ask Fahey numerous questions about Fahey's criminal case: "[The accused]: Okay.  Well, am I correct that you've pled guilty to several crimes in state court? "[Fahey]: Yes. "[The accused]: Okay.  What are those crimes? "[Fahey]: I believe they're theft or aggravated theft. "[The accused]: Ten different counts; right? "[Fahey]:  Correct. "[The accused]:  And the theft was from Greenwood Forest Products, Inc.? "[Fahey]: Yes. "[The accused]:  This question I just asked you that you asserted your Fifth Amendment rights to, isn't that covered by that plea? "[Fahey]:  I can't -- I don't know. "[The accused]:  All right.  So if I ask you detailed questions about accounting processes and paperwork and so on for inventory and accounts payable and accounts receivable at Greenwood Forest Products, you're going to assert your Fifth Amendment rights?" "[Fahey]:  Until I can consult counsel and get a clarification, yes. "[The accused]:  Okay.  Who is your counsel? "[Fahey]:  Andrew Coit. "[The accused]:  Can you spell the last name please? "[Fahey]:  C O I T. "[The accused]:  And he's located here in Portland? "[Fahey]:  That's correct.  He has an office in Portland and an office in Eugene. "[The accused]:  And you have not talked to him about this deposition? "[Fahey]:  That is correct. "[The accused]:  Have you tried to retain any other counsel for this deposition? "[Fahey]:  No. "[The accused]:  Is Andrew Coit the only person who has represented you in connection with any legal proceedings? "[Fahey]:  No. "[The accused]: Who else has represented you? "[Fahey]:  I have been represented by Andrea Davis of Harrang Long Gary "Rudnick. "[The accused]:  Anyone else? "[Fahey]: Adam Dean is Andrew Coit's law partner. "[The accused]: And I take it you don't have home phones for either Adam Dean or Andrew Coit? "[Fahey]:  That is correct. "[The accused]:  What has Andrea Davis represented you in connection with? "[Fahey]:  A civil case. "[The accused]:  That's the case brought by Greenwood Forest Products against you? "[Fahey]:  Correct." The accused continued, and, in the course of the deposition, repeatedly asked Fahey questions about the amount of money that Fahey had taken -- an issue that was central both to Jewett-Cameron's lawsuit against Greenwood and also to the state's criminal charges against Fahey.  Fahey took the Fifth Amendment in response to some of the questions and expressed concern that his criminal attorney was not present to represent him at the deposition. The accused continued asking Fahey questions about the criminal case, but Fahey did not respond to the questions because he thought the court had issued a protective order.  When the accused asked about the scope of the protective order, Fahey responded, "I don't know.  Without counsel here I can't answer that."  The deposition continued with the accused asking more questions and Fahey asserting the Fifth Amendment at various times.  Later in the deposition, Fahey discussed his meeting with Greenwood's counsel regarding Jewett-Cameron's action against Greenwood.  Fahey told the accused that Coit had arranged the interview and explained that he had had a lawyer present with him at that meeting. "[The accused]:  Why did you agree to meet with [Greenwood's] lawyer in connection with this case? "[Fahey]:  Mr. Coit had mentioned to me, had mentioned that he or his firm had been contacted by [Greenwood's counsel in this civil case].  I was asked if I would be willing by Mr. Coit to sit down with [Greenwood's counsel].  I asked Mr. Coit if there was any advantage or disadvantage for me to do so.  Mr. Coit informed me that since, that his, since he or Adam Dean would be there, the scope of what we would discuss would be incredibly limited but with regard to the fact that it is possible that a letter could have been written to the judge [in the criminal case] saying at least he [Fahey] agreed to sit down with us and talk, that it might be within my benefit to do so.  That is all from Mr. Coit to me. "[The accused]:  Do you know why your lawyer has refused to talk to our firm? "[Fahey]:  No idea.  I had no idea that your firm had even attempted to contact my attorney." On Monday, May 8, Coit learned of the deposition and later moved to seal the deposition transcript.  After holding a hearing, the trial court granted Coit's motion.  Coit later reported the accused to the Bar. The Bar filed disciplinary proceedings against the accused.  In its first cause of complaint, the Bar alleged that the accused had violated RPC 4.2 because he deposed Fahey on a subject on which the accused knew that Fahey was represented in the criminal matter.  Alternatively, the Bar alleged that the accused violated that rule when he deposed Fahey on a subject on which the accused knew that Fahey was represented in the civil action between Jewett-Cameron and Greenwood.  In his answer, the accused admitted most of the allegations in the complaint, including the allegation that he knew that Fahey had representation in connection with his criminal prosecution for theft.  However, the accused denied that he knew that Fahey was represented for purposes of the Jewett-Cameron litigation.  The accused also asserted that, under RPC 4.2(b), the deposition was authorized by law. The trial panel found that the accused had violated RPC 4.2.  Specifically, the panel found that the accused asked questions related to the criminal conduct in violation of RPC 4.2 and rejected the accused's argument that RPC 4.2 applies "only if the witness is represented in the same proceeding as the proceeding in which the deposition was taken."  The panel concluded that that rule covers "instances such as the present case in which the [a]ccused knew the witness to be represented in a pending criminal proceeding but nevertheless proceeded to interrogate the witness about that subject." The trial panel also rejected the accused's argument that the questions fell under the "authorized by law" exception in RPC 4.2(b).  The panel reasoned that "a witness's right to counsel can [not] be overcome by a deposition subpoena alone."  Alternatively, the panel reasoned that, even if it could, the circumstances in this case -- a Friday evening summons for a Saturday morning deposition without any notice to the witness's counsel -- did not come within the exception.  After noting that the accused had no prior disciplinary record, the panel publicly reprimanded him.  The accused sought review from this court.  The Bar did not seek review and does not contest the trial panel's disposition of this matter. On review, the accused notes that the trial panel found that he did not know that Coit represented Fahey in the civil action between Jewett-Cameron and Greenwood but that he did know that Coit represented Fahey in the pending criminal action.  In the accused's view, that finding is dispositive.  Specifically, the accused argues that RPC 4.2 barred him from contacting Fahey only if the accused knew that Fahey was represented in the action between Jewett-Cameron and Greenwood.  He contends that, because he did not know that fact, RPC 4.2 does not apply.  The accused argues alternatively that, even if RPC 4.2 applied, his communication with Fahey came within a specific exception to that rule for communications "authorized by law."  We begin with the accused's argument that RPC 4.2 only applies if he knew that Coit represented Fahey in Jewett-Cameron's action against Greenwood. RPC 4.2 provides: "In representing a client or the lawyer's own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: "(a) the lawyer has the prior consent of a lawyer representing such other person; "(b) the lawyer is authorized by law or by court order to do so; or "(c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person's lawyer." RPC 4.2 does not prohibit all communications between a lawyer and a person represented by counsel.  Rather, that rule prohibits communications between lawyers and represented persons only when (1) the communication occurs in the course of the lawyer's representation of a client or the lawyer's interests; (2) the person with whom the lawyer communicates is represented; (3) the communication is on the subject of both the lawyer's representation and the person's representation; and (4) the lawyer knows that the person is represented on that subject. In this case, there is no dispute that the accused communicated with Fahey in the course of representing Jewett-Cameron, that Fahey was represented in the criminal action, and that the accused knew that he was communicating with Fahey on the subject on which Fahey was represented.  The only question is whether the communication concerned the subject on which the accused represented Jewett-Cameron and on which Coit represented Fahey.  As a factual matter, the answer to that question is "yes."  The subject on which the accused represented Jewett-Cameron was Greenwood's alleged overstatement of its inventory.  The accused sought to recover part of the purchase price from Greenwood on the theory that Greenwood's assets were less than its books showed.  Coit represented Fahey on that same subject.  The criminal action was based on Fahey's embezzlement from Greenwood, which resulted in Greenwood's overstated inventory.  Factually, each lawyer's representation involved a common subject -- whether Greenwood's books were overstated. The accused does not dispute that factual proposition.  He argues instead that the word "subject" in RPC 4.2 means "matter" and that "matter" means the specific legal matter on which he was representing his client.  More specifically, the accused argues that his communication with Fahey would violate RPC 4.2 only if Coit represented Fahey in Jewett-Cameron's action against Greenwood and if the accused knew that fact. The accused's argument is difficult to square with the text of the rule.  The rule uses the word "subject," not "matter."  In this context, "subject" means "something concerning which something is said or done  * * * < a ~ worth of a great dramatist>." Webster's Third New Int'l Dictionary 2275 (unabridged ed 2002).  "Subject," the word that the rule uses, is broader than the word "matter," as the accused defines it.(2) The context of RPC 4.2 is also at odds with the accused's interpretation of the term "subject."  See Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (explaining that the context for interpreting a statute's text includes "'the preexisting common law and the statutory framework within which the law was enacted'" (quoting Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998)).  RPC 4.2 is generally modeled on American Bar Association (ABA) Model Rule 4.2 (2002).(3)  Oregon's rule differs from the ABA model rule in at least one respect.  The model rule prohibits a lawyer from communicating with a "person the lawyer knows to be represented by another lawyer in the matter."  The Oregon rule prohibits a lawyer from communicating with a person "the lawyer knows to be represented by a lawyer on that subject." The Oregon rule's use of "subject" rather than the defined term "matter" cuts against the accused's argument that we should substitute "matter" for "subject."  See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 839 P2d 1143 (1993) (use of a term in one section of a statute but not another implies a purposeful choice); RPC 1.0(i) (defining "matter").  Indeed, RPC 4.2 continues the use of the term "subject" found in former DR 7-104 (1984).  In construing a former version of the rule, this court held that it prohibited a district attorney from communicating with a defendant regarding the defendant's participation as an undercover drug informant when the district attorney knew that the defendant was represented on pending rape and robbery charges.  In re Burrows, 291 Or 135, 143-44, 629 P2d 820 (1981).  In that case, the accused argued that his communications did not relate to the rape or the robbery charges, the particular matters on which the defendant was represented, "but to the separate subject matter of undercover drug activities."  Id. at 142.  This court disagreed.  It reasoned that, because it was clear that the defendant's participation as an undercover informant would affect his sentencing in the rape and robbery proceedings, "'the subject matter of the [accused's] communications necessarily involved the pending criminal charges.'"  Id. at 143-44 (quoting and adopting the trial panel's findings). In Burrows, this court did not interpret the rule narrowly to refer only to the pending criminal action, as the accused urges.  Had it done so, it would have held that the matter on which the defendant in Burrows was represented was limited to the rape and robbery proceedings and did not extend to his participation as an undercover agent or any communications regarding that future status.  That interpretation provides context for the use of the term "subject" in RPC 4.2. The accused, however, points out that, after this court decided Burrows in 1981, former DR 7-104(A)(1) was amended in 1984 to prohibit communication "on the subject of the representation, or on directly related subjects, with a person he knows to be represented by a lawyer on that subject, or directly related subjects."  The accused also notes that, when RPC 4.2 was adopted in 2005, that rule continued to use the word "subject" but omitted the phrase "or on directly related subjects."  That omission, the accused reasons, limits the scope of the present rule to situations where the contacted party is represented specifically in the contacting attorney's case.  RPC 4.2, however, continues to use the word "subject."  Although the removal of the phrase "or on directly related subjects" may make a difference in some other case, that omission is of no consequence here.  Rather, it is sufficient for the purposes of this case to hold, as we do, that the accused communicated with Fahey on the subject on which Coit represented Fahey and on which the accused represented Jewett-Cameron.  The accused's communication accordingly was a "communicat[ion] on the subject of the representation" within the meaning of RPC 4.2. The accused raises a second argument.  He contends that, even if RPC 4.2 generally prohibited him from communicating with Fahey regarding his embezzlement of funds from Greenwood, his communication with Fahey came within an exception to that general rule.  Specifically, the accused argues that his communication with Fahey was "authorized by law" under Rule 4.2(b).  The accused reasons that "[d]epositions have been recognized both nationally and in Oregon as being 'authorized by law' for purposes of the rule."  He concludes that, because the deposition was properly noticed under ORCP 39,(4) his communication came within that exception. We agree with the accused that a deposition is authorized by law, but we think that the accused reads the exception too broadly.  RPC 4.2 prohibits a lawyer, in the course of representing a client, from communicating on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject.  RPC 4.2 recognizes three exceptions to that broad prohibition:  (1) if the other lawyer consents; (2) if the communication is authorized by law; or (3) if a written agreement requires a written demand or notice be sent to the represented person.  Without the "authorized by law" exception or the consent of the opposing party's lawyer, a lawyer could not cross-examine the opposing party at trial, depose that party, or subpoena a represented witness to testify before the grand jury.  See Restatement (Third) of the Law Governing Lawyers § 99 comment g (2000) (direct communications permitted under the "authorized by law" exception for cross-examination and depositions); United States v. Schwimmer, 882 F2d 22, 28 (2d Cir 1989) (federal rule of criminal procedure permitted federal prosecutor under the "authorized by law" exception to question represented witness during grand jury proceedings). The "authorized by law" exception permits a lawyer to communicate directly with another party in those situations without the consent of that party's lawyer.  However, nothing in the terms of that exception or the cases interpreting it suggests that the exception goes as far as the accused would take it.  The accused would interpret the exception to permit an end-run around the represented person's lawyer.  As we understand the accused's argument, as long as a lawyer can subpoena a nonparty witness to testify at trial or in a deposition before the witness has an opportunity to contact his or her own lawyer, the "authorized by law" exception would permit the lawyer to ask that witness unlimited questions without any opportunity for the witness's lawyer to protect his or her client's interests.  That interpretation of the exception, if accepted, would undermine the purpose of the rule.  See Restatement at § 99 comment g (2000) ("Whether direct communication is authorized depends on the legal justification for the contact in the situation, having regard for the interest in protecting client-lawyer relationships and avoiding overreaching of represented nonclients.").  (Parenthetical omitted.) The accused identifies no case that has adopted such a sweeping interpretation of the exception.  Rather, the cases that the accused cites assume that the represented person who is subject to deposition, cross-examination, or questioning before the grand jury has had, at minimum, an opportunity to notify his or her lawyer.  In Schwimmer, for example, the Second Circuit explained that the federal rules of criminal procedure permitted the federal prosecutor to question the witness but did not permit the witness's counsel to be present.  882 F2d at 28.  In holding that the prosecutor's conduct was authorized by law within the meaning of a comparable ethical rule, the Second Circuit explained that the witness "[wa]s not the target of [the prosecutor's] investigation, his testimony is immunized pursuant to § 6002, and he may consult with counsel at any time outside the grand jury room.  Accordingly, the prosecutor's direct questioning of Schwimmer before the grand jury outside the presence of his counsel is authorized by law and therefore does not violate the Code of Professional Responsibility." Id. (emphasis added).  Contrary to the accused's interpretation of that exception, the Second Circuit did not read the exception to give one lawyer the power to unilaterally exclude another lawyer from any opportunity to protect his or her client's interests. The accused argues that the trial panel's decision in In re Blackmore, 12 DB Rptr 286 (1999), is persuasive and that we should follow it.  In our view, the accused's reliance on Blackmore is misplaced, because the question in that case differs from the question presented here.  The disciplinary proceeding against Blackmore arose as result of two actions.  In the first action, International Composites brought a contract claim against Evergreen Plastics.  Id. at 287.  In the second action, one of Evergreens' former employees, Tyacke, brought a wage claim against Evergreen.  Id.  Blackmore represented Evergreen in both International Composites' contract action and also in Tyacke's wage claim.  Id. International Composites served a notice of deposition on Tyacke in its action against Evergreen.  Id.  Before attending the deposition, Tyacke consulted with his lawyer, who decided that Tyacke should attend the deposition alone.  Id.  Tyacke did so, and Blackmore questioned him during the deposition on matters that were relevant to International Composites' contract claim against Evergreen.  Id.  Those matters were also relevant to Tyacke's wage claim against Evergreen.  Id. at 286-87. The trial panel held that Blackmore's communication with Tyacke at the deposition did not violate former DR 7-104(A)(1) because it was authorized by law.  Among other things, the trial panel reasoned that, were the answer otherwise, "Tyacke could prevent [Evergreen's] discovery of jointly relevant information in the commercial case by refusing to bring [his lawyer] to his deposition."  Id. at 290.(5) In Blackmore, Tyacke had the opportunity to consult with his lawyer and decide whether to attend the deposition alone, knowing that he would be subject to questioning by Blackmore.  In this case, Fahey never had that opportunity.  The difference matters, as this court recognized in In re Williams, 314 Or 530, 840 P2d 1280 (1992).  In Williams, a tenant had brought her lawyer to a statutorily required meeting with her landlord, who was represented on that subject.  Id. at 538-39.  The tenant's lawyer knew that fact but communicated with the landlord without the landlord's lawyer being present.  Id.  In the resulting disciplinary proceeding, this court rejected the tenant's lawyer's argument that the statute that required the meeting authorized the tenant's lawyer to communicate with the landlord without the landlord's lawyer present.  Id. at 539.  The court then noted: "The accused also argues: 'If [the accused] were required to refrain from attending the meeting, then [the landlord], by choosing not to have her attorney attend, could have effectively negated [the tenant's] right to representation [at the statutorily required meeting].  The authorized by law exception prevents that result.' "Had [the landlord's lawyer] chosen not to attend the meeting, knowing that the accused would attend, a different case would be presented.  That case is not before us." Id. at 539 n 4. Blackmore posed the same problem that the accused's hypothetical posed in Williams, and we cannot improve on the answer in Williams.  If, as in Blackmore, Fahey's lawyer had chosen not to attend the deposition, knowing that the accused would attend and question Fahey, a different case would be presented.  That case is not before us, and we need not endorse or disagree with the result in Blackmore to conclude that the "authorized by law" exception does not extend so far that it permits one lawyer to unilaterally exclude a represented witness's lawyer from the deposition. Having concluded that the exception does not apply, we turn to the sanction.  The trial panel issued a public reprimand.  The Bar does not argue that a greater sanction is appropriate.  The accused contends only that no sanction should be imposed.  The issue regarding the sanction accordingly reduces to a narrow one:  If we conclude, as we do, that the accused violated a disciplinary rule, may we decline to impose any sanction on the accused? On that point, Bar Rule (BR) 6.1(a) identifies the potential "dispositions or sanctions in disciplinary proceedings."  They are:  (1) dismissal of some or all the charges; (2) a public reprimand; (3) a suspension for a period from 30 days to five years; (4) a suspension for a period from 30 days to five years stayed in whole or in part; and (5) disbarment.  BR 6.1(a).  Under that rule, if we find that a lawyer has violated a disciplinary rule, the minimum sanction that we can impose is a public reprimand.(6)  We recognize that, in this case, there are substantial mitigating factors.  The trial panel found, and the Bar does not dispute, that the accused has an exemplary reputation among his peers and also a long and distinguished record of service to the Bar and the community.  The rules, however, require that, if we find a violation, as we do, one of the four listed sanctions must follow.  In this case, we conclude that the appropriate sanction is a public reprimand.  Publishing an opinion in which we find that the accused committed an ethical violation is in itself a public acknowledgment of improper conduct.  A public reprimand is merely a mirror of the opinion itself. The accused is publicly reprimanded. 1. The Bar also charged the accused with violating RPC 4.4(a).  The trial panel did not find a violation of that rule.  Because the Bar does not challenge that decision, we do not discuss that rule. 2. "Matter" is a defined term for the purposes of the Rules of Professional Conduct.  See RPC 1.0(i) (defining matter).  In discussing the accused's argument, we express no opinion on whether his definition of the term "matter" is consistent with the definition of that term in RPC 1.0(i).  Rather, the question in this case is whether "subject," the term that RPC 4.2 uses, is broader than "matter," as the accused defines it. 3. ABA Model Rule 4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." 4. The accused notes that ORCP 39 C(1) requires notice to "every other party to the action."  The accused reasons that, under ORCP 39 C(1), he was not required to notify Fahey's counsel because Fahey was not a "party to the action." 5. The trial panel in Blackmore offered various rationales to support its conclusion.  We identify only one of those rationales and express no opinion on the other rationales.  We also note that, although disciplinary panel opinions may be persuasive, they have no precedential value in this court. 6. The accused cites a prior opinion of this court, In re Ainsworth, 289 Or 479, 614 P2d 1127 (1980), for the proposition that this court "should simply let its opinion stand without sanction."  However, unlike in this case where we find specifically that the accused violated an ethical rule, in Ainsworth, we declined to specifically determine whether the accused had committed an ethical violation and dismissed the complaint.  See id. at 490-91, 493.

94590b62087eb0462cefa01a7d46c9fad820a35d03fc4a07db828666bb7913fc

2010-06-10T00:00:00Z

f587609d-7238-42f1-a2ea-16925b554498

In re Murphy

S058743

oregon

Oregon Supreme Court

Filed: December 9, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of LYNN M. MURPHY, Accused. (OSB Nos. 08-77, 08-78, 09-63; SC S058743) En Banc On review of the decision of the trial panel of the Disciplinary Board.* Submitted on the record and under advisement on October 27, 2010. No appearance by either party. PER CURIAM The accused is suspended from the practice of law for 120 days, commencing 60 days from the filing of this decision. *Trial Panel Opinion, June 14, 2010. PER CURIAM In this lawyer disciplinary proceeding, the Oregon State Bar charged Lynn M. Murphy (the accused) with seven violations of the Oregon Rules of Professional Conduct (RPC) arising out of three separate matters. In the Perry matter, the Bar alleged violations of RPC 1.3 (neglect of a legal matter), RPC 1.4(a) (failure to communicate with client), and RPC 8.1(a)(2) (failure to respond to Bar's investigation). In the Newman matter, the Bar alleged only a violation of RPC 8.1(a)(2). In the Hubler matter, the Bar alleged violations of RPC 1.16(c) (failure to notify court of withdrawal from representation), RPC 1.16(d) (failure to safeguard client's interests after withdrawal), and RPC 8.1(a)(2). Following a hearing, the trial panel found by clear and convincing evidence that the accused had violated RPC 1.3 and RPC 1.4(a) in the Perry matter and RPC 8.1(a)(2) in each of the three matters. The trial panel imposed a suspension of 120 days. The accused timely requested review by this court. However, she did not file an opening brief, as required by ORAP 11.25(2)(a) and Bar Rule of Procedure 10.5(c). The Bar later submitted a letter requesting that the matter be submitted without briefing or oral argument. See ORAP 11.25(3)(b) (if accused lawyer fails to file a brief, the Bar may "[s]ubmit a letter stating that it wishes the matter submitted to the court on the record without briefing or oral argument"). In In re Hartfield, 349 Or 108, ___ P3d ___ (2010), this court recently summarized its approach to lawyer disciplinary proceedings in which the accused has failed to file an opening brief. We noted that, in such cases, we consider the matter de novo, as required by ORS 9.536(2), but that the court is "free to circumscribe the extent of its review due to the absence of briefing or argumentation challenging the order on review." Id. at 111. We based that ruling on the logic of "a similar case involving unfocused claims of trial panel error," where we observed that, although we would apply a de novo standard of review, "'ordinarily we will consider the issues for our review to be those framed by the parties' briefs and arguments.' In re Paulson, 346 Or 676, 679 n 3, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41 (2010)." Hartfield, 349 Or at 111. We concluded that, where review has been requested but neither party has filed a brief, we ordinarily will affirm the order of the trial panel: "If the accused has filed no petition or brief challenging some aspect of the trial panel's order, and the Bar has elected the submission procedure set out in ORAP 11.25(3)(b), this court, following the review principle set out in Paulson, generally will determine that the parties have raised no argument challenging the trial panel order and conclude that the order should be affirmed." Hartfield, 349 Or at 112. This case presents precisely the situation described in the passage just quoted. As in Hartfield, the accused timely requested review of the trial panel's order by this court but then failed to file a brief. Here -- in contrast to Hartfield, where the Bar filed its own brief -- the Bar submitted a letter requesting that the matter be submitted without briefing or argument. Consistently with the procedure that we set out in Hartfield, we have determined that the order of the trial panel should be affirmed. The accused violated RPC 1.3 and RPC 1.4(a) in the Perry matter and RPC 8.1(a)(2) in each of the three matters. We also conclude that, absent some persuasive argument from the accused to the contrary, the sanction imposed by the trial panel -- a suspension of 120 days -- is a permissible one in the circumstances, and we therefore adopt it. The accused is suspended from the practice of law for 120 days, commencing 60 days from the filing of this decision.

79c4d81a5d635e1d45f6236e75b7bbad778654eef2078860d8a4002f73135f65

2010-12-09T00:00:00Z

ec421448-4208-42ae-af47-00ac5d7e218a

Caruthers v. Kroger

oregon

Oregon Supreme Court

FILED: April 29, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON JERRY CARUTHERS, Petitioner, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S057678) On petitioner's objections to modified ballot title filed March 29, 2010; considered and under advisement on March 31, 2010. Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the objections and the reply for petitioner. Douglas F. Zier, Senior Assistant Attorney General, Salem, filed a response to petitioner's objections for respondent. Before De Muniz, Chief Justice, and Gillette, Durham, Balmer, Kistler, and Linder, Justices.* PER CURIAM The second modified ballot title is certified to the Secretary of State. Durham, J., dissented and filed an opinion, in which Gillette, J., joined. *Walters, J., did not participate in the consideration or decision of this case. PER CURIAM This ballot title review proceeding involving Initiative Petition 43 (2010) is before the court for a third time.  See Caruthers v. Kroger, 347 Or 660, 227 P3d 723 (2010) (certified ballot title referred to Attorney General for modification); Caruthers v. Kroger, 348 Or 63 , ___ P3d ___ (2010) (Attorney General's modified ballot title referred to Attorney General for further modification).  In response, on March 23, 2010, the Attorney General certified a second modified ballot title, which we set out in full: "Amends Constitution:  Prohibits current and future elections laws from disqualifying registered voters' signatures on initiative/referendum petitions "Result of 'Yes' Vote:  'Yes' vote sets aside many existing controls over initiative/referendum signature collection and verification process and prohibits the legislature from enacting statutes for those controls. "Result of 'No' Vote:  'No' vote retains existing laws and regulations that control the initiative and referendum signature collection and verification process for determining if measure qualifies for ballot. "Summary:  Amends constitution.  Initiative and referendum petitions qualify for ballot only when they are signed by a sufficient number of qualified registered voters.  Currently, constitutional provisions, statutes, and administrative rules establish requirements for signature collection, verification, and counting to prevent fraud, forgery, or improper signature gathering; for example, disqualifying entire petition signature sheet if circulator's signature is undated or date is crossed out.  Measure prohibits the disqualification of any individual registered voter's signature on an initiative/referendum petition, even when signature on the petition was obtained in violation of current elections laws.  Prohibits any future statute or administrative rule from disqualifying registered voters' signatures 'for purposes of determining whether the initiative or referendum petition has obtained enough signatures to qualify for submission to voters.'  Other provisions." Petitioner has filed objections to the caption and the summary in the second modified ballot title.  Petitioner argues that, contrary to this court's prior directions, the caption still focuses incorrectly on election laws that disqualify voters' signatures on initiative and referendum petitions.  He also contends that the summary is insufficient.  He complains that, by using only a minor technical deficiency as an example of an election law that the proposed measure would invalidate, the summary misleads voters into believing that the subject matter of the measure is the protection of voters' signatures against invalidation due to similar minor technicalities. The court has reviewed the second modified ballot title and petitioner's objections, and has concluded that petitioner's objections do not demonstrate that the second modified ballot title lacks substantial compliance with the requirements of ORS 250.035.  ORS 250.085(8) and (9).  Therefore, the court will certify the second modified ballot title, quoted above, to the Secretary of State. The second modified ballot title is certified to the Secretary of State. DURHAM, J., dissenting. Petitioner has filed objections to the caption and summary in the Attorney General's second modified ballot title.  In my view, the objection to the second modified caption is well taken.  For the reasons stated below, I would again refer the ballot title to the Attorney General for modification of the caption.  Accordingly, I dissent from the majority's decision to certify the second modified ballot title to the Secretary of State. Initiative Petition 43 (2010), if adopted by the voters, would amend the Oregon Constitution by curtailing the authority of the Oregon legislature to establish procedures for acceptance and verification of voter signature sheets filed in support of initiative and referendum petitions.  The proposed measure would accomplish that result by granting to registered voters a constitutional right to have their signatures on petitions "counted" toward applicable total signature requirements.(1) By creating that sort of constitutional right, Initiative Petition 43 (2010) would invalidate a host of statutory requirements concerning the circulation, verification, and filing of petition signature sheets -- requirements that the legislature adopted to protect petition signers and voters from fraud, forgery, and other abuses by petition circulators.  Petitioner contends that, despite three attempts, the Attorney General still has failed to compose a ballot title caption that accurately states the subject matter of the proposed measure.  ORS 250.035(2)(a) (15-word ballot title caption must "reasonably identif[y] the subject matter of the state measure"). The context for the court's consideration of petitioner's argument is a familiar one.  In Yugler v. Myers, 344 Or 552, 555, 185 P3d 1110 (2008), this court stated: "The caption serves as the 'cornerstone for the other portions of the ballot title' and therefore must identify the proposed measure's true subject matter 'accurately and in terms that will not confuse or mislead potential petition signers and voters.'  Green v. Kulongoski, 322 Or 169, 174-75, 903 P2d 366 (1995)." This court has insisted that a ballot title caption describe a proposed measure's subject matter accurately and without confusion, because of the central importance of the caption to the decision-making process of petition signers and voters. "The caption, which is the first information that most potential petition signers and voters will see, is pivotal.  It must 'inform potential petition signers and voters of the sweep of the measure.'  Terhune v. Myers, 342 Or 475, 479, 154 P3d 1284 (2007).  A caption should not 'understate or overstate the scope of the legal changes that the proposed measure would enact.'  Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004).  If a proposed measure has more than one subject, each should be indentified in the caption if it is possible to do so within the 15-word limit.  Novick/Sager v. Myers, 329 Or 11, 16, 986 P2d 1 (1999)." Frazzini v. Myers, 344 Or 648, 654, 189 P3d 1277 (2008). The review principles mentioned in those quoted passages of course apply in all ballot title review proceedings.  The court, however, has been particularly vigilant in scrutinizing ballot title captions that allude to the creation of new legal rights or the modification of existing legal duties.  The court's vigilance is especially justified when, as here, the proposed measure's text not only enacts a new legal "right," but also states, redundantly, that the measure guarantees the new right to every registered voter and that no other statute or rule may restrict the guaranteed new right.  One case in particular illustrates that point.  In Yugler, the proposed measure would have created a statutory requirement that judges deliver an instruction to juries informing them that each juror had the "right" and "duty" to judge both the facts and the law applicable to every case and to disregard a judge's instructions if the juror believed that those instructions would result in "an unjust verdict or judgment."  344 Or at 554 (quoting IP 17).  The Attorney General seized on the words of the proposed measure in certifying the following ballot title caption: "Requires Instructing Jury of Right/Duty to Disregard Law if Verdict Against Defendant is 'Unjust'" Id.  The Attorney General defended the use of the "'right/duty'" characterization in the caption in part because it accurately reflected the words used in the proposed measure.  This court disagreed, because, in that context, the terms "'right/duty'" implied that jurors had an existing right or duty to disregard applicable law in reaching a verdict.  According to the court, that inference was incorrect and, moreover, it was debatable whether the proposed measure would create such a right or duty.  Id. at 556. This court has declined to approve ballot title captions that repeat the "right," "duty," or similar jargon from a proposed measure's text, but fail to describe accurately the true scope of the legal changes that the measure would create.  See Frazzini, 344 Or at 655 (certified caption, "Retroactively Repeals Law Granting State Privileges, Immunities, Rights, Benefits, Responsibilities of Marriage to Domestic Partners," was insufficient because it failed to accurately portray the separate subject of banning enactment of any law granting marriage benefits to same-sex domestic partners); Hunnicutt/Stacey v. Myers, 343 Or 387, 392, 171 P3d 349 (2007) (caption, "Limits Land Use Goals, Need for Consistency with Goals, to 'Areas of Critical State Concern'" was insufficient because true legal effect was not described "limit," but rather nullification of requirement that local land use planning laws must comply with state land use planning law); Sizemore/Terhune v. Myers, 342 Or 578, 588, 157 P3d 188 (2007) (caption understated scope of measure's proposed changes to Oregon law due to failure to disclose that measure (1) created "extensive enforcement provisions" regarding union security agreements, and (2) actually entitled employees to receive mandated representation services without sharing in the cost of the services); Fred Meyer, Inc. v. Roberts, 308 Or 169, 174, 777 P2d 406 (1989) (in caption, "Protects Petition Activity at Malls and Premises Open to Public," term "protects" was misleading, because it implied incorrectly that citizens had an existing legal right to gather petition signatures on all premises open to the public).  Each of those cases was an application of a principle that this court has long observed in reviewing ballot titles: "A ballot title should not misstate existing law, even by implication, and thereby create a spurious argument to support the measure's passage." Dale v. Kulongoski, 321 Or 108, 113, 894 P2d 462 (1995) (citations omitted). The justification for the court's insistence on looking behind the legal jargon in a proposed measure's text is readily apparent.  A measure's text states the change or changes in law that the author hopes to enact.  However, the measure's text is not meant to fulfill the task of a ballot title caption, i.e., to "reasonably identif[y] the subject matter of the state measure."  ORS 250.035(2)(a).  Any author of an initiative petition, in drafting a proposed measure, may use any terms he or she may desire, including politically attractive terms, to state the legal changes that the measure proposes.  Similarly, an author may avoid referring in the text to politically unattractive costs or consequences of the approval of the proposed measure.  However, as the cases cited in the previous paragraph confirm, the ballot title must identify accurately and clearly the proposed measure's subject matter without deference to any distorted or politically charged terminology that the measure's author may have selected, perhaps to boost the measure's appeal to voters. The proposed measure would create a "right" in every registered voter to have his or her signature counted.  But, by enacting such a "right" as a part of the Oregon Constitution, the measure also would invalidate a number of statutory controls that the legislature has created to protect voters from fraudulent practices by petition circulators.  In net terms, the proposed measure would circumscribe the heretofore unquestioned authority of the legislature to regulate the procedures that govern the circulation of signature sheets and the verification of signatures on petitions.  The question before the court is whether the latter consequence is part of the measure's subject matter and, if so, whether the Attorney General has identified that subject matter accurately. The caption that the Attorney General first certified for Initiative Petition 43 (2010) provided: "'Amends Constitution:  Guarantees registered voter right to have signature counted in determining initiative/referendum qualification for ballot.'" In Caruthers v. Kroger, 347 Or 660, 227 P3d 723 (2010), this court, after reviewing the relevant provisions of the constitution concerning the people's power of initiative and referendum, concluded that "the constitution empowers the legislature with the authority and responsibility of fleshing out the process."  Id. at 664.  The court then reviewed the array of statutes that the legislature had enacted, and the rules of the Secretary of State that it had authorized, to regulate the gathering and counting of signatures on initiative petitions.  The court concluded:  "[I]t is clear that proposed measure is intended to alter the signature gathering and sampling processes that we have described."  Id. at 666.  Referring to the measure's creation of a right to have a voter's signature "counted," the court identified the measure's subject matter in these terms: "From those two provisions, it becomes clear that the subject of the measure is the removal of impediments to that counting, whether those impediments be statutory or rule-based.  And that necessarily means that some of the processes by which signatures presently are vetted -- processes that can prevent the counting of certain individual signatures -- are to be set aside and that the legislature is forbidden to enact substitutes for them.  The Attorney General's caption fails to identify this subject, which is at the heart of the proposed measure.  The Attorney General's certified caption, therefore, does not substantially comply with the requirements of  ORS 250.035(2)(a).  The ballot title therefore must be referred to the Attorney General for modification." Id. at 668 (footnote and citation omitted).  The court also expressly agreed with petitioner's contention that the Attorney General's use in the caption of a phrase such as "right to have signature counted," even though taken from the measure's text, introduced a loaded term into the caption that should be avoided on referral.  Id.  The court referred the ballot title to the Attorney General for modification. On referral, the Attorney General certified a modified ballot title with the following caption: "Amends Constitution:  Prohibits laws restricting count of registered voters' signatures to determine initiative/referendum qualification for ballot" Petitioner filed objections to that modified ballot title, including the caption, arguing that the new caption failed to focus, as this court had required, on the statutes and rules that the measure would invalidate.  This court agreed, stating: "Petitioner is correct.  This court did state in its earlier opinion that the proposed measure would remove some (not all) of the impediments to counting signatures, but specifically noted that the manner in which that would be accomplished was that "'some of the processes by which signatures presently are vetted -- processes that can prevent the counting of certain individual signatures -- are to be set aside and * * * the legislature is forbidden to enact substitutes for them.  The Attorney General's caption fails to identify this subject, which is at the heart of the measure.' "Caruthers, 347 Or at 668.  As further clarification, the opinion included examples of statutes and rules that would be affected by enactment of the proposed measure.  Id. at 665.  Most such statutes and rules focus on practices and procedures that the legislature and the Secretary of State have considered desirable to ensure the legitimacy of the signature-gathering process and to regulate the activities of those who gather the signatures; few (if any) have as their principal focus or purpose the disqualification of signatures.  Thus, as our previous opinion indicated (and as petitioner now argues), the subject of the proposed measure was the elimination of many existing controls on the present signature collection and verification process, together with a prohibition on creating substitutes for those controls.  The Attorney General's caption still does not capture that subject.  It must." 348 Or at 68 (omission in original; emphasis added).  The court referred the ballot title to the Attorney General for modification. It is worth noting at this point that this court's two opinions created a clear message about the error that had infected the Attorney General's two captions.  In response to that message, the Attorney General certified a second modified ballot title that included the following caption: "Amends Constitution:  Prohibits current and future elections laws from disqualifying registered voters' signatures on initiative/referendum petitions" Petitioner has filed an objection to that caption.  Petitioner notes that the new "yes" vote result statement does comply with the court's prior decisions.  It states: "Result of 'Yes' Vote:  'Yes' vote sets aside many existing controls over initiative/referendum signature collection and verification process and prohibits the legislature from enacting substitutes for those controls." But the new caption bears little relationship to the "yes" vote result statement.  According to petitioner, the caption again avoids this court's clear statements about what the caption must contain to pass muster. In my view, petitioner is correct.  The statement that the measure would "prohibit current and future elections laws from disqualifying registered voters' signatures" wrongly identifies the measure's focus as "laws" that interfere with the counting of voters' signatures:  this court already has rejected that erroneous focus in two previous captions.  Despite this court's statement in its second opinion that "few (if any) [of the pertinent statutes and rules] have as their principal focus or purpose the disqualification of signatures[,]" id., the Attorney General's new caption again focuses on the prohibition of "elections laws * * * disqualifying registered voters' signatures * * *."  That phrasing reflects an overreliance by the Attorney General on the creation by the proposed measure's text of a right to have a signature counted.  The new caption fails to identify, as our prior opinions required, the proposed measure's true subject matter:  "the elimination of many existing controls on the present signature collection and verification process, together with a prohibition on creating substitutes for those controls."  Id. The importance of requiring an accurate ballot title caption in his matter cannot be gainsaid.  The proposed measure would amend the Oregon Constitution, and thus would remove the prospect of any later adjustment of the proposed measure's operation by the Oregon legislature. Because the second modified ballot title caption merely recycles the same substantive information that this court already has rejected twice as insufficient, I would refer the second modified ballot title to the Attorney General for modification. Gillette, J., joins in this dissenting opinion. 1. Initiative Petition 43 (2010) provides: "In order to respect voter participation in the initiative and referendum process, and in order to ensure the integrity of public officials in reviewing signatures on petitions, the People add the following provision to Section 1, Article IV of their Constitution: "Every registered voter who has signed an initiative or referendum petition that has been filed as provided in section (1)(2)(e) or section (1)(3)(b) of this Article is guaranteed the right to have his or her signature counted for purposes of determining whether the initiative or referendum petition has obtained enough signatures to qualify for submission to the voters.  No statute or rule may restrict this right."

ec6aca7ac370c46ee6b80daed10c549fd588b48f5d2f0ad292ddffe98106ed65

2010-04-29T00:00:00Z

88c0389f-1587-4423-8338-2f3d9546bc3d

State v. Moyer

S056990

oregon

Oregon Supreme Court

FILED: April 29, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. THOMAS PAUL MOYER, Petitioner on Review. (CC 0409-35104; CA A128796 (Control)) STATE OF OREGON, Respondent on Review, v. VANESSA COLLEEN STURGEON, aka Vanessa Sturgeon, aka Vanessa Colleen Kassab, Petitioner on Review. (CC 0409-35105; CA A128797) STATE OF OREGON, Respondent on Review, v. SONJA R. TUNE, Petitioner on Review. (CC 0409-35106; CA A128798) (SC S056990) En Banc On review from the Court of Appeals.* Argued and submitted September 18, 2009. Ronald H. Hoevet, Hoevet, Boise & Olson P.C., Portland, argued the cause for petitioner on review Vanessa Colleen Sturgeon.  With him on the joint briefs were Michael T. Garone and David Axelrod, Schwabe, Williamson & Wyatt, P.C., Portland; and Janet Lee Hoffman and Shannon Riordan, Hoffman Angeli, LLP, Portland. Erika L. Hadlock, Deputy Solicitor General, Salem, argued the cause for respondent on review.  With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Linda K. Williams and Daniel W. Meek, Portland, filed a brief on behalf of amici curiae Policy Initiatives Group, Joan Horton, Ken Lewis, Bryn Hazel, Francis Nelson, Tom Civiletti, David Delk, and Gary Duell. Thomas M. Christ, Portland, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon, Inc. DE MUNIZ, C. J. The decision of the Court of Appeals is affirmed.  The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from Multnomah County Circuit Court, John A. Wittmayer, Judge. 225 Or App 81, 200 P3d 619 (2009). DE MUNIZ, C. J. Defendants are charged with violating ORS 260.402 (2003),(1) which provided, in part, that "[n]o person shall make a contribution to any other person, relating to a nomination or election of any candidate or the support or opposition to any measure, in any name other than that of the person who in truth provides the contribution." Defendants demurred to the indictment on the ground that the statute, on its face, violates the free expression clauses of Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution.  The trial court agreed with defendants and sustained the demurrer.  The state appealed, and the Court of Appeals reversed.  State v. Moyer, 225 Or App 81, 200 P3d 619 (2009).  We allowed defendants' petition for review and, for the reasons that follow, affirm the decision of the Court of Appeals. Because the trial court sustained defendants' demurrer, the only relevant facts on review are those alleged in the indictment.  State v. Illig-Renn, 341 Or 228, 230 n 2, 142 P3d 62 (2006).  The first count of the indictment states: "The said defendants THOMAS PAUL MOYER and VANESSA COLLEEN KASSAB, on or about May 16, 2003, in the County of Multnomah County, State of Oregon, did unlawfully and knowing[ly] make a contribution to a candidate, in relation to his campaign for election to public office, in a name other than * * * that of the person who in truth provided the contribution, to-wit:  by making a contribution of $2,500 in the name of 'VANESSA KASSAB' to Jim Francesconi in support of his campaign for the Mayor of Portland, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]" (Boldface and uppercase in original.)  The second count asserted the same charge against defendants Moyer and Tune, based on a $2,000 contribution in the name of "Sonja Tune."  Defendants demurred to the indictment, contending that ORS 260.402 unlawfully restrains expression and political association and also is impermissibly vague and overbroad.  Although the trial court rejected the claim that the statute is unconstitutionally vague, it sustained defendants' demurrer, agreeing with defendants that the statute impermissibly restrains expression in violation of state and federal constitutional free speech guarantees. The state appealed, and defendants cross-assigned error, asserting that the trial court erred when it concluded that the statute was not unconstitutionally vague.  As noted above, the Court of Appeals reversed, issuing a plurality opinion, two concurring opinions, and a dissenting opinion.  The plurality applied the methodology for analyzing free expression challenges under Article I, section 8, set out in State v. Robertson, 293 Or 402, 649 P2d 569 (1982).  The plurality first concluded that, because the only restriction ORS 260.402 imposes is that a person must truthfully report the source of a campaign contribution, the statute is aimed at a forbidden effect of the unlawful expression, not the content of expression, and therefore must be analyzed under the second Robertson category.  Moyer, 225 Or App at 91-93.  According to the plurality, the legislature is entitled to enact election statutes that impose penalties for misleading the public, and the statute is not overbroad; therefore, the statute does not violate Article I, section 8.  Id.  As an alternative holding, the plurality analyzed the statute under the first Robertson category, assuming that ORS 260.402 is a restraint on the content of expression.  Id. at 93.  Under that Robertson category, the plurality concluded that the statute did not violate the free expression guarantee in Article I, section 8, because it came within a historical exception for fraud or perjury.(2)  Id. at 95. With regard to defendants' First Amendment argument, the plurality relied on Buckley v. Valeo, 424 US 1, 96 S Ct 612, 46 L Ed 2d 659 (1976), in which the United States Supreme Court held that a statutory requirement that campaign contributors disclose their identities does not violate the First Amendment.  Moyer, 225 Or App at 96-97.  The plurality reasoned that, under Buckley, a statutory requirement that such a disclosure be truthful similarly did not violate the First Amendment.  Id. Finally, the plurality rejected defendants' argument that the statute is unconstitutionally vague, concluding that the statute does not permit arbitrary or unequal application, is not an unlawful delegation of too much discretion to law enforcement, and provides fair warning of the conduct it prohibits.  Id. at 97-98. The dissent rejected the plurality's Article I, section 8, analysis.  The dissent concluded that ORS 260.402 regulates the content of expression, because the statute regulates "the making of a contribution."  Id. at 106 (Sercombe, J., dissenting).  The dissent further concluded that ORS 260.402 does not fit within any historical exception and therefore violates Article I, section 8, of the Oregon Constitution.  Id. at 108-13 (Sercombe, J., dissenting). On review, defendants assert that, because the statute does not specify the forbidden effects to which it is directed, and because the presumed forbidden effects are not identified in any related statute and are not elements of the offense, the Court of Appeals mistakenly categorized ORS 260.402 as a Robertson second-category statute.  Instead, defendants argue that, because the statute regulates campaign contributions, the statute directly restrains free expression and therefore is a Robertson first-category statute.  According to defendants, the statute also violates Article I, section 8, because it is not wholly confined to any historical exception to Oregon's free expression guarantee.  Defendants also reassert their claim that the statute similarly violates the free speech guarantee of the First Amendment. To provide a complete understanding of the meaning and effect of ORS 260.402, we begin with an examination of its text and statutory context.  The statute was originally passed by voter initiative and became effective in 1908 as part of the Corrupt Practices Act (Oregon Laws 1909, chapter 3), an initiative to limit candidates' election expenses and to define, prevent, and punish corrupt and illegal practices in nominations and elections.  At that time, the statute provided: "No person shall make a payment of his own money or of another person's money to any other person in connection with a nomination or election in any other name than that of the person who in truth supplies such money; nor shall any person knowingly receive such payment or enter or cause the same to be entered in his accounts or records in another name than that of the person by whom it was actually furnished; provided, if the money be received from the treasurer of any political organization it shall be sufficient to enter the same as received from said treasurer." (Emphasis in original.)  The Corrupt Practices Act required candidates to report all contributions, and was intended to maintain the "purity" of the ballot and to prohibit illegal practices in elections, whether a measure or a candidate was involved.  Nickerson v. Mecklem, 169 Or 270, 277, 126 P2d 1095 (1942).  In an argument in support of the Act, the People's Power League of Oregon stated that, among other things, "the secret use of money to influence elections [is] dangerous to liberty, because [it is] always used for the advantage of individuals or special interests and classes, and never for the common good. * * * The primary purpose of this bill is, as nearly as possible, to prevent the use of any means but arguments addressed to the voter's reason in the nominations and elections of Oregon." Official Voters' Pamphlet, General Election, June 1, 1908, 103.  Since then, the Corrupt Practices Act has required public disclosure of campaign contributions and has prohibited false name contributions like those alleged to be at issue here.  See, e.g., Oregon Code, title XXXVI, ch XXIV, § 36-2418 (1930) ("No person shall make a payment of his own money or of another person's money to any other person in connection with a nomination or election in any name other than that of the person who in truth supplies such money * * *."). Currently, ORS 260.402 is a part of ORS chapter 260, which addresses campaign finance regulation, reporting requirements, election offenses, and enforcement.  ORS 260.055(1) provides that all political candidates and treasurers for political committees must "keep detailed accounts" of contributions received and expenditures made by or on behalf of the candidate or the political committee.  At various points during an election cycle, the candidates and political committees are required to file statements of their contributions and expenditures with the appropriate "filing officer."  ORS 260.058; ORS 260.063; ORS 260.068; ORS 260.073; ORS 260.076; ORS 260.083.  Any contribution from a person or campaign committee that "contributed an aggregate amount of more than $50" must be listed in the statement individually, along with the contributor's name, address, and occupation.  ORS 260.083(1)(a).(3)  "The statement may list as a single item the total amount of other contributions, but shall specify how those contributions were obtained."  Id. The filing officer is required to review the statements of contributions and expenditures and notify candidates or committees who have failed to file statements or whose statements fail to comply with all statutory requirements.  ORS 260.205; ORS 260.215.  Failure to file a proper statement of contributions and expenditures can lead to a court order compelling a proper filing, ORS 260.225(1); to the imposition of civil penalties, ORS 260.232; or even to the removal of a candidate or measure from the ballot, ORS 260.241(2). The filing officer is also required to preserve the filed statements and may be required to prepare before each election a summary of the filed statements, which is to be made available to the public.  ORS 260.255(1), (2).  Those summaries must list "all contributions of more than $50."  ORS 260.255(3). As noted, ORS 260.402 (2003) provided, in part, that "[n]o person shall make a contribution to any other person, relating to a nomination or election of any candidate or the support or opposition to any measure, in any name other than that of a person who in truth provides the contribution."    As defined by ORS 260.005(3)(a), "contribution" includes: "(A) The payment, loan, gift, forgiving of indebtedness, or furnishing without equivalent compensation or consideration, of money, services other than personal services for which no compensation is asked or given, supplies, equipment or any other thing of value: "(i) For the purpose of influencing an election for public office or an election on a measure, or of reducing the debt of a candidate for nomination or election to public office or the debt of a political committee; or "(ii) To or on behalf of a candidate, political committee or measure; and "(B) Any unfulfilled pledge, subscription, agreement or promise, whether or not legally enforceable, to make a contribution." Thus, the text and context of ORS 260.402 make it clear that the statute prohibits an actual or promised transfer of money, certain services, or things of value, either to a political campaign or for purposes of influencing an election for public office or an election on a measure, "in any name other than that of the person who in truth provides the contribution."  As noted, according to defendants, that statutory prohibition impermissibly restrains expression in violation of Article I, section 8.  We turn to that claim. Article I, section 8, of the Oregon Constitution, provides: "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right." In State v. Plowman, 314 Or 157, 163-64, 838 P2d 558 (1992), cert den, 508 US 974 (1993), the court summarized the framework established in Robertson to analyze free expression challenges under Article I, section 8.  First, laws that are directed to the substance of any opinion or any subject of communication violate Article I, section 8, "'unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.'" Plowman, 314 Or at 164 (quoting Robertson, 293 Or at 412).  Second, laws that focus on proscribing the pursuit or accomplishment of forbidden results are divided further into two categories:  (a) laws that focus on forbidden effects, but expressly prohibit expression used to achieve those effects, which are analyzed for overbreadth; and (b) laws that focus on forbidden effect, but do not refer to expression at all, which are analyzed for vagueness or for as-applied unconstitutionality.  Plowman, 314 Or at 164. Our first task, then, is to determine whether the statute is "written in terms directed to the substance of any 'opinion' or any 'subject' of communication."  Robertson, 293 Or at 412.  As noted, ORS 260.402 is violated by an actual or promised transfer of money, services, or thing of value, directly or indirectly to a political campaign, "in any name other than that of the person who in truth provides the contribution." As the Court of Appeals plurality observed in this case, describing the Robertson framework is not difficult; however, determining "the line between a [Robertson] first-category regulation (one that targets the content of speech) and a [Robertson] second-category regulation (one that targets only the harmful effects of speech) has proved somewhat elusive."  225 Or App at 89.  The debate over whether ORS 260.402 is a Robertson category-one statute because it restricts campaign contributions -- the dissenting view -- or whether the statute is a Robertson category-two statute because it focuses on a forbidden effect but prohibits expression used to achieve that effect -- the plurality view -- was one of the issues (in addition to the disagreement over the applicability of a historical exception) that splintered the Court of Appeals. Much of the debate in the Court of Appeals appears to have been prompted by conflicting signals from this court in at least two respects.  First, the parties and the judges of the Court of Appeals disagreed about the meaning, effect, and application of certain statements by this court in Vannatta v. Keisling, 324 Or 514, 523, 921 P2d 770 (1997) (Vannatta I).  We acknowledge that this court's various statements in Vannatta I to the effect that campaign contributions are constitutionally protected forms of expression by the political contributors could be understood to mean that, in every instance, the delivery to a candidate or campaign of a contribution is constitutionally protected expression.  However, we recently clarified those statements in Vannatta v. Oregon Government Ethics Comm., 347 Or 449, 465, 222 P3d 1077 (2009) (Vannatta II).  In Vannatta II we pointed out that, Vannatta I had "assumed a symbiotic relationship between the making of contributions and the candidate's or campaign's ability to communicate a political message," for purposes of that case, however,  the court had not decided that, "in every case, the delivery to a public official, a candidate, or a campaign of money or something of value also is constitutionally protected expression as a matter of law."  347 Or at 465. Second, the Court of Appeals plurality noted this court's statement in City of Portland v. Tidyman, 306 Or 174, 185-86, 759 P2d 242 (1988), that, to qualify as a Robertson category-two statute -- a statute that focuses not on speech but on harmful effects -- the operative text must "specify adverse effects" targeted by the legislature.  Moyer, 225 Or App at 89. However, in Vannatta I, this court commented that, "[e]ven when the statute does not, by its terms, target a harm, a court may infer the harm from context." 324 Or at 536.  That statement in Vannatta I was based on this court's analysis of the statute at issue in State v. Stoneman, 323 Or 536, 545-47, 920 P2d 535 (1996).  In Stoneman, this court stated that, in determining the nature of the harmful effect targeted by a statute, the statute cannot be read in a vacuum:  "An examination of the context of a statute, as well as of its wording, is necessary to an understanding of the policy that the legislative choice embodies."  Id. at 546 (emphasis in original).  Consistently with this court's statement in Tidyman, the court's contextual analysis in Stoneman established that the statute at issue in that case "prohibited the purchase of certain communicative materials, not in terms of their communicative substance, but in terms of their status as the products of acts that necessarily have harmed the child participants."  323 Or at 548 (first emphasis in original; second emphasis added).  In our view, Stoneman correctly states that a statute should not be read in isolation, and that the legislature's policy choice (the harm that is the target of the criminal prohibition) in some cases may be determined not only from the statute's text, but also from its context.  That said, we now analyze ORS 260.402 under the Robertson methodology. As noted, defendants are charged with "knowing[ly]" violating the part of ORS 260.402 that states that "[n]o person shall make a contribution to any other person, * * * in any name other than that of the person who in truth provides the contribution."  In Vannatta I, this court observed that not every law related to the regulation of political campaign contributions and expenditures runs afoul of Article I, section 8: "[L]awmakers [may] choose to impose requirements distinct from contribution or expenditure limitations (e.g., requirements of disclosure of financing sources and the extent of any gift) as well as various sanctions (e.g., civil or criminal penalties, disqualification from the ballot or Voters' Pamphlet, and the like) and their choice may not necessarily offend the constitutional requirement." Vannatta I, 324 Or at 523 (first emphasis added; second emphasis in original).  On its face, ORS 260.402 seems more akin to the kind of statutes described in Vannatta I that do not offend the Article I, section 8, expression guarantee.  The statute imposes no restriction on what any person may say, whether contributor, campaign agent, or candidate.  Moreover, as we explained in Vannatta II, defendants' argument that the delivery of gifts, money, or services is expression in every case is incorrect.  Robertson makes it clear, however, that statutes that impose criminal sanctions for deception that can be accomplished only through expression violate Article I, section 8, unless they fall within some well-established historical exception to free expression guarantees.  Id., 293 Or at 412 (listing examples such as "perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants").  Here, ORS 260.402 prohibits communicating a name to the recipient of the contribution when that name is not the name of "the person who in truth provides the contribution."  In other words, the falsity that the statute prohibits can only be achieved through expression -- through one person's communication of a falsehood to another person.  It is for that reason that the statute must be classified as a Robertson category one law.(4)  As a result, ORS 260.402 violates Article I, section 8, unless the statute falls within a historical exception as described in Robertson.  We turn to that question. In Robertson, this court recognized that historical exceptions to Article I, section 8, were not restricted solely to the actual statutes or the common law in place when the Oregon Constitution was adopted.  Instead, the court recognized that successive legislatures would continue to revise crimes and other laws and create new crimes and laws in the light of societal changes and needs: "The legislature, of course, may revise these crimes and extend their principles to contemporary circumstances or sensibilities.  If it was unlawful to defraud people by crude face-to-face lies, for instance, free speech allows the legislature some leeway to extend the fraud principle to sophisticated lies communicated by contemporary means.  Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle." Robertson, 293 Or at 433-34 (emphasis added). Whether a statute that restrains expression is "wholly confined within some historical exception" requires the following inquiries:  (1) was the restriction well established when the early American guarantees of freedom of expression were adopted, and (2) was Article I, section 8, intended to eliminate that restriction.  State v. Henry, 302 Or 510, 515-25, 732 P2d 9 (1987). As with the question whether the statute is a Robertson category-one or category-two law, the parties and the Court of Appeals disagree whether ORS 260.402 qualifies as a contemporary variant of some well-recognized restriction on expression at the time that Article I, section 8, was adopted.  In that regard, the state takes the position that ORS 260.402 is a contemporary variant of the historical prohibition against fraud, forgery, and perjury involving false communication that preceded the adoption of Article I, section 8.  Although defendants agree that such restrictions were in place before the adoption of the Oregon Constitution, they contend that ORS 260.402 cannot be considered a modern variant of common-law fraud, because it "contains none of the traditional elements of fraud."(5)  According to defendants, unlike common-law fraud, ORS 260.402 does not require that a representation be made in connection with the contribution; the statute does not contain an intent-to-deceive element; the statute is not limited to material misrepresentations; and the statute does not require reasonable reliance or injury in fact.(6)  We are not persuaded.  For the following reasons, we conclude that ORS 260.402 falls within a historical exception to Article I, section 8. First, in his Commentaries on the Laws of England, William Blackstone recognized that misrepresentations that contributed to "public inconvenience" were actionable offenses.  In the volume entitled "Of Public Wrongs," Blackstone wrote: "The vice of lying, which consists (abstractedly taken) in a criminal violation of truth, and therefore in any shape is derogatory from sound morality, is not however taken notice of by our law, unless it carries with it some public inconvenience, as spreading false news; or some social injury, as slander and malicious prosecution, for which a private recompense is given." William Blackstone, 4 Commentaries on the Laws of England *41-42 (1769) (emphasis added).  At that time, the "public inconvenience" associated with misrepresenting one's identity in court or before a public official was considered grievous and was classified as a felony under English law.  In his section on offenses against public justice, Blackstone noted: "Likewise by statute 21 Jac. I. c. 26 to acknowledge any fine, recovery, deed enrolled, statute, recognizance, bail, or judgment, in the name of another person not privy to the same, is felony without benefit of clergy.  Which law extends only to proceedings in the courts themselves:  but by statute 4 W. & M. c. 4 to personate any other person [before any] commissioner authorized to take bail in the country, is also felony.  For no man's property would be safe, if records might be suppressed or falsified, or persons' names be falsely usurped in courts, or before their public officers." Blackstone, 4 Commentaries at *127 (emphasis added).  Given Blackstone's observations that providing false identifying information to governmental officials or public bodies were sanctionable offenses, it is unlikely that the framers of the United States Constitution or the Oregon Constitution considered that kind of false communication a form of constitutionally protected expression. "If any person shall, with intent to injure or defraud any one, falsely make, alter, forge or counterfeit any public record whatever, or any certificate, return or attestation of any clerk, notary public or other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal evidence, or any note, certificate or other evidence of debt issued by any officer of this state, or any county, town or other municipal or public corporation therein, authorized to issue the same, or any contract, charter, letters patent, deed, lease, bill of sale, will, testament, bond, writing obligatory, undertaking, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, evidence of debt, or any acceptance of a bill of exchange, endorsement or assignment of a promissory note, or any warrant, order or check, or money, or other property, or any receipt for money or other property, or an acquittance or discharge for money or other property, or any plat, draft or survey of land, or shall, with such intent, knowingly utter or publish as true and genuine, any such false, altered, forged or counterfeited record, writing, instrument or matter whatever, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary, not less than two, nor more than twenty years." General Laws of Oregon, Crim Code, ch XLV, § 584, pp 545-46 (Deady 1845-1864) (emphasis added). The 1864 statute prohibiting various forms of false communication, consistent with Blackstone's observations, is a further demonstration of the unlikelihood that the framers of the Oregon Constitution -- many of whom were serving in the legislature when the 1864 statute was enacted -- considered false communication in connection with public records and matters of legitimate governmental concern to be protected by Article I, section 8's guarantee of the free expression of opinion.(8)  Second, this court previously has upheld campaign laws providing sanctions and penalties for political candidates who mislead the public or engage in fraud.  Vannatta I, 324 Or at 544.  In Vannatta I, this court upheld, as within a historical exception, a provision of a ballot measure providing that, when a candidate reneges on a promise not to exceed a specified amount of campaign expenditures, the Secretary of State is required to publish in the Voters' Pamphlet a bold-print notice that the candidate failed to abide by his or her promise.  The court described a candidate who reneges on his or her promise as one who "has misled the electorate" and stated that "[l]aws that are targeted at fraud do not violate Article I, section 8, because they constitute a historical exception to Article I, section 8."  Id. Despite this court's observation in Vannatta I, defendants argue strenuously that, because ORS 260.402 does not contain an intent-to-deceive element, the statute cannot be considered a modern variant of common-law fraud.  We have two responses.  First, we note that here the indictment alleges that defendants "knowing[ly]" made "a contribution to a candidate * * * in a name other than * * * that of the person who in truth provided the contribution."  Necessarily, then, the state will be required to prove at trial that defendants acted with an awareness that their conduct was of a "nature so described or that a circumstance so described exists."  See ORS 161.085(8) ("knowingly" or "with knowledge," when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists).(9)  Second, this court already has held that a statute that prohibits fraud on the electorate need not include an intent element to come within a historical exception.  Vannatta I upheld the constitutionality of a provision requiring the public identification of candidates who broke expenditure-cap promises, even though that provision did not require that the deceit have been intentional: "The fact that a candidate may have intended to abide by expenditure limitations when he or she made the pledge, and only later decided to ignore that promise, does not make the failure to abide by the promise any less a fraud on the voters who have relied on the candidate's Voters' Pamphlet statement to choose their candidate." 324 Or at 544 n 28. In our view, there is no important difference between statutes requiring the public identification of candidates who violate expenditure-cap pledges, statutes prohibiting candidates from making material misstatements during campaigns, and the statutory requirement in ORS 260.402 that the identification of political contributors be truthful.  As our cases establish, the elements of a modern statute need not be identical or matched perfectly with historical prohibitions to fall within a historical exception.  Prohibiting the concealment of the identity of the true provider of a political contribution from either the recipient of the contribution, the public, or both, is, we conclude, an extension or modern variant of the initial principle that underlies the historic legal prohibition against deceptive or misleading expression.  Thus, in our view, ORS 260.402 falls within a "historical exception," whether the exception is described as one related to misleading the electorate, as identified in Vannatta I, or simply is described as a contemporary variant of the exception for common-law fraud.  Because the restriction on making a contribution using another person's name in ORS 260.402 falls within a historical exception, the statute does not violate Article I, section 8, of the Oregon Constitution. We turn to defendants' other arguments.  Defendants assert that the statute violates the First Amendment to the United States Constitution because it is overbroad, in that it criminalizes contributions made in another's name without requiring the intent to deceive. As we noted in Vannatta I, 324 Or at 521, the United States Supreme Court takes a different approach to expression challenges under the First Amendment than this court does with regard to expression challenges under Article I, section 8.  In Buckley v. Valeo, the United States Supreme Court determined that political expenditures and contributions were forms of expression under the First Amendment, but also concluded that contributions were less central to core First Amendment expression, and therefore could be subject to governmental restriction through a balancing-of-interests analysis.  424 US at 28-29.  The court in Buckley concluded that contributions are a less-protected form of expression than are expenditures, based on two assumptions about contributions:  (1) although contributions may result in speech, that speech is by the candidate and not by the contributor; and (2) contributions express only general support for a candidate and do not communicate the reasons for that support.  Buckley, 424 US at 21.  Relying on those assumptions, the Supreme Court concluded that a statutory requirement that campaign contributors disclose their identities did not violate the First Amendment, because the disclosure requirement was narrowly limited to those situations in which the information sought had a substantial connection with the governmental interests to be advanced; that is, "disclosure helps voters to define more of the candidates' constituencies."  Id. at 81.  The Court explained that "[t]he burden imposed by [disclosure] is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view."  Id. at 82.  See also Citizens United v. Federal Election Commission, __ US __, 130 S Ct 876 (2010) (campaign expenditure disclosure and disclaimer requirements do not unconstitutionally restrain speech; such requirements provide the electorate with information and insure that the voters are fully informed as to who is speaking).  A law that forbids making a contribution using another person's name is not, in our view, more burdensome than a law like the one at issue in Buckley, requiring disclosure of the identity of the contributor in the first instance.  We therefore conclude that ORS 260.402 does not violate the First Amendment.(10) Finally, we turn to defendants' contention that ORS 260.402 is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution.  Defendants argue that the statute provides insufficient notice of the criminalized conduct, delegates too much discretion to law enforcement, and has a chilling effect on protected speech. Regarding a vagueness challenge under the Oregon Constitution, this court stated in State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985), that: "[A] criminal statute must not be so vague as to permit a judge or jury to exercise uncontrolled discretion in punishing defendants, because this offends the principle against ex post facto laws embodied in Article I, section 21, of the Oregon Constitution.  The equal privileges and immunities clause is also implicated when vague laws give unbridled discretion to judges and jurors to decide what is prohibited in a given case, for this results in the unequal application of criminal laws.  A criminal statute need not define an offense with such precision that a person in every case can determine in advance that a specific conduct will be within the statute's reach.  However, a reasonable degree of certainty is required by Article I, sections 20 and 21." (Internal citations and footnote omitted.) This court has also stated that "absolute precision is not required to overcome a facial vagueness challenge."  Illig-Renn, 341 Or at 243.  Here, defendants assert that the statutory phrases "relating to" and "in truth provides" are not adequately defined by common usage or context.  Defendants argue that, as a result, the statute could reach any donation that "eventually serves to benefit a measure or campaign."  According to defendants, the words "relating to" are so broad that the statute criminalizes a person's decision to pick up the dinner tab when the person and his or her friends "decide if they should encourage a person to run for a local office."  We disagree with defendants.  The phrase "relating to" must be read in the context of the entire statute.  For the convenience of the reader, we again set out the text of  ORS 260.402, which provided, in part: "No person shall make a contribution to any other person, relating to a nomination or election of any candidate or the support or opposition to any measure, in any name other than that of the person who in truth provides the contribution." "Contribution" is defined by ORS 260.005(3), which we quoted earlier.  (Exceptions to the definition of "contribution" are set out in ORS 260.007.)  The phrase "relating to" thus ties "contribution" to only transfers made "[f]or the purpose of influencing an election for public office or an election on a measure, or of reducing the debt of a candidate for nomination or election to public office or the debt of a political committee," or payments made "[t]o or on behalf of a candidate, political committee or measure[.]"  ORS 260.005(3)(a)(A)(i), (ii).  In addition, by using the present-tense phrase "relating to," the legislature established that the contribution must relate to a candidate or measure at the time it is made.  See Martin v. City of Albany, 320 Or 175, 181, 880 P2d 926 (1994) ("[t]he use of a particular verb tense in a statute can be a significant indicator of the legislature's intention").  Thus, contributions "relating to" a candidate or measure are those that are made to the candidate or to the campaign supporting a measure, or for the purpose of influencing an election. Defendants also challenged the phrase "in truth provides" as vague.  Again, we disagree.  ORS 260.402 provides that a person who makes a contribution "in any name other than that of the person who in truth provides the contribution" violates the statute.  Because the statute applies only to contributions made in the name of a specific person, the statute applies only when money has been contributed "in" someone's "name" -- that is, when the contribution is attributed to a specific person.(11)  When read as a whole, the statute provides adequate notice of what conduct is proscribed, and thus is not impermissibly vague in violation the Oregon Constitution. In assessing a claim that a criminal statute fails to give fair warning under the United States Constitution, we adhere to the standard that federal courts have applied to criminal and quasi-criminal statutes -- whether the statute would "'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.'"  Illig-Renn, 341 Or at 241 (quoting Grayned v. City of Rockford, 408 US 104, 108, 92 S Ct 2294, 33 L Ed 2d 222 (1972)).  As we explained above, when read as a whole, the statute provides adequate notice of what conduct is proscribed.  Accordingly, we conclude that ORS 260.402 gave adequate notice that it is unlawful to make a contribution using another person's name.  Therefore, we reject defendants' vagueness challenge. The decision of the Court of Appeals is affirmed.  The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. 1. ORS 260.402 (2003) provided: "No person shall make a contribution to any other person, relating to a nomination or election of any candidate or the support or opposition to any measure, in any name other than that of the person who in truth provides the contribution.  No person shall knowingly receive the contribution or enter or cause it to be entered in accounts or records in another name than that of the person by whom it was actually provided.  However, if the contribution is received from the treasurer of any political committee, it shall be sufficient to enter it as received from the treasurer." The statute has been amended since defendants were charged in this case.  However, the wording changes in the current statute are not material to the issues in this case.  Unless otherwise noted, all references to ORS chapter 260 in this opinion are to the 2003 version, which is the version that applies to this case. 2. There were two concurring opinions.  Chief Judge Brewer and Judge Edmonds agreed that ORS 260.402 was a Robertson category-two law, because it focused on harmful effects and not on speech.  Moyer, 225 Or App at 99 (Brewer, C. J., concurring).  Judge Schuman, however, concluded that ORS 260.402 prohibits expression but concurred with the conclusion in the lead opinion that the statute is a contemporary variant of an historical exception to free expression guarantees.  225 Or App at 99-100 (Schuman, J., concurring). 3. The statute was amended in 2007 and now provides similar requirements for contributors in "an aggregate amount of more than $100." 4. The Court of Appeals plurality concluded that the statute is directed, not at the expression itself, but at the harmful effects of expression (concealing from the recipient and the public the true identity of a contributor).  The difficulty, however, is that, although the statute is directed against concealing the identity of a contributor, the law is violated whether or not the recipient of the contribution or the public actually is misled about the identity of the contributor.  In other words, the statute is violated when the contribution is made, whether or not any harmful effect occurs.  Because the targeted effects are not expressed in the statute, and because, unlike the statute at issue in Stoneman, the targeted harm need not occur to violate the statute, the statute cannot be classified under the Robertson methodology as a category-two law. 5. Defendants also argue that the statute is not a modern variant of perjury, false swearing, or forgery achieved through false communication.  Because we conclude that ORS 260.402 is a modern variant of fraud and therefore is within a historical exception, we need not address defendants' arguments regarding perjury, false swearing, or forgery. 6. According to defendants, proof of fraud requires a showing that (1) the accused falsely represented a material fact; (2) the accused knew the representation was false; (3) the representation was made with the intent to induce the recipient to act or refrain from acting; (4) the recipient justifiably relied on the misrepresentation; and (5) the recipient was damage by that reliance. 7. Although the term "defraud" was undefined within the 1864 statute, lawyers of the day would have understood that a variety of meanings could be attached to the term.  A contemporaneous legal dictionary of the period, defining "fraud" and "to defraud" together in the same passage, provided, among other meanings: "4.  Frauds may be also divided into actual or positive and constructive frauds. "5.  An actual or positive fraud is the intention and successful employment of any cunning, deception, or artifice, used to circumvent, cheat, or deceive another. * * * "6.  By constructive fraud is meant such a contract or act, which, though not originating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, yet by its tendency to deceive or mislead them, or to violate private or public confidence, or to impair or injure the public interests, is deemed equally reprehensible with positive fraud, and therefore, is prohibited by law, as within the same reason and mischief as contracts and acts done malo animo." John Bouvier, 1 Law Dictionary 547 (9th ed 1860) (emphasis in original; internal citations omitted). 8. A cursory review of the Oregon Revised Statutes reveals at least 150 statutes that impose sanctions and punishments for various forms of false communication.  In particular, many of those statutes involve the communication of identifying information in one form or another to governmental entities. 9. Whether it would be permissible under Article I, section 8, to punish a contributor for inadvertently making a contribution in the name of another person is a question not presented in this case. 10. Defendants also argue that the statute is overbroad, because it criminalizes speech that would not deceive the electorate.  Defendants observe that ORS 260.402 criminalizes all contributions made in another person's name, regardless of the dollar amount contributed.  Defendants assert, however, that ORS 260.083 does not require statements of contributions and expenditures to report the identity of contributors who contribute less than a specific dollar amount ($50 in 2003).  Therefore, defendants contend, ORS 260.402 criminalizes some speech that could not deceive the public -- contributing $50 or less under a false identity -- because the false identity would never be disclosed to the public. Defendants' reasoning misses an important point, however.  The $50 limit in ORS 260.083 is not the amount of a single contribution -- it is the total dollar amount contributed by a particular individual.  ORS 260.083 required the statement of contributions and expenditures to "list the name, occupation and address of each person * * * that contributed an aggregate amount of more than $50."  (Emphasis added.)  By making the disclosure of the contributor's identity turn on the aggregate amount contributed, the statute prohibits contributors from concealing their identity by breaking contributions into amounts of $50 or less. One cannot determine whether a contributor's aggregate contributions exceed $50 without knowing the identities of all contributors, including those who contributed $50 or less.  To comply with ORS 260.083, then, the party required to file the statement of contributions and expenditures must know the true identities of all contributors, whether or not their individual contributions exceed $50.  Thus, a false representation as to the identity of a contributor -- regardless of the amount of the contribution -- deceives the filing party and interferes with the proper operation of ORS 260.083. 11. Because ORS 260.402 applies only to those contributions that are made in someone's name, it does not criminalize anonymous contributions.  However, ORS 260.083 requires that committees disclose the names and addresses of all individuals and entities that contribute more than the threshold reporting amount.  Accordingly, the Secretary of State's administrative rules require campaigns to refuse or to disgorge contributions for which campaigns cannot provide that information -- those funds that are donated anonymously.  See 2010 Campaign Finance Manual at 29 ("No committee shall accept an anonymous contribution.  If a committee cannot identify a contributor, the contribution must be donated to an organization that can accept anonymous contributions."); OAR 165-012-0005 (designating Campaign Finance Manual and associated forms "as the procedures and guidelines to be used for compliance with Oregon campaign finance regulations").  This case does not involve anonymous contributions, and we do not address whether Article I, section 8, would prevent the legislature from prohibiting anonymous campaign contributions.

05498d1d00b87a9885f33766255875de38accd2155bce03a5b81d7d7f6268164

2010-04-29T00:00:00Z

d94eb005-3ce1-46bf-88e5-22609c23828a

Whitsett v. Kroger

S058313

oregon

Oregon Supreme Court

FILED: April 29, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON DOUG WHITSETT, an individual Oregon Elector, Petitioner, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S058313) En Banc On petition to review ballot title filed March 10, 2010; considered and under advisement on March 31, 2010. Nathan R. Rietmann, Salem, filed the petition and reply memorandum for petitioner. Stephanie L. Striffler, Senior Assistant Attorney General, Salem, filed the answering memorandum for respondent.  With her on the memorandum were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. GILLETTE, J. The ballot title is referred to the Attorney General for modification. GILLETTE, J. This is a proceeding to review the ballot title for Senate Joint Resolution (SJR) 48, a measure referred to the people by the Legislative Assembly.  See Or Const, Art IV, § 1(3)(c) (authorizing such referrals).  Pursuant to ORS 250.075, the Legislative Assembly drafted its own ballot title for the referred measure.  Such ballot titles are reviewable by this court on the petition of "[a]ny elector dissatisfied with [the] ballot title."  ORS 250.085(1).  Petitioner, an elector, challenges each part of the ballot title -- the caption, the "yes" and "no" vote result statements, and the summary.  For the reasons that follow, we conclude that some of petitioner's challenges to each part of the ballot title are well taken.  We therefore refer the ballot title to the Attorney General for modification. SJR 48 is a constitutional amendment that would add a new Article, denominated Article XI-P, to the Oregon Constitution.  The complete wording of the referred measure is attached to this opinion as an appendix.  For the purposes of our review, however, it is possible to abbreviate our description of SJR 48 to the following:  Article XI, section 7, of the Oregon Constitution, prohibits the state from pledging the full faith and credit of the state to secure indebtedness incurred by the state in an amount in excess of $50,000.  Over the years, the voters have amended Article XI, section 7, on 17 separate occasions to permit the state to pledge its full faith and credit in support of bonds for particular purposes.  Or Const, Arts XI-A through XI-O.  SJR 48 would create an additional exception to the limit imposed by Article XI, section 7, by permitting the Legislative Assembly to authorize the state to incur certain kinds of indebtedness, the repayment of which would be backed by the full faith and credit of the state.  Such indebtedness could be used to finance or refinance the costs of "acquiring, constructing, remodeling, repairing, equipping or furnishing real or personal property that is or will be owned or operated" by the state.  SJR 48, §§ 1(1) and (2).  The indebtedness incurred pursuant to SJR 48 could not exceed one percent of the real market value "of the property in this state."  Id. § 2(1).  Any indebtedness would have to be paid from income tax revenues; the measure forbids repaying any obligation incurred pursuant to the measure from property taxes.  Id. § 2(2). The Legislative Assembly created the following ballot title for SJR 48: "AMENDS CONSTITUTION: AUTHORIZES LOWEST-COST BORROWING FOR STATE'S REAL AND PERSONAL PROPERTY PROJECTS "RESULT OF 'YES' VOTE:  'Yes' vote authorizes lowest-cost bonds to finance state owned or operated real and personal property projects.  Prohibits property tax for repayment.  Limits amount borrowed. "RESULT OF 'NO' VOTE:  'No' vote rejects authorization for state to issue lowest-cost general obligation bonds for real and personal property projects owned or operated by the state. "SUMMARY:  The measure amends the Oregon Constitution to authorize the state to issue general obligation bonds to finance acquisition, construction, remodeling, repair, equipping or furnishing of state owned or operated property.  General obligation bonds are the cheapest method of borrowing the state may use and would cost less than the certificates of participation the state currently uses.  The bonds would save an estimated $5 million on interest costs for each $100 million issued.  The measure does not authorize any specific bonds, but authorizes the Legislative Assembly to enact implementing legislation.  The measure prohibits the levy of property taxes to repay the bonds and limits the amount of outstanding bonds to one percent of the real market value of property in the state."(1) We turn to a discussion of each of petitioner's challenges to the title, beginning with his challenges to the caption. A ballot title caption for a proposed constitutional amendment must begin with the words "Amends Constitution," followed by a statement of not more than 15 words that reasonably identifies the subject matter of the measure.  ORS 250.035(2)(a).(2)  This court's role in reviewing challenges to a ballot title caption is to determine whether the caption substantially complies with the pertinent statutory requirements.  ORS 250.085(5).  To meet the applicable statutory standard, case law requires that the caption "state or describe the proposed measure's subject matter 'accurately and in terms that will not confuse or mislead potential petition signers and voters.'"  Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004), quoting Greene v. Kulongoski, 322 Or 169, 174-75, 903 P2d 366 (1995).  By "subject matter," we refer to the "actual major effect" of a measure or, if the measure has more than one major effect, all such effects (to the limit of the available words).  See, e.g., Terhune v. Myers, 342 Or 475, 480, 154 P3d 1284 (2007) (so holding). In this case, the referred measure's authorization of new indebtedness is a major effect, as the caption recognizes.  However, there is another, equally important effect that the caption does not mention.  The first substantive sentence of the referred measure includes the qualification, "notwithstanding the limitations contained in section 7, Article XI[,] of th[e Oregon] Constitution."  The proposed measure would supersede that "limitation"; it therefore is pertinent to inquire what the limitation entails. Article XI, section 7, of the Oregon Constitution, provides, in part: "The Legislative Assembly shall not lend the credit of the state nor in any manner create any debt or liabilities which shall singly or in the aggregate with previous debts or liabilities exceed the sum of fifty thousand dollars, except in case of war or to repel invasion or suppress insurrection or to build and maintain permanent roads; and the Legislative Assembly shall not lend the credit of the state nor in any manner create any debts or liabilities to build and maintain permanent roads which shall singly or in the aggregate with previous debts or liabilities incurred for that purpose exceed one percent of the true cash value of all the property of the state taxed on an ad valorem basis; and every contract of indebtedness entered into or assumed by or on behalf of the state in violation of the provisions of this section shall be void and of no effect. * * *." In all pertinent respects, that provision has been a part of the Oregon Constitution since statehood.  We have described the purpose and effect of the foregoing debt limitation provision this way: "The debates on the floor of the convention left little doubt as to the purpose of the debt limitation.  The central concern was that future generations should not be saddled with the excessive undertakings of an imprudent legislature.  The debt limitation was therefore adopted to protect against burdensome and excessive taxation.  It was intended to prevent exposing the sources of public revenue to potential hazard.  Long-term obligations create a fixed charge against future revenues and can impair the flexibility of planning and the ability of future legislatures to avoid a tax increase." State ex rel Kane v. Goldschmidt, 308 Or 573, 580, 783 P2d 988 (1989) (footnote, internal quotation marks, and citations omitted).  Petitioner argues that, correctly understood, it is "[t]he superseding of the existing constitutional debt limitation" that is the subject of the referred measure.  Yet, petitioner points out, that concept appears nowhere in the present caption.  It follows, petitioner reasons, that the caption is deficient. It is this court's practice to require that a ballot title caption for a measure like the one before us inform prospective voters of the "substantive change" in existing law that the measure will make.  See, e.g., Meyer v. Myers, 343 Or 399, 407, 171 P3d 937 (2007) (so requiring); Kain/Waller, 337 Or at 40 (subject matter of proposed measure includes scope of legal changes proposed measure would enact).  The Attorney General acknowledges the foregoing authorities, but argues that the practice has not been uniform.  He points to Anderson v. Thornton, 250 Or 185, 441 P2d 240 (1968), a case involving an initiated constitutional amendment in which this court did not require that the ballot title caption contain a statement about the substantive change in existing law that the proposed measure would make.  However, that case was one in which no side argued that such a statement should appear; it therefore is not one in which this court affirmatively concluded that no such statement was necessary.  When the issue has been before us, we have followed the rule stated in Meyer. This is such a case, and petitioner's argument is well taken.  The referred measure, if adopted, would alter state borrowing practices in a way that would impact the ability of future legislatures to utilize tax revenues to deal with new fiscal and policy problems.  That policy choice may or may not be an appropriate one, but it certainly is one that must be acknowledged.  The present ballot title does not do that.  The ballot title must be referred to the Attorney General to remedy the omission. Petitioner also argues that the caption is deficient in another respect.  He asserts that the use in the caption of the phrase "lowest-cost borrowing" is inappropriate, because it is misleading and confusing.  That argument has several sub-parts. First, petitioner argues that the use of the phrase "lowest-cost borrowing" is misleading because (petitioner asserts) the phrase has no frame of reference or point of comparison.  For example, he argues, the use of "lowest-cost" to modify "borrowing" in the caption will lead a prospective voter to conclude that the referred measure authorizes borrowing that has a lower cost than all other forms of borrowing.  That conclusion, petitioner reasons, then will cause a prospective voter to believe that the referred measure creates some kind of process by which the state will "shop around or otherwise price compare" various borrowing alternatives and select the "lowest-cost" one when, in fact, the referred measure creates no such process.  From that, petitioner contends that the phrase in question is misleading. The simplest answer to the foregoing argument is that it requires far too much speculation on our part to be valid.  It may be that some voters will reason in precisely the way that petitioner postulates -- a capacity to misread or misunderstand is inherent in any human enterprise.  But we see no basis for reaching that conclusion other than by speculating, and we shall not do that.  There being no persuasive demonstration of a problem, we decline to direct the Attorney General to cure it. Petitioner next argues that the modifier "lowest-cost" itself is misleading, "because it gives rise to an unanswered question: for whom is the borrowing authorized by SJR 48 at lowest-cost?"  With respect, we do not see any ambiguity -- the borrowing authorized by SJR 48 is borrowing authority granted to the state.  It follows, we think, that the "lowest-cost" phrase refers to the cost to the state of that borrowing.(3) Finally, petitioner asserts that the use of the term "borrowing" is misleading, because the term is broader and different than the constitutional term "debt."  As a result, petitioner reasons, potential voters will infer "that SJR 48 authorizes an array of 'lowest-cost' financing arrangements that do not involve the incurring of debt or indebtedness in the constitutional sense."  We are not persuaded that a logical path leads the way that petitioner points, but, in any event, we believe that the modified ballot title caption that the Attorney General creates on referral of this matter will make even clearer that the "borrowing" the caption refers to is borrowing that will create a "debt" of the state that would run afoul of the restriction in Article XI, section 7, without the adoption of this referred measure. In summary, we find petitioner's central contention concerning the caption -- that it fails to mention that the limitation on debt in Article XI, section 7, would not apply to debt incurred under the proposed amendment -- to be well taken.  The caption must be modified.  However, petitioner's other contentions about the caption do not require modification.(4)  We turn next to petitioner's challenges to the "yes" and "no" vote result statements.  For convenience, we again set out the ballot title vote result statements: "RESULT OF 'YES' VOTE:  'Yes' vote authorizes lowest-cost bonds to finance state owned or operated real and personal property projects.  Prohibits property tax for repayment.  Limits amount borrowed. "RESULT OF 'NO' VOTE:  'No' vote rejects authorization for state to issue lowest-cost general obligation bonds for real and personal property projects owned or operated by the state." Petitioner asserts that the "yes" result statement suffers from the same infirmities that he identified with respect to the caption.  We agree with petitioner that the "yes" result statement must state the impact of the proposed measure on the operation of present law in Article XI, section 7, of the Oregon Constitution.  The statement prepared by the Legislative Assembly does not do that.  On referral to the Attorney General, the "yes" result statement must be modified in that regard. Petitioner also repeats the other arguments that he made about the caption, but, once again, we do not find them persuasive.  Petitioner does, however, advance one additional argument.  He asserts that the statement "[l]imits amount borrowed" in the "yes" result statement is misleading because the word "limits" suggests constraints on state borrowing but, in fact, the referred measure authorizes substantial new debt.  It is true that the referred measure authorizes borrowing up to an amount equal to "one percent of the real market value of the property in this state," and that such an amount doubtless is a large one.  Nonetheless, it is a true "limit."  Under those circumstances, we cannot say that the "yes" result statement is insufficient in that regard. Petitioner attacks the "no" vote result statement on the ground that it amounts to little more than a declaration that "no rejects yes."  That is a fair characterization, and it is not satisfactory under the facts of this case.  See, e.g., Nesbitt v. Myers, 335 Or 424, 432-33, 71 P3d 530 (2003) (criticizing such "no" vote result statements).  The "no" vote result statement needs to include a description of the law that a "no" vote would leave in place:  Article XI, section 7, of the Oregon Constitution.  That would allow the "no" vote result statement to perform its function in advising potential voters as to the choice they are being asked to make.  The "no" vote result statement must be modified. Finally, we turn to petitioner's arguments pertaining to the summary.  For convenience, we once again set out the Legislative Assembly's summary: "SUMMARY:  The measure amends the Oregon Constitution to authorize the state to issue general obligation bonds to finance acquisition, construction, remodeling, repair, equipping or furnishing of state owned or operated property.  General obligation bonds are the cheapest method of borrowing the state may use and would cost less than the certificates of participation the state currently uses.  The bonds would save an estimated $5 million on interest costs for each $100 million issued.  The measure does not authorize any specific bonds, but authorizes the Legislative Assembly to enact implementing legislation.  The measure prohibits the levy of property taxes to repay the bonds and limits the amount of outstanding bonds to one percent of the real market value of property in the state." ORS 250.035(2)(d) requires that a ballot title contain a "concise and impartial statement * * * summarizing the state measure and its major effect."  "The function of [the] summary is to provide voters with enough information to understand what will happen if the proposed measure is approved, i.e., to advise voters of the 'breadth' of a measure's impact."  Caruthers v. Kroger, 347 Or 660, 670, 227 P3d 723 (2010). Petitioner raises four objections to the summary.  First, he argues that, like the caption and the "yes" and "no" vote result statements, the summary is deficient because it fails to inform voters that SJR 48, if adopted, would exempt the new borrowing authority from the debt limitation in Article XI, section 7, of the Oregon Constitution.  We agree.  On referral, the summary must be modified in that respect. Second, petitioner argues that the summary fails to inform voters that the debt incurred pursuant to the referred measure is secured by the taxing authority and the full faith and credit of the state.  We consider this argument to be a more focused version of the one just discussed.  As such, it is well taken.  We assume that this argument will be met by the manner in which the Attorney General deals with petitioner's first point. Third, petitioner challenges the statement in the summary that "the bonds would save an estimated $5 million on interest costs for each $100 million issued."  This statement is misleading, petitioner argues, because the ordinary reader would understand the savings so described to occur annually, while the actual projected savings are over the life of the particular bonds.  The Attorney General responds that the summary will not be misread in that way.  Both sides, in other words, ask us to speculate about how the words in question will be understood.  Without suggesting that we are wholly reassured by the Attorney General's argument, we nonetheless must say that we are unpersuaded by petitioner's contrary view.  We therefore do not refer the summary to the Attorney General on that basis. Finally, petitioner challenges the statement in the summary that "[g]eneral obligation bonds are the cheapest method of borrowing the state may use and would cost less than the certificates of participation the state currently uses."  He makes two arguments concerning that statement.  He argues, initially, that "cheapest" is a "loaded" word that is "politically charged and advocates support for the measure."  He then asserts that the sentence also is misleading because, although the interest rate on general obligation bonds doubtless would be lower than the interest rates on certificates of participation, the actual "cost" to the taxpayers of the state for using general obligation bonds probably "remains constant [compared with the cost of using certificates of participation], as the value of the additional risk assumed by Oregon taxpayers should be proportionate to the value of the interest rate reduction."  The Attorney General responds to petitioner's initial argument by asserting that "cheapest" is a fair substitute for the phrase "lowest-cost," particularly if the word limitation is tight.  He does not respond to the second argument. Better terms there may be, but we cannot say that the summary fails to comply substantially with the requirements of ORS 250.035(2)(d) in its use of "cheapest."  We also reject petitioner's second theory on precisely that ground -- it is a theory.  Petitioner may or may not be correct in speculating as to the true relative "cost" to Oregon taxpayers of general obligation bonds compared to certificates of deposit; we have no way of knowing.  And, because we have no way of knowing, we cannot hold that the sentence in question fails the statutory test of substantial compliance. Based on the foregoing discussion, we hold that the Legislative Assembly's ballot title for SJR 48 fails to comply substantially with the requirements of law for such ballot titles set out in ORS 250.035(2).  Pursuant to ORS 250.085(8), the ballot title is referred to the Attorney General for modification. The ballot title is referred to the Attorney General for modification. APPENDIX Enrolled Senate Joint Resolution 48 Be It Resolved by the Legislative Assembly of the State of Oregon: PARAGRAPH 1.  The Constitution of the State of Oregon is amended by creating a new Article to be known as Article XI-P, such Article to read: ARTICLE XI-P SECTION 1.   (1)  In the manner provided by law and notwithstanding the limitations contained in section 7, Article XI of this Constitution, the credit of the State of Oregon may be loaned and indebtedness incurred to finance the costs of: (a)  Acquiring, constructing, remodeling, repairing, equipping or furnishing real or personal property that is or will be owned or operated by the State of Oregon, including, without limitation, facilities and systems; (b)  Infrastructure related to the real or personal property; or (c)  Indebtedness incurred under this subsection. (2)  In the manner provided by law and notwithstanding the limitations contained in section 7, Article XI of this Constitution, the credit of the State of Oregon may be loaned and indebtedness incurred to refinance: (a)  Indebtedness incurred under subsection (1) of this section. (b)  Borrowings issued before the effective date of this Article to finance or refinance costs described in subsection (1) of this section. SECTION 2.  (1)  Indebtedness may not be incurred under section 1 of this Article if the indebtedness would cause the total principal amount of indebtedness incurred under section 1 of this Article and outstanding to exceed one percent of the real market value of the property in this state. (2)  Indebtedness incurred under section 1 of this Article is a general obligation of the State of Oregon and must contain a direct promise on behalf of the State of Oregon to pay the principal, premium, if any, and interest on the obligation.  The full faith and credit and taxing power of the State of Oregon must be pledged to payment of the indebtedness.  However, the State of Oregon may not pledge or levy an ad valorem tax to pay the indebtedness. SECTION 3.  The Legislative Assembly may enact legislation to carry out the provisions of this Article. SECTION 4.  This Article supersedes conflicting provisions of this Constitution. PARAGRAPH 2.  The amendment proposed by this resolution shall be submitted to the people for their approval or rejection at the next regular general election held throughout this state. 1. The ballot title was prescribed by the Legislative Assembly in section 21 of enrolled Senate Bill 998 (2010).  Or Laws 2010, ch 21, § 21. 2. Section 21(2) of enrolled Senate Bill 998 (2010) provides that "the word limits described in ORS 250.035(2) do not apply for the purposes of judicial review."  Or Laws 2010, ch 21, § 21(2).  The legislature nonetheless appears to have endeavored to keep the number of words in each section of its ballot title within the statutory limitation.  In every other respect, moreover, the requirements of ORS 250.035(2) apply. 3. Petitioner does not separately argue that the phrase "lowest cost" is a politically "loaded" one that should not be included in a ballot title. 4. Petitioner adds a new argument concerning the caption in his reply to the state's answering memorandum.  He asserts that use of the term "lowest-cost" is inappropriate because it focuses on one aspect of the borrowing process -- the interest rate -- at the expense of a myriad of other considerations.  We decline to address this argument, however, because it is new; it was not advanced in petitioner's opening memorandum and the Attorney General has had no opportunity to respond to it.

f8f3d605c6924373bb8b7fa385c1fb3421a7ac4c4b27b38b1f8678a5dd5bf31e

2010-04-29T00:00:00Z

9e245651-cd60-4633-9cfb-fd8cf0342743

State v. Blake

S057117

oregon

Oregon Supreme Court

FILED: March 25, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. MICHAEL PAUL BLAKE, Petitioner on Review. (CC 041136416; CA A131739; SC S057117) On review from the Court of Appeals.* Argued and submitted January 5, 2010. George W. Kelly, Eugene, argued the cause and filed the brief for petitioner on review. Michael R. Washington, Senior Assistant Attorney General, argued the cause and filed the brief for respondent on review.  With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Anne Fujita Munsey, Senior Deputy Public Defender, Salem, argued the cause and filed a brief for amicus curiae Office of Public Defense Services.  With her on the brief were Peter Gartlan, Chief Defender, and Robin A. Jones, Senior Deputy Public Defender. Before De Muniz, Chief Justice, and Gillette, Durham, Balmer, Walters, and Linder, Justices.** WALTERS, J. The decision of the Court of Appeals is reversed.  The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from Multnomah County Circuit Court, Alicia A. Fuchs, Judge. 225 Or App 501, 201 P3d 941 (2009). **Kistler, J., did not participate in the consideration or decision of this case. WALTERS, J. The issue in this criminal case is whether the trial court should have merged defendant's guilty verdicts for one count of forgery in the first degree, ORS 165.013(1)(a), and one count of criminal possession of a forged instrument in the first degree, ORS 165.022(1), when both counts were based on the single act of attempting to make a purchase with a forged $100 bill.  The trial court entered a judgment of conviction on two counts, and the Court of Appeals affirmed without opinion.  State v. Blake, 225 Or App 501, 201 P3d 941 (2009).  We allowed review and now reverse and remand to the circuit court for further proceedings. The facts are straightforward.  Defendant attempted to purchase groceries using forged currency, namely, a counterfeit $100 bill.  Subsequently, the state charged defendant with one count of forgery in the first degree (forgery), ORS 165.013(1)(a), and one count of criminal possession of a forged instrument in the first degree (criminal possession of a forged instrument), ORS 165.022(1).(1)  A jury found defendant guilty of both charges.  At sentencing, defendant's attorney unsuccessfully argued that the two guilty verdicts should merge into a single conviction for forgery.  As noted, the Court of Appeals affirmed without opinion. On review, the state maintains that the two guilty verdicts are separately punishable and should result in a judgment of conviction on two counts under ORS 161.067(1), which provides: "When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations." Defendant, on the other hand, asserts that, under ORS 161.067(1), only one separately punishable offense exists and that the judgment of conviction therefore should be entered on only one count -- forgery.   When the defendant has engaged in acts that constitute "the same conduct" or that are part of the "same criminal episode," ORS 161.067(1) makes each statutory violation a separately punishable offense when two circumstances exist:  (1) the defendant's acts violate "two or more statutory provisions"; and (2) each statutory provision requires "proof of an element that the others do not."  The parties in this case agree that the conduct that gave rise to the two charges against defendant constituted the same conduct, and thus there is no question that ORS 161.067(1) applies.  The first circumstance necessary to determine whether defendant committed more than one separately punishable offense is whether defendant's action violated two or more statutory provisions.  Where the legislature defines each crime in a separately numbered and labeled statutory section, as it does in this instance, it is difficult to see how those sections can be anything other than separate statutory provisions for purposes of ORS 161.067(1).  See State v. Parkins, 346 Or 333, 354-55, 211 P3d 262 (2009) (so stating with respect to separate statutory sections defined as different degrees of incrementally graded offense and assigned different punishments); State v. White, 346 Or 275, 294, 211 P3d 248 (2009) (Kistler, J., concurring) (explaining reasons that separate statutory sections should be treated as separate statutory provisions for purposes of ORS 161.067(1)).  We need not decide, however, whether the particular format that the legislature used here is determinative of its intent.  For a court to find separate punishable offenses under ORS 161.067(1), the state also must establish that each statutory provision requires proof of an element that the other does not.  Because we conclude that the state cannot establish that second circumstance here, we decline to further examine the first.   As noted, when ORS 161.067(1) is applicable, the second circumstance necessary to a finding of separately punishable offenses is that each statutory provision must require proof of an element that the other does not.  That circumstance was at issue in State v. Crotsley, 308 Or 272, 779 P2d 600 (1989).  There, the court concluded that first-degree rape and third-degree rape each incorporated an element that the other did not, because the former included the element of forcible compulsion, and the latter included the element of the victim's age.  Id. at 279-80.  In contrast, if one offense contains X elements, and another offense contains X + 1 elements, the former offense does not contain an element that is not also found in the latter offense.(2)  In that situation, under ORS 161.067(1), there is only one separately punishable offense. Defendant argues that criminal possession of a forged instrument under ORS 165.022(1) contains only elements that are also found in the offense of forgery under ORS 165.013(1) and therefore that, under ORS 161.067(1), there is only one separately punishable offense.  To test that argument, we must compare the elements of each offense.  ORS 165.013(1)(a)(A) defines the crime of forgery and provides: "A person commits the crime of forgery in the first degree if the person violates ORS 165.007 [a]nd the written instrument is or purports to be * * * [p]art of an issue of money * * *." ORS 165.007(1), in turn, provides: "A person commits the crime of forgery in the second degree if, with intent to injure or defraud, the person: "(a) Falsely makes, completes or alters a written instrument; or "(b) Utters a written instrument which the person knows to be forged." The indictment charged defendant under ORS 165.007(1)(b).(3)  Thus, for purposes of our analysis, proof of forgery requires proof of the following elements: (1) Intent to injure or defraud; (2) Uttering of; (3) A forged bill; (4) Knowing the bill to be forged. ORS 165.022(1) defines criminal possession of a forged instrument and provides: "A person commits the crime of criminal possession of a forged instrument in the first degree if, knowing it to be forged and with intent to utter the same, the person possesses a forged instrument of the kind and in the amount specified in ORS 165.013(1)." Under ORS 165.013(1), counterfeit currency qualifies as a forged instrument.  Thus, for our purposes, criminal possession of a forged instrument requires proof of the following elements: (1) Intent to utter; (2) Possession of; (3) A forged bill; (4) Knowing the bill to be forged. Defendant argues that all the elements of criminal possession of a forged instrument are found in forgery.  Defendant is obviously correct as to the last two elements of criminal possession of a forged instrument -- a forged bill, known to be forged.  Those elements also are found in the terms of the crime of forgery.  As to the first two elements of criminal possession of a forged instrument -- intent to utter and possession -- defendant contends that those elements also are found in the act and intent required by the second element of forgery -- uttering.  According to defendant, a person who utters a forged instrument necessarily possessed it and intended to utter it. We consider first the conduct required by the two offenses.  Criminal possession of a forged instrument requires the act of possession; the crime of forgery requires the act of uttering.  To "possess" means to "have physical possession or otherwise to exercise dominion or control over property."  ORS 161.015(9).  To "utter" means to "issue, deliver, publish, circulate, disseminate, transfer or tender a written instrument or other object to another."  ORS 165.002(7).  It is difficult to see how one could carry out any of those latter acts without also possessing the thing to be issued, delivered, published, circulated, disseminated, transferred, or tendered. The state contends that there are two reasons that we should not draw that conclusion.  First, the state argues, a defendant could be liable for forgery as an accomplice without himself or herself possessing the forged document.  However, an accomplice theory of liability is not itself an independent offense.  Accomplice liability makes a person who aids or abets a crime liable for that crime even though the accomplice may not have committed any of the acts that the crime entails.  See ORS 161.155(2)(b) (criminal liability for aiding and abetting another person in planning or committing a crime).  Because the principal who utters a forged instrument also necessarily possesses it, a person who aids and abets the principal in the crime of forgery by definition also aids and abets the principal in the crime of criminal possession of a forged instrument.  An accomplice who is liable for forgery is also liable for criminal possession of a forged instrument. Second, the state argues that one could, through means other than possession, utter a forged instrument.  As an example, the state posits that a person could use the Internet to manipulate a bank account and thereby issue a check without physically possessing it, thus uttering a forged instrument.  Possession, however, encompasses more than physically possessing an object.  As this court previously has observed: "'Possession' ordinarily means 'the act or condition of having in or taking into one's control or holding at one's disposal.'  That definition is broad enough to include personal property within the suspect's immediate reach as well as property under the suspect's dominion and control[.] * * *  Put more succinctly, 'possession' includes both actual and constructive possession." State v. Connally, 339 Or 583, 591, 125 P3d 1254 (2005) (quoting Webster's Third New Int'l Dictionary 1770 (unabridged ed 2002)).  The ability to manipulate a bank account using a computer is sufficient to constitute "dominion and control," and thus is possession for purposes of the forgery statute.  We therefore reject the state's two contentions and conclude that the act of uttering necessarily includes the act of possessing.  Proof of the act necessary to establish the crime of forgery also proves the act necessary to establish the crime of criminal possession of a forged instrument.  Stated another way, the crime of criminal possession of a forged instrument does not require proof of an act that is not also required to prove the crime of forgery.  Turning to the intent element of the two crimes at issue, we recognize that the crime of forgery does not expressly require that a defendant must utter a forged instrument with the intent required by the crime of criminal possession of a forged instrument -- the intent to utter it.  The crime of forgery requires, instead, that the defendant have an intent to injure or defraud.  In our view, a person cannot utter a forged bill to another with an intent to injure or defraud that person without also having an intent to present that bill to the person to be injured or defrauded.  In other words, proof of intent to injure or defraud also necessarily proves the intent to utter.  Therefore, proof of the intent necessary to establish the crime of forgery also proves the intent necessary to establish the crime of criminal possession of a forged instrument.  In other words, the crime of criminal possession of a forged instrument does not require proof of an intent that is not also required to prove the crime of forgery.     Criminal possession of a forged instrument does not require proof of an element -- an act or an intent -- that is not also required to prove the crime of forgery.(4)   Therefore, we conclude that the second requirement necessary to establish separately punishable offenses when ORS 161.067(1) applies has not been met in this case.   Although two guilty verdicts were obtained, there is only one separately punishable offense.  We therefore remand this case to the circuit court for entry of a judgment of conviction on the forgery count. The decision of the Court of Appeals is reversed.  The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. 1. The factor that makes both crimes first-degree offenses is that the forged instrument "is or purports to be [p]art of an issue of money."  Compare ORS 165.007 (forgery in the second degree) with ORS 165.013 (forgery in the first degree) and ORS 165.017 (criminal possession of a forged instrument in the second degree) with ORS 165.022 (criminal possession of a forged instrument in the first degree).  The nature of the forged instrument is not at issue here, and, for readability, we refer to the crimes of which defendant was found guilty without repeating that those crimes were first-degree offenses. 2. For examples of such statutes, see ORS 164.043 (third-degree theft); ORS 164.045 (second-degree theft); and ORS 164.055 (first-degree theft). 3. The indictment stated, in part, that defendant "did unlawfully, knowingly and with intent to injure and defraud, utter a written instrument, to-wit: a $100 bill, which purported to be part of an issue of money issued by The Treasury Department of the United States of America, a governmental agency, defendant[] knowing said instrument to be forged[.]" 4. For purposes of ORS 161.067(1), it is of no consequence that the crime of first-degree forgery contains elements that possession of a forged instrument does not.  "[E]ach" statutory provision must contain an element that the other does not.  ORS 161.067(1).

8e1ac642d0b6613072ff841872ec40a33cbb1a2f35a3aa5dd600a9c358bd9f66

2010-03-25T00:00:00Z

44c840bb-3764-41c8-bd78-e18521d153fd

West Linn Corporate Park v. City of West Linn

oregon

Oregon Supreme Court

FILED: September 23, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON WEST LINN CORPORATE PARK, L.L.C., Plaintiff, v. CITY OF WEST LINN, BORIS PIATSKI, and JOHN DOES 1-10, Defendants. WEST LINN CORPORATION PARK, L.L.C., Plaintiff, v. CITY OF WEST LINN, BORIS PIATSKI, and JOHN DOES 1-10, Defendants. (USCA 05-53061, 05-36062; SC S056322) On certified questions from the United States Court of Appeals for the Ninth Circuit; certification order dated July 29, 2008; certification accepted December 10, 2008; argued and submitted September 17, 2009. D. Joe Willis, Schwabe, Williamson & Wyatt, P.C., Portland, argued the cause and filed the brief for plaintiff.  With him on the brief were Michael T. Garone and Jill S. Gelineau. Robert E. Franz, Jr., Springfield, argued the cause and filed the brief for defendants.  Alan M. Sorem and Hunter B. Emerick, Salem, filed a brief for amicus curiae National Association of Homebuilders. John M. Groen, Bellevue, WA, and Meriem L. Hubbard, Sacramento, CA, filed a brief for amicus curiae Pacific Legal Foundation. Edward J. Sullivan, Carrie A. Richter, and Harry Auerbach, Portland, filed a brief for amici curiae League of Oregon Cities, American Planning Association, and the Oregon Chapter of the American Planning Association. Before De Muniz, Chief Justice, and Durham, Balmer, Walters, Kistler, and Linder, Justices.* WALTERS, J. The certified questions are answered. Kistler, J., filed an opinion concurring in part and dissenting in part in which Linder, J., joined. *Gillette, J., did not participate in the decision of this case. WALTERS, J. In this case, we answer three questions certified to us by the United States Court of Appeals for the Ninth Circuit (Ninth Circuit).  The questions arise from an action that West Linn Corporate Park (plaintiff) originally filed in state court against the City of West Linn (the city) alleging that the city effected a taking of plaintiff's property when the city required, as a condition of development of that property, that plaintiff construct off-site public improvements.  In that action, plaintiff asserted two claims for inverse condemnation and sought payment of just compensation.  The city answered, asserted a counterclaim, and sought invalidation of a city ordinance that vacated a street abutting plaintiff's property.  The city then removed the case to federal court.  Following a bench trial, the federal district court entered judgment in favor of the city on plaintiff's inverse condemnation claims and in favor of plaintiff on the city's road vacation counterclaim.  The parties cross-appealed to the Ninth Circuit, which entered an order certifying the following questions to this court: 1.  "[W]hether a plaintiff bringing an inverse condemnation action alleging that a condition of development amounts to an exaction or a physical taking is required to exhaust available local remedies as a prerequisite to bringing his claim in state court." 2.  "[W]hether a condition of development that requires a plaintiff to construct off-site public improvements, as opposed to dedicating an interest in real property such as granting an easement to a municipal entity, can constitute an exaction or physical taking." 3.  "[W]hether the vacation of a street approved by the City Council purporting to act pursuant to [ORS 271.110] is ultra vires where the petition does not comply with the landowner consent provisions of [ORS 271.080]." West Linn Corporate Park LLC v. City of West Linn, 534 F3d 1091, 1093-94 (9th Cir 2008) (certification order). To understand fully the basis for the Ninth Circuit's first two questions, it is necessary to explain in greater detail the procedural history of this case and the inverse condemnation claims that plaintiff filed in state court.(1)  In its first claim for relief, plaintiff alleged that, as a condition of development, the city "required [it] to construct and dedicate to the City numerous public improvements for street and water"; that the cost of those improvements was "well beyond what is roughly proportional to the impact of Plaintiff's development"; and that the city's action constituted a taking under Article I, section 18, of the Oregon Constitution.(2)  As a result, plaintiff alleged, it was entitled to payment of just compensation equal to the cost of the improvements that it had constructed.(3) In its second claim for relief, plaintiff incorporated the facts that it alleged in its first claim for relief -- that the city had required it to construct off-site improvements at a cost not "roughly proportional" to the impact of plaintiff's development -- but alleged that those facts constituted a taking under the Fifth Amendment to the United States Constitution.(4)  Plaintiff alleged that, as a result, it was entitled to payment of just compensation under the Fifth Amendment.  In addition, plaintiff alleged that the city had violated its civil rights and was liable for attorney fees under 42 USC section 1983.(5) Plaintiff's allegations that the city effected a taking of its property by imposing costs of construction not "roughly proportional" to the impact of plaintiff's development derive from two United States Supreme Court cases -- Nollan v. California Coastal Comm'n, 483 US 825, 831-32, 107 S Ct 3141, 97 L Ed 2d 677 (1987), and Dolan v. City of Tigard, 512 US 374, 384, 114 S Ct 2309, 129 L Ed 2d 304 (1994).  In Nollan, the California Coastal Commission required that, in exchange for a permit to demolish an existing bungalow and replace it with a three-bedroom house, the plaintiffs grant a public easement across their beachfront lot connecting two public beaches located on either side of the plaintiff's property.  483 US at 828.  The commission asserted that requiring the easement was a valid exercise of its regulatory authority to protect and grant visual access to the ocean and that that access would be diminished by construction of the larger house.  The Court recognized the commission's interest as legitimate but held that it did not justify requiring that the plaintiffs provide physical access across their property.  The Court concluded that, by demanding the easement as a condition of development, the commission had converted "a valid regulation of land" into "an out-and-out plan of extortion," id. at 837 (internal quotation marks omitted), that effected a taking for which just compensation was required, id. at 842. In Dolan, although the Court did not see the same "gimmicks" that it had noted in Nollan, it again concluded that the city had not established the necessary nexus between the conditions that it wished to impose and the effects of the proposed development.  512 US at 387, 394-96.  The plaintiff had applied for a permit to double the size of her retail store and pave her gravel parking lot.  The city had required her to dedicate a pedestrian/bicycle pathway and a public greenway along a creek to relieve anticipated increases in congestion and flooding.  After concluding that the dedications and the projected impact of the development must be "roughly proportional" to one another and that the city's findings were inadequate to establish that that standard had been met, the Court concluded that the dedications were unconstitutional takings that could not be sustained.  Id. at 394-96. In this case, plaintiff alleged that the city's requirement that it construct off-site improvements at a cost not "roughly proportional" to the impacts of its development constituted a taking under the state and federal constitutions, entitling it to payment of just compensation.  To obtain that compensation, plaintiff filed two claims for "inverse condemnation":  the first asserting that the city had effected a taking under the state constitution; the second asserting that the city had effected a taking under the federal constitution.  The term "inverse condemnation" encompasses both of plaintiff's claims.  An "[i]nverse condemnation" claim is any claim "against a governmental agency to recover the value of property taken by the agency although no formal exercise of the power of eminent domain has been completed by the taking agency."  Boise Cascade Corp. v Board of Forestry, 325 Or 185, 187 n 1, 935 P2d 411 (1997) (internal quotation marks and citation omitted).  Plaintiff appropriately filed both of its claims for inverse condemnation in state court.  See id. at 187-88 (inverse condemnation action alleging taking under state and federal constitutions in state court); Coast Range Conifers v. Board of Forestry, 339 Or 136, 151-55, 117 P3d 990 (2005) (inverse condemnation action alleging taking under federal constitution in state court); see also San Remo Hotel, L.P. v. City & County of San Francisco, 545 US 323, 347, 125 S Ct 2491, 162 L Ed 2d 315 (2005) (state courts fully competent to hear federal takings claims).  Plaintiff also appropriately filed its section 1983 claim in state court.  See, e.g., Suess Builders v. City of Beaverton, 294 Or 254, 264-65, 265 n 10, 656 P2d 306 (1982) (entertaining, and noting that state courts generally entertain, claims under section 1983). If this case had remained in state court, the state trial court would have been required to decide whether plaintiff alleged facts sufficient to assert state claims for just compensation and, if so, whether plaintiff was entitled to compensation and in what amount.  The state court's conclusion as to the viability of plaintiff's claims would have depended on that court's determination whether what plaintiff alleged -- that plaintiff was required to construct off-site improvements at a cost that was not "roughly proportional" to the impact of plaintiff's development -- could amount to a taking under the state constitution, as plaintiff alleged in its first claim for relief, or under the federal constitution, as plaintiff alleged in its second claim for relief.  The state court also would have been required to determine whether state law required exhaustion of administrative remedies as a prerequisite to assertion of those claims.  See id. at 261-62 (considering those issues). When the city removed the case to federal court, the federal district court was also presented with those same issues.(6)  In addition, however, the federal court was required to address a question particular to the federal forum.  As the Ninth Circuit explains in its certification order, the federal district court was required to decide whether plaintiff's second claim for relief, based on the Fifth Amendment, was ripe for its consideration under the Supreme Court's decision in Williamson Planning Comm'n v. Hamilton Bank, 473 US 172, 105 S Ct 3108, 87 L Ed 2d 126 (1985).  Williamson holds that a plaintiff's federal takings claims are not ripe for consideration by a federal court unless the plaintiff establishes that it first pursued available state court remedies to attempt to obtain payment of just compensation from the state. The Ninth Circuit explains the Supreme Court's decision in Williamson as follows:  "In Williamson, the Supreme Court held that a land owner's Fifth Amendment takings claim against a local government is not ripe until the claimant has availed himself of all the administrative remedies through which the government might reach a final decision regarding the regulations that effect the taking, and any state judicial remedies for determining or awarding just compensation.  See [473 US at 186] * * * (holding that '[b]ecause respondent has not yet obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, nor utilized the procedures Tennessee provides for obtaining just compensation, respondent's claim is not ripe').  The first condition, which has come to be known as 'prong-one ripeness,' requires a claimant to utilize available administrative mechanisms, such as seeking variances from overly-restrictive or confiscatory zoning ordinances, so that a federal court can assess the scope of the regulatory taking. Id. at 190-91 * * *.  The second condition ('prong-two ripeness') is based on the principle that '[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation.' Id. at 194 * * *.  Consequently, 'if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [federal] Just Compensation Clause until it has used the procedure and been denied just compensation.'  Id. at 195[.]" West Linn Corporate Park LLC v. City of West Linn, 534 F3d at 1091, 1099-1100 (9th Cir 2008).(7) The plaintiff in Williamson had filed an action in federal court alleging, under section 1983, that a local government had adopted land use regulations that denied it the economically viable use of its property and seeking damages based on the government's failure to compensate plaintiff for that taking.  The Supreme Court ruled that the plaintiff's claim was not yet ripe.  Under prong one of its analysis, the Court ruled that the plaintiff had not obtained a final decision from the local government enabling the federal court to determine with certainty the permitted uses of the plaintiff's property.(8)  Under prong two of its analysis, the Court ruled that the plaintiff had not obtained a decision from the state court denying it just compensation.  Under state law, as it had been interpreted by the state court, a property owner that claimed that governmental regulation denied it all economically viable use of its property could obtain compensation by filing an inverse condemnation action in state court.  The Supreme Court decided that, because the plaintiff had not demonstrated that that procedure was unavailable or inadequate, the plaintiff's federal claim was premature.  The Court stated:  "[I]if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation."  Williamson, 473 US at 195. In this case, the federal district court decided that plaintiff's second claim for relief was not ripe under prong two of Williamson.  The district court ruled that, before plaintiff could file an inverse condemnation action in state court, it was required, by state law, to appeal the city's requirement that plaintiff construct off-site improvements to the city's land use hearings officer, the city council, and finally to the state Land Use Board of Appeals (LUBA).  Plaintiff had failed to take those administrative steps and, consequently, had deprived the state court of the opportunity to award just compensation.  As a result, the federal district court held that plaintiff's second claim for relief, seeking just compensation under the Fifth Amendment and damages under section 1983, was barred.(9)  Exercising supplemental jurisdiction, the district court then turned to plaintiff's first claim for relief seeking just compensation under the Oregon Constitution and concluded that plaintiff's failure to pursue available administrative remedies also precluded that claim. Plaintiff appealed to the Ninth Circuit.  To decide whether the district court had erred, the Ninth Circuit was required, as the district court had been, to examine state law and determine whether plaintiff was required to utilize available state procedures before filing its claims for inverse condemnation.  The Ninth Circuit concluded that state law is unsettled with respect to whether pursuit of administrative remedies is a prerequisite to an inverse condemnation action premised on a taking under Dolan and Nollan: "The Oregon Supreme Court has not had occasion to consider this specific question of exhaustion. Two decisions, however, one from the Oregon Court of Appeals, and another from the Land Use Board of Appeals, reach opposite conclusions, highlighting, we feel, the unsettled nature of this aspect of Oregon law. Compare Nelson v. City of Lake Oswego, [126 Or App 416, 869 P2d 350 (1994)], with Reeves v. City of Tualatin, [31 Or LUBA 11, 1996 WL 33118832 (1996)]." West Linn, 534 F3d at 1100.  Thus, the Ninth Circuit asks this court to answer that question of state law, namely, whether "[plaintiff's] complaint filed in the Clackamas County Circuit Court [was] sufficient under Oregon law to seek a final determination of compensation[.]"  Id. The district court's ruling that plaintiff was required to pursue local remedies before filing its claims for inverse condemnation presumed the viability of those claims.  If state law does not recognize those claims, then plaintiff's failure to take administrative steps preliminary to their assertion cannot serve as a basis for entry of judgment against plaintiff.  The Ninth Circuit therefore also needed to decide a second issue that the state court would have confronted had the case remained within its jurisdiction:  does Oregon law recognize claims for inverse condemnation based on allegations that a local government has required a property owner to construct off-site improvements as a condition of development?  The Ninth Circuit again considered Oregon law in that regard to be unsettled.  In its certification order, the Ninth Circuit states: "The Oregon Supreme Court similarly has not had occasion to consider whether conditions of development that require off-site public improvements, that is, a requirement that a landowner improve public property -- outside of the proposed development site -- in which the landowner has no property interest can amount to an exaction. One case from the Oregon Court of Appeals of which we are aware squarely answers that question in the affirmative. See Clark v. City of Albany, [137 Or App 293, 904 P2d 185 (1995)]. However, a recent Oregon Court of Appeals decision has cast doubt on the continuing validity of Clark.  See Dudek v. Umatilla County, [187 Or App 504, 69 P3d 751 (2003)]." Id. at 1102.  As a result, the Ninth Circuit explains: "[I]t is unclear how Oregon law would classify the conditions placed on the development of the West Linn Corporate Park to improve public property off its site. On the one hand, if the Oregon Supreme Court holds that such conditions can amount to an exaction, then assuming there is no need for exhaustion, we may proceed to analyze the conditions under the Dolan framework. If, on the other hand, the Oregon Supreme Court concludes that off-site public improvements do not amount to exactions, then it is unclear whether under Oregon law, there is any viable cause of action for inverse condemnation." Id. at 1104.   With that background, we return to and repeat the Ninth Circuit's first two questions: 1. "[W]hether a plaintiff bringing an inverse condemnation action alleging that a condition of development amounts to an exaction or a physical taking is required to exhaust available local remedies as a prerequisite to bringing his claim in state court." 2. "[W]hether a condition of development that requires a plaintiff to construct off-site public improvements, as opposed to dedicating an interest in real property such as granting an easement to a municipal entity, can constitute an exaction or physical taking." Id. at 1093.  In those questions, the Ninth Circuit uses the word "exaction" to mean a governmental action equivalent to a physical taking that entitles a property owner to payment of just compensation.(10)  To reflect that meaning and the allegations of plaintiff's complaint, we rephrase the Ninth Circuit's first two questions as follows:(11) 1.  Whether a plaintiff bringing an inverse condemnation action alleging that a city imposed, as a condition of development, a requirement that plaintiff construct off-site improvements at a cost not "roughly proportional" to the impacts of the development is required to pursue administrative remedies before filing that claim in state court. 2.  Whether a property owner that alleges that a city has required it to construct off-site improvements at a cost that is not "roughly proportional" to the impacts of the development, as opposed to dedicating an interest in real property such as granting an easement, alleges a taking that gives rise to a claim for just compensation. We proceed to the first question. I.  WAS PLAINTIFF REQUIRED TO PURSUE ADMINISTRATIVE REMEDIES? As noted, the Ninth Circuit views Oregon law regarding the pursuit of administrative remedies to be unsettled based on a conflict that it perceives between the decision of the Court of Appeals in Nelson v. City of Lake Oswego, 126 Or App 416, 869 P2d 350 (1994), and the decision of LUBA in Reeves v. City of Tualatin, 31 Or LUBA 11 (1996).  In Nelson, the plaintiffs alleged that the city had effected a taking of their property under the state and federal constitutions when the city manager required, as a condition of development, that the plaintiffs dedicate a 55-foot easement to the city.  The plaintiffs filed judicial claims for inverse condemnation without first appealing the city manager's decision to the city council.  The court recognized that plaintiffs who base inverse condemnation claims on use restrictions -- claims that the court described as "regulatory takings" claims -- must exhaust administrative remedies for two reasons: "First, the fact that one use is impermissible under the regulations does not necessarily mean that other economically productive uses are also precluded; and second, until alternative uses are applied for or alternative means of obtaining permission for the first use are attempted, there can be no conclusive authoritative determination of what is legally permitted by the regulations.  Therefore, the courts cannot perform their adjudicative function on a claim predicated on a single denial, because something more must be decided by the local or other regulatory authority before there can be a demonstrable loss of all use and, therefore, a taking.  See Suess Builders v. City of Beaverton, [294 Or 254, 261-62, 656 P2d 306 (1982)]." 126 Or App at 422 (emphasis in original). However, the court distinguished a local government's requirement that a property owner dedicate real property from such regulatory takings and decided that exhaustion of administrative remedies was not required under the circumstances presented in Nelson, because   "the condition has been imposed and the easement has been acquired by the city.  There is nothing left to happen at the local or administrative level in order for the claim to be susceptible to adjudication; the only question is whether what has occurred is a taking under the legal test that the condition must bear a reasonable relationship to the impacts of the use to which the city has attached it. Dolan v. City of Tigard, 317 Or 110, 854 P2d 437, cert granted 510 US 989[, 114 S Ct 544, 126 L Ed 2d 446] (1993).  The facts on both sides of the equation are readily susceptible to conventional judicial proof, and the adjudication of the facts and of the applicable law is well within the judicial competence." Id. (emphasis in original). Reeves was a LUBA decision that purported to apply the court's decision in Nelson.  The petitioner in Reeves, like the plaintiffs in Nelson, objected to a required dedication of real property.  LUBA ruled that the petitioner was required to seek a variance from the city before appealing that requirement to LUBA.  LUBA noted that that option had not been available to the plaintiffs in Nelson.  Reeves, 31 Or LUBA at 17.  Further, in Nelson, the city had acquired the easement at issue, and there was "nothing left to happen at the local level in order for a claim to be susceptible for adjudication."  Reeves, 31 Or LUBA at 17 (citing Nelson, 126 Or App at 422) (internal quotation marks omitted).  In Reeves, the city had not yet acquired the easement, and there were other actions that the city could take that could affect LUBA's decision.  Id.  LUBA explained that, until it could "ascertain how and to what extent the conditions will be imposed on the petitioner's property, [it would] have no way of determining whether the conditions bear an 'essential nexus' to the impacts of the development and whether any exactions are roughly proportional to the impacts of petitioner's proposed development." Id. In addressing the Ninth Circuit's first question, plaintiff argues that Nelson is controlling Oregon law and stands for the proposition that exhaustion is not required when a plaintiff brings an inverse condemnation action based on a taking under Nollan and Dolan.  We disagree.  Although we do not apprehend the conflict that the Ninth Circuit sees as rendering Oregon law unsettled, we also do not see Nelson as determinative of the question that the Ninth Circuit poses.  In this case, the city did not require plaintiff to dedicate real property as a condition of its development.  Because the circumstances extant here may argue for exhaustion for the reasons that LUBA stated in Reeves and that the Court of Appeals did not have the opportunity to fully explore in Nelson, we take up the merits of the first question that the Ninth Circuit poses.  We begin with a review of relevant precedent.   In Fifth Avenue Corp. v. Washington County, 282 Or 591, 622 n 23, 581 P2d 50 (1978), this court determined that a plaintiff that sought a declaratory judgment that a comprehensive plan was unconstitutional on the basis that it was arbitrary, capricious, and unreasonable as applied was required to exhaust administrative remedies before asserting that claim in court.(12)  The comprehensive plan prohibited the plaintiff from building a district shopping center on its property, but local procedure entitled the plaintiff to seek a zone change or a plan amendment, which, if obtained, would have permitted that development.  The court treated the issue as one of exhaustion of administrative remedies and observed that one of the purposes of that doctrine is to permit an administrative body with expertise "to determine[,] at least initially, factual and policy questions with which it is familiar, and, if litigation does result, to provide the reviewing court with a complete and well[-]organized record upon which it may base its judgment."  Id. at 623 n 23.  The court relied on the local planning body's expertise and the principle that "[o]rdinarily those who seek judicial relief must show they have exhausted their administrative remedies" in holding that the plaintiff's failure to exhaust administrative remedies barred his claim.  Id. at 614 (internal quotation marks omitted). The court extended the exhaustion requirement of Fifth Avenue to a plaintiff's claim for inverse condemnation in Suess Builders.  In that case, the plaintiff alleged that the city had designated its property for future public acquisition and that that designation constituted a taking for which just compensation was required.  The court decided that the plaintiff could not rest its claim on the plan designation, but had to demonstrate that it had sought relief, including pursuing administrative procedures for amending the plan.  The court stated that, "if a means of relief from the alleged confiscatory restraint remains available, the property has not been taken."  294 Or at 262. In Boise Cascade, the court declined, however, to require appeal to LUBA as a prerequisite to an inverse condemnation action.  325 Or 185, 935 P2d 411 (1997).  Although LUBA has jurisdiction to decide whether governmental action constitutes a compensable taking, Dunn v. City of Redmond, 303 Or 201, 207, 735 P2d 609 (1987), the court in Boise Cascade refused to stay the plaintiff's inverse condemnation action until LUBA had an opportunity to rule, reasoning that the issue presented -- whether a taking had occurred -- was a constitutional question that fell within an area traditionally adjudicated by courts.  Boise Cascade, 325 Or at 196. Fifth Avenue and Suess Builders impose a requirement that a property owner obtain a clear and final ruling from the local government as to the permitted uses of its property before filing judicial action to challenge limitations on the use of that property.  That rule can be viewed as ensuring that the decision of the local government is in truth its final decision or as a general requirement of efficiency in judicial administration.  Through either lens, that requirement permits the local government to fully determine and review factual questions about the effect that its regulations have on a particular property and policy questions about whether, given the specific circumstances presented, the government wishes to enforce those regulations.  And through either lens, that requirement is of great benefit in avoiding unnecessary litigation or better informing a court should litigation ensue. With regard to whether Oregon law imposes a requirement of finality or exhaustion before permitting the filing of an action for inverse condemnation, we do not see a significant difference between takings claims that are based on regulations that limit the use of property and those that are based on regulations that place conditions on its development.  In either instance, a property owner that asserts objections to the regulations at the local level may obtain relief from regulatory restraint.  In either instance, a requirement that a property owner take administrative steps prior to bringing judicial action permits the local government to determine the necessary effects of the regulations and whether, knowing those effects, it wishes to impose or enforce them.  Just as a court benefits by requiring that local governments have the opportunity to assess fully the effects that use limitations have on property owners, so too does a court benefit from requiring that local governments have the opportunity to consider fully whether the conditions on development that it seeks to require are proportional to the impacts of development and whether to insist on imposing those conditions, given the assessment that it makes.  That conclusion does not mean, however, that a landowner must appeal the decision of the local government to LUBA before filing an action for inverse condemnation.  LUBA reviews the decisions of local government, but it does not decide facts and cannot make policy decisions for local governments.  See ORS 197.829(1)(c) (LUBA shall affirm local government's interpretation of a regulation unless that interpretation is inconsistent with underlying policy of comprehensive plan or land use regulation); ORS 197.835(2)(b) (LUBA bound by any findings of fact of the local government for which there is substantial evidence in the record); ORS 197.835(7)(a), (b) (LUBA shall reverse land use regulation if not in compliance with local government's comprehensive plan or the comprehensive plan lacks specific policies which provide the basis for the regulation).  Requiring appeal to LUBA would not serve the same purposes as does requiring the pursuit of local government remedies.(13) Accordingly, we answer the Ninth Circuit's first question as follows:  Assuming that Oregon law permits an inverse condemnation action premised on allegations that a condition of development requires a landowner to construct off-site improvements at a cost not roughly proportional to the impacts of development, Oregon law requires the landowner to pursue available local administrative remedies, but not to appeal to LUBA, as a prerequisite to bringing that action in state court.(14) In this case, it is undisputed that plaintiff did not use available local procedures to seek to modify or annul the requirement that it construct off-site improvements.  West Linn, 534 F3d at 1102.  Therefore, assuming that plaintiff had viable claims for inverse condemnation against the city, it did not pursue available local administrative remedies before bringing those judicial claims. II.  DID PLAINTIFF ALLEGE FACTS GIVING RISE TO A CLAIM FOR JUST COMPENSATION? The Ninth Circuit's second question, as we have restated it, is: Whether a property owner that alleges that a city has required it to construct off-site improvements at a cost that is not "roughly proportional" to the impacts of the plaintiff's development, as opposed to dedicating an interest in real property such as granting an easement, alleges a taking that gives rise to a claim for just compensation. In its second question, the Ninth Circuit asks that we decide the question assumed in responding to its first question -- were plaintiff's claims for just compensation as alleged in its first or second claims for relief viable in state court?  We begin with plaintiff's second claim for relief alleging that the city effected a taking under the Fifth Amendment.  We realize that beginning with the federal constitution is contrary to our normal practice.  See, e.g., Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (proper sequence is to analyze state law, including constitutional law, before reaching federal constitutional claim).  Nevertheless, we do so here because we must determine the viability of both of plaintiff's claims for just compensation to answer the Ninth Circuit's questions, and because plaintiff uses United States Supreme Court cases -- Nollan and Dolan -- as the theoretical basis for each of those claims.  An initial discussion of Fifth Amendment jurisprudence therefore provides a helpful backdrop for our analysis.       A.        Did Plaintiff Allege Facts Giving Rise to a Claim for Just Compensation Under the Federal Constitution? After Nollan and Dolan, the Supreme Court decided a case that clarified the constitutional basis of those decisions -- Lingle v. Chevron USA Inc., 544 US 528, 548, 125 S Ct 2074, 161 L Ed 2d 876 (2005).  In Lingle, the Supreme Court began by observing that governmental action that falls into one of the following categories constitutes a taking: 1.  A physical invasion of property,  Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419, 102 S Ct 3164, 73 L Ed 2d 868 (1982); 2.  A regulation that completely deprives a plaintiff of all economically beneficial use of property, Lucas v. South Carolina Coastal Council, 505 US 1003, 112 S Ct 2886, 120 L Ed 2d 798 (1992); or 3.  A regulation that, on balance, imposes economic impacts that constitute a taking under the several factors identified in Penn Central Transp. Co. v. New York City, 438 US 104, 98 S Ct 2646, 57 L Ed 2d 631 (1978).(15) The Court explained that those categories are intended to describe governmental actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his or her domain.  Accordingly, each category describes governmental acts that impose burdens on private property rights.  The Court stated: "A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner's right to exclude others from entering and using her property -- perhaps the most fundamental of all property interests.  See Dolan[, 512 US at 384]; Nollan[,483 US at 831-32]; Loretto[, 458 US  at 433]; Kaiser Aetna v. United States, 444 US 164, 176, 100 S Ct 383, 62 L Ed 2d 332 (1979). * * * "[T]he complete elimination of a property's value is the determinative factor.  See Lucas[, 505 US at 1017] (positing that 'total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation').  * * * "[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests." Lingle, 544 US at 539-40 (paragraph structure added for clarity). In Lingle, the Court then declared that other governmental acts that do not impose similarly severe burdens are not subject to challenge under the Takings Clause, but are, instead, subject to challenge under the Due Process Clause.  Thus, the Court explained, a property owner's claim under Agins v. City of Tiburon, 447 US 255, 260, 100 S Ct 2138, 65 L Ed 2d 106 (1980), that a governmental regulation is invalid because it does not "substantially advance legitimate state interests" is properly viewed as a claim that due process precludes the regulation entirely, and not as a claim that the takings clause requires payment of just compensation.  The Court stated: "Instead of addressing a challenged regulation's effect on private property, the 'substantially advances' inquiry probes the regulation's underlying validity.  But such an inquiry is logically prior to and distinct from the question whether a regulation effects a taking, for the Takings Clause presupposes that the government has acted in pursuit of a valid public purpose.  The Clause expressly requires compensation where government takes private property 'for public use.'  It does not bar government from interfering with property rights, but rather requires compensation in the event of otherwise proper interference amounting to a taking.  * * * Conversely, if a government action is found to be impermissible -- for instance because it fails to meet the 'public use' requirement or is so arbitrary as to violate due process -- that is the end of the inquiry.  No amount of compensation can authorize such action." Lingle, 544 US at 543 (emphases in original; internal citation and quotation marks omitted).      Although not necessary to its holding, the Court also addressed how its prior decisions in Nollan and Dolan fit into that paradigm.  The claims of the property owners in those cases could have been seen as implicating the Due Process Clause, because they challenged the sufficiency of the nexus between the state interest and the condition imposed and sought judicial invalidation of the condition.  However, the claims in those cases also could have been seen as implicating the Takings Clause, because the conditions that the governments imposed required the property owners to dedicate real property for governmental use -- the classic taking in which the government directly appropriates private property.  The Court chose neither and placed Nollan/Dolan challenges into their own category -- a "special application of the 'doctrine of unconstitutional conditions'": "Although Nollan and Dolan quoted Agins' language, see Dolan, [512 US at 385]; Nollan, [483 US at 834], the rule those decisions established is entirely distinct from the 'substantially advances' test we address today.  Whereas the 'substantially advances' inquiry before us now is unconcerned with the degree or type of burden a regulation places upon property, Nollan and Dolan both involved dedications of property so onerous that, outside the exactions context, they would be deemed per se physical takings.  In neither case did the Court question whether the exaction would substantially advance some legitimate state interest.  See Dolan, [512 US at 387-88]; Nollan, [483 US at 841].  Rather, the issue was whether the exactions substantially advanced the same interests that land-use authorities asserted would allow them to deny the permit altogether.  As the Court explained in Dolan, these cases involve a special application of the 'doctrine of "unconstitutional conditions,"' which provides that 'the government may not require a person to give up a constitutional right -- here the right to receive just compensation when property is taken for a public use -- in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.'  [512 US at 385].  That is worlds apart from a rule that says a regulation affecting property constitutes a taking on its face solely because it does not substantially advance a legitimate government interest.  In short, Nollan and Dolan cannot be characterized as applying the 'substantially advances' test we address today, and our decision should not be read to disturb these precedents." Id. at 547-48 (emphases added; original emphases deleted). Thus, under Lingle, in circumstances in which the government exacts "dedications of property so onerous that, outside the exactions context, they would be deemed per se physical takings," the Supreme Court subjects the government's exaction to a Nollan/Dolan analysis.  Id. at 547.  Under that analysis, the government is precluded from making the exaction and must pay just compensation for the real property that it acquires unless the exaction is "roughly proportional" to the effect of the proposed development.   The Ninth Circuit's second question requires that we consider the reasoning  of the Supreme Court in Nollan, Dolan, and Lingle and decide whether the Nollan/Dolan analysis extends to a requirement that a property owner construct off-site improvements at a cost that is not "roughly proportional" to the impacts of the owner's development.  In Lingle terms, we must decide whether such a requirement is "so onerous that, outside the exactions context, [it] would be deemed [a] per se physical taking."  Lingle, 544 US at 547. Plaintiff first posits that the Oregon Court of Appeals already has recognized such a requirement as a Fifth Amendment taking and that this court should not disturb that ruling in answering a certified question.  The case that plaintiff deems determinative is Clark v. City of Albany, 137 Or App 293, 299, 904 P2d 185 (1995), rev den, 322 Or 644, 912 P2d 375 (1996).  In Clark, the Court of Appeals considered a ruling by LUBA that, as relevant here, applied Dolan's "rough proportionality" standard to development conditions that required the petitioner "to make road improvements on and extending beyond the affected property."  The Court of Appeals affirmed the application of that standard, seeing "little difference between a requirement that a developer convey title to the part of the property that is to serve a public purpose, and a requirement that the developer himself make improvements on the affected and nearby property and make it available for the same purpose."  Id. at 300. Although we agree with plaintiff's assertion that "[c]ertification is not an appropriate vehicle to obtain clarification of existing law or to test the continued viability of long-standing legal precedent against current conditions," see Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 374, 811 P2d 627 (1991), we do not think that those principles describe the posture of this case.  Clark was decided in 1995, and, although Nollan and Dolan both had been decided, the Supreme Court had not had occasion to opine on their reach.  In 1999, the Supreme Court decided Monterey v. Del Monte Dunes at Monterey, Ltd., 526 US 687, 702, 119 S Ct 1624, 143 L Ed 2d 882 (1999), and stated that it had not extended the application of Nollan and Dolan "beyond the special context of [such] exactions."  As a result of that statement, the Court of Appeals considered its decision in Clark "open to question."  Dudek v. Umatilla County, 187 Or App 504, 516 n 10, 69 P3d 751 (2003).  Then, in 2005, the Supreme Court decided Lingle and discussed, in the context of its disaggregation of due process and takings challenges, the jurisprudential underpinnings of Nollan and Dolan.  We choose not to rest on a Court of Appeals case that predated Lingle. On the merits, plaintiff contends that the city's requirement that it use "asphalt, concrete, bedding material, pipe and other personal property" to construct public improvements cannot be distinguished from the requirements imposed by the governments and considered by the courts in Nollan and Dolan.  Plaintiff argues that any coerced transfer of property, whether real or personal, must meet the Nollan/Dolan standard. The city disagrees and urges that Nollan and Dolan are limited to required dedications of real property and do not extend to the imposition of an obligation to construct off-site improvements.  Such an obligation, the city contends, is, functionally, a monetary obligation that the city has authority to impose to offset the impacts of plaintiff's development.  Plaintiff responds that, even if that condition appropriately is characterized as a monetary exaction, the Nollan/Dolan analysis applies when government uses its regulatory power in an adjudicative proceeding to coerce such payment.  The Ninth Circuit considered a similar question in McClung v. City of Sumner, 548 F3d 1219  (9th Cir 2008), cert den, 129 S Ct 2765 (2009).  The issue in that case was whether a city ordinance that required property owners, as a condition of development, to install storm pipes effected a taking.  The Ninth Circuit viewed the ordinance as imposing a monetary obligation and decided that the validity of the condition that it imposed should be subjected to a Penn Central, and not a Nollan/Dolan, analysis.  The Ninth Circuit based its decision on the fact that the condition was legislatively imposed and applied to all development; it was not, as were the conditions in Nollan and Dolan, a condition imposed in an adjudicatory proceeding on the plaintiff alone. The Ninth Circuit also stated, as an alternative basis for its ruling, that the property owners had not been required to relinquish an interest in real property:  "[T]he City already had an easement for the storm pipe such that the McClungs gave up no rights to their real property.  To extend the Nollan/Dolan analysis here would subject any regulation governing development to higher scrutiny and raise the concern of judicial interference with the exercise of local government police powers.  As noted by San Remo Hotel [L.P. v. City And County of San Francisco, 117 Cal Rptr 2d 269, 291, 41 P3d 87, 105 (Cal 2002)], any concerns of improper legislative development fees are better kept in check by 'ordinary restraints of the democratic political process.'" McClung, 548 F3d at 1227-28 (emphasis in original).  The Ninth Circuit rejected the plaintiffs' argument that the city had effected a per se taking of its money and the plaintiff's citation to Brown v. Legal Foundation of Washington, 538 US 216, 123 S Ct 1406, 155 L Ed 2d 376 (2003).  In Brown, the Supreme Court held that interest that accrued on lawyers' trust accounts (IOLTA accounts) was private property that the state could not acquire without payment of just compensation, but that the plaintiff in that case had suffered no loss for which compensation was due.  In McClung, the Ninth Circuit distinguished the imposition of a new monetary obligation from the acquisition of accrued interest on an existing account and noted that Brown did not treat the acquisition of accrued interest as an exaction or apply the Nollan/Dolan analysis to the facts presented.(16)  McClung, 548 F3d at 1228. In reaching its conclusion in McClung, the Ninth Circuit observed, however, that "[o]ther courts addressing this general issue have come to different conclusions."(17)  Plaintiff asks that we adopt the reasoning of one of those courts -- that of the Texas Supreme Court in Town of Flower Mound v. Stafford Estates, 135 SW 3d 620 (Tex 2004).  In that case, the town had conditioned its approval of the plaintiff's development on its rebuilding of an abutting road.  The Texas court saw "no important distinction between a dedication of property to the public and a requirement that property already owned by the public be improved" and held that the Dolan standard should apply to both.  Id. at 640.  The court dismissed the town's contention that the doctrine of unconstitutional takings was not applicable "when the thing given up in exchange for a discretionary benefit is simply money, for which the owner has no constitutional right of recompense."  The court stated: "Assuming that the doctrine of unconstitutional conditions is limited as the Town argues, a position on which we express no opinion, the Town's argument does not limit the application of Dolan because the doctrine was not the only foundation on which it rested and was not even mentioned in Nollan.  Nollan was grounded entirely in the Supreme Court's takings jurisprudence." Id. at 636.  Of course, as we now know from the Supreme Court's opinion in Lingle, the Court's decision in Nollan was, indeed, premised on the doctrine of unconstitutional conditions.  Understanding that premise, we see a clear distinction between a requirement that a property owner dedicate property to the public and a requirement that a property owner spend money to mitigate the effects of development.  In the former circumstance, the government seeks to acquire a landowner's existing real property.  To do so, it is required to proceed by the exercise of its power of eminent domain and to pay just compensation.  In the latter circumstance, the government does not seek to acquire a landowner's existing real property.  It seeks to compel the landowner to pay money to mitigate the effects of development and cannot proceed to do so by instituting eminent domain proceedings.  When the landowner makes payment, it does not relinquish existing property; it fulfills a newly imposed monetary obligation.  See Daniel L. Siegel, Exactions after Lingle: How Basing Nollan and Dolan on the Unconstitutional Conditions Doctrine Limits Their Scope, 28 Stan Envtl L J 577, 592-601 (2009) (discussing reasons that subjecting permits conditioned on payment of fees to Nollan/Dolan analysis cannot be justified doctrinally after Lingle). That does not mean, of course, that monetary obligations could not, at least theoretically, be "so onerous that, outside the exactions context, they would be deemed per se physical takings."  Lingle, 544 US at 547.  In Lingle, the Court recognized two circumstances in which governmental regulations that impose economic burdens are considered equivalent to physical takings:  (1) where the regulation deprives the owner of all viable economic use of the property; and (2) where the regulation is so burdensome that the Penn Central standard is met.  Id. at 539-40.  It is conceivable that a local government could require, as a condition of development, monetary obligations so burdensome as to deprive the property owner of all economically viable use of the property, or to meet the Penn Central standard, as the Ninth Circuit recognized in McClung.  If a local government did so, such conditions perhaps could be considered sufficiently onerous to be tantamount to physical takings.  But in that circumstance, there would be no need for a Nollan/Dolan analysis.  Conditions imposing burdens of that significance would require payment of just compensation without further inquiry, in contrast to conditions that impose exactions subject to the Nollan/Dolan analysis.  Under Nollan/Dolan, just compensation is required only when the conditions imposed are not "roughly proportional" to the impacts of development.  See Charles T. Switzer, Escaping the Takings Maze:  Impact Fees and the Limits of the Takings Clause, 62 Vand L Rev 1315, 1343-44 (2009) (asserting that only conceivable way for impact fee to amount to per se physical taking is if the fee imposed is so high that it deprives owner of all economically beneficial use of real property). In Lingle, the Court did not express an intent to treat regulations that impose economic burdens that do not deprive a property owner of all economically viable use of property or meet the Penn Central standard as takings under the Fifth Amendment.  The Court emphasized, as it had in Monterey v. De Monte Dunes at Monterey, 526 US 687, 702, 119 S Ct 1624, 143 L Ed 2d 882 (1999), the "special context" in which Nollan and Dolan arose and pointedly did not categorize the exactions at issue in Nollan and Dolan as takings, instead analyzing them under the doctrine of "unconstitutional conditions." In the absence of a Supreme Court ruling to the contrary, we conclude that a government's requirement that a property owner undertake a monetary obligation that is  not roughly proportional to the impacts of its development does not constitute an unconstitutional condition under Nollan/Dolan or a taking under the Fifth Amendment, nor does it require payment of just compensation.  We also conclude that a requirement that a property owner construct off-site improvements is the functional equivalent of the imposition of a monetary obligation.  When a governmental entity requires a property owner to construct improvements, it simply requires the property owner to put money to a particular use.  The government could accomplish the same result by requiring the property owner to pay a specified sum, which the government could then use to construct the improvements.  The government, through its exercise of the power of eminent domain, can compel neither off-site construction nor the expenditure of money. That conclusion does not mean, of course, that a property owner required to construct off-site improvements at a cost not roughly proportional to the impacts of its development may not have some other legally sound basis for a claim against the government.  The Takings Clause may not be the only constraint on such governmental action.  For instance, prior to Nollan and Dolan, state courts had invalidated governmental conditions that were not "reasonably related" to the impacts of development without relying on the Takings Clause as the basis of their decisions.  See Dolan, 512 US at 390-91 (noting that a majority of states have adopted common-law rule that there must be "some reasonable relationship or nexus" between required dedication and impact of proposed development).(18)  See also Switzer, 62 Vand L Rev at 1332-36 (explaining common-law "dual rational nexus" test used by various courts).  Further, as the Court in Lingle acknowledged, the Due Process Clause may serve as a check on arbitrary land use regulation.  544 US at 540; see also Miller Bros. Co. v. Maryland, 347 US 340, 342, 74 S Ct 535, 98 L Ed 744 (1954) ("It is a venerable if trite observation that seizure of property by the State under pretext of taxation when there is no jurisdiction or power to tax is simple confiscation and a denial of due process of law.").     B.        Did Plaintiff Allege Facts Constituting a Taking Under the Oregon Constitution? We turn to whether, under the circumstances alleged in plaintiff's first claim for relief, Oregon law recognizes an inverse condemnation action premised on a taking under the Oregon Constitution.  In interpreting original provisions of the Oregon Constitution, we apply a now-familiar methodology first articulated in Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992).  This court recently summarized that methodology in the context of interpreting Article I, section 18: "[W]e consider the text of Article I, section 18, its history, and the cases interpreting it.  Our goal in undertaking that inquiry is to identify the historical principles embodied in the constitutional text and to apply those principles faithfully to modern circumstances." Coast Range Conifers v. Board of Forestry, 339 Or 136, 142, 117 P3d 990 (2005) (citations omitted).  In Coast Range Conifers, this court analyzed Article I, section 18, to address a different issue -- whether that clause addressed only physical takings of property, or whether it also extended to "regulatory takings."  Although the issue was different from that presented in this case, much of the analysis is useful to our analysis here. As originally adopted, Article I, section 18, provided: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in case of the state, without such compensation first assessed and tendered."(19) Coast Range Conifers elucidated that text as follows: "Because Article I, section 18, was part of the original Oregon Constitution, we look to the meaning of the words that the framers used.  See Bobo v. Kulongoski, 338 Or 111, 120, 107 P3d 18 (2005) (looking to dictionary relevant to time constitutional provision adopted).  In 1857, the word 'take' meant '[i]n a general sense, to get hold or gain possession of a thing in almost any manner.'  Noah Webster, An American Dictionary of the English Language (1828) (emphasis in original).  That definition implies that governmental acts that result in the appropriation of private property for public use will constitute a taking -- a conclusion that is consistent with the corollary prohibition in Article I, section 18, against demanding or appropriating the uncompensated services of any person.  Webster defined 'property' in 1828 both concretely (as '[a]n estate, whether in lands, goods or money') and more abstractly (as '[t]he exclusive right of possessing, enjoying and disposing of a thing').  Id.  Put differently, the dictionary definition of property in 1828 was broad enough to include both the tangible or physical thing and the legal interests pertaining to it." 339 Or at 142-43 (footnote omitted). After exploring the historical circumstances of the enactment and interpretation of Article I, section 18, the court in Coast Range Conifers recognized that a "classic" taking occurs when the government physically occupies or appropriates property, but that physically invasive intentional government action also may rise to the level of a taking.  Id. at 145; see also Morrison v. Clackamas County, 141 Or 564, 569, 18 P2d 814 (1933) (government takes property when it intentionally floods private property for public use).  The court also acknowledged that Article I, section 18, is not limited to those circumstances, citing the following cases as examples of other governmental acts that effect takings under Article I, section 18:  Boise Cascade Corp. v Board of Forestry, 325 Or 185, 198, 935 P2d 411 (1997) (regulations constitute taking if they deny owner any economically viable use of real property); Dodd v. Hood River County, 317 Or 172, 182, 855 P2d 608 (1993) (regulatory taking occurs if real property does not retain "some substantial beneficial use"); Thornburg v. Port of Portland, 233 Or 178, 192, 376 P2d 100 (1962) (government-authorized overflights constitute taking when they deny owner use and enjoyment of property); McQuaid v. Portland & V. R'y Co., 18 Or 237, 22 P 899 (1889) (government act of placing railway in a public street and thereby denying owner access to street constitutes taking); accord Iron Works v. O.R. & N. Co., 26 Or 224, 228-29, 37 P 1016 (1894) (explaining and applying McQuaid).  Coast Range Conifers, 339 Or at 145.  The court explained that, although the framers may not have anticipated the precise circumstances detailed in those cases, the framers "would have been aware that governmental actions that did not fit precisely within the classic paradigm of a taking still could be 'equivalent to a taking' and thus entitle the owner to compensation."  Id. at 145-46.  Thus, the issue in Coast Range Conifers was whether the governmental action at issue -- a state wildlife regulation that prevented plaintiff from logging approximately nine acres of a 40-acre parcel that plaintiff alleged "substantially interfered" with its use of its property -- was equivalent to the governmental acts that the court had recognized as takings.  The court held that, although "[r]egulation in pursuit of public policy" could be "tantamount to a public appropriation of private property," the regulation at issue did not present that circumstance.  The court applied the "whole parcel rule" and held that the challenged rule did not deprive the plaintiff of all economically viable use of the land and therefore did not effect a taking.  Id. at 147. The question that this case presents is similar -- whether this court will recognize a condition of development that requires construction of off-site improvements as the modern "equivalent" of a physical taking.(20)  Plaintiff does not argue that that condition deprives it of all economically viable use of its land or is of comparable severity and thereby is tantamount to a physical taking.  Plaintiff contends instead that the city's action constitutes a taking because (1) Article I, section 18, applies to the taking of personal property such as livestock or crops, see Hawkins v. City of La Grande, 315 Or 57, 67, 843 P2d 400 (1992); Coos Bay Oyster Coop. v. Highway Com., 219 Or 588, 596, 348 P2d 39 (1959); Bowden v. Davis et al, 205 Or 421, 434-35, 289 P2d 1100 (1955) (each so applying Article I, section 18); (2) the materials necessary for plaintiff to construct off-site improvements are personal property; and (3) plaintiff was required to transfer those materials to the city.  Although we agree that Article I, section 18, extends to the taking of personal, as well as real, property, we disagree that the city effected a taking of plaintiff's personal property in this case.  As we explained in our analysis of the federal constitution, the city did not acquire personal property that plaintiff owned; it required that plaintiff construct public improvements that previously did not exist.  That was the functional equivalent of requiring that plaintiff make a monetary payment to the city for a specific purpose -- the construction of public improvements.  At the time that the Oregon Constitution was adopted, there was at least a question about whether the government's imposition of such monetary obligations implicated the power of eminent domain, and arguably a consensus that it did not.  In 1851, the New York Court of Appeals considered the constitutionality of special assessments imposed to pay the cost of grading and pavement of roads.  People ex rel. Griffin v. City of Brooklyn, 4 NY 419 (1851).  The court began by noting that taxation and eminent domain "rest substantially on the same foundation":  In both circumstances, the government takes property for public use, and in both cases, it provides compensation -- in the case of taxation, by the protection and increased value presumed to result from the government services paid for by the tax.  Id. at 422-23.  Nevertheless, the court explained, the power of taxation was distinct from the power of eminent domain.  One of the distinctions that the court made was that "[m]oney can always be had by taxation; lands can not [sic]; and therefore lands may be taken by right of eminent domain, but money may not."  Id. at 424.(21)  The California Supreme Court also noted that distinction in Emery v. San Francisco Gas Co., 28 Cal 345, 350-54 (1865), quoting extensively from People ex rel. Griffin, and concluding that "assessments for improvements, upon whatever principle distributed, are not taking private property for public use" because special assessments take only money; "[t]he property referred to in the Constitution for which special compensation must be made, is something other than money, as where land is taken to be used as a street." In 1867, a legal treatise by the Chief Justice of the Vermont Supreme Court agreed:   "The principal point of difference [in recent cases] has been to determine where taxation ends, and the tenure of the right of eminent domain begins.  Since the decision of the case of [People ex rel. Griffin], the courts seem very composedly to have sunk down into the quiet conviction that it is nothing but taxation, and that where the municipal authorities assess the land to its full value for the purpose of assumed improvements, more or less remote from the land, and without regard to the extent of the ratio of equalization, it is still nothing but taxation." Isaac F. Redfield, 2 The Law of Railways 389 (1867) (footnotes omitted).  And in 1868, Thomas Cooley also asserted that the right to eminent domain can be exercised over every species of property except money and rights of action.  Thomas M. Cooley, A Treatise on the Constitutional Limitations 526-27 (1868).   In our view, there is not any logical way to apply a takings analysis to the imposition of new monetary obligations.(22)  As the Supreme Court helpfully explained in Lingle, a takings analysis assumes that the government has the power to acquire the property taken; it requires only that the government pay just compensation for that property.  It does not make sense to say that, although government has the power to impose a monetary obligation, it must repay the value received as just compensation.  The real objection that a property owner has to the imposition of a monetary obligation in excess of what is necessary to mitigate the impacts of development is that the government does not have authority to impose such an obligation, or that the obligation offends some statutory or constitutional provision other than Article I, section 18. When government regulates the use of a property, it effects a taking if it deprives the owner of all economically viable use of the land.  In that instance, the regulation of the property is tantamount to the acquisition of the property.  When, instead, the regulation requires that the owner pay a sum of money or use a sum of money for a particular purpose, the regulation is not tantamount to acquisition of the property, even when the obligation exceeds the impact of the development, unless, of course, the obligation is so high that it imposes a burden tantamount to acquisition. Absent additional allegations, a property owner that alleges that a local government has conditioned development on construction of off-site improvements at a cost that is not roughly proportional to the impacts of the development, does not allege a taking under Article I, section 18, of the Oregon Constitution.  Plaintiff in this case did not allege such additional facts,(23) and, consequently, plaintiff's claim for inverse condemnation under the state constitution was not cognizable in state court. We answer the Ninth Circuit's second question, as we have rephrased it, as follows:  No, a property owner that alleges that a city has required it to construct off-site improvements at a cost that is not "roughly proportional" to the impact of the development, as opposed to dedicating an interest in real property such as granting an easement, does not allege a taking that gives rise to a claim for just compensation. III. THE VACATION OF GREENE STREET We now address the Ninth Circuit's third certified question: "Under [ORS] 271.120, is a City Council's purported vacation of a street ultra vires when the petition for vacation does not comply with the landowner consent provisions of [ORS 271.080]?"(24) West Linn, 534 F3d at 1105. That question arises because the city contended, in its counterclaim against plaintiff, that an ordinance that the city adopted vacating a portion of Greene Street abutting plaintiff's property is void and of no effect. As a condition of development, the city required that plaintiff seek vacation of the portion of Greene Street abutting plaintiff's property.  Show Timber, an entity that owned and sought to develop land on the opposite side of Greene Street, also was subject to that same condition.  As the Ninth Circuit explains in its certification order, Show Timber began the vacation process: "In accordance with the City's demand, Show Timber * * * employed engineers to draw up a legal description of the proposed vacation of Greene Street. Thereafter, consent of area property owners was obtained based on the legal description. * * * "The proposed vacation was then submitted to the City.  However, City planner Eric Spir objected to the proposal, and the City ultimately demanded that Greene Street be vacated in its entirety.  The consulting engineers objected to the City's demand because, they reasoned, through traffic on 13th Street would be blocked as a result. "Show Timber and [plaintiff] acquiesced.  A new legal description was prepared that included the disputed intersection.  This second legal description was incorporated into public notices published for proposes [sic] of the vacation and the subsequent public hearing on the matter. Following the public hearing, the City Council approved the vacation of Greene Street in its entirety and passed City Ordinance No. 1439, which codified the vacation. "[Plaintiff] contends that Ordinance No. 1439 had the full legal effect of vacating Greene Street, and by operation of law, a portion of the intersection vested in it free of any interest held by the City.  The City maintains that the ordinance has no legal effect because it was adopted without the consent of all necessary landowners." West Linn, 534 F3d at 1104-05.  We understand Ninth Circuit to ask whether the procedural irregularity occasioned by the change in legal descriptions renders the vacation of Greene Street ultra vires.  An act of a city or other governmental entity is ultra vires when that act falls outside the entity's corporate powers.  Keeney v. City of Salem, 150 Or 667, 669-71, 47 P2d 852 (1935).  When a governmental entity's power is conferred by statute, actions outside the scope of that power are "extra statutory" and therefore ultra vires.  See, e.g., State v. United States F. & G. Co. et al., 125 Or 13, 24-25, 265 P 775 (1928) (so applying to the context of state highway commission).  However, where a city has broad power to act, but is required to exercise that power in conformance with certain procedures or limitations, a failure to so conform does not necessarily render a given governmental action ultra vires.  For example, in Kernin v. City of Coquille, 143 Or 127, 135-36, 21 P2d 1078 (1933), the city charter granted the city council authority to contract, but required that it do so through a competitive bidding procedure.  When the city failed to follow that procedure, the court held that the doctrine of ultra vires was irrelevant:  the city possessed "ample power" to enter into contracts.  Id. To determine the extent of a city's power to vacate its streets, the parties direct us to Oregon statute, specifically the provisions of ORS 271.080 to 271.230, for a description of that authority.  Those provisions grant cities authority to vacate streets and, relevant to this case, set forth two procedural mechanisms for doing so.(5)  One mechanism allows any person to initiate a vacation proceeding (ORS 271.080);(26) the other allows a city governing body(27) to do so (ORS 271.130).(28)  Both mechanisms call for notice and public hearing and, if the vacation is approved, for enactment of an ordinance vacating the street.  ORS 271.110 - 271.130.  Another statute expressly provides that the authority granted by those statutes is not exclusive.  ORS 271.170.(29)  Thus, we can say without hesitation that a city possesses broad power to vacate its streets and that its failure to exercise that power in accordance with specified procedures does not make its action ultra vires.  Even if a city has broad power to act, however, its failure to follow required procedures may, in some instances, render its action void and of no effect.  Thus, in Kernin, although the city's action in entering into a contract was not ultra vires, the city's failure to follow competitive bidding procedures required by its charter rendered the contract void.  143 Or at 137.  We would not fully address the city's argument in this case if we limited our discussion to the city's broad power to vacate its streets, and we therefore reframe the Ninth Circuit's question as asking whether the city's failure to obtain the consent of affected landowners rendered the vacation ordinance void and of no effect. See Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 370-71, 811 P2d 527 (1991) (recognizing this court's discretion to reframe and restate certified questions). This court has not always been consistent or clear in defining the circumstances in which a government's procedural violation renders its action void.   In Nyman v. City of Eugene, 286 Or 47, 53, 593 P2d 515 (1979), the court considered prior decisions that had used the concept of governmental "jurisdiction" to resolve the issue.  In some of those cases, the court had deemed statutory requirements to be "jurisdictional" and decided that the failure to comply with those requirements rendered the governmental action void.  In other cases, in which the court had concluded that statutory defects were not "jurisdictional," the court had presumed that the governmental proceedings were regular despite alleged noncompliance.  Id. at 52-53.  After surveying those earlier cases, the court in Nyman concluded: "It is difficult, if not impossible, to determine from these cases why certain statutory requirements are considered 'jurisdictional' and others not.  * * * We are now of the opinion that clear analysis in this area requires that we establish criteria for determining what statutory requirements are indispensable to the validity of the challenged action * * * and focus * * * on the specific statutory language that permits the government to affect the rights and obligations of its citizens." Id. at 53 (emphasis added).   The parties in this case do not cite Nyman in their arguments.  Nonetheless, the parties address the test used in Nyman -- whether the consent procedure that the city failed to follow was indispensible to the vacation of Greene Street (as the city would have it) or merely a minor irregularity (in plaintiff's terms) not affecting the ultimate validity of the vacation.  That analysis requires consideration of the statutory consent procedures and the role that they play in a city's decision to vacate a street.  As noted, there are two relevant statutory mechanisms by which a city may vacate a city street.  ORS 271.080(1) permits any person to initiate vacation proceedings.  Under that provision, the person files a petition "setting forth a description of the ground proposed to be vacated, the purpose for which the ground is proposed to be used and the reason for such vacation." (Emphasis added.)  ORS 271.080(2) mandates that the person filing the petition append, "as a part thereof and as a basis for granting the same, the consent of the owners of all abutting property and of not less than two-thirds in area of the real property affected thereby."  After such a petition is filed, the city either may deny the petition or set a time for formal hearing.  ORS 271.100.  If the city decides to hold a hearing, it is required to publish notice of the hearing.  The notice must include, among other things, "the ground covered by the petition."  ORS 271.110(1) (emphasis added).  ORS 271.130(1)(30) sets forth a second statutory mechanism by which a city governing body may initiate vacation proceedings.  Using that mechanism, a city proceeds without the filing of a petition and attached legal description and without consent of affected landowners.  The city gives notice of hearing that includes a description of the street to be vacated to abutting and affected landowners.  After hearing, the city may vacate the street unless (1) the abutting landowners do not consent and the vacation will substantially affect the market value of such property, unless the city provides for payment of damages; or (2) a majority of the affected landowners object in writing.  The city argues that, in this case, the city council proceeded according to the mechanism initiated by petition outlined in ORS 271.080(1) but "did not consider the true 'petition.'  * * * Since the 'ground proposed to be vacated' changed by the time of the City Council hearing, it is clear that the City Council considered a different 'petition' than the one that was initially filed after obtaining consent."  The consequence of that defect, the city maintains, is that the vacation is "without legal effect," and to hold otherwise would be to eliminate the need for the consent of affected landowners in any vacation proceeding.   Plaintiff argues, on the other hand, that that irregularity is inconsequential.    Although the vacation proceedings were initiated by petition and the petition did not describe the disputed intersection, the city's notice of hearing provided the correct description and included the disputed intersection.  The abutting landowners, plaintiff and Show Timber, acquiesced in that change, and the record does not disclose a written objection by any affected property owner.  Thus, had the city begun the proceedings anew when it decided that vacation of the disputed intersection was warranted, and itself initiated vacation proceedings, the vacation could have been accomplished in accordance with the second mechanism for street vacation outlined in ORS 271.130.  When the city revised the street description, it gave affected landowners the same opportunity to file objections to the vacation or to appear at the hearing and oppose the vacation that they would have had had the city used its authority to initiate vacation proceedings from the outset. Understanding that the consent of affected landowners is significant only when vacation proceedings are initiated by petition, we look to Nyman for guidance in assessing the arguments of the parties.  Nyman involved the widening of a road.  There was no affirmative showing that the widening of the road was a public necessity, that plaintiff's predecessor in interest had given written consent to the widening of the road, or that the city had given plaintiff's predecessor notice of the road widening proceeding.  286 Or at 50.  The court concluded that, in light of competing legislative goals to ensure that county actions establishing roads are final and unassailable and also that affected property owners receive notice of road proceedings, only the notice requirements were indispensable to the validity of the action.  Id. at 57.  Other statutory requirements that did not render the notice to the property owners ineffectual did not render the county's action void.  Id. Similar competing goals are at play in street vacation proceedings.  Street vacation affects title to real property, and stability and certainty in real property records is essential.  Cf. Bitte v. St. Helens, 251 Or 548, 551, 446 P2d 978 (1968) (holding as untimely an appeal from city-initiated vacation ordinance because, where "[t]itle to real property is involved, * * * orderliness and certainty of procedure are extremely important").  By the same token, Oregon statute clearly makes a provision for notice to property owners affected by street vacation and gives them an opportunity to be heard and oppose vacation.  If, after notice, a majority of affected property owners object in writing, the city is precluded from vacating the street.  However, consent of property owners prior to notice and hearing is necessary only if vacation is initiated by petition. Oregon statute permits city initiation of vacation proceedings without the prehearing consent of affected landowners.  Thus, that consent is not indispensible to city street vacation, and, in answer to the Ninth Circuit's third question, we hold that the absence of such consent does not render the vacation ordinance void and of no effect.(31) The certified questions are answered. KISTLER, J., concurring in part and dissenting in part. West Linn Corporate Park (WLCP) filed this action in state court, claiming that the City of West Linn (the city) took its property in violation of the state and federal constitutions when it required WLCP, as a condition of development, to pay for off-site improvements.  The city removed the case to federal court, and the United States Court of Appeals for the Ninth Circuit certified three questions to this court.  See ORS 28.200 (authorizing this court to accept certain certified questions).  I agree with the majority's answer to the first and third questions but would answer the Ninth Circuit's second question differently.  Specifically, I would decline to give an opinion whether requiring off-site improvements constitutes an exaction for the purposes of the Fifth Amendment.  Not only does ORS 28.200 limit certified questions to issues of state law, but there is no need for this court to offer the Ninth Circuit our opinion on federal law. In Williamson Planning Comm'n v. Hamilton Bank, 473 US 172, 105 S Ct 3108, 87 L Ed 2d 126 (1985), the Court held that a federal takings claim will not be ripe in two instances.  First, a federal regulatory takings claim will "not [be] ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue."  Id. at 186; see MacDonald, Sommer & Frates v. Yolo County, 477 US 340, 351, 106 S Ct 2561, 91 L Ed 2d 285 (1986) (explaining that the resolution of a regulatory takings claim depends on first knowing "the extent of permitted development" on the property).  Second, "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Fifth Amendment] Just Compensation Clause until it has used the procedure and been denied just compensation."  Id. at 195. In its opinion certifying the three questions to us, the Ninth Circuit explained that, in this case, only the second prong noted in Williamson -- whether Oregon "provides an adequate procedure for seeking just compensation" -- is at issue.  West Linn Corporate Park v. City of West Linn, 534 F3d 1091, 1100 (9th Cir 2008).  And the Ninth Circuit's opinion suggests that the first two questions that it has certified are, in its view, necessary to resolve that issue.  Id.  For the reasons explained below, I would give a different answer to the court's second question. The Ninth Circuit's second question asks whether requiring a property owner to pay for an off-site improvement as a condition of development constitutes an exaction.  In explaining its question, the Ninth Circuit notes that the Oregon Court of Appeals held, in one decision, that such a requirement would constitute an exaction under the Fifth Amendment but, in a later decision, questioned that holding.  See id. at 1102-04 (discussing Oregon Court of Appeals decisions).  As both the majority and I understand the Ninth Circuit's second question, it invites us to explain whether, in our view, requiring a developer to pay for off-site improvements constitutes an exaction under the Fifth Amendment.  The majority accepts that invitation.  I would decline it. To the extent that the Ninth Circuit asks for our views on the Fifth Amendment, it asks for more than ORS 28.200 permits us to give.  ORS 28.200 provides that we may answer certified questions submitted by other courts to resolve potentially determinative issues of Oregon law.  See ORS 28.200 (authorizing the Oregon Supreme Court to accept certified questions regarding the "law of this state"); Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 365, 811 P2d 627 (1991) (explaining that the certified question must "concern Oregon law, rather than the law of some other jurisdiction").  As the terms of that statute make clear, we may answer only questions of Oregon, not federal, law.(1) Nor does Williamson require us to give the Ninth Circuit our opinion on federal law.  The ripeness concern raised in Williamson entailed a more limited inquiry.  The substantive issue in Williamson was whether a government regulation that temporarily prevented a property owner from using its property constituted a taking in violation of the Fifth Amendment.  473 US at 185 (identifying that issue).  The Court observed that the issue was an open one but declined to reach it because the issue was not ripe.  Id.  It explained that a state violated the Fifth Amendment only if it took property without providing an adequate procedure for obtaining just compensation.  473 US at 194-95.  The Court noted that, under the applicable state law, a property owner claiming that restrictive zoning constituted a taking could bring an "inverse condemnation" claim in state court to recover just compensation.  See id. at 196 (discussing Tennessee law).  Without some showing that the state's inverse condemnation procedure was unavailable or inadequate, the existence of that procedure was sufficient for the Court to hold that "until [the property owner] has utilized that procedure, its taking claim [in federal court] is premature."  Id. at 197. In Williamson, the Court did not ask whether the Tennessee courts would recognize that a temporary deprivation constituted a taking before holding that the property owner's failure to bring its claim in the Tennessee courts meant that its claim in federal court was not ripe.  Rather, the Court held that the Fifth Amendment claim that the property owner filed in federal court was not ripe, without regard to whether the property owner would win or lose on the merits of its Fifth Amendment claim in state court.  Conversely, when the only remedy available in state court for a temporary taking was a declaratory judgment, and not damages, the Court held that the available state procedures were not adequate to provide "just compensation."  First Lutheran Church v. Los Angeles County, 482 US 304, 312 and n 6, 107 S Ct 2378, 96 L Ed 2d 250 (1987); see Williamson, 473 US at 194 n 13 (suggesting that conclusion).  The Court accordingly proceeded to reach the substantive federal question in First Lutheran -- whether regulations that temporarily deprive a property owner of the use of its property violate the Fifth Amendment -- that it had declined to reach in Williamson. In my view, the only question raised by the second prong in Williamson is whether the procedures for obtaining just compensation in the Oregon courts are adequate.  Williamson does not require a federal court to determine how the state court will rule on the merits of the landowner's federal takings claim.  Were the rule otherwise, the United States Supreme Court would have asked in Williamson whether the Tennessee courts would have recognized a temporary taking before holding that the property owner's failure to bring its takings claim initially in the Tennessee courts meant that its federal takings claim was not ripe.  The Court did not do so, and there is no need for us to tell the Ninth Circuit how we would rule on the substantive federal question in this case.  It is or should be sufficient to say that a property owner who alleges that a local government requirement constitutes an exaction that violates the Fifth Amendment may bring that claim in the Oregon courts and receive all the compensation that the Fifth Amendment requires.  Answering whether the property owner would win or lose on its substantive federal claim goes beyond what ORS 28.200 permits and Williamson requires. There is a suggestion in the Ninth Circuit's opinion that it views the scope of an "inverse condemnation claim" as presenting a question of state law, even when the source of law that gives rise to that claim is the Fifth Amendment.  As a matter of Oregon law, however, there is no claim for "inverse condemnation" as such.  Suess Builders v. City of Beaverton, 294 Or 254, 258 n 3, 656 P2d 306 (1982).  Rather, the phrase "inverse condemnation" is "only 'the popular description of a cause of action [which we would now refer to as a claim for relief] against a government defendant to recover the value of property which has been taken in fact by the government defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.'" Id. (quoting Thornburg v. Port of Portland, 233 Or 178, 180 n 1, 376 P2d 100 (1963)); accord United States v. Clarke, 445 US 253, 257, 100 S Ct 1127, 63 L Ed 2d 373 (1980).  As the court explained in Suess Builders, a claim for relief that a government action unconstitutionally took a person's property preceded the use of the phrase "inverse condemnation" as a "popular description" of that claim, 294 Or at 258 n 3, and the nature of the claim turns on the substantive law that gives rise to it, see First Lutheran, 482 US at 315 (explaining that form of relief "d[oes] not change the essential nature of the claim").  Describing a claim for relief as an inverse condemnation claim does not convert a claim that finds its source in the federal constitution into a state law claim on which we may offer an opinion pursuant to ORS 28.200.  For that reason, I would not answer the Ninth Circuit's second question as the majority does.(2) The Ninth Circuit's first question, by contrast, asks our opinion on an issue of state law.  It asks whether a property owner bringing a takings claim for an alleged exaction in state court would first have to exhaust its administrative remedies.  Citing the reasons typically advanced for requiring exhaustion of administrative remedies, the majority holds that exhaustion is required in state court as a prerequisite to bringing a takings claim.  As the majority correctly clarifies, we would not require exhaustion for a Fifth Amendment takings claim brought pursuant to 42 USC section 1983.  See Patsy v. Florida Board of Regents, 457 US 496, 516, 102 S Ct 2557, 73 L Ed 2d 172 (1982) (holding that courts may not require exhaustion for actions brought pursuant to section 1983).(3)   We would, however, require exhaustion for other claims alleging that an exaction constituted an unconstitutional taking.(4)  Some questions remain regarding how that state court exhaustion requirement would affect the issue whether WLCP's federal takings claims are ripe for the purposes of Article III.(5)  However, those questions are issues of federal law for the Ninth Circuit. For the reasons stated above, I concur in part and dissent in part from the majority's answers to the certified questions. Linder, J., joins in this concurring and dissenting opinion. 1. In addition to the claims for inverse condemnation at issue here, plaintiff asserted claims for unjust enrichment, breach of contract, First Amendment retaliation, violation of Equal Protection, and claims for inverse condemnation arising from the vacation of Greene Street.  The Ninth Circuit does not pose questions to this court relating to those claims.  2. Article I, section 18, provides, in part: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered[.]" 3. In its complaint, plaintiff alleged that it was entitled to just compensation in the amount of $840,260.  That amount reflects the total that plaintiff alleged that it spent in construction of off-site street and water improvements, and in System Development Charges (SDCs).  The Ninth Circuit does not pose questions that require our consideration of the validity of the SDCs. 4. The Fifth Amendment provides, in part:  "No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Just Compensation Clause of the Fifth Amendment has been incorporated into the Due Process Clause of the Fourteenth Amendment and is binding on the states.  Chicago, Burlington, &c. R'D. v. Chicago, 166 US 226, 241, 17 S Ct 581, 41 L Ed 979 (1897). 5. 42 USC section 1983 makes persons acting under the color of law liable for the violation of the federal constitution or laws.  It provides, in part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law * * *." 6. The federal district court was permitted to decide plaintiff's first claim for relief under the doctrine of supplemental jurisdiction.  See 28 USC § 1367 (with limited exceptions not relevant here, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution"); Vaden v. Discover Bank,  ___ US ___, ___ n 18, 129 S Ct 1262, 1277 n 18, 173 L Ed 2d 206 (2009) (citing 28 USC section 1367 and noting that federal courts "routinely exercise supplemental jurisdiction" over state law claims); see also Chicago v. International College of Surgeons, 522 US 156, 165, 118 S Ct 523, 139 L Ed 2d 525 (1997) (federal supplemental jurisdiction applies with equal force in cases in which the action has been removed from state court to federal court as a "removed case is necessarily one of which the [federal] district courts have original jurisdiction" (internal citation and ellipsis omitted)). 7. In its certification order, the Ninth Circuit refers to the issue as one of jurisdiction.  West Linn, 534 F3d at 1099.  Since the entry of that order, however, the Ninth Circuit has stated that the issue of Williamson ripeness is prudential only.  Guggenhiem v. City of Goleta, 582 F3d 996, 1008-09 (9th Cir 2009), relying on Suitum v. Tahoe Regional Planning Agency, 520 US 725, 733-34, 117 S Ct 1659, 137 L Ed 2d 980 (1997). 8. The Court distinguished between the need for finality, which the Court did require, and exhaustion of administrative remedies, which the Court did not require.  The Court stated:  "While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate."  Williamson, 473 US at 193.  9. The district court's analysis is consistent with other federal decisions following Williamson.  If state law provides a mechanism that a plaintiff must follow to obtain payment of just compensation, a plaintiff's failure to utilize that mechanism precludes federal claims based on the alleged taking.  See, e.g., Carson Harbor Village, Ltd. v. City of Carson, 353 F3d 824, 826 (9th Cir 2004), cert den, 543 US 874 (2004) (failure to pursue inverse condemnation claim in state court precluded plaintiff's section 1983 claim); Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F3d 651, 661 (9th Cir 2003), cert dismissed, 543 US 1041 (2004) (failure to pursue relief under state law claim, precluded federal court from considering federal takings claim); Kottschade v. City of Rochester, 319 F3d 1038, 1042 (8th Cir 2003), cert den, 540 US 825 (2003) (same); Baumgardner v. Town of Ruston, ___ F Supp 2d ___, ___, 2010 WL 1734830 (WD Wash April 28 2010) (failure to bring administrative land use petition under state law barred federal takings claim). 10. The Ninth Circuit notes: "The term 'physical taking,' or a physical intrusion to benefit the public that the government causes to be placed on private property, generally is synonymous with an 'exaction,' or a condition of development that local government places on a landowner to dedicate a real interest in the development property for public use.  See, e.g., Dolan."  West Linn, 534 F3d at 1100 n 4.  11. See Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 370-71, 811 P2d 627 (1991) (recognizing this court's discretion to reframe and restate certified questions).  Plaintiff and the amici that filed a brief in support of the city agree that the Ninth Circuit's questions are more easily analyzed if rephrased.  Plaintiff urges us to rephrase the Ninth Circuit's second question as follows:  "[W]hether the required condition is an exaction that is subject to the 'rough proportionality' requirements set forth by the United States Supreme Court in Dolan."  The amici ask us to restate the second question as follows:  "Can a condition of development that requires a landowner to develop off-site public property in which the landowner has no property interest constitute an exaction for which a Fifth Amendment remedy is available?" 12. The plaintiff also brought a claim for inverse condemnation, but the court held that that claim was not cognizable.  Id. at 609-14. 13. In reaching that conclusion, we do not consider the impact of ORS 197.796, which was not in effect at the time that the city imposed the conditions at issue in this case.  That statute requires exhaustion before bringing state court claims for damages and provides, in part: "(1)  An applicant for a land use decision * * * may accept a condition of approval imposed * * * and file a challenge to the condition[.] "* * * * * "(3)(a)  A challenge filed pursuant to this section may not be dismissed on the basis that the applicant did not request a variance to the condition of approval or any other available form of reconsideration of the challenged condition. However, an applicant shall comply with ORS 197.763(1) prior to appealing to the Land Use Board of Appeals or bringing an action for damages in circuit court and must exhaust all local appeals provided in the local comprehensive plan and land use regulations before proceeding under this section. "(b)  In addition to [other requirements,] * * * a statement shall be made to the applicant that the failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow the local government or its designee to respond to the issue precludes an action for damages in circuit court. "* * * * * "(6)  This section applies to appeals by the applicant of a condition of approval and claims filed in state court seeking damages for the unlawful imposition of conditions of approval in a land use decision, limited land use decision, expedited land division or permit under ORS 215.427 or 227.178." 14. Our decision that pursuit of available local remedies is a prerequisite to an action for inverse condemnation is not inconsistent with Patsy v. Florida Board of Regents, 457 US 496, 102 S Ct 2557, 73 L Ed 2d 172 (1982), which holds that exhaustion is not a prerequisite to assertion of a claim under section 1983.  A section 1983 claim does not ripen until a landowner's inverse condemnation claim for compensation has been denied.  Suess Builders, 294 Or at 267.  We do not mean to suggest that, if a section 1983 claim is ripe, a landowner must take additional administrative steps before filing a claim under 42 USC section 1983. 15. Penn Central involved the question of whether the designation of New York City's Grand Central Terminal as a historical landmark, and the restrictions on development that that designation imposed, so adversely affected the plaintiffs' economic interests in the property as to constitute a taking requiring just compensation under the Fifth and Fourteenth Amendments to the United States Constitution.  438 US at 107.  In deciding that the regulation at issue did not amount to a taking, the Court held that no set formula exists to determine when a regulation will constitute a taking, but it articulated "several factors that have particular significance" in the analysis, primary among which was "[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations[.]"  Id. at 124. 16. The Ninth Circuit also stated:  "A monetary exaction differs from a land exaction -- '[u]nlike real or personal property, money is fungible.' United States v. Sperry Corp., [493 US 52, 62 n 9, 110 S Ct 387, 107 L Ed 2d 290 (1989)]; see also San Remo Hotel, L.P. v. S.F. City & County, [364 F3d 1088, 1097-98 (9th Cir 2004), aff'd, 545 US 323, 125 S Ct 2491, 162 L Ed 2d 315 (2005)] (stating that the state court's analysis of the state issues 'was thus equivalent to the approach taken in this circuit, which has also rejected the applicability of Nollan//Dolan to monetary exactions such as the ones at issue here'); Garneau v. City of Seattle, [147 F3d 802, 808 (9th Cir 1998)] (upholding a city ordinance that required landlords to pay a $1,000 per tenant relocation assistance fee to low income tenants displaced by the change of use or substantial rehabilitation of a property); Commercial Builders of N. Cal. v. Sacramento, [941 F2d 872, 873-75 (9th Cir 1991)] (rejecting application of Nollan to ordinance that conditioned the issuance of nonresidential building permits on the payment of a fee used to assist in financing low-income housing)."  McClung, 548 F3d at 1228. 17. The Ninth Circuit summarized those differing conclusions as follows:  "Compare Clajon Prod. Corp. v. Petera, [70 F3d 1566, 1579 (10th Cir 1995)] (finding that '[g]iven the important distinctions between general police power regulations and development exactions, and the resemblance of development exactions to physical takings cases, we believe that the "essential nexus" and "rough proportionality" tests are properly limited to the context of development exactions'); City of Olympia v. Drebick, [156 Wash 2d 289, 126 P3d 802, 807-08 (2006)] (rejecting the view 'that local governments must base GMA impact fees on individualized assessments of the direct impacts each new development will have on each improvement planned in a service area'); San Remo Hotel L.P. v. City & County of S.F., [27 Cal 4th 643, 117 Cal Rptr 2d 269, 41 P3d 87, 104-05 (2002)] (distinguishing between a fee condition applied to a single property that would be subject to Nollan/Dolan review, and a generally applicable development fee); Home Builders Ass'n of Cent. Ariz. v. City of Scottsdale, [187 Ariz 479, 930 P2d 993, 1000 (1997)] (finding that Dolan does not apply to a generally applicable legislative decision); and McCarthy v. City of Leawood, [257 Kan 566, 894 P2d 836, 845 (1995)] (concluding that nothing in Dolan supports its application to impact fees); with Town of Flower Mound v. Stafford Estates Ltd., [135 SW3d 620, 636 (Tex 2004)] (finding that the Nollan/Dolan analysis is not limited to dedications of land); and Home Builders Ass'n v. City of Beavercreek, [89 Ohio St 3d 121, 729 NE2d 349, 356 (2000)] (applying Nollan/Dolan in 'evaluating the constitutionality of an impact fee ordinance')." McClung, 548 F3d at 1225. 18. The Dolan Court cited with approval the following state law cases as exemplars of the "reasonable relationship" test:  "A number of state courts have * * * require[d] the municipality to show a 'reasonable relationship' between the required dedication and the impact of the proposed development.  Typical is the Supreme Court of Nebraska's opinion in Simpson v. North Platte, [206 Neb 240, 245, 292 NW2d 297, 301 (1980)], where that court stated: "'The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit.' "Thus, the court held that a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not 'occasioned by the construction sought to be permitted.'  Id. at [248, 292 NW2d at 302]. "Some form of the reasonable relationship test has been adopted in many other jurisdictions.  See, e.g., Jordan v. Menomonee Falls, [28 Wis 2d 608, 137 NW2d 442 (1965)]; Collis v. Bloomington, [310 Minn 5, 246 NW2d 19 (1976)] (requiring a showing of a reasonable relationship between the planned subdivision and the municipality's need for land); College Station v. Turtle Rock Corp., [680 SW2d 802, 807 (Tex 1984)]; Call v. West Jordan, [606 P2d 217, 220 (Utah 1979)] (affirming use of the reasonable relation test).  Despite any semantical differences, general agreement exists among the courts 'that the dedication should have some reasonable relationship to the needs created by the [development].'  Ibid.  See generally Note, '"Take" My Beach Please!':  Nollan v. California Coastal Commission and a Rational-Nexus Constitutional Analysis of Development Exactions, [69 B U L Rev 823 (1989)]; see also Parks v. Watson, [716 F2d 646, 651-53 (9th Cir 1983)]." 512 US at 390-91. 19. Article I, section 18, was amended in 1920 and 1924 to add text defining what constitutes a public use.  As a result of those amendments, that constitutional provision currently provides: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use." 20. In Coast Range Conifers, the court took care to note that the categories of claims that it described "do not exhaust the field; other categories exist," citing, as an example, condemnation blight cases as a discrete category of takings cases.  339 Or at 147 n 12. 21. The court also explained, however, that equitable apportionment of the assessment -- not merely the fact that it involved money -- was necessary to its conclusion that the assessment was a tax rather than a taking.  The court noted that the expenses of grading and paving the street could have been raised by a general tax, but the legislature had chosen to place the burden on those "whose lands were benefited by the work, and to impose it on them in proportion to the benefit they respectively received therefrom."  Id. at 425.  Specifically, the legislature "professed to apportion the tax according to the maxim, that 'he who receives the advantage ought to susta in the burthen,' and to exact from each of the parties assessed no more than his just share of the burthen according to this equitable rule of apportionment.  The assessment, therefore, was taxation, and not an attempt to exercise the right of eminent domain." Id.  Because the assessment was a tax, "any sound objection to the assessment as a tax * * * must be an objection which applies to the principle on which the tax is apportioned[.]"  Id. 22. There is a difference, of course, between a government's imposition of a monetary obligation and its seizure of a discrete monetary fund.  See Brown, 538 US at 232 (distinguishing between tax and seizure of discrete monetary fund, and noting that, if  state had attempted to raise same funds through tax, "there would be no question as to the legitimacy of the use of the public's money").   23. To the contrary, the facts included in the Ninth Circuit's certification order disclose that plaintiff had lined up tenants to occupy its corporate park, and the city had agreed to issue temporary occupancy permits.  West Linn Corporate Park LLC v. City of West Linn, 534 F3d 1091, 1097-98 (9th Cir 2008).  Furthermore, the city contends that after it imposed the conditions of development, but before plaintiff acquired the property, plaintiff's predecessor in interest sold the property for a profit of more than $500,000.  24. The certified question identified ORS 271.120 as the source of the landowner consent provisions.  That appears to have been a clerical error on the part of the Ninth Circuit.  As the court correctly noted in its discussion of the issues, ORS 271.080 provides the landowner consent requirements at issue.  See West Linn, 534 F3d at 1105 ("[T]he question we confront is whether Ordinance 1439 was an ultra vires act because[,] although the City Council followed procedural formalities in its adoption, the petition presented for its consideration did not fully comply with [ORS] 271.080."). 25. A third mechanism applies to vacation of places in cities that are included in port districts.  ORS 271.180 - 271.220. 26. ORS 271.080 provides, in part:     "(1) Whenever any person interested in any real property in an incorporated city in this state desires to vacate all or part of any street, avenue, boulevard, alley, plat, public square or other public place, such person may file a petition therefor setting forth a description of the ground proposed to be vacated, the purpose for which the ground is proposed to be used and the reason for such vacation. "(2) There shall be appended to such petition, as a part thereof and as a basis for granting the same, the consent of the owners of all abutting property and of not less than two-thirds in area of the real property affected thereby.  * * * In the vacation of any plat or part thereof the consent of the owner or owners of two-thirds in area of the property embraced within such plat or part thereof proposed to be vacated shall be sufficient, except where such vacation embraces street area, when, as to such street area the above requirements shall also apply.  The consent of the owners of the required amount of property shall be in writing." 27. ORS 271.005(1) defines "[g]overning body" as "the board or body in which the general legislative power of a political subdivision is vested."  The city council in this case meets that definition.  28. ORS 271.130 provides, in part: "(1) The city governing body may initiate vacation proceedings authorized by ORS 271.080 and make such vacation without a petition or consent of property owners. Notice shall be given as provided by ORS 271.110, but such vacation shall not be made before the date set for hearing, nor if the owners of a majority of the area affected, computed on the basis provided in ORS 271.080, object in writing thereto, nor shall any street area be vacated without the consent of the owners of the abutting property if the vacation will substantially affect the market value of such property, unless the city governing body provides for paying damages. Provision for paying such damages may be made by a local assessment, or in such other manner as the city charter may provide. "* * * * * "(4) Any property owner affected by the order of vacation or the order awarding damages or benefits in such vacation proceedings may appeal to the circuit court of the county where such city is situated in the manner provided by the city charter. If the charter does not provide for such appeal, the appeal shall be taken within the time and in substantially the manner provided for taking an appeal from justice court in civil cases." 29. ORS 271.170 provides: "The provisions of ORS 271.080 to 271.160 are alternative to the provisions of the charter of any incorporated city and nothing contained in those statutes shall in anywise affect or impair the charter or other provisions of such cities for the preservation of public access to and from transportation terminals and navigable waters." 30. ORS 271.130(1) provides, in part:  "Notice shall be given as provided by ORS 271.110[.]" 31. In reaching that conclusion, we do not decide that affected landowners would not (or in this case did not) have a right to challenge the validity of the city action.  The existence of such remedies is not the question that the Ninth Circuit poses.  Instead, as we understand it, the Ninth Circuit asks whether the city ordinance, as it stands, is void.  We answer that the failure to satisfy the consent requirements of ORS 271.080 does not render the city's otherwise valid exercise of its power void or without legal effect. 1. There may be instances in which answering certified questions of state law requires us to discuss federal law.  See Klamath Irrigation District v. United States, 348 Or 15, 38 n 15, 227 P3d 1145 (2010).  This is not one of them. 2. This case also raises the question of how, if at all, the second prong of Williamson applies when a property owner files its takings claim initially in state court, but the defendant removes the case to federal court.  That question presents an issue of federal law for the federal courts, and the majority properly declines to address it. 3. Williamson is not to the contrary.  The Court was careful to explain in Williamson, in discussing the first prong of its ripeness analysis, that the requirement that a property owner apply for a variance or take similar steps before bringing a federal takings claim in federal court was not an exhaustion requirement.  473 US at 192-93.  That requirement was instead an aspect of ripeness and resulted from the peculiar nature of a regulatory takings claim; a federal court cannot tell whether a local government regulation goes too far and thus constitutes a taking until the local government has finally decided the extent to which development will be permitted.  Id. 4. A landowner may bring a federal takings claim in state court in one of two ways.  "[A] landowner is entitled to bring an action in inverse condemnation [for a Fifth Amendment taking] as a result of the self-executing character of the [Fifth Amendment] with respect to compensation." First Lutheran, 482 US at 315-16 (internal quotation marks omitted).  Alternatively, a landowner may bring a federal takings claim pursuant to section 1983.  As the Court explained in Patsy, the prohibition against exhaustion derives from congressional intent in enacting section 1983.  It does not extend to federal claims brought pursuant to some other claim for relief.   5. For instance, as long as any Oregon exhaustion requirement is reasonable, it is not clear how the presence or absence of a state court exhaustion requirement affects the question that the second prong of Williamson poses -- the adequacy of the state judicial procedures for affording just compensation.

1af0c2c83b6efc92adbdeda873905752b63328dcb3eca7def616c4dd03ea3c98

2010-09-23T00:00:00Z

282b9d50-0a67-4075-ba5c-d2babb1d8db9

Berman v. Kroger (Ballot Title Certified)

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS MODIFIED BALLOT TITLE CERTIFIED February 18, 2010 Berman v. Kroger (S057885)(347 Or 581). Having received no timely filed objections, the court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative Petition No. 59 (2010), ORS 250.085(9).

79a3a5765c75576194866750b966cf0eabc48597fc837f330afd86274ab87008

2010-02-18T00:00:00Z

873cb2bd-3b54-47ec-af59-e48790014031

In re Paulson

oregon

Oregon Supreme Court

FILED: January 22, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of LAUREN J. PAULSON, Accused. (OSB 05-187, 06-05, 07-19, 07-20, 07-21, 07-22; SC S055610) En Banc On the court's own motion for recall of appellate judgment and reconsideration.* PER CURIAM The appellate judgment is recalled and our former opinion is reconsidered.  The former opinion is modified and adhered to as modified.  Appellate judgment to issue forthwith. *346 Or 676, 216 P3d 859 (2009). PER CURIAM On the court's own motion, the court recalls the appellate judgment and allows reconsideration in this case to modify a portion of our prior opinion, In re Paulson, 346 Or 676, 216 P3d 859 (2009).  In that opinion, we concluded, as had the trial panel, that the accused had violated DR 2-106(a) by charging an excessive fee in connection with the Brady-Aiello small estate matter.  After describing the pertinent facts and quoting relevant portions of the trial panel opinion, we explained: "DR 2-106(A) prohibits a lawyer from charging an illegal or clearly excessive fee.  The Bar alleged and the trial panel found that the accused, by comingling his billings as personal representative with those for his work as trustee in connection with the Brady-Aiello estate matter, double-charged for certain services and collected $14,000 without the statutorily required permission of the court.  See ORS 116.173(1) (setting out fees to which a personal representative, '[u]pon application to the court[,]' may seek for services).  On review, the accused does not address the trial panel's findings or conclusions with regard to the violations of DR 2-106(A).  Having reviewed the record as it pertains to that cause of complaint, together with the findings and conclusions of the trial panel, we conclude that the Bar has proved that the accused violated DR 2-106(A) in this matter.  See In re Knappenberger, 344 Or 559, 564, 186 P3d 282 (2008) (accused violated rule when he charged a fee that, by law, required authorization by Social Security Administration without obtaining that authorization)." Id. at 686-87 (brackets in original).  We modify the above statement by removing the citation to In re Knappenberger, which involved an illegal fee, rather than an excessive fee.  We also remove the citation to ORS 116.173(1), a statute that the accused had cited in claiming entitlement to certain of his fees.  The trial panel found that the accused, in collecting the $14,000 in fees, did so "without court approval," which we understood to be a reference the statutory procedure set out in ORS 116.173(1).  That statute, however, may have no application to small estate matters and, in all events, was unnecessary to our conclusion.  The Bar's only theory for that particular violation was that the fees charged and collected by the accused were excessive, because he charged attorney fees for work that he performed in his capacity as a personal representative and comingled his billings in such a way as to bill multiple times for the same work.  As we concluded in our former opinion, consistent with the trial panel's findings, the accused handled his billings as the Bar had alleged.  As a result, the circuit court had removed him as personal representative and ordered him to repay the fees he had collected.  Paulson, 346 Or at 681-82.  We therefore modify our former opinion by removing the citations as noted above and by clarifying that we concluded that the accused charged an excessive fee, not an illegal fee.  Our reconsideration in this matter has no effect on the date of the accused's disbarment. The appellate judgment is recalled and our former opinion is reconsidered.  The former opinion is modified and adhered to as modified.  Appellate judgment to issue forthwith.

3bf9611d37ccb4faa3bf429b51e9628b74f6c8d6e3799ecd3cdd6bb487b940c9

2010-01-22T00:00:00Z

c001cad2-1a3b-4d69-af59-adbc7537062d

Liberty Northwest Ins. Corp., Inc. v. Watkins

S057190

oregon

Oregon Supreme Court

FILED: February 19, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON LIBERTY NORTHWEST INSURANCE CORPORATION, INC., and WESTERN CEDAR, INC., Respondents on Review, v. JOHN L. WATKINS, Respondent, and DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Petitioner on Review. (0500147H; CA A134305; SC S057190) En Banc On review from the Court of Appeals.* Argued and submitted November 2, 2009. Judy C. Lucas, Senior Assistant Attorney General, Salem, argued the cause for petitioner on review.  With her on the petition were Erika L. Hadlock, Acting Solicitor General, and John R. Kroger, Attorney General.  With her on the brief were Jerome Lidz, Solicitor General, and John R. Kroger, Attorney General. David O. Wilson, Johnson Nyburg & Andersen, Eugene, argued the cause and filed the brief for respondent on review. DE MUNIZ, C. J. The decision of the Court of Appeals is reversed.  The order of the Director of the Department of Consumer and Business Services is affirmed. *On judicial review from final order of the Department of Consumer and Business             Services. 224 Or App 599, 198 P3d 960 (2008). DE MUNIZ, C. J. In this workers' compensation case, the Department of Consumer and Business Services (department) petitions for review of a Court of Appeals decision reversing and remanding a final order by the Director of Consumer and Business Services (director) that awarded attorney fees to claimant's attorney stemming from proceedings brought by claimant to resolve a medical services dispute.  Liberty Northwest Ins. Corp., Inc. v. Watkins, 224 Or App 599, 198 P3d 960 (2008).  The Court of Appeals concluded that the director's award of attorney fees was improper, because a claim disposition agreement (CDA) previously agreed to by claimant and insurer included a release of claimant's right to attorney fees.  For the reasons that follow, we reverse the decision of the Court of Appeals and affirm the final order of the director awarding attorney fees.    We take the facts from the record, the final order, and the Court of Appeals opinion.  On June 13, 2000, claimant suffered a compensable back injury resulting in partial paralysis of his lower extremities; he was later determined to be permanently wheelchair dependant.  In February 2001, claimant and insurer entered into a CDA pursuant to ORS 656.236, set out post at __ (slip op at 4).  In exchange for monetary compensation specified in the CDA, claimant released "all rights to all workers' compensation benefits allowed by law, including temporary disability, permanent disability, vocational rehabilitation, aggravation rights to reopen claim, attorney fees, penalties, and survivor's benefits potentially arising out of this claim, and any subsequent claim for new medical conditions, except for medical services * * *."  (Emphasis in original.)   In addition, the CDA provided checkboxes to indicate whether, for each category of benefits, the release would be a "full" or "partial" release.  For each category, including a category entitled "Penalties and Attorney Fees," the checkbox indicating a full release was marked.  The CDA also stated that the CDA did not "limit [claimant's] statutory medical rights pursuant to ORS 656.245"(1) and that claimant "retain[ed] his right to medical services[.]"  The Workers' Compensation Board (board) later approved the CDA.  In January 2005, claimant, with the assistance of counsel, requested administrative review of insurer's refusal to provide him with a wheelchair-accessible van.  The medical review unit (MRU) found that a van was reasonable and appropriate for claimant's condition and subsequently issued an order that required insurer to purchase the wheelchair-accessible van and to pay a fee to claimant's attorney pursuant to the mandatory attorney fee provision in ORS 656.385(1), set out post (___ Or at ___) (slip on at 7 n 2).  Insurer filed a request for a contested case hearing with the department.  The sole issue at the hearing was the portion of the order awarding attorney fees.  In November 2006, the department issued an order affirming the award of attorney fees, and insurer sought judicial review in the Court of Appeals.  The Court of Appeals reversed and remanded, concluding that ORS 656.236(1)(a) provides a default rule to the effect that, unless otherwise specified, a CDA resolves all rights pertaining to a claimant's entitlement to attorney fees, including attorney fees that could potentially arise out of a medical services dispute, and that the terms of a CDA control whether attorney fees may be awarded.  The court reasoned that any right that claimant may have asserted to attorney fees was resolved by the CDA, which applied to "all rights to attorney fees that could potentially arise out of the claim."  Liberty Northwest Ins. Corp., Inc., 244 Or App at 612 (emphasis in original). As noted, the department petitioned for review, asserting that the CDA entered into in this case did not and could not release claimant's right to an attorney fee in a future medical services dispute.  We allowed review to determine whether, through a CDA entered into in accordance with ORS 656.236, a claimant may release the right to attorney fees that are derivative of a successful medical services claim. We begin with a brief summary of the statutory scheme applicable to medical services.  ORS 656.245(1)(a) and (b) entitle an injured worker to medical services for conditions caused in material part by a compensable injury, and require the insurer to provide those medical services for the life of the worker.  ORS 656.245(6) provides that, when a claim for medical services is denied, an injured worker may request administrative review by the director.  In turn, ORS 656.327(1)(a) provides that, when an injured worker, insurer, self-insured employer, or the director believes that a proposed medical service is excessive, inappropriate, ineffectual, or in violation of rules regarding the performance of medical services, the dissatisfied party must request administrative review by the director before requesting a contested case hearing on the issue.    Here, claimant prevailed after a contested case hearing involving a dispute over medical services, and the director awarded attorney fees to claimant's attorney.  However, as noted, the Court of Appeals reversed the award of attorney fees, concluding that the CDA, entered in accordance with ORS 656.236, unambiguously released claimant's right to all attorney fees potentially arising from any claim, including a medical services claim, and that those contractual terms should be enforced.  In our view, the determination of whether a claimant may release his or her right to attorney fees that derive from a successful medical services claim in a CDA depends on the legislature's intent expressed in ORS 656.236.  We turn to that statute. ORS 656.236 provides, in part: "(1)(a) The parties to a claim, by agreement, may make such disposition of any or all matters regarding a claim, except for medical services, as the parties consider reasonable, subject to such terms and conditions as the Workers' Compensation Board may prescribe.  * * * Unless otherwise specified, a disposition resolves all matters and all rights to compensation, attorney fees and penalties potentially arising out of claims, except medical services, regardless of the conditions stated in the agreement.  "* * * * * "(7) * * * Insurers or self-insured employers may be joined as parties in subsequent proceedings under this chapter to determine responsibility for medical services for claim conditions for which disposition is made by an approved claim disposition agreement, but no order in any subsequent proceedings may alter the obligations of an insurer or self-insured employer set forth in an approved claims disposition agreement, except as those obligations concern medical services." (Emphases added.)  We begin our analysis with the text and context of the statute.  PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993).  As part of that first level of analysis, this court considers its prior interpretations of the statute.  See State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998) (so stating).   This court most recently interpreted and applied ORS 656.236 in Rash v. McKinstry Co., 331 Or 665, 20 P3d 197 (2001).  In that case, a worker was injured and, after he began a tort action against a third party involved in the cause of the injuries, the insurer and the worker entered into a CDA.  The CDA did not expressly preserve the insurer's lien rights against any recovery that the worker might receive in the tort action.   However, after the worker settled with the third party, the insurer sought to recover from the settlement the amount that it had paid on the claimant's claim.  Id. at 667.  The board determined that the insurer's statutory lien rights survived the parties' CDA.  On review, this court first noted that the lien at issue was not an "attorney fee" or a "penalty."  The court then determined that the words "to compensation," as used in the phrase "a disposition resolves all matters and all rights to compensation" in ORS 656.236(1)(a), qualifies only the word "rights," and not the word "matters."  Rash, 331 Or at 671.  The court also determined that the phrase "all rights to compensation" relates only to a worker's right to benefits, and that the plain and unambiguous meaning of the word "all" is "every."  Id. at 672 (emphasis added).  The court stated that "the relevant wording [ ]: 'all matters * * * potentially arising out of claims,'" meant that a CDA resolves all matters that, in the future, could arise out of a claim.  Id. at 673.  The court therefore concluded that "an insurer's lien against a claimant's third-party recovery is a 'matter[ ] * * * potentially arising out of claims' within the meaning of ORS 656.236(1)(a)" and thus was extinguished by the CDA.  Id. at 673. Although the court did not examine the meaning of the phrase "except medical services," the court's conclusions regarding the legislature's intent are instructive here.  As noted, the court concluded that, in the third sentence of ORS 656.236(1)(a), the words "to compensation" qualified only the word "rights" and not the word "matters."  Thus, the term "all rights to compensation" is treated separately from "all matters."  Accordingly, that part of the statute should be read "all rights to compensation * * * potentially arising out of claims."  Because the term "all rights to compensation" ("all rights to compensation, attorney fees and penalties")  is followed by a comma, the term "attorney fees and penalties" also qualifies the word "rights," and is properly read as "all rights to * * * attorney fees and penalties potentially arising out of claims." The phrase "except medical services" in the third sentence in ORS 656.236(1)(a) is set off from the rest of the sentence by commas, indicating that as a matter of English that phrase is nonrestrictive; that is, it is not intended to modify only the immediately preceding noun in the sentence, which is "claims."  See The Chicago Manual of Style § 6.38 (15th ed 2003) (explaining a reading of that kind).  The phrase "except medical services" therefore modifies the phrases "all matters," and "all rights to compensation * * * potentially arising out of claims," and "all rights * * * to attorney fees potentially arising out of claims."  Thus, under the statute's text, a CDA does not resolve a claimant's right to attorney fees, regardless of the conditions stated in the CDA, when those fees derive from a subsequent claim for medical services.  We reach the same conclusion applying the rule of the last antecedent.  In State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996), this court explained that rule as follows: "Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent.  The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.  Thus a proviso usually is construed to apply to the provision or clause immediately preceding it.  * * * "Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma."  (Internal quotations omitted.)  Here, the phrase "except medical services" is preceded by a comma, indicating that it applies to all the antecedents.  From that sentence structure we conclude that a claimant cannot dispose of "all matters" and "all rights to compensation, attorney fees and penalties potentially arising out of claims" where those matters and rights involve medical services. That interpretation is consistent with the legislature's intent to provide medical services for the life of the worker, ORS 656.245, and the provision for mandatory attorney fees for claimants that prevail in medical services disputes, ORS 656.385(1).(2)  See Davis v. Wasco IED, 286 Or 261, 272, 593 P2d 1152 (1979) ("whenever possible the court should construe together statutes on the same subject as consistent with and in harmony with each other").  Attorney fees are derivative of medical services claims, and thus, a successful medical services claim carries with it the right to attorney fees under ORS 656.385(1).  The director's award of attorney fees to claimant was correct, and the Court of Appeals erred in concluding otherwise. The decision of the Court of Appeals is reversed.  The order of the Director of the Department of Consumer and Business Services is affirmed. 1. ORS 656.245 relates to medical services and provides, in part, that for every compensable injury, employers are responsible for providing medical services "caused in material part" by the injury.   2. As originally enacted in 1995, ORS 656.385(1) required the director to award a reasonable attorney fee to a prevailing claimant only at the contested case level.  However, in 2003, ORS 656.385(1) was amended to require that the director award a reasonable attorney fee to a prevailing claimant at any level of review.  ORS 656.385(1) currently provides, in part: "In all cases involving a dispute over compensation benefits pursuant to ORS 656.245, 656.247, 656.260, 656.327 or 656.340, where a claimant finally prevails after a proceeding has commenced, the Director of the Department of Consumer and Business Services or the Administrative Law Judge shall require the insurer or self-insured employer to pay a reasonable attorney fee to the claimant's attorney."  (Emphasis added.)

81330b405e30473e6727ca50be7514e9694d160da12ae52ec2bd510b7e2e8c17

2010-02-19T00:00:00Z

e26c0bf9-c1f5-43c7-8702-9bf015bb04c6

Weems/Roberts v. Board of Parole

S056672

oregon

Oregon Supreme Court

FILED: February 4, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON EDGAR LEE WEEMS, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review. (CA A128497; SC S056672) MICHAEL A. ROBERTS, Petitioner on Review, v. BOARD OF PAROLE AND >POST-PRISON SUPERVISION, Respondent on Review. (CA A124125; SC S056741) (Consolidated for argument and opinion) En Banc On review from the Court of Appeals.* Argued and submitted September 18, 2009. Carolyn Bys, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review.  With her on the briefs were Peter Gartlan, Chief Defender, and Irene B. Taylor, Deputy Public Defender. Jeremy C. Rice, Assistant Attorney General, Salem, argued the cause for respondent on review.  With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. LINDER, J. The decisions of the Court of Appeals are affirmed. *On judicial review of final order of Board of Parole and Post-Prison Supervision, dated November 24, 2004. 221 Or App 70, 190 P3d 381 (2008).   On judicial review of  final order of Board of Parole and Post-Prison Supervision, dated October 9, 2003. 221 Or App 278, 190 P3d 397 (2008). LINDER, J. The principal issue presented in these two cases is whether the Board of Parole and Post-Prison Supervision (the board) may consider an offender's full criminal history and personal background in imposing special conditions of post-prison supervision, or whether the board must limit its review to the facts and circumstances of an offender's current crimes of conviction.(1)  In these cases, based on each petitioner's criminal history, the board imposed special conditions that are appropriate for sex offenders, even though petitioners were currently serving sentences for nonsexual crimes.  We conclude, as did the Court of Appeals, that the board is authorized to impose special conditions of post-prison supervision based on an offender's criminal history and background, rather than based only on the current crimes of conviction.  Weems v. Board of Parole, 221 Or App 70, 75, 190 P3d 381 (2008); Roberts v. Board of Parole, 221 Or App 278, 282, 190 P3d 397 (2008).  We further conclude, as did the Court of Appeals, that the record before the board adequately supported the board's decision to impose the particular special sex offender conditions that it imposed in each of these cases.  Weems, 221 Or App at 76-77; Roberts, 221 Or App at 282.  We therefore affirm the decisions of the Court of Appeals. In describing the facts and procedural history of the two cases before us, we begin with petitioner Weems's case, because the Court of Appeals decided that case first, and then relied on its decision in Weems to resolve petitioner Roberts's case.  See Weems, 221 Or App 70; Roberts, 221 Or App at 282. Weems was convicted of several drug crimes and sentenced to a period of incarceration for those crimes, followed by post-prison supervision.  Although none of Weems's current crimes of conviction were sexual offenses, his criminal history included previous charges of sexual offenses.  In particular, he had been arrested in 1991 on charges of sodomy in the first and second degrees.  The sodomy charges were dismissed, for reasons that are not a matter of record.  In 1993, Weems was arrested on charges of sexual abuse in the first and second degrees.  Those charges were resolved through a plea agreement in which Weems pleaded guilty to the lesser crime of menacing in exchange for dismissal of the sex abuse charges.  In addition to those sexual offense charges, Weems had two previous convictions for endangering the welfare of a minor and other drug convictions. Before Weems's scheduled release to post-prison supervision for his current drug convictions, the Department of Corrections (the DOC) prepared a proposed release plan for him.  In submitting that proposed plan to the board, the DOC included Weems's 2004 sex offender risk assessment, which outlined Weems's past sexual offense charges and included information that Weems had reported that the alleged victim of the 1991 sodomy charges was the 9- or 10-year-old son of one of Weems's friends.  In the release plan, in addition to standard conditions, the DOC recommended several special conditions of post-prison supervision that it believed were appropriate for Weems based on his criminal history.  The special conditions included four so-called "sex offender" conditions that are among those that are mandatory for individuals who are on post-prison supervision after committing a sexual offense.(2)   The board accepted the DOC's recommendation and ordered Weems to comply with the following sex offender special conditions: "3. Offender shall have no contact with minor females and shall not frequent any place where minors are likely to congregate * * * without prior written approval from their supervision officer.  PER PO. "4. Offender shall have no contact with minor males and shall not frequent any place where minors are likely to congregate * * * without prior written approval from their supervising officer.  PER PO. "5. Offender shall submit to random pol[y]graph tests as part of a sex offender surveillance program.  * * * PER PO. "6. Offender shall enter and complete or be successfully discharged from a recognized and approved sex offender treatment program * * * PER PO."(3) Weems requested administrative review by the board.  In his request, Weems challenged the sex offender special conditions, arguing that the board could not impose them in his case, because he had never committed or been convicted of a sexual offense.  The board granted Weems's request for administrative review, but denied relief.  In its order, the board explained that it has authority to impose sex offender special conditions based on an offender's individual circumstances.  It further explained why it imposed sex offender special conditions in Weems's case: "On September 6, 1991, you were arrested for the crimes of Sodomy in the First Degree and Sodomy in the Second Degree.  These charges were dismissed.  On July 22, 1993, you were arrested for the crimes of Sexual Abuse in the First Degree and Sexual Abuse in the Second Degree.  You were convicted of the lesser included charge of Menacing.  It was these individual circumstances that led the board to determine that it was necessary to impose the contested special conditions in your case.  The board took into consideration the age of the offenses when it imposed the special conditions to be implemented at the discretion of your supervising officer.  Consequently, if your supervising officer does not deem it appropriate to implement the special conditions imposed by the board in your Order of Supervision, then you will not have to comply with those conditions.  However, if your supervising officer determined that these special conditions were appropriate to implement, then you would have to comply with these conditions." Weems sought judicial review in the Court of Appeals, raising, as his principal challenge, the issue of the board's authority to impose sex offender special conditions on an offender whose current crime of conviction is not a sexual offense.  Weems alternatively argued that, even if the board may impose special conditions based on an offender's criminal history and personal background, the board's decision to impose the sex offender conditions in his case was not supported by the record that the board had before it. Relying on this court's decision in Martin v. Board of Parole, 327 Or 147, 159, 957 P2d 1210 (1998), the Court of Appeals observed that the board has broad discretionary authority under ORS 144.102(3)(a)(4) to impose special conditions that serve public safety and the reformation of the individual offender.  Weems, 221 Or App at 75.  The board does not abuse its delegated authority under the statute, the Court of Appeals concluded, unless there is no "discernable relationship" between the special conditions of supervision that the board imposes and "either petitioner's individual circumstances or the protection of the public."  Id.  Consequently, the Court of Appeals held that the board has the statutory authority to impose sex offender special conditions on someone who is not a convicted sex offender and who is not under post-prison supervision for a sexual offense.  Id.(5) The Court of Appeals then reviewed the board's explanation for imposing sex offender special conditions in Weems's case.  In the Court of Appeals' view, the board took into account the age and lack of detail about Weems's past charges by imposing the sex offender special conditions, but doing so "contingent on the supervising officer's evaluation."  Id. at 76-77.  The Court of Appeals concluded that Weems's four prior charges for sexual offenses and his conviction for menacing provided adequate support for the board's order.  Id. at 77. Roberts raised the same challenge to the board's authority that Weems had raised.  Roberts was serving sentences for assault and weapons offenses.  As was true of Weems, although none of Roberts's current crimes of conviction were sexual offenses, his criminal history included previous charges of sexual offenses.  In particular, Roberts had been arrested in 1992 for rape in the third degree, but that charge was later dismissed.  In 1993, Roberts was arrested for several sexual offenses, including sexual abuse in the first degree, sodomy in the first degree, and rape in the first degree.  Those charges resulted in a conviction of sexual misconduct, an offense that includes, as an element, sex with a victim under the age of 18.(6)  Roberts also had past arrests at various times for nonsexual offenses. The board imposed the same four sex offender special conditions of post-prison supervision that we quoted from Weems's order.  Roberts requested administrative review by the board, arguing that the board may impose those conditions only on offenders who are on post-prison supervision for a sexual offense, which he was not.  As in Weems's case, the board granted review, but denied relief.  In doing so, the board explained: "Pursuant to ORS 144.102(3)(a), the board may establish any special conditions it determines are necessary because of the individual circumstances of the person on [post-prison supervision].  On March 24, 1995, Mr. Roberts was convicted of Sexual Misconduct pursuant to ORS 163.445.  On November 16, 1993, Mr. Roberts was arrested for the crimes of Rape in the First Degree, Sodomy in the First Degree, and Sexual Abuse in the First Degree.  It was these individual circumstances that led the board to determine it was necessary to impose the contested special conditions in Mr. Roberts' case.  The board recognized that Mr. Roberts was not being supervised on a sex offense when it indicated that the contested special conditions would be implemented at the discretion of the supervising officer.  If the supervising officer concludes that the contested special conditions are not necessary, then they will not be implemented.  However, there was a legitimate basis for the board to impose the special conditions on Mr. Roberts' Order of Supervision."  Roberts petitioned for judicial review.  Before the Court of Appeals, he challenged both the board's authority to impose sex offender special conditions for persons on supervision for crimes other than sexual offenses and the adequacy of the record to support those conditions in his case.  The Court of Appeals resolved Roberts's arguments "for the reasons expressed in Weems."  Roberts, 221 Or App at 282.(7) On review, petitioners renew the arguments that they made to the Court of Appeals, although (as we later note) they expand on those arguments in certain regards.  We begin with their argument that the board may impose special conditions based only on the "facts of the offense" and the "offender's characteristics that contributed to the commission of the offense." ORS 144.102(3)(a) is the source of the board's authority to impose special conditions of post-prison supervision.  It provides: "The board or supervisory authority may establish special conditions as the board or supervisory authority shall determine are necessary because of the individual circumstances of the person on post-prison supervision." Petitioners rely on the phrase "individual circumstances" in ORS 144.102(3)(a).  Invoking the dictionary definitions of both "individual" and "circumstances," petitioners urge that the board is authorized to consider only the events that led to a person's release on post-prison supervision -- that is, the circumstances of the person's current crimes of conviction.  We disagree.  The key words of the statute are "individual circumstances of the person."  (Emphasis added.)  The statute thus focuses, specifically, on the offender, not the offense.  That, in turn, naturally implies that the board is to consider more generally the offender's personal history and background.  To be sure, the individual circumstances of the person on supervision would include the circumstances of that person's current crimes of conviction, because that is part of the offender's history and background.  But by authorizing the board to impose special conditions of post-prison supervision based on the individual circumstances of "the person" on supervision, rather than the circumstances of the offense, the legislature plainly intended the board to consider more than just the narrow circumstances of an offender's current crimes of conviction. Context confirms that understanding.  See State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (starting point for statutory interpretation is text and context).  ORS 144.102(3)(a) is one of several statutes bearing on the process by which the board considers and adopts conditions of post-prison supervision for individual offenders.  That process begins with the DOC.  Before the offender's release, the DOC must prepare a proposed release plan, ORS 144.096(1)(a), which includes any special conditions of post-prison supervision as may be necessary "to promote public safety" and "to assist the reformation of the inmate."  ORS 144.096(3)(d), (f).  The board then reviews the proposed release plan.  In performing its review, the scope of what the board may consider is extensive.  Under ORS 144.098(1), the board may interview the individual offender and also may consider: "(a) Reports of any physical, psychiatric or psychological examinations of the inmate; "(b) The presentence investigation report specified by ORS 144.791 or, if no such report has been prepared, a report of similar content prepared by institutional staff; "(c) The record of the inmate's conduct during confinement; and "(d) Any other information relevant to the inmate's reintegration into the community that may be submitted by the inmate, the inmate's attorney, the victim of the crime, the Department of Corrections, local corrections agencies or any other person." After completing that review, the board must specify "in writing the conditions of post-prison supervision."  ORS 144.102(1).  In addition to standard conditions authorized by statute for all offenders,(8) the board, as already described, may impose special conditions when the board determines those conditions to be "necessary because of the individual circumstances of the person on post-prison supervision."  ORS 144.102(3)(a). The statutes governing the process for the board's review and imposition of the special conditions of post-prison supervision underscore the offender-specific focus of the board's authority.  The statutory scheme does not limit the board's review to the facts and circumstances of an offender's current crime of conviction (which the presentence investigation report would provide).  Instead, the board is expressly authorized to consult information about the offender's overall physical and mental health, the offender's behavior while incarcerated and, significantly, "any other information" from any source "relevant to the inmate's reintegration into the community."  ORS 144.098(1)(d).  We therefore agree with the Court of Appeals, and we hold that ORS 144.102(3)(a) authorizes the board to consider the individual circumstances and nature of the offender, and not just the offender's current crime or crimes of conviction, in determining what special conditions of post-prison supervision are appropriate to impose for a particular offender.(9) We turn to petitioners' alternative arguments that, even if the board had authority to look beyond their current crimes of conviction in imposing special conditions of post-prison supervision, the records before the board do not support the board's imposition of the challenged conditions in their particular cases.  Petitioners point to the express wording of ORS 144.102(3)(a), which authorizes the board to impose special conditions if they are "necessary" based on the individual circumstances of the person to be supervised.  According to petitioners, when, as here, the board relies on circumstances other than those of the current crime of conviction, the board must have before it evidence of "recent, significant conduct" that raises "imminent" concerns for public safety or an offender's reformation.  Petitioners urge that the evidence on which the board relied -- i.e., their past histories of criminal charges and convictions -- was too remote and too limited in detail to support imposition of sex offender special conditions in their particular cases. Petitioners' arguments thus raise a further legal point about what ORS 144.102(3)(a) requires.  Essentially, their position is that the statute requires the board to rely on evidence of a particular quality and kind -- namely, evidence of "recent, significant conduct" that raises "imminent" concerns for public safety or an offender's reformation.  We disagree that the statute places those legal limits on what the board may consider.  As we have already discussed, textually, ORS 144.102(3)(a) directs the board in general terms to impose special conditions based on what is "necessary because of the individual circumstances of the person on post-prison supervision."   In Martin, we explained that the term "necessary" in that context takes its meaning from the other statutes that identify the permissible objectives that special conditions should serve.  327 Or at 159.  The key statute in that regard is ORS 144.096, which directs the DOC to propose special conditions for the board's review based on what may be necessary "to promote public safety" and "to assist the reformation of the inmate."(10)  ORS 144.096(3)(d), (f) (emphasis added).  This court concluded in Martin that the legislature did not intend the board, given "the vagaries of human experience," to tailor special conditions narrowly to address only certain or immediate risks to public safety or offender reformation; instead, the legislature has granted the board broad discretion to impose special conditions to address any substantial danger in those regards.  327 Or at 159-60.  Martin thus directly refutes the idea that the board may impose special conditions of post-prison supervision only when a danger to public safety or offender reformation is "imminent" in nature. We also reject petitioners' argument that the board, if it considers information other than the current crime of conviction, may impose special conditions based only on an offender's "recent, significant conduct."  Again, ORS 144.102(3)(a), in conferring on the board the authority to impose special conditions of post-prison supervision, contains no such limitation.  To the contrary, as we have described, the board is expressly authorized to consult wide-ranging information about an offender's personal background and full criminal history.  ORS 144.098(1).  That information specifically includes "any * * * information relevant to the inmate's reintegration into the community."  ORS 144.098(1)(d).  It also includes an offender's presentence report (ORS 144.098(1)(b)), which relates an offender's criminal history preceding his sentencing on his current crimes of convictions, and thus inherently encompasses dated information, rather than conduct that is close in time to an offender's release on post-prison supervision.  To conclude that the board may not consider certain information based solely on the age of that information would be inconsistent with what the legislature has expressly authorized. Beyond that legal issue about what the statute requires, petitioners' arguments are more record-specific and are directed to what special conditions the board permissibly could impose in their particular cases.  Petitioners do not present their arguments in terms that track the familiar standards by which appellate courts review agency orders -- that is, a review for abuse of discretion, substantial evidence, or substantial reason.  See ORS 144.335(3) (standards of judicial review that apply to agencies under ORS 183.482(8) apply to judicial review of board orders); ORS 183.482(8)(b) and (c) (review for abuse of discretion and substantial evidence); Martin, 327 Or at 157 (board's order must provide "some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached").  For the sake of analytical clarity, therefore, we begin by examining which of those problems are implicated by the arguments that petitioners make. The issue is not whether the board adequately set forth its reasoning in its orders -- that is, whether the board's orders are supported by substantial reason.  In each order, as we quoted earlier, the board identified the particular facts on which it relied -- i.e., the specific past sexual offense charges in each petitioner's criminal history and any convictions that resulted from those charges -- as its reason for imposing the sex offender special conditions of post-prison supervision.  The board's obligation to set out its reasoning sufficient for appellate review required it to do no more. Neither is this an issue of whether the board abused its discretion.  As we explained in Martin, whether the board abuses its discretion by imposing a particular special condition depends on whether the board's choice is "within the permissible range of choices" that the legislature has authorized the board to make.  Id. at 160.  That inquiry, this court further observed, "has meaning only in the context of the statutory objectives that the [b]oard is to pursue."  Id. at 159 (internal quotations omitted).  If the board determines, based on adequate evidence, that an offender to be released on post-prison supervision is at risk of committing a sexual offense in the future, the imposition of sex offender special conditions is a logical way for the board to further the safety of the public, as well as the offender's reformation and "reintegration into the community."  ORS 144.098(1)(d).  The board would be entitled to conclude in such a case that sex offender special conditions are necessary and, therefore, within the range of permissible choices that the board could make. But did these records provide an adequate basis for the board to determine in each case that petitioners are at risk of committing future sexual offenses?  That is the case-specific question that petitioners' arguments most directly pose.  In each of these cases, the board reasoned that petitioner's individual criminal history provided reason for concern sufficient to justify imposition of the four sex offender special conditions of post-prison supervision.  In effect, the board implicitly found in each case that petitioners' history of past charges of sexual offenses, and any convictions resulting from those charges, was reason to believe that each petitioner was at risk of committing sexual offenses in the future. Petitioners' arguments take aim at that finding by urging, in essence, that the board could not reasonably so conclude based on the records before it.  According to petitioners, for two reasons, the board should not have given any weight to the events on which it relied.  First, petitioners urge, it was "inherently unreasonable" for the board to rely on "unproven allegations" that petitioners had committed sexual offenses in the past.  Second, according to petitioners, the events were "remote."  In that regard, petitioners suggest that, because the events occurred several years ago and petitioners have not been charged since with additional sexual offenses, their past criminal charges fail to reveal a history or pattern of conduct that would suggest an ongoing risk of future sexual offenses.  Correctly framed, then, each petitioners' challenge is that the board's orders are not supported by substantial evidence.  See Einstein v. PSRB, 330 Or 121, 127, 998 P2d 654 (2000) (describing "substantial evidence" standard of review); ORS 183.482(8)(c) ("substantial evidence exists to support a finding when the record, viewed as a whole, would permit a reasonable person to make that finding"). Petitioners' argument is similar to the one that this court addressed in Einstein.  In that case, the issue was whether substantial evidence supported a finding by the Psychiatric Security Review Board (PSRB) that the petitioner suffered from a mental disease at the time of the hearing on his request to be discharged on conditional release.  There, the petitioner argued that the PSRB had relied only on evidence of the petitioner's past mental condition and that the record contained no present diagnosis to support the PSRB's finding of a present condition.  In rejecting the petitioner's substantial evidence challenge, this court emphasized the nature of the court's review.  Contrary to the Court of Appeals' reasoning, it did not matter whether it was "'equally as inferable from that evidence that [the petitioner] no longer suffers from a mental disease as it is that the disease continues but is in remission.'"  Id. at 126 (quoting Einstein v. PSRB, 153 Or App 522, 525-26, 958 P2d 843 (1998)).  Properly, the issue was only whether, based on the record before the PSRB, "a reasonable person could find, either directly or by permissible inference, that [the petitioner] continues to suffer from a mental disease or defect[.]"  Id. at 127.  In the petitioner's case, there was no evidence of his disease being symptomatic in the eight months before the hearing.  On the other hand, the petitioner's mental illness historically had gone through periods of being symptomatic, followed by periods of being in remission.  On that record, this court concluded, the PSRB reasonably could find that the petitioner's underlying mental condition "persists," even though the only expert who testified to the petitioner's mental condition as of the time of the hearing stated that the petitioner no longer had a mental disease.  Id.  That was so because the evidence of the petitioner's history was not "so remote that a reasonable person could not, as a matter of law, give that evidence substantial weight."  Id. at 128.  Consequently, the PSRB's order was supported by substantial evidence. Einstein is instructive here.  The question, given our standard of review, is whether, as a matter of law, a reasonable person could not give petitioners' criminal histories substantial weight, because of the age of the past charges and convictions, or because several of the charges went unadjudicated.  We cannot so conclude in either of these cases. Criminal history, even of arrests and unadjudicated charges, certainly is relevant in attempting to assess the nature and kind of risks that particular offenders pose for the future.  That is true as a matter of logic and human experience, and it is reflected in the fact that the legislature has specifically authorized the board to consider an offender's presentence report and "any other information relevant" to the offender's safe reintegration into the community.  ORS 144.098(1)(d).  In Roberts's case, the board relied on the information contained in his presentence report -- i.e., Roberts's history of past sexual offense charges and arrests, and his prior conviction for a sexual offense involving a minor victim.  That history is not something we presume to be characteristic of all or even most offenders whose current crimes of conviction involve, as in Roberts's case, only assault and weapons convictions.  Based on that history, a reasonable person could find that Roberts is at risk of committing sexual offenses in the future.  The fact that a reasonable person could also draw a contrary inference, or that reasonable persons might differ in their assessment of the strength of the inference or the degree of the risk, does not mean that the board's implicit finding in that regard is not supported by substantial evidence.  The board therefore was entitled to impose the challenged sex offender special conditions as necessary to further the public's safety and Roberts's reintegration into the community. The facts in Weems's case present a different and arguably closer issue, because Weems has no previous conviction of a sexual offense.  His criminal history includes past sexual offense charges that eventually were dismissed for reasons that the record does not disclose.  The set of charges for sexual abuse in the first and second degrees resulted in a conviction, but the conviction was for the lesser-included offense of menacing.  The absence of a known prior conviction for a sexual offense in Weems's case weakens -- at least, to some degree -- the possible inference that he is at risk of committing a sexual offense in the future. It does not, however, weaken that inference so much that, as a matter of law, a reasonable person would be unable to draw it.  In that regard, it is important to describe what the board had before it.  Weems's past charges and conviction for menacing were documented through a formal sexual offender risk assessment that DOC performed in 2004, a few months before Weems's release.  That assessment was made using a standardized predictive test scale (the "STATIC-99") that the DOC has approved to assess whether someone, upon release from incarceration, should be designated a predatory sex offender.(11)  For the board to make that designation, an offender's criminal history must include at least one qualifying past sexual offense conviction.(12)  In addition, at the time of Weems's evaluation, the offender had to score a certain level on the STATIC-99, which takes into account such factors as the offender's age, prior sexual offenses, prior nonsexual offenses, the characteristics of the victims of those prior offenses, and whether violence was involved in the offenses.  OAR 255-060-0011 (2005), Exh Q-3 (effective June 14, 2004).  At the time of Weems's assessment, the board would designate an offender with a qualifying past conviction to be a predatory sex offender if that offender received a score of four or more points on the assessment.(13) Weems's sex offender risk assessment did not result in his designation as a predatory sex offender, because he had no known qualifying past sexual offense conviction.  But for that fact, however, Weems would have qualified for that designation.  Weems received a STATIC-99 score of 4, which put him into a "medium-high" risk category.(14)  That score was based on the facts that Weems had two prior charges for sexual offenses, four or more prior sentencing dates (excluding the sentencing date for the crimes of conviction), an unrelated victim, and a male victim.(15)  The STATIC-99 predictive test considers prior charges and arrests for sexual offenses to be significant in assessing the risk that someone will commit a future offense; it is not limited to convictions.(16)  Thus, the past sexual offense charges and the conviction for menacing that the board relied on, which were before the board as part of Weems's sex offender assessment, had resulted in a significant risk score.  Given the record before the board, a reasonable person -- and, therefore, the board -- could conclude that sex offender special conditions were appropriate in Weems's case to promote public safety and assist in his reformation. Petitioners point to one further aspect of the board's orders to argue that, on the records before it, the board erred in imposing the special conditions.  Relying on the "per parole officer" notation that followed each condition, each petitioner argues: "[I]f sex offender conditions were reasonably related to the statute's twin goals [of public safety and offender reformation], then the record would readily so reflect and the board would not hesitate to impose that condition.  Instead, the board could not determine from this record whether the sexual offender treatment was necessary for petitioner's reformation, or whether prohibiting petitioner from having contact with minors and excluding him from places where they gather was necessary for the protection of the public; consequently, the board delegated that decision to petitioner's supervising officer." Petitioners' argument relies on a false -- or, at least, overstated -- premise.  The board did not decline or, for that matter, "hesitate," to impose the sex offender special conditions and opt instead to delegate the decision to petitioner's supervising officer.  Rather, after reciting petitioner's history in each case, the board expressly, and unequivocally, stated:  "It was these individual circumstances that led the board to determine that it was necessary to impose the contested special conditions in [petitioner's] case."  (Emphasis added).  In Weems's case, the board further explained that it "took into consideration the age of the offenses when it imposed the special conditions to be implemented at the discretion of your supervising officer."  (Emphasis added.) Expressly, then, the board imposed the special conditions.  The board, however, left it to the supervising officers in the field to determine, as a matter of discretion, whether to implement the special conditions.  The board did not expand, in either order, on the responsibility of the supervising officers to determine, once petitioners were being actively supervised, whether to implement the conditions or how the board would expect that to be done (e.g., by an evaluative process involving treatment or a polygraph examination, which itself would entail actual implementation of the conditions).  The board might have provided a fruther explanation, had either petitioner in these cases raised a concern to the board about that aspect of the board's order.  But neither petitioner did.  In both cases, petitioners challenged the special conditions only on the ground that the board lacked authority to impose them in the case of an offender who was not on supervision for a sexual offense and who claimed, as Weems did, never to have committed a sexual offense.(17) Given the particular posture of these cases, and the lack of a preserved objection to that aspect of the board's order, we decline to further consider petitioners' arguments in those regards.  The board has not had the opportunity to explain the scope of a supervising officer's authority to not implement a condition of this kind, once it has been imposed by the board.  See ORS 144.104(2) (supervising officer has authority to adjust level of supervision for a person on post-prison release).  Moreover, the issue that petitioners raise in this regard may be purely academic in these cases.  We have determined that substantial evidence supported imposition of the special conditions in petitioners' cases.  That is enough to resolve these cases.  Beyond that, any issue about the board's authority to delegate to the supervising officers the authority to adjust the conditions would appear to be moot, because petitioners are no longer on post-prison supervision.(18)  For those reasons, we do not consider petitioners' arguments about the "per parole officer" notation in the boards' orders.(19) The decisions of the Court of Appeals are affirmed. 1. The cases proceeded individually before the board and the Court of Appeals, and each petitioner individually petitioned this court for review.  After granting those petitions, we consolidated the cases for purposes of argument and decision. 2. ORS 144.102(3)(b) provides (as it did in 2003) that, if a person is on post-prison supervision following conviction of a sexual offense, the board shall include all of several special conditions of post-prison supervision set out in subparagraphs of the statute.  The list contained in the statute, which is much more extensive than the four imposed in Weems's case, are mandatory for persons who are on supervision following conviction of a sexual offense. 3. The parties agree that "PER PO" is shorthand for "PER PAROLE OFFICER."  As we later explain, the board imposed identical special conditions in Roberts's case.  In doing so, however, it used the notation "PER PAROLE OFFICER" instead of the shorthand that it used in Weems's case. 4. We set out the statute and discuss it at greater length later in our decision.  Because the board issued its order in Roberts's case in 2003 and in Weems's case in 2004, unless otherwise noted, all references to the Oregon Revised Statutes are to the 2003 versions.   5. In their petitions for review, petitioners framed, as their first question presented, whether the Court of Appeals incorrectly used a "no discernible relationship" standard to test whether the record in these cases supports the board's imposition of the challenged special conditions.  Petitioners do not present that question in their briefs on the merits.  As our description of the Court of Appeals decision demonstrates, the Court of Appeals did not use that terminology in connection with the standard of review for the board's particular orders in these cases.  Instead, the court was describing the board's legal authority under ORS 144.102(3)(a) to consider information beyond the facts and circumstances of an offender's crime of conviction in imposing special conditions of post-prison supervision.  We do not endorse the Court of Appeals' particular terminology in that regard.  As we will later describe, however, we agree with the court's conclusion that the board is, in fact, authorized under the statute to consider an offender's personal history and background, in addition to the offender's crime of conviction, in imposing special conditions of post-prison supervision. 6. See ORS 163.445(1) ("A person commits the crime of sexual misconduct if the person engages in sexual intercourse or deviate sexual intercourse with an unmarried person under 18 years of age."). 7. Because petitioners completed their terms of post-prison supervision and were discharged before the Court of Appeals issued its decisions, the Court of Appeals also considered whether the cases were moot.  It held that petitioners' claims regarding the special conditions restricting contact with minors are moot, but that their claims regarding the board's imposition of polygraphs and sex offender treatment are not.  Weems, 221 Or App at 72 n 1; Roberts, 221 Or App at 280-82.  We agree.  Any decision by the Court of Appeals or this court regarding the conditions restricting contact with minors will not have any practical effect on petitioners' rights.  See Brumnett v. PSRB, 315 Or 402, 405-06, 848 P2d 1194 (1993) (concluding that a justiciable controversy exists if (1) parties' interests are adverse and (2) court's decision in matter will have some practical effect on rights of the parties).  However, petitioners' challenges to the sex offender special conditions requiring them to submit to polygraphs and to participate in sex offender treatment are not moot, because the state is seeking reimbursement from petitioners for the costs of those conditions.  Thus, the results of petitioners' challenges to those special conditions will affect their obligation to pay for the costs of their required polygraphs and sex offender treatment.  The board does not take issue with the Court of Appeals' conclusions in those regards.  Because we agree with the Court of Appeals' analysis, we do not discuss it further. 8. Under ORS 144.102(2), the board is authorized to impose certain standard conditions on any offender being released on post-prison supervision, such as a requirement that the offender answer all reasonable inquiries by his supervisory authority, report to his parole officer as directed, obey all laws, and not own, possess, or control a weapon.  ORS 144.102(2)(c), (d), (e), and (f). 9. Petitioners offer legislative history that they believe supports their interpretation.  See Gaines, 346 Or at 171-72 (parties are entitled to proffer legislative history to court regardless of whether statute is ambiguous; evaluative worth of legislative history is for court to decide).  As we have cautioned, however, a party seeking to overcome the seemingly plain and unambiguous text of a statute has a "difficult task before it."  Id. at 172.  In this instance, the legislative history reinforces our understanding of ORS 144.102(3)(a) and its context, rather than contradicts it.  The statute was modeled on the parallel provisions of ORS 144.270 (1973), which governed the board's authority to impose special conditions on parole and which were enacted as part of a larger bill in 1973.  Or Laws 1973, ch 694, § 7.  Several of the provisions of that larger 1973 bill were drawn from the Model Penal Code (MPC) and tracked the MPC provisions verbatim, while other provisions were deliberately drafted to differ in their terms.  Tape Recording, House Committee on Judiciary HB 2110, Mar 20, 1973, Tape 11, side 2 (statements from board member Terry Johnson).  The statute authorizing the board to impose special conditions of parole did not follow the MPC, which expressly required special conditions to be specifically "related to the cause of [the inmate's] offense[.]"  Model Penal Code § 305.13(1) (Proposed Official Draft 1962).  The legislature instead authorized special conditions of parole based on the "individual circumstances of the parolee."  ORS 144.270(3) (1973).  The legislature's choice to depart from the terms of the MPC in that regard confirms our understanding that the Oregon statute was intended to confer broader authority on the board than the MPC would have conferred. 10. In Martin, this court relied on the Court of Appeals' examination of the statutory scheme, which had included ORS 144.096(3), and endorsed the Court of Appeals' conclusion that "'the "necessity" of special conditions must be determined in reference to the statutory objectives that are repeated throughout the * * * statutes, namely, the protection of public safety and the reformation of the offender.'"  327 Or at 159 (quoting Martin v. Board of Parole, 147 Or App 37, 43, 934 P2d 626 (1997)). 11. ORS 181.585(2) requires the board and other agencies charged with determining whether a person is a predatory sex offender to use a sex offender risk assessment scale approved by the DOC.  As of 2004, when Weems's release plan was prepared, the DOC had approved, and the board by rule had endorsed the use of, the STATIC-99 test, which was a scoring sheet accompanied by a lengthy set of "definitions" that served to provide guidance on how the assessment is to be performed.  See OAR 255-060-0011 (2005) (effective June 14, 2004); id., Exh Q-1 (STATIC-99 scoring worksheet); and id., Exh Q-2 (definitions for STATIC-99).  12. To be designated a "predatory sexual offender" by the board, an offender must have been convicted of any degree of rape, sodomy, sexual abuse, or unlawful penetration.  OAR 255-060-0011(1) (2005) (effective June 14, 2004). 13. OAR 255-060-0011(3) (2005) (effective June 14, 2004) specified the scoring levels that would result in a predatory sex offender designation as of 2004.  Since Weems's evaluation and release, the board has modified its rules and now requires a higher score of six or greater on starred items.  OAR 255-060-0011(3).  The board also has authority to look beyond the score on the sexual offender risk assessment and to consider "any other evidence that the inmate or the offender exhibits characteristics showing a tendency to victimize or injure others."  OAR 255-060-0011(1). 14. The worksheet that reveals Weems's score does not explain what risk category the various scores fall into.  That information is provided in Exhibit Q-1, the standard STATIC-99 scoring worksheet that the board has adopted by rule.  On the bottom of that exhibit is a grid for translating the scores into risk categories.  A score of 0-1 is "low," 2-3 is "medium-low," 4-5 is "medium-high," and 6 is "high."  See OAR 255-060-0011, Exh Q-1 (2005)  (effective June 14, 2004) (STATIC-99 scoring worksheet). 15. The unrelated male victim that contributed to Weems's STATIC-99 score was the 9- or 10-year-old son of a friend -- i.e., the victim involved in Weems's 1991 sodomy charges.  Weems admitted that information himself during his sex offender assessment. 16. See OAR 255-060-0011, Exh Q-2 at 13 (2005) (effective June 14, 2004)  ("To be considered a sexual offence [sic] the sexual misbehaviour [sic] must result in some form of criminal justice intervention or official sanction."); id. (sexual offenses may be scored only from official records, not self-reporting of an offender); id at 16 ("Simple questioning by police not leading to an arrest or charge is insufficient to count as a sexual offence [sic]."); id. at 28 (arrests and charges on nonsexual offenses are not scored). 17. Petitioner Weems argues that he did challenge the authority of his supervising officer to impose the special conditions.  We have reviewed his submission to the board, and we disagree.  He claimed in it that his supervising officer had imposed new conditions on him that the board had not authorized, and in particular had prevented him from living or being intimate with his adult girlfriend.  We find nothing in his challenge that would have fairly alerted the board to the fact that he was objecting to the supervising officer's ability to not implement the sex offender special conditions if that officer determined them not to be necessary. 18. As we noted in footnote 7, the sex offender special conditions requiring petitioners to submit to polygraphs and to participate in sex offender treatment are not moot, because the state is seeking reimbursement from petitioners for the costs of those conditions.  The fact that the state seeks such reimbursement -- which petitioners assert and the state does not dispute -- suggests that the special conditions were imposed in petitioners' cases and that the supervising officers did not exercise whatever authority the board delegated to them to not implement them. 19. Petitioners also make an additional, and somewhat different, argument that the board's orders exceeded the board's lawful authority by giving too much "decision-making power" to the supervising officers.  For the same reasons, we decline to consider that argument.  Also, petitioners advance an extensive argument that the board's imposition of the challenged special conditions in these cases violated federal due process principles.  That argument is raised and developed for the first time to this court.  We therefore do not consider it, either.

083b5bfe29ba80c55ae39dcfba471ce956fc36a6bc8190d548cbff613d5a7c12

2010-02-04T00:00:00Z

391d91cf-07f5-4200-89da-9e08a8f72cbf

State v. Blair

S057796

oregon

Oregon Supreme Court

FILED: March 25, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. MICHAEL JAMES BLAIR, Petitioner on Review. (CC 042431; CA A130455; SC S057796) En Banc On review from the Court of Appeals.* Argued and submitted February 22, 2010, at Jesuit High School, Portland, Oregon. Andrew S. Chilton, Chilton & Galli, LLC, Portland, argued the cause and filed the briefs for petitioner on review. Susan G. Howe, Senior Assistant Attorney General, Salem, argued the cause for respondent on review.  With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. DE MUNIZ, C. J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Lincoln County Circuit Court, Charles P. Littlehales, Judge. 230 Or App 36, 214 P3d 47 (2009). DE MUNIZ, C. J. Defendant petitions for review from a Court of Appeals opinion affirming his conviction for, among other crimes, felony murder.(1)  The Court of Appeals concluded that the felony murder statute, ORS 163.115(1)(b), does not require that the state allege and prove that a defendant acted with a culpable mental state in causing the victim's death; rather, the defendant's commission or attempted commission of the underlying felony establishes, as a matter of law, the requisite mens rea with respect to the victim's death.  State v. Blair, 230 Or App 36, 56, 214 P3d 47 (2009).  We allowed defendant's petition for review.  As explained below, we agree with the Court of Appeals and the trial court, and therefore, affirm. The facts are undisputed.  Defendant broke into the victim's home, stole several marijuana plants and household items, and attempted to rape and sexually abuse the victim.  The next day, the victim's son found her body on the floor next to her bed, with a bed sheet tied around one of her legs and also loosely tied to a bedpost.  The cause of the victim's death was chronic obstructive pulmonary disease (COPD) due to emphysema.  The victim suffered from acute COPD, which was exacerbated critically by defendant's burglary, attempted rape, and attempted sexual abuse.  Before trial, defendant demurred to the felony murder count in the indictment.  Defendant argued that the demurrer should be sustained, because the felony murder count did not allege that defendant had caused the death of the victim with a culpable mental state and therefore did not allege facts "constitut[ing] an offense."  See ORS 135.630(4) (defendant may demur to accusatory instruction when "the facts stated do not constitute an offense."). Defendant argued that, because felony murder is a form of criminal homicide, the state was required to allege in the indictment one of the mental states described in ORS 163.005(1):  that is, it was required to allege that defendant had killed the victim "intentionally, knowingly, recklessly or with criminal negligence[.]"  The trial court overruled the demurrer.  During the trial, defendant submitted proposed jury instructions that would have required the state to prove beyond a reasonable doubt that defendant had caused the victim's death "knowingly, recklessly, or with criminal negligence" as one of the elements of felony murder.  The trial court refused to give those requested instructions.  A jury subsequently convicted defendant of felony murder, among other crimes.  On the felony murder conviction, the trial court imposed a life sentence with the possibility of parole after 25 years. Defendant appealed, and the Court of Appeals affirmed.  Blair, 230 Or App 36.   The Court of Appeals acknowledged some ambiguity in the relevant statutes, but held that their text, context, and legislative history supported the interpretation that felony murder, as defined in Oregon, does not require a separate mental state.  The Court of Appeals pointed out that the concept of felony murder was first codified in 1864 and that long-standing case law from this court discussing felony murder never had required that a specific mental state attend the cause of death of the victim; instead, the mens rea element was satisfied by the commission of certain underlying felonies.  The Court of Appeals also noted that the statutes relied on by defendant were part of the 1971 revision of the criminal code and that nothing in the legislative history suggested that the legislature intended to alter the longstanding felony murder rule.  Accordingly, the Court of Appeals concluded that the trial court had not erred.  Id. at 56. We allowed defendant's petition for review to determine whether the definition of criminal homicide in ORS 163.005(1) applies to felony murder, as codified in ORS 163.115(1)(b), in such a way that felony murder in Oregon requires the state to allege and prove that a defendant acted with a mental state in causing the victim's death distinct from any mental state required to prove the underlying felony.  In doing so, our task is to "ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all."  ORS 174.010.  We interpret the statutory text in context, PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P3d 1143 (1993), and then, to the extent we find it helpful, we consider the legislative history proffered by the parties.  ORS 174.020(3); see also State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (after considering text and context, court considers any pertinent legislative history, giving it appropriate weight).  In this case, the context that we consider along with the text includes the law as it existed before the adoption of the 1971 criminal code.  See State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998) (context of a statute includes this court's prior interpretations of the same statute or earlier versions of that statute).  ORS 163.005 provides, in part: "(1) A person commits criminal homicide if, without justification or excuse, the person intentionally, knowingly, recklessly or with criminal negligence causes the death of another human being.  "(2) 'Criminal homicide' is murder, manslaughter, criminally negligent homicide or aggravated vehicular homicide."  The felony murder statute, ORS 163.115, provides, in part: "(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder: "* * * * * "(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants: "* * * * * "(C) Burglary in the first degree as defined in ORS 164.225[.]"  As defendant reads the above statutes, because felony murder is a type of criminal homicide -- and, under ORS 163.005(1), a person commits criminal homicide only if the person intentionally, knowingly, recklessly, or with criminal negligence causes the death of another -- felony murder requires that, in causing the death, the defendant acted with a mens rea of at least criminal negligence.  The state responds that ORS 163.005(1) does not provide the exclusive definition of criminal homicide because ORS 163.005(2) provides a further definition of criminal homicide and, under defendant's reading, subsection (2) would be rendered superfluous.  Moreover, the state argues, under ORS 163.005(2), "criminal homicide" includes "murder."  Accordingly, all the subspecies of murder listed in ORS 163.115(1) constitute "criminal homicide," regardless of whether the specific subspecies requires that a defendant act with a culpable mental state in causing the victim's death.  The state asserts that nothing in ORS 163.005(1) prevents the mens rea required to prove the underlying felony from being imputed to the person who causes the death of a victim for purposes of ORS 163.115(1)(b).  With those competing arguments in mind, we turn to an examination of the pertinent statutes.  The legislature adopted ORS 163.005 and ORS 163.115 in 1971 as part of an overall revision of the criminal code.  Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report §§ 87-88, 84-85 (July 1970).  "Criminal homicide" was a new offense created during the 1971 revision and thus had no preexisting history in Oregon law.  See Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 87(C), 84 (July 1970) (Commentary) (setting out definition).  On the other hand, the felony murder rule was first codified in Oregon in 1864 as part of both the first- and second-degree murder statutes.  Or Laws, 1864, ch 43, §§ 502-03.(2)  The relevant portions of the first-and second-degree felony murder statutes remained substantially unchanged until the criminal code revisions in 1971, and this court has consistently incorporated an "implied malice" rule into felony murder, that is, felony murder contains no distinct or independent mens rea requirement in relation to the cause of death of the victim.  See State of Oregon v. Brown, 7 Or 186, 198, 204 (1879) (first-degree murder statute did not require defendant to act purposely in killing victim if defendant killed victim in commission or attempted commission of felonies enumerated in statute; intent to kill "incontrovertibly implied" from defendant's participation in felony); State v. Branch, 244 Or 97, 100, 415 P2d 766 (1966) ("[A] malignant purpose is established by proof of the defendant's other felony * * *."); State v. Dorland, 161 Or 403, 404, 89 P2d 595 (1939) ("[I]t is not necessary for the indictment to allege or the state to prove that [the killing] was done purposely or with deliberate and premeditated malice.  It is sufficient if it be alleged and proved that the killing was done while the defendant was engaged in the commission or attempt to commit any of [the enumerated felonies][.]"). Thus, when the legislature adopted ORS 163.005 and ORS 163.115 in 1971, the felony murder rule, as construed and applied by this court, long had operated to impose responsibility for homicides that occur during the commission or attempted commission of a felony, without the separate and additional requirement that the defendant acted with a mens rea in causing the death of another person.  In addition, since 1971, this court has continued to treat felony murder as requiring no distinct or independent mens rea with respect to the cause of the victim's death.  See State v. Link, 346 Or 187, 205, 208 P3d 936 (2009) ("[A] defendant may be convicted of felony murder even though the defendant did not participate in the murder, cause the death, or intend that the death occur.  * * * [I]f a participant in a felony also participates in and causes a murder, and does so intentionally, then the participant commits intentional murder, as well as felony murder."); State v. Zweigart, 344 Or 619, 626, 188 P3d 242 (2008), cert den, ___ US ___, 130 S St 56 (2009) ("[C]riminal homicide constitutes murder when * * * a person participates in one of certain enumerated felonies and, in the course of that felony, that person, or any other person, causes the death of another person, whether intentionally or not[.]"); State v. Quinn, 290 Or 383, 405 n 8, 623 P2d 630 (1981), overruled on other grounds by State v. Hall, 339 Or 7, 115 P3d 908 (2005) (under ORS 163.115(1)(b), "the jury need only find the intent necessary for burglary, intent to kill is not an element of felony murder").   Nothing in ORS 163.115 or any related statutes indicates that the legislature intended to change that long-standing rule.  To the contrary, other aspects of the statutory scheme demonstrate that the legislature intended to retain the felony murder rule in its traditional form.  For example, ORS 163.115(1)(b) provides that criminal homicide constitutes murder by a person when it is committed by that person "or another participant if there be any."  (Emphasis added.)  Under that provision, a defendant may be criminally liable for felony murder even if an accomplice causes the death of the victim.  Another subsection in the same statute, ORS 163.115(3), provides for a limited affirmative defense to felony murder if a defendant "(a) Was not the only participant in the underlying crime; "(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof; "(c) Was not armed with a dangerous or deadly weapon; "(d) Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and "(e) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death." Under defendant's interpretation of the felony murder statute, ORS 163.115(3) would be rendered unnecessary, in contravention of the statutory construction directive set out in ORS 174.010.   Moreover, ORS 163.115(1)(a) provides that criminal homicide constitutes murder when it is "committed intentionally."  (Emphasis added.)  Under a parallel reading of ORS 163.115(1)(a) and (b), the fact that the legislature included a mental state in paragraph (1)(a) but not (1)(b) supports the interpretation that the legislature intended that the mental state required for the underlying felony in paragraph (1)(b) to be imputed as a matter of law to the cause of the death of the victim.  Finally, as the Court of Appeals noted, nothing in the 1971 legislative history suggests that the legislature intended to change the longstanding rule regarding implied malice; in fact, much the legislative history suggests that the legislature intended to adhere to it.  See Blair, 230 Or App at 51-55 (summarizing that history).  Indeed, defendant does not assert that anything in the legislative history of the two statutes supports its position; rather, defendant asserts that his reading of the statutes is the only plausible interpretation and therefore that any resort to legislative history is unnecessary.  As explained above, we disagree that defendant's interpretation is the only plausible one.  In all events, we may always consider pertinent legislative history.  Gaines, 346 Or at 172.  Taken together, the context, including this court's case law and the legislative history, compel the conclusion that the legislature intended to continue the implied malice rule.  Accordingly, we conclude that, (1) under ORS 163.005(1), "criminal homicide" requires that a defendant act with a culpable mens rea with respect to causing the victim's death; (2) under ORS 163.005(2), "criminal homicide" includes "murder," and (3) under ORS 163.115(1)(b), requisite culpable mens rea is established, as a matter of law, by the defendant's commission or attempted commission of the predicate felony.  Thus, the trial court properly overruled defendant's demurrer and properly refused to give defendant's requested jury instruction.  The Court of Appeals correctly affirmed the trial court's rulings.  The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. Defendant's other convictions are not at issue on review.  2. Sections 502 and 503 provided:    "If any person shall, purposely, and of deliberate and premeditated malice, or in the commission or attempt to commit any rape, arson, robbery or burglary, kill another, such person shall be deemed guilty of murder in the first degree.  "If any person shall purposely and maliciously, but without deliberation and premeditation, or in the commission or attempt to commit any felony, other than rape, arson, robbery or burglary, kill another, such person shall be deemed guilty of murder in the second degree."  General Laws of Oregon, Crim Code, ch XLIII, §§ 502-03, p 527 (Deady 1845-1864) (emphasis added).

491856fd12f008911d6c25ae0541629a0e324a106c460233ddafeb79c0c3b9cd

2010-03-25T00:00:00Z

94e25487-3852-4413-8111-af9dff996fc1

Berman v. Kroger

oregon

Oregon Supreme Court

FILED: February 4, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN C. BERMAN, Petitioner, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S057885) En Banc On petition to review ballot title filed October 12, 2009; considered and under advisement December 2, 2009. Aruna A. Masih, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the petition and reply memorandum for petitioner. Rolf C. Moan, Assistant Attorney General, Salem, filed the answering memorandum for respondent.  With him on the memorandum were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. BALMER, J. The ballot title is referred to the Attorney General for modification. BALMER, J. Petitioner seeks review of the Attorney General's certified ballot title for Initiative Petition 59 (2010).  See ORS 250.085(2) (specifying requirements for seeking review of certified ballot title).  This court reviews the certified ballot title to determine whether it substantially complies with ORS 250.035(2).  See ORS 250.085(5) (stating standard of review).  For the reasons explained below, we refer the ballot title to the Attorney General for modification. Initiative Petition 59, if enacted, would change the authority of courts imposing sentences for felony crimes by making the existing felony sentencing guidelines "advisory only."  The proposed measure states that it would give those courts "discretion" to impose any term of incarceration, any fine, and any other penalty, up to the maximum allowed by law.  It also provides that the measure would not affect any existing mandatory minimum sentencing statutes. The Attorney General certified the following ballot title for Initiative Petition 59: "Makes sentencing guidelines (which create presumptive sentence lengths) advisory, grants discretion to impose maximum sentences "Result of 'Yes' Vote:  'Yes' vote makes sentencing guidelines (which create presumptive sentence lengths based on felony, offender's history) advisory; grants discretion to impose sentences up to maximum allowed. "Result of 'No' Vote:  'No' vote retains sentencing guidelines (which create presumptive sentence lengths based on particular felony, offender's history, while permitting upward, downward departures for substantial, compelling reasons). "Summary:  Current law requires (through the state sentencing guidelines) felony prison terms of presumptive lengths based on the particular crime and on the offender's history, while permitting courts to depart upward or downward for substantial, compelling reasons.  Current law generally creates 20-year maximum prison terms for Class A felonies, 10-year maximum terms for Class B felonies, and five-year maximum terms for Class C felonies, but for certain felonies requires a minimum term exceeding the maximum that otherwise would apply.  Measure makes sentencing guidelines advisory; gives courts discretion to impose sentences up to the maximum allowed by current law; does not affect or restrict current mandatory minimum prison sentence statutes; measure applies to sentences imposed for felonies committed on or after January 1, 2011." Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore is entitled to seek review of the resulting certified ballot title in this court.  See ORS 250.085(2) (stating that requirement).  Petitioner challenges the caption, the "yes" and "no" vote result statements, and the summary.  Petitioner asserts that the certified caption, by focusing on the discretion that the measure would give to sentencing courts to impose the "maximum sentences" allowed by law, fails to disclose that it also would give those courts discretion to impose the lowest statutorily permissible sentence.  Petitioner notes -- and the Attorney General does not disagree -- that, by making the sentencing guidelines advisory only, the measure would give a sentencing court discretion to impose a greater or lesser sentence than the presumptive guidelines sentence.  By mentioning only the discretion to impose maximum sentences, petitioner argues, the certified caption tells only half the story. The Attorney General responds that the reference in the first part of the caption to the fact that the measure would make the sentencing guidelines advisory adequately informs the reader that the sentencing court would be able to impose either a greater or a lesser sentence than the presumptive guidelines sentence.  Additionally, the Attorney General asserts that the phrase "grants discretion to impose maximum sentences" should be included because it mirrors a provision in the proposed measure and, if that phrase did not appear in the measure, "the measure would permit sentencing courts to impose any sentence at all, without any limitation." We agree with petitioner.  There is no dispute that, by making the sentencing guidelines advisory only, the measure would give a sentencing court the discretion to impose a sentence between the minimum and the maximum allowed by other statutory provisions.  By focusing on the maximum alone, the certified caption is misleading.  Although, as the Attorney General points out, the measure itself states that the sentencing court may impose a sentence "up to the maximum," nothing in the measure makes any change to any existing statutory maximum or minimum sentencing provision, other than by making the guidelines advisory only.  Thus, the measure would permit sentencing courts to impose sentences that are higher or lower than those in the sentencing guidelines.  Because the caption refers only to the courts' discretion to "impose maximum sentences," rather than indicating that courts would be able to impose any sentence permitted by law, the caption is misleading and must be modified. Petitioner similarly objects to wording in the "yes" vote result statement and in the summary.  Unlike the caption, the "yes" vote result statement and the summary track the wording of the measure, stating that the measure would give sentencing courts discretion to impose sentences "up to" the maximum allowed, rather than stating that the measure would give courts "discretion to impose maximum sentences."  The "yes" vote result statement and the summary are nevertheless misleading for the reasons set out above.  They focus on the court's discretion to impose sentences "up to" the "maximum," without acknowledging that courts would also be able to impose sentences down to the minimum allowed by law.  We therefore agree with petitioner that the "yes" vote result statement and the summary must be modified.  Petitioner raises an additional objection to the "yes" vote result statement and also argues that the "no" vote result statement should be modified, although petitioner concedes that the "no" vote result statement is accurate.  We reject those challenges without discussion. The ballot title is referred to the Attorney General for modification.

07a8d7889b84ae0b11882014534fed609cfcbf82a99ba3d06dfd0afe4ce8f66e

2010-02-04T00:00:00Z

ca5f4471-c563-4f08-b892-aa1f90601074

Klamath Irrigation District v. United States

oregon

Oregon Supreme Court

FILED: March 11, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON KLAMATH IRRIGATION DISTRICT, TULELAKE IRRIGATION DISTRICT, KLAMATH DRAINAGE DISTRICT, POE VALLEY IMPROVEMENT DISTRICT, SUNNYSIDE IRRIGATION DISTRICT, KLAMATH BASIN IMPROVEMENT DISTRICT, KLAMATH HILLS DISTRICT IMPROVEMENT CO., MIDLAND DISTRICT IMPROVEMENT CO., MALIN IRRIGATION DISTRICT, ENTERPRISE IRRIGATION DISTRICT, PINE GROVE IRRIGATION DISTRICT, WESTSIDE IMPROVEMENT DISTRICT NO. 4, SHASTA VIEW IRRIGATION DISTRICT, VAN BRIMMER DITCH CO., FRED A. ROBISON, ALBERT J. ROBISON, LONNY E. BALEY, MARK R. TROTMAN, BALEY TROTMAN FARMS, JAMES L. MOORE, CHERYL L. MOORE, DANIEL G. CHIN, DELORIS D. CHIN, WONG POTATOES, INC., MICHAEL J. BYRNE, DANIEL W. BYRNE, and BYRNE BROTHERS, Plaintiffs, v. UNITED STATES OF AMERICA and PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, Defendants, and STATE OF OREGON, by and through the Oregon Water Resources Department, Intervenor. (Federal CC No. 2007-5115; SC S056275) En Banc On certified questions from the United States Court of Appeals for the Federal Circuit; certification order dated July 16, 2008; certification accepted January 29, 2009; argued and submitted May 13, 2009. William M. Ganong, Klamath Falls, argued the cause for plaintiffs Klamath Irrigation District, Tulelake Irrigation District, Klamath Drainage District, Poe Valley Improvement District, Sunnyside Irrigation District, Klamath Basin Improvement District, Klamath Hills District Improvement Co., Midland District Improvement Co., Malin Irrigation District, Enterprise Irrigation District, Pine Grove Irrigation District, Westside Improvement District No. 4, Shasta View Irrigation District, Van Brimmer Ditch Co., Fred A. Robison, Albert J. Robison, Lonny E. Baley, Mark R. Trotman, Baley Trotman Farms, James L. Moore, Cheryl L. Moore, Daniel G. Chin, Deloris D. Chin, Wong Potatoes, Inc., Michael J. Byrne, Daniel W. Byrne, and Byrne Brothers.  Michael H. Simon, of Perkins Coie, Portland, filed the briefs for plaintiffs.  With him on the briefs were Julia E. Markley, Nicholle Y. Winters, Nancie G. Marzulla, Roger J. Marzulla, and Paul S. Simmons. David C. Shilton, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C., filed the briefs and argued the cause for defendant United States of America.  With him on the briefs were John C. Cruden, Acting Assistant Attorney General, Katherine J. Barton, and Suzanne Bratis, Assistant United States Attorneys. Todd D. True, Earthjustice, Seattle, Washington, argued the cause and filed the briefs for defendant Pacific Coast Federation of Fishermen's Associations.  With him on the briefs was Stephanie M. Parent. Stephanie L. Striffler, Senior Assistant Attorney General, Salem, argued the cause and filed the briefs for intervenor.  With her on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solictor General. Carl Ullman, Klamath Water Project, Chiloquin, filed the brief for amicus curiae Klamath Tribes. John T. Bagg, Salem, filed the brief for amicus curiae Natural Resources Defense Council.  With him on the brief was John D. Escheverria. KISTLER, J. The certified questions are answered. Walters, J., concurred and filed an opinion, in which Balmer and Linder, JJ., joined. KISTLER, J. The United States Court of Appeals for the Federal Circuit certified three questions to this court, which this court accepted.  Klamath Irrigation District v. United States, 345 Or 638, 202 P3d 159 (2009).  All three questions arise out of a dispute over water rights in the Klamath River basin.  Essentially, they ask whether, as a matter of state law, the farmers and irrigation districts that use water from a federal reclamation project have an equitable property interest in a water right to which the United States holds legal title and whether an equitable property interest in a water right is subject to adjudication in the ongoing Klamath Basin water rights adjudication.  In answering those questions, we begin by describing the procedural posture in which the questions arise.  We then discuss briefly the common law and statutory context that preceded a 1905 state statute on which the parties' arguments turn.  Finally, we answer the certified questions. I The Federal Bureau of Reclamation (the Bureau) manages the Klamath Project, which stores and supplies water to farmers, irrigation districts, and federal wildlife refuges in the Klamath River basin.  The plaintiffs in the underlying federal litigation are farmers and irrigation districts that use water from the Klamath Project for irrigation and other agricultural purposes.  As a result of drought conditions in 2001, the Bureau terminated the delivery of water to plaintiffs that year in order to make water available for three species of endangered fish.(1) Claiming a property right in the water, plaintiffs brought an action in the United States Court of Federal Claims, alleging that the United States had taken their property in violation of the Fifth Amendment and, alternatively, that the United States had breached its contractual obligation to deliver water to them.  The United States asked the federal claims court to abstain from deciding plaintiffs' takings claim until an ongoing state water rights adjudication determined what, if any, property rights plaintiffs had in the water from the Klamath Project.  Cf. Colorado River Water Conservation Dist. v. United States, 424 US 800, 819-20, 96 S Ct 1236, 47 L Ed 2d 483 (1976) (upholding a federal district court ruling abstaining from deciding federal government and tribal water rights that were at issue in a state water rights adjudication). In response to that argument, plaintiffs told the federal court that they were not asserting, in federal court, any right to water that the state water rights adjudication would determine.  Plaintiffs took the position that the state water rights adjudication would resolve who has the legal title to use the water from the Klamath River basin but that it would not resolve who has an equitable or beneficial property interest in using the water.  Plaintiffs accordingly assumed, for the purposes of their federal takings claim, that the United States holds legal title to the water rights, and they elected to proceed in the federal action solely on the theory that they hold an equitable or beneficial interest in the water rights, which the government took when it refused to deliver water to them in 2001.  The Court of Federal Claims proceeded on that theory, see Klamath Irrigation District v. United States, 67 Fed Cl 504, 513-14 (2005) (describing plaintiffs' position), and so do we in answering the certified questions.(2) Plaintiffs have argued in the federal action that their equitable property interest in the water arose from two sources:  Section 8 of the Reclamation Act of 1902, ch 1093, 32 Stat 388, and state water law.  The Court of Federal Claims held that neither source of law gave plaintiffs an equitable interest in the water from the Klamath Project.  The court initially reasoned that federal law did not define the scope of plaintiffs' water rights.  67 Fed Cl at 518-23.(3)  Turning to plaintiffs' state law claims, the court held that, the United States appropriated, pursuant to a 1905 Oregon statute, all the then-unappropriated waters of the Klamath Basin and that, under the terms of the 1905 statute, a person could not obtain any property interest in that water without a formal written release from the United States.  Id. at 526-27. At two points in its opinion, the Court of Federal Claims summarized and quoted excerpts of various contracts between the United States and plaintiffs concerning the distribution of water.  Id. at 510-12, 527-30.  The court later explained that plaintiffs' contractual agreements with the United States divided into five basic categories: "(i) interests based upon an exchange agreement, in which preexisting water rights were exchanged for an interest in the Project water; (ii) interests deriving from district contracts with the United States or the Bureau, claimed by the districts; (iii) interests deriving from the district contracts with the United States, claimed by individual irrigators as alleged third-party beneficiaries; (iv) interests based upon application for the beneficial use of water filed either by homesteaders on reclaimed lands (Form A), or by homesteaders or other landowners whose property does not involve reclaimed lands (Form B), and the patent deeds issued allegedly in response thereto; and (v) interests based upon alleged water rights permits granted by the State Oregon after the repeal of the 1905 Oregon legislation in 1953." Id. at 530-31.  The court concluded that agreements falling into the first three categories resulted in contractual rights to receive water and that a contractual interest is not a property interest that gives rise to a takings claim under the Fifth Amendment.(4)  Id. at 531-32.  Regarding the fourth and fifth categories, the court concluded that, because the patent deeds and the water rights granted by the state had a later priority date than the United States' water right, the United States had not taken those rights when it denied water to plaintiffs.  Id. at 538-39. Having reached those conclusions, the Court of Federal Claims granted summary judgment for the United States on plaintiffs' takings claim.  Id. at 540.  Later, in a separate opinion, that court granted summary judgment for the United States on plaintiffs' contractual claim, reasoning that the sovereign acts doctrine provided a complete defense to that claim.  Klamath Irrigation District v. United States, 75 Fed Cl 677, 695 (2007).  Having disposed of both claims, the court entered judgment in the United States' favor. Plaintiffs appealed to the United States Court of Appeals for the Federal Circuit.  Regarding plaintiffs' takings claim, the Federal Circuit observed that the "answer to [plaintiffs'] takings question depends upon complex issues of Oregon property law, including the interpretation of Oregon General Laws, Chapter 228, § 2 (1905)."  Klamath Irrigation Dist. v. United States, 532 F3d 1376, 1377 (Fed Cir 2008).  To assist its resolution of plaintiffs' takings claim, the Federal Circuit certified three state law questions to this court: "1.  Assuming that Klamath Basin water for the Klamath Reclamation Project 'may be deemed to have been appropriated by the United States' pursuant to Oregon General Laws, Chapter 228, § 2 (1905), does that statute preclude irrigation districts and landowners from acquiring a beneficial or equitable property interest in the water right acquired by the United States? "2.  In light of the statute, do the landowners who receive water from the Klamath Basin Reclamation Project and put the water to beneficial use have a beneficial or equitable property interest appurtenant to their land in the water right acquired by the United States, and do the irrigation districts that receive water from the Klamath Basin Reclamation Project have a beneficial or equitable property interest in the water right acquired by the United States? "3.  With respect to surface water rights where appropriation was initiated under Oregon law prior to February 24, 1909, and where such rights are not within any previously adjudicated area of the Klamath Basin, does Oregon State law recognize any property interest, whether legal or equitable, in the use of Klamath Basin water that is not subject to adjudication in the Klamath Basin Adjudication?" Id. at 1377-78.  As noted, we accepted the certified questions. II Before answering those questions, it is helpful to discuss briefly the common-law and statutory context for the Oregon legislature's enactment of the 1905 statute.  See Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (explaining that the context for interpreting a statute's text includes "'the preexisting common law and the statutory framework within which the law was enacted'" (quoting Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998)).(5)  We begin with the Oregon common law regarding the appropriation of water rights.  We then turn to the statutory background that both preceded the 1905 Oregon statute and informs our understanding of it. Before 1905, the Oregon courts had adopted the doctrine of prior appropriation of water rights.  See Fort Vannoy Irrigation v. Water Resources Comm., 345 Or 56, 64-67, 188 P3d 277 (2008) (describing the history of that doctrine in Oregon).  To encourage the beneficial use of water, Oregon courts recognized before 1905 that a person who puts surface water to beneficial use acquires a right to use that water that takes precedence over subsequent users.  See id. (same).  Before the Oregon legislature codified the doctrine of prior appropriation in 1909, this court had held that a person seeking to establish his or her right to use water had to prove three elements: "First, an intent to apply it to some beneficial use, existing at the time or contemplated in the future; second, a diversion from the natural channel by means of a ditch, canal, or other structure; and third, an application of it, within a reasonable time, to some useful industry." Low v. Rizor, 25 Or 551, 557, 37 P 82 (1894). Customarily, the intent to apply water to a beneficial use was manifested by some form of public notice, and the date of the appropriation related back to the date of the notice, as long as the appropriator both began the diversion of the water and put the water to beneficial use within a reasonable time.  Nevada Ditch Co. v. Bennett, 30 Or 59, 84-86, 45 P 472 (1896); see Re Rights to Waters of Silvies River, 115 Or 27, 101-02, 237 P 322 (1925) (describing pre-1909-code methods of providing notice).  Put differently, although appropriation was perfected "'only when the ditches or canals [we]re completed, the water diverted from its natural stream or channel, and actually used for beneficial purposes,'" the priority date for the water right related back to the date of the notice as long as the diversion and beneficial use were accomplished with reasonable diligence.  Nevada Ditch, 30 Or at 90-91 (quoting Clesson S. Kinney, A Treatise on the Law of Irrigation and Water Rights § 167 (1894)). The scope and extent of the appropriation turned on the appropriator's intent, typically manifested in the notice and ultimately limited by the beneficial use to which the water was put.  See id. at 98-100 (explaining that the extent of the appropriation with a priority date that related back to the notice turned on the use set out in the notice and did not include other or additional uses).  The right to use water, once appropriated, is appurtenant to the land and passes with it, even without an express grant of water rights in the deed conveying the land.  Simmons v. Winters, 21 Or 35, 44, 27 P 7 (1891). Initially, the court's decisions focused only on individuals who diverted water for use on property that they owned, and the cases frequently turned on factual disputes, such as the diligence with which the owner had constructed a ditch to put the water to beneficial use.  The application of those common-law rules raised potentially more difficult legal issues when a person diverted water for use on land that he or she did not yet own and, in a separate situation, when one person diverted water for another's use. The first situation arose primarily as a result of federal acts, such as the Homestead Act of 1862, ch 79, 12 Stat 392, that promised a tract of federal land to persons who entered onto public land and reclaimed it.  Typically, those acts required an initial application, an entry onto the land, and proof that the settler had completed certain requirements within a period of years.  E.g., id. §2.  Until the settler completed those requirements, legal title to the land remained in the United States. This court first considered what state property rights, if any, a settler had in such land in Kitcherside v. Myers, 10 Or 21 (1881).  In that case, the court explained that the disputed land "is public land of the United States, subject to be taken under the acts of congress as homestead, and which the plaintiff has taken the necessary preliminary steps to secure as a homestead."  Id. at 26.  The defendant, however, had occupied part of the plaintiff's tract, and both parties claimed a right to possess the part of the tract that the defendant occupied.  Id. at 21-22.  Recognizing that legal title to the land lay in the United States (the plaintiff had not yet perfected his claim and received a patent from the government), the court held that "[t]he right of possession of the plaintiff for the purpose of homestead is a valuable right which equity will protect."  Id. at 26-27.  Accordingly, it upheld the trial court's decree giving the plaintiff the right of possession.  Id. at 27 Later, the court held that, when a settler had put water to beneficial use on such land, the water right was appurtenant to the land and passed with it even though the settler had not yet received legal title to the land.  Hindman v. Rizor, 21 Or 112, 117-18, 27 P 13 (1891).  In Hindman, the plaintiff's predecessors in interest entered onto federal land in 1863, diverted water onto the land, and cultivated it, but did not perfect their title to the land until 1882.  Id. at 115.  The question in Hindman was whether the plaintiff's predecessors in interest had obtained a water right before 1882 (the date that they perfected their title to the land) that they could pass to the plaintiff.(6) In answering that question, this court recognized initially that "[a] settler upon public land has a [possessory] right thereto as against every person except the government, and when such settlement is made with the view of obtaining title, such right is a valuable property right, which the courts will protect and enforce."  Id. at 116-17 (citing Kitcherside).  The court also recognized that, "[w]hen such a settler appropriates water for the necessary irrigation of the land occupied by him, it becomes as much a part of his improvements as his buildings or fences, and can be sold and transferred with his possessory right in the same way."  Id. at 117.  The court explained that "[t]he water when appropriated and used for irrigation becomes an incident to the land, and the transfer of the possessory rights thereto carries with it the water unless expressly reserved."  Id. at 118.  Accordingly, the court held that the plaintiff's predecessors in interest had obtained a water right before they obtained title to the property in 1882, which could and did pass to the plaintiff. The Oregon courts also considered, for the first time in Nevada Ditch, whether one person could appropriate water for another's use and, if that were possible, what rights the user had in the water.  The court explained that, in many instances, individual landowners located at some distance from streams lacked the resources, even when they acted collectively, to construct ditches to divert water to irrigate their lands.  Id. at 96.  It observed that, "[i]n such cases other persons possessing capital are often willing to make the diversion for the benefit of those who have use for the water * * *."  Id.  However, that arrangement raised fundamental questions, the foremost of which was whether one person could appropriate water for another's use.  And if that were possible, questions arose concerning the relationship between the appropriator and the user, the priority date of the water right, and whether the appropriator, the user, or both owned the right. The court answered two of those questions in Nevada Ditch.  It held initially that one person could appropriate water for another's use; that is, "the bona fide intention which is required of the appropriator to apply the water to some useful purpose may comprehend a use to be made by or through another person, and upon lands and possessions other than those of the appropriator."  Id. at 97.  It also held that, under Oregon law, the persons who used water that another person had appropriated had the same priority date (the date of the notice) as long as the later user put the water to beneficial use within a reasonable time and the use came within the scope of the original plan set out in the appropriator's notice.  Id. at 98-102.(7) The court noted but did not decide two aspects of the relationship between the appropriator and the persons who put the water to beneficial use.  It noted initially that "it would seem that he who designed the scheme and made the diversion [the appropriator] was the principal, rather than the user, who applies the result of the former's labor to his beneficial purpose."  Id. at 97-98.(8)  Having noted that that "seem[ed]" to be the relationship, the court did not decide whether that was the relationship.  Rather, it observed that, "in whatever capacity the parties to the appropriation may be considered," both were necessary to appropriate the water.  Id. at 98.  The court next raised the question of who, as between the appropriator and the user, "would own the appropriation when it is completed."  Id.  The court again found it unnecessary to decide that issue but observed, in dicta, that "[w]e are of the opinion * * * that it is the subject of contract between the person who initiates the appropriation and the user."  Id. at 98.  The court went on to note that, in any event, both the appropriator and the user were necessary to perfect and maintain an appropriation.  Id. Later Oregon decisions, issued after 1905, have addressed the respective rights of appropriators and users of a water right when one person appropriates water for another's use.  For instance, this court has explained that, in "a mutual water company, not organized for the purpose of selling water or as a profit corporation, but for the sole purpose of transmitting and delivering to the appropriators and owners of the water the quantity to which each is entitled," the corporation held legal title to the water right and acted as the trustee for the users who have a beneficial property interest in the water right.  Eldredge v. Mill Ditch Co., 90 Or 590, 596, 177 P 939 (1919); see Smith v. Enterprise Irrigation Dist., 160 Or 372, 378-79, 85 P2d 1021 (1939) (an irrigation district held the water right in trust for the district's members even though the statute creating that irrigation district did not so provide).  Later, the court explained that, when a private for-profit corporation, acting pursuant to an 1891 Oregon statute, entered into annual rental agreements with the persons using the water, the corporation, not the users, owned the water right.  In re Waters of Walla Walla River, 141 Or 492, 498, 16 P2d 939 (1933). That was the state of the Oregon common law of appropriation before 1905, with the later gloss placed on it by Eldredge, Smith, and Walla Walla River.  The common law that preexisted the 1905 statute is, however, not the only context for the 1905 statute.  Both the state and the federal government passed various statutes before 1905 that inform our understanding of the 1905 Oregon statue.  Those statutes share a similar purpose; they were intended, in one way or another, to get water to the arid lands in Oregon (and the west) so that those lands could be settled and reclaimed.  However, those acts differ in their details, and that difference potentially has significance in understanding what the Oregon legislature intended in 1905.  Accordingly, we briefly summarize the Oregon act of 1891 and the Oregon act of 1895 before turning to the federal legislation and Oregon's response to it. In 1891, Oregon passed a law giving private companies a franchise to construct ditches and provide water for irrigation and related purposes to persons whose lands were adjacent to or within reach of the ditches.  Or Laws 1891, p 52, § 1.  For the company's use of the water to come within the terms of the 1891 act, the company had to supply the water to all persons, adjacent to or within reach of the ditches, "without discrimination other than priority of contract, upon payment of charges therefor, as long as there may be water to supply."  Id. The act required the private company to post a notice and, within 10 days, to file a copy of the notice with the county clerk identifying the point at which the head-gate would be constructed, the general course and size of the ditch, the number of cubic inches of water to be appropriated, and the number of reservoirs, if any.  Id. §§ 4-5.  The act also required the company to begin constructing the ditch within six months and to "prosecute the [construction of the ditch] without intermission [except for certain contingencies] until the same be completed."  Id. § 9.  The act did not expressly make the extent of the appropriation turn on the amount of water put to beneficial use.  Rather, it provided that "the actual capacity of [the] ditch or canal or flume, when completed, shall determine the extent of the appropriation" and that, upon compliance with the terms of the act, "the right to the use of the water appropriated shall relate back to the date of posting said notice."  Id.  Finally, the act provided that the right to use the water, once appropriated, may be "lost by abandonment" if the corporation constructing the ditch "shall fail or neglect to use the same for the period of one year at any time."  Id. § 22. This court did not have occasion before 1905 to interpret the rights arising under that act, at least as they bear on the issues in this case.  In 1924, this court read the 1891 act in light of the provisions of the 1909 statute setting out Oregon's water code; it suggested that a beneficial use was necessary to perfect an appropriation of water under the 1891 act and, relying on dicta from Eldredge, that the persons who used the water were the true owners of the water right.  See Re Water Rights of Hood River, 114 Or112, 134-39, 227 P 1065 (1924) (quoting dicta from Eldredge for the proposition that "'even in cases of public service corporations organized for profit and selling water to the general public, * * * the water and ditch rights really belong to the individual appropriator'". In 1933, this court held that the dicta in Eldredge did not apply to corporations acting pursuant to the 1891 act.  Walla Walla River, 141 Or at 498.   The court concluded that, when a public company complies with the provisions of the 1891 act, "it, and not the owner of the land supplied, acquires the right to the use of the water."  Id. at 497.  It explained that "'[t]he water is appurtenant to, but not inseparable from the land,'" id. (quoting In re Waters of Deschutes River, 134 Or 623, 657, 286 P 563, 294 P 1049 (1930)), and that, when the water users took their water under annual rental contracts, "those rental contracts limited their rights to the extent of water and time designated in the contract," id. at 499.(9) In 1895, the Oregon legislature took a different approach.  It authorized the formation of irrigation districts that would acquire water rights and hold them in trust for their members.  Or Laws 1895, p 13; see Little Walla Walla Irrigation Dist. v. Preston, 46 Or 5, 78 P 982 (1904) (describing the source and terms of the 1895 act).  Specifically, the 1895 act authorized persons owning land susceptible to irrigation to petition for the creation of an irrigation district.  Id. §1, 2.  In addition to providing procedural protections for the members of the district, the act authorized the board of directors of an irrigation district "to acquire, either by purchase or condemnation (or other legal means), all lands and waters and water rights, and other property necessary for the construction, use, supply, maintenance, repair and improvements of said canal or canals and works."  Id. §§ 3, 12.  Further, it provided that "[t]he legal title to all property acquired under the provisions of this act shall * * * vest in such irrigation district, and shall be held in trust for and is hereby dedicated and set apart to the uses and purposes set forth in this act."  Id. § 13.  The terms of the act thus provided that, although the irrigation district would hold legal title to the water that it appropriated, it would hold that title in trust for its members.  Cf. Fort Vannoy, 345 Or at 85-86 (construing the modern counterpart to the 1895 act). Oregon was not alone in seeking to bring water to the arid west so that the land could be reclaimed and put to beneficial use.  The Supreme Court recounted the federal government's efforts in that regard in California v. United States, 438 US 645, 656-63, 98 S Ct 2985, 57 L Ed 2d 1018 (1978).  It explained that, after Congress passed the Homestead Act of 1862, 12 Stat 392, to open up the public domain generally, Congress "took its first step toward encouraging the reclamation and settlement of the public desert lands in the West" by passing the Desert Land Act of 1877.  California, 438 US at 657.  That act made 640 acres of arid desert lands available to persons who, after filing a declaration and paying 25 cents an acre, reclaimed the land "by conducting water upon the same."  Desert Land Act of 1877, ch 107, 19 Stat 377.(10) The persons who acquired public land pursuant to the Homestead and Desert Land Acts typically "chose those lands which were the nearest or most accessible to the streams," leaving more remote and less accessible lands uncultivated.  Clesson S. Kinney, 3 A Treatise on the Law of Irrigation and Water Rights § 1314 (2d ed 1912).  Congress sought to promote cultivation of those more remote lands by enacting the Carey Act in 1894.  Carey Act, ch 301, § 4, 28 Stat 422.  That act authorized the Secretary of the Interior to "donate, grant, and patent to [certain] State[s] * * * such desert lands, not exceeding one million acres in each State, as the State may cause to be irrigated, reclaimed, [and] occupied."  Id.  The Carey Act left it to the states either to construct themselves or to secure construction, through agreements with private contractors, of the canals and irrigation works necessary to reclaim the more remote tracts of desert land.  Kinney, 3 A Treatise on the Law of Irrigation and Water Rights § 1323.(11) Private efforts at creating large-scale reclamation works in the arid West did not prove profitable, and the Carey Act did little to advance the reclamation of those lands that Congress had sought to encourage.  See 2 Water and Water Rights, § 41.02 at 41-7 (3d ed 2009).  In his message to Congress on December 3, 1901, President Theodore Roosevelt noted that problem.  He told Congress that there "remain * * * vast areas of public land which can be made available for homestead settlement, but only by reservoirs and mainline canals, impracticable for private enterprise."  Kinney, 3 A Treatise on the Law of Irrigation and Water Rights § 1238 at 2239 (quoting President Theodore Roosevelt, Message to Congress (Dec 3, 1901)).  The President proposed that the United States build the large-scale irrigation works necessary for the federal government to achieve its object of "dispos[ing] of the land to settlers who will build homes upon it."  Id. Specifically, the President proposed that "These irrigation works should be built by the Government for actual settlers, and the cost of construction should, so far as possible, be repaid by the land reclaimed.  The distribution of the water, the divisions of the streams among irrigators, should be left to the settlers themselves, in conformity with the state laws, and without interference with those laws or with vested rights.  The policy of the National Government should be to aid irrigation in the several States and Territories in such a manner as will enable the people in the local communities to help themselves, and as will stimulate needed reforms in the State laws and regulations governing irrigation." Id.  Within six months after President Roosevelt's speech to Congress, the Congress passed and the President signed into law the Reclamation Act of 1902.  Id. at 2238. The Reclamation Act created a fund derived from the proceeds of the sale of public lands to be used for the construction of "irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semi-arid lands in the [western states and territories]."  The Reclamation Act of 1902, ch 1093, 32 Stat 388 § 1.  It authorized the Secretary of the Interior, upon determining that an irrigation contract was practicable, to let contracts for the construction of irrigation works and to give public notice of the "lands irrigable under such project, [the] limit of area per entry," and "the charges which shall be made per acre upon the said entries, * * * and the number of annual installments, not exceeding ten, in which such charges shall be paid."  Id. § 4.  The Act provided that the charges shall be determined "with a view of returning to the reclamation fund the estimated cost of construction of the project, and shall be apportioned equitably."  Id. The Act provided that persons entering onto the land "shall, in addition to compliance with the homestead laws, reclaim at least one-half of the total irrigable area of his entry for agricultural purposes, and before receiving patent for the lands covered by his entry shall pay to the Government the charges apportioned against such tract as provided [above]." Id. § 5.  The Act also provided for the sale of water rights to privately owned land within the reclamation project and stated that "no such right shall permanently attach [to the privately owned land] until all payments therefore be made."  Id.  Finally, the Act provided that "a failure to make any two [annual] payments when due shall render the entry subject to cancellation, with the forfeiture of all rights under this Act."  Id. The Act contemplated that, when the "major portion of the lands irrigated from the waters of any works herein provided for" has been paid, then the "management and operation of such irrigation works shall pass to the owners of the lands irrigated thereby."  Id. § 6.  The Act specified, however, that "title to and the management and operation of the reservoirs and the works necessary for their protection and operation shall remain in the Government until otherwise provided by Congress."  Id.  Finally, the Act reserved state control over water rights with one proviso.  Id. § 8.  Specifically, section 8 of the Act provided: "That nothing in this Act shall be construed as affecting or intending to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws * * *: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limitation of the right." The United States Supreme Court has explained that, in enacting the Reclamation Act, Congress intended that "the Secretary would have to appropriate, purchase, or condemn necessary water rights in strict conformity with state law."  California, 438 US at 665.  The Court also explained that Congress intended that, "once the waters were released from the Dam [or project], their distribution to individual landowners would again be controlled by state law."  Id. at 667.  The Court observed, however, that "Congress did not intend to relinquish total control of the actual distribution of the reclamation water to the States.  Congress provided in § 8 itself that the water right must be appurtenant to the land irrigated and governed by beneficial use, and in § 5 Congress forbade the sale of reclamation water to tracts of land of more than160 acres." Id. at 668 n 21.(12) In response to the Reclamation Act, the 1905 Oregon legislature passed an act that, among other things, created a procedure for the United States to appropriate water for the irrigation works that the Reclamation Act authorized.  Or Laws 1905, ch 228.  Section 2 of the 1905 act provided: "Whenever the proper officers of the United States, authorized by law to construct works for the utilization of water within this State, shall file in the office of the State Engineer a written notice that the United States intends to utilize certain specified waters, the waters described in such notice and unappropriated at the time of the filing thereof shall not be subject to further appropriation under the laws of this State, but shall be deemed to have been appropriated by the United States; provided, that within a period of three years from the date of filing such notice the proper officer of the United States shall file final plans of the proposed works in the office of the State Engineer for his information; and provided further, that within four years from the date of such notice the United States shall authorize the construction of such proposed work.  No adverse claims to the use of the water required in connection with such plans shall be acquired under the laws of this State except as for such amount of said waters described in such notice as may be formally released in writing by an officer of the United States thereunto duly authorized, which release shall also be filed in the office of the State Engineer." Or Laws, ch 228, § 2.  The state act also authorized the state engineer to gather the necessary data to determine any prior rights to use water from a stream system on which the United States planned to construct irrigation works; it authorized the Oregon Attorney General to file a suit in state court, on the Secretary of the Interior's request, to determine and declare those rights; and it specified that any decree resulting from such a suit shall "declare, as to the water right adjudged to each party * * * the extent, the priority, amount, purpose, place of use, and, as to water used for irrigation, the specific tracts of land to which it shall be appurtenant."  Or Laws, ch 228, §§ 3-5. On February 28, 1905, a representative of the United States posted a notice claiming "all the unappropriated waters of the Klamath River."  The notice stated that "[t]he [w]ater is to be used for irrigation, domestic, power, mechanical and other beneficial uses in and upon lands situated in Klamath Oregon and Modoc California counties."  On May 17, 1905, the Bureau filed the following notice with the state engineer: "Notice is hereby given that the United States intends to utilize * * * [a]ll of the waters of the Klamath Basin in Oregon * * *. "It is the intention of the United States to completely utilize all the waters of the Klamath Basin in Oregon, and to this end this notice includes all lakes, springs, streams, marshes and all other available waters lying or flowing therein. "That the United States intends to use the above described waters in the operation of works for the utilization of water in the State of Oregon under the provisions of the act of Congress approved June 17, 1902 (32 Stat, 388), known as the Reclamation Act." Klamath Irrigation Dist., 67 Fed Cl at 524 (quoting the notice filed with the state engineer).(13)  With that background in mind, we turn to the Federal Circuit's questions. III A The Federal Circuit's first question asks: "Assuming that Klamath Basin water for the Klamath Reclamation Project 'may be deemed to have been appropriated by the United States' pursuant to Oregon General Laws, Chapter 228, § 2 (1905), does that statute preclude irrigation districts and landowners from acquiring a beneficial or equitable property interest in the water right acquired by the United States?" In answering that question, we assume that the United States appropriated water rights pursuant to the 1905 statute(14) and that it acquired and presently holds legal title to use the water for the purposes stated in its notice.  The question that the Federal Circuit has asked is:  In providing that the United States could appropriate water rights pursuant to the 1905 statute, did the Oregon legislature intend to preclude persons putting the water to beneficial use from acquiring a beneficial or equitable property interest in the water right?  The answer to that question is "no." The first sentence in section 2 of the 1905 statute provides that, if the United States files a notice and meets two other conditions, all the unappropriated waters described in the notice "shall not be subject to further appropriation under the laws of this State, but shall be deemed to have been appropriated by the United States."  Or Laws 1905, ch 228, § 2.  The quoted phrase provides two potential grounds for concluding that the legislature intended to preclude plaintiffs from acquiring an equitable right.  First, section 2 provides that the water described in the United States' notice is not subject to further appropriation.  Plaintiffs, however, are not seeking to appropriate the water right that the United States holds.  Rather, they contend in this proceeding only that, because the United States holds the water right in trust for them, they have a derivative interest in that right. Second, section 2 designates the United States as the "appropriator" of the water right.  Potentially, designating the United States as the "appropriator" of a water right could express an intent to preclude others from acquiring an equitable property interest in that right.  Because appropriation was a term of art, we look to the way that the Oregon courts and legislature had used that term before 1905 in order to understand the significance of that designation.  As noted, this court had held in Nevada Ditch that one person may appropriate water for another's use and that a later user who puts the water to beneficial use within a reasonable period of time pursuant to the appropriator's original plan takes the same priority date as the appropriator.  As also noted, this court declined to decide in Nevada Ditch, as between the appropriator and the user, who owned the water right.  It follows from Nevada Ditch that, in designating the United States as the appropriator of the water right, the legislature did not necessarily intend to signify that either the United States or the users owned the water rights.  Rather, under Nevada Ditch, the meaning of that term was open at the time that the 1905 legislature used it.  At a minimum, we find nothing in the legislature's use of that term that expresses an intent to preclude landowners and irrigation districts from acquiring a beneficial or equitable property interest in water rights that the United States has appropriated. The different ways in which the 1891 and 1895 Oregon statutes describe the relationship between an appropriator and a user reinforce that conclusion.  Under the 1895 statute, an irrigation district acquires and holds legal title to a water right but it holds that right in trust for the district's members who put the water to beneficial use.  Or Laws 1885, p 13.  Under the 1891 statute, at least as this court later interpreted it, a for-profit company that enters into annual rental agreements with its users owns the entire water right.  See Walla Walla River, 141 Or at 498.  And the 1901 statute implementing the Carey Act provided that "[t]he right to the use of water for irrigation of any tract or subdivision of lands reclaimed under the provisions of this act shall become and perpetually remain appurtenant thereto."  Or Laws 1901, p 382, § 8.  Given the various ways in which an appropriator can hold, share, or relinquish a property interest in the water it appropriates, we cannot say that, merely by providing that the United States may appropriate water rights pursuant to the 1905 act, the Oregon legislature intended to preclude landowners and irrigation districts from obtaining a beneficial or equitable property interest in water that the United States has appropriated. A final contextual source bears on the issue.  The Oregon legislature enacted the 1905 statute in response to Congress' passage of the Reclamation Act.  It follows that the Reclamation Act, as originally passed, sheds light on the terms on which the Oregon legislature understood that the United States would hold the water right that the 1905 act authorized the United States to appropriate.(15)  As noted, the Reclamation Act authorized the construction of federal irrigation works "for the storage, diversion, and development of waters for the reclamation of arid and semi-arid lands" in the Western states and territories.  32 Stat 388, § 1.  Congress wanted to make water available to settlers who entered onto public land, and it provided for the issuance of patents for the land if, within a specified period of time, the settlers entering the land reclaimed "at least one-half of the total irrigable area of his [or her] entry for agricultural purposes" and paid within 10 years a proportionate share of the projected cost of the irrigation works.  Id. § 5.  Congress also provided for sale of water to privately owned land within the scope of the project, provided that the tracts did not exceed 160 acres and that the landowners repaid the proportionate share of the cost of constructing the irrigation works.  Id. In passing the Reclamation Act, Congress sought to make water rights available for the benefit of those persons who would use the water to reclaim the land.  See Ickes v. Fox, 300 US 82, 95, 57 S Ct 412, 81 L Ed 525 (1937) ("Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the land owners * * *.").  Reading the 1905 Oregon statute in light of the Reclamation Act that the Oregon legislature sought to facilitate, we conclude that, in authorizing the United States to appropriate water for the construction of irrigation works, the Oregon legislature did not intend to give the United States carte blanche to use the water rights it appropriated in whatever way it chose.  Rather, the Oregon legislature authorized the United States to appropriate state water rights pursuant to the 1905 act for the benefit of those persons who the Reclamation Act contemplated would put water to beneficial use.  That context is directly at odds with the notion that, in providing for the United States to appropriate water rights, the legislature intended to preclude landowners and irrigation districts from acquiring a beneficial or equitable property interest in the water right.(16) The United States advances two reasons for reaching a different conclusion.  First, it relies on In re Waters of Umatilla River, 88 Or 376, 168 P 922, 172 P 97 (1918).  In that case, the Western Land and Irrigation Company's predecessor in interest had appropriated water pursuant to the 1891 Oregon statute at three points in time:  in 1891, 1903, and 1907.  Id. at 381-85.  The initial question in that case was whether Western's predecessor in interest had abandoned the water that it appropriated in 1891.  Id. at 381-82.  This court held that it had.  Id. at 382-83.  The court then noted that the United States had appropriated water pursuant to the 1905 Oregon act.  Id. at 384-85.  It observed that the United States' compliance with the procedures set out in that statute "vested the United States with title" to the water specified in its notice and that the water rights that the United States held had a priority date of September 6, 1905.  Id. at 385.  It followed, the court held, that Western's 1903 appropriation took priority over the United States' 1905 appropriation, which in turn took priority over Western's 1907 appropriation.  Id. at 385-86. The decision in Umatilla River does not advance the United States' position that the Oregon legislature intended to preclude landowners and irrigation districts from acquiring a beneficial or equitable property interest in water rights that the United States appropriated.  In determining the priority of the United States' water right in Umatilla River, the court neither considered nor addressed the relationship between the United States and the landowners who took water under that appropriation.  Rather, the question before the court was the relative priority of competing appropriators (Western's predecessor in interest and the United States).  Umatilla River has no bearing on our answer to the Federal Circuit's first question. The United States also relies on the second sentence of section 2 of the 1905 act, which states: "No adverse claims to the use of the water required in connection with such plans shall be acquired under the laws of this State except as for such amount of said waters described in such notice as may be formally released in writing by an officer of the United States thereunto duly authorized * * *." Or Laws 1905, ch 228, § 2.  The United States reasons that this sentence "spell[s] out the situations where 'other parties' may obtain rights to waters identified by the United States in its notice."  In the United States' view, plaintiffs' present litigation position demonstrates that their interests are adverse to the United States.  It follows, the United States concludes, that, without a formal written release, plaintiffs have no claim to any beneficial or equitable property interest in the water that the United States appropriated pursuant to the 1905 statute. The United States' argument rests on the assumption that, when the Oregon legislature enacted the 1905 statute, it would have understood that the landowners and irrigation districts that took water under the United States' appropriation would have an "adverse claim" to the water.  That is not how that phrase was commonly used.  As this court used those terms before 1905 in water rights disputes, "adverse claim" referred to one of two situations.  The court used those terms to refer to a claim brought by a person who contended that he or she had a right to use water by adverse possession.  See, e.g., Beers v. Sharpe, 44 Or 386, 394, 75 P 717 (1904); Mattis v. Hosmer, 37 Or 523, 532, 62 P 17, 62 P 632 (1900); Bowman v. Bowman, 35 Or 279, 283, 57 P 546 (1899); Huston v. Bybee, 17 Or 140, 147-48, 20 P 51 (1888) (all illustrating proposition).   The court also used those terms to refer to a claim brought by another appropriator who contended that his or her water right had an earlier priority date.  See, e.g., Brown v. Baker, 39 Or 66, 69, 65 P 799, 66 P 193 (1901); Oviatt v. Big Four Mining Co., 39 Or 118, 126, 65 P 811 (1901); Carson v. Gentner, 33 Or 512, 518, 42 P 506 (1898) (illustrating that usage). Conversely, the court had not described the relationship between an appropriator and those persons who took water under that appropriation as either "adverse" or as a "claim."  See Nevada Ditch, 30 Or at 98.  Rather, the court had described the relationship as one of mutual cooperation.  Id.  It held out the possibility that the user was the agent for the appropriator, but found it unnecessary to decide that point because the parties' mutual efforts were necessary to effectuate a perfected appropriation under the common law.  Id.  We need not decide whether the legislature used the phrase "adverse claim" in the 1905 statute to refer to an adverse possession claim or the claim of an adverse appropriator to conclude that the 1905 legislature did not use that phrase as the United States contends -- to refer to the United States' relationship with the persons who took water under its appropriation.  In sum, we find nothing in the text and context of the 1905 statute that would preclude plaintiffs from acquiring a beneficial or equitable property interest in the water right appropriated by the United States. B The Federal Circuit's second question asks: "In light of the [1905] statute, do the landowners who receive water from the Klamath Basin Reclamation Project and put the water to beneficial use have a beneficial or equitable property interest appurtenant to their land in the water right acquired by the United States, and do the irrigation districts that receive water from the Klamath Basin Reclamation Project have a beneficial or equitable property interest in the water right acquired by the United States?" As we understand the second question, it asks whether beneficial use alone is sufficient to acquire a beneficial or equitable property interest in a water right to which another person holds legal title.  The answer to that question, as we have restated it, is "no."  Beneficial use is a necessary but not a sufficient condition to acquire a beneficial or equitable property interest in a water right.  In explaining our answer, we first address an assumption that underlies the court's question -- whether, under Oregon law, one person can hold a beneficial or equitable property interest in a water right to which another person holds legal title.  We then explain why beneficial use alone is not sufficient.  Finally, we explain what, as a matter of Oregon law, is required to establish a beneficial or equitable property interest in a water right.(17) 1 Oregon has recognized since 1862 that one person may hold legal title to property and that another person may hold equitable title to that property.  See Smith v. Ingles, 2 Or 43, 44-45 (1862) (when defendant caused property to be conveyed to his sons for defendant's use and benefit, the sons held legal title to the property and defendant held equitable title).  That rule applies equally to water rights.  Eldredge, 90 Or at 594 (recognizing that one person could hold legal title to a water right while another holds equitable title).  As this court explained in Fort Vannoy, "[t]he existence of [a] trust relationship [between an irrigation district and its members] bifurcates the ownership interest in each certificated water right."  345 Or at 86.  "The district holds legal title to the water right as trustee, and the members hold equitable title as the beneficiaries."  Id.; see also id. at 87 (referring to an irrigation district member's "equitable ownership interest" in the water right).(18) In Oregon, equitable property interests in water rights have not derived solely from formal trust agreements.  For instance, this court recognized that beneficial users who transferred appropriated water rights to a corporation and took shares in the corporation in return held an equitable ownership interest in the water right.  Silvies River, 115 Or at 102-03.  In reaching that conclusion, the court explained that the corporation was formed "for the purpose of enabling the various owners of land to have a system that would serve all of them"; that is, even though the corporation held legal title to the water right, it held the water right for the use and benefit of its members.  Id. at 98-99.  That was sufficient for the court to conclude that the shareholders held an equitable property interest in the water right.(19)  As the court explained, "[a] court of equity will look beyond the form of the proceeding and if possible consider the substance of the right."  Id. at 103. This court has reached the same conclusion without regard to whether the shareholders in a corporation appropriated a water right and transferred that right to the corporation or whether the corporation appropriated the water right and held it for the use and benefit of its shareholders.  See In re Water Rights of Willow Creek, 119 Or 155, 195, 199, 236 P 487, 237 P 682 (1925) (corporation held appropriated water right in trust for the benefit of its shareholders who put the water to beneficial use);  Eldredge, 90 Or at 596 (explaining that a mutual water company organized for the purpose of transmitting and delivering water appropriated by its shareholders held the water right as a trustee for the use and benefit of its shareholders).  That is, even though the shareholders owned the stock and the corporation owned the water right, the court, sitting in equity, "look[ed] beyond" that formal arrangement and, considering its substance, ruled that the persons who put the water to beneficial use held an equitable property interest in the water right. We draw two conclusions from those cases.  First, the premise of the Federal Circuit's question is well-founded.  Oregon has recognized and continues to recognize that persons who put water to beneficial use can acquire an equitable or beneficial property interest in a water right to which someone else holds legal title.  Second, in determining when such an equitable property interest in a water right exists, this court looks beyond form and focuses on substance.  The court has sought to determine from the structure of a particular relationship and the agreements among the parties to that relationship whether the party that holds legal title to the right does so for the use and benefit of the persons who put the water to beneficial use. 2 With that background in mind, we return to the Federal Circuit's second question:  Is beneficial use alone sufficient to create a beneficial or equitable property interest in a water right to which another person holds legal title?  We answered that question "no" because this court has held that beneficial use of water does not always give the user a property interest in a water right that another person appropriated.  Walla Walla River, 141 Or at 497-98.  It follows that we cannot say, without qualification, that beneficial use alone is sufficient under Oregon law to obtain an equitable property interest in a water right.  Two other factors bear on the analysis.  As discussed above, in deciding the respective property interests of the appropriator and the user of a water right, this court has looked not only to beneficial use but also to the relationship between the parties, as well as any contractual agreements between them.  See id. at 497-98 (looking to the nature of the relationship and the contractual agreements); Silvies River, 115 Or at 98-102 (looking at the nature of the relationship); Eldredge, 90 Or at 596 (looking to the nature of the relationship); Nevada Ditch, 30 Or at 98 (holding out the possibility that contractual agreements matter). The United States Supreme Court considered similar factors in deciding that, even though the United States held legal title to the water right for the Newlands Project (a Reclamation Act project in Nevada), the landowners who had put the water to beneficial use held a beneficial or equitable property interest in the water right.  Nevada v. United States, 463 US 110, 122-26 and n 9, 103 S Ct 2906, 77 L Ed 2d 509 (1983).  In that case, landowners had settled on land within the Newlands project and had entered into contractual agreements with the United States for water.  Id. at 126 n 9.  The Court explained that five different forms of contracts had been used since the creation of the Newlands Project.  Id.  "Two of the forms provide[d] for an exchange of a vested water right by the landowner in return for the right to use Project water."  Id.  The other three forms of contracts provided a water right in an amount that may be beneficially applied to a specified tract of land.  Id.  The Court noted that, of the three latter forms, the one most commonly used was an application for a permanent water right for the irrigation of the settler's land.  Id. In 1913, the United States filed suit in federal district court, the Orr Ditch suit, to adjudicate the water rights to the Truckee River for the benefit of the Pyramid Lake Indian Reservation and the Newlands Project.  Id. at 113.  Neither the landowners nor the tribe appeared in that suit.  Id. at 121.  As a result of that suit, the United States acquired title to the water right for both reclamation and reservation use in 1944. In 1973, the United States sought to reallocate the water decreed to it.  Id. at 121.  More specifically, the United States sought to divert water that it had acquired for reclamation use to another federal use and argued that, because it owned the water right, it was free to do so.  Id.  The Court reached a different conclusion.  It explained that, even though the United States held legal title to the water right, it held the water right in trust for the landowners.  As the Court explained, "Once these lands were acquired by settlers in the Project, the Government's 'ownership' of the water rights was at most nominal; the beneficial interest in the rights confirmed to the Government resided in the owners of the land within the Project to which these water rights became appurtenant upon the application of Project water to the land." Id. at 126; see also id. at 127 (explaining that the United States, in arguing that it could reallocate the water to a different use, had overlooked "the obligations that necessarily devolve upon it from having mere title to water rights for the Newlands Project, when the beneficial ownership of these water rights resides elsewhere"). In determining that the landowners had an equitable or beneficial property interest in the water right to which the United States held legal title, the Court considered three factors:  (1) under state law, the water right became appurtenant to the land once it was put to beneficial use;(20) (2) the United States' relationship with the landowners under the Reclamation Act; and (3) the contracts between the United States and the landowners.  Id. at 121-26 and n 9.  The Court's reasoning in Nevada does not bind us in deciding, as a matter of state law, whether one party holds a water right in trust for another.  However, we find its analysis both persuasive and consistent with Oregon law.  We turn to a consideration of those factors. 3 The first factor is whether the water right was appurtenant to the land.  Under Oregon law, the water right became appurtenant to the land once the persons taking the water from the Klamath Project applied it to their land and put it to beneficial use.  That is true even if those persons had not yet perfected title to the land.  As the court explained in Hindman, settlers who entered onto public land (but who had not yet perfected title to the land) acquired "a valuable property right [in the land] which the courts will protect and enforce," and the water they put to beneficial use became appurtenant to the land.  21 Or at 116-17.  The court was careful to note in Hindman that, until the settlers perfected title to the land, the possessory right in the land that the settler acquired was valid against every person except the government.  Id. at 117.  That reservation, however, merely recognized that, if the United States cancelled the entry because the settler failed to comply with its terms, the settler could lose his or her right to the land and, along with it, the appurtenant water right. This court did not suggest that the settler lacked a valuable property right in the water that the state courts would not recognize and protect.(21) The second factor requires us to determine the relationship that exists between the federal government and plaintiffs.  In the United States' view, it stands in the same relationship to the water users as the private for-profit company did in Walla Walla River; that is, the United States contends that it owns the entire water right and that plaintiffs have only a contractual right to receive the water.  Plaintiffs and the State of Oregon argue that, although the United States holds title to the water right, it does so for the use and benefit of the landowners who put the water right to beneficial use.  In their view, the relationship between the United States and plaintiffs is closer to that of the corporation and its shareholders in Silvies River or Eldredge. Neither party's analogy is perfect.  The United States is not a corporate entity (either a for-profit corporation as in Walla Walla River or a mutual water company as in Eldredge), and plaintiffs are not its shareholders.  However, the Court's decision in Nevada v. United States persuades us that the United States holds the water right that it appropriated pursuant to the 1905 Oregon act for the use and benefit of the landowners.  In explaining that the United States held the water right it acquired in the Orr Ditch suit in trust for the landowners in the Newlands Project, the Court explained that "the primary purpose of the Government in bringing the Orr Ditch suit in 1913 [and obtaining title to the water rights in the decree] was to secure water rights for the irrigation of land that would be contained in the Newlands Project, and that [in doing so] the Government was acting under the aegis of the Reclamation Act of 1902."  463 US at 121.  In support of that statement, the Court noted that, in filing the Orr Ditch suit, the United States had alleged that the "litigation was designed to quiet title to the Government's right to the amount of water necessary to irrigate the lands set aside for the [Newlands] Project," and that the decree entered in that suit gave the United States title to the water "'for the irrigation of 232,800 acres of land on the Newlands Project, for storage in the Lahontan Reservoir, for generating power, for supplying the inhabitants of cities and towns on the project and for domestic and other purposes.'"  Id. at 121 n 8 (quoting decree). That persuaded the Court that, in obtaining title to the water under the aegis of the Reclamation Act, the United States was not acting for its own benefit but for the benefit of the persons who put the water to beneficial use reclaiming the land.  As the Court explained in Ickes, 300 US at 95, and reiterated in Nevada, 463 US at 123, "[a]ppropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the land owners."  The same conclusion applies equally here.  In appropriating water pursuant to the 1905 Oregon act, the United States was acting under the aegis of the Reclamation Act, and the notices that it filed in Oregon stated that it was appropriating the water for virtually the same uses that the United States stated that it was acquiring title to the water in Nevada.  In appropriating water under the 1905 act and pursuant to the Reclamation Act, the United States was not acting as a for-profit company, as in Walla Walla River, but was instead appropriating water for the use and benefit of landowners who would put it to beneficial use reclaiming the land.(22) The United States argues that Nevada, Ickes, and a third case, Nebraska v. Wyoming, 325 US 589, 65 S Ct 1332, 89 L Ed 1815 (1945), are all distinguishable on their facts.  We agree that Ickes and Nebraska are distinguishable, at least as the parties have presented this case to us.  In both those cases, the Court concluded that the landowners had acquired title to the water.(23)  In this case, by contrast, the parties have assumed that the United States holds the title to the water right.  Nevada, on the other hand, is far closer to this case.  In Nevada, the United States held title to the water right as a result of the Orr Ditch suit, and we assume that the United States holds title to the right here.  But, regardless of whether distinctions could be drawn between Nevada and this case, we think that the United States' argument misses the larger point.  In that case, as well as in Ickes and Nebraska, the Court recognized that, in acquiring water rights under the aegis of the Reclamation Act, the United States was not acting for its own benefit, but for the benefit of those persons who Congress intended would put the water to beneficial use reclaiming the land.  That consistent recognition of the relationship created by the Reclamation Act persuades us that, as a matter of state law, the relationship between the United States and plaintiffs is similar to that of a trustee and beneficiary. The third factor is the contractual agreements between the United States and plaintiffs.  That factor bears on the second.  Even though we have concluded that, in appropriating the right to use the waters in the Klamath Basin, the United States did so for the benefit of the landowners, the United States and plaintiffs remained free within statutory and constitutional limits to enter into agreements that clarified, redefined, or even altered that relationship.  Whether they did so requires a full consideration of the agreements between plaintiffs and the United States.  On that point, it appears that various plaintiffs have entered into different forms of agreement with the United States and that those agreements have been renegotiated, perhaps more than once, since the Klamath Project began. In attempting to assess the effect of the parties' agreements on the relationship between them, we face a significant difficulty.  All the agreements between the United States and plaintiffs in the present litigation do not appear to be before us.(24)  The Court of Federal Claims summarized the types of agreements that the parties entered into, and it quoted portions of those agreements.  However, we hesitate to rely on that summary of the parties' agreements when, in assessing the effect of those agreements on the state law issue that the second certified question presents, we might view other aspects of the agreements or their significance under state law differently.  We also note that the Court of Federal Claims' assessment of the significance of the agreements may rest on a misperception of state law.  The Court of Federal Claims explained that, under the 1905 Oregon act, plaintiffs could obtain a property interest in the water right that the United States appropriated only if the United States executed a formal written release of that interest, and it concluded that none of those agreements was sufficient to give plaintiffs anything other than a contractual right to receive water.  As explained above, however, that understanding of the 1905 Oregon law is not correct. We are aware that the agreements that the Court of Federal Claims described in its decision are similar to the two forms of agreement that the Court concluded in Nevada supported its determination that the United States held title to the water rights in that case in trust for the landowners.  However, without all the agreements before us and without briefing on them, we are in no position to provide a definitive answer whether, as a matter of state law, the various contractual agreements between the United States and plaintiffs support or defeat plaintiffs' claim that they have an equitable or beneficial property interest in the water right that the United States appropriated pursuant to the 1905 act. For instance, we cannot foreclose the possibility that plaintiffs could have bargained away any equitable or legal right to the water in return for a reduced payment schedule or forgiveness of their debt.  Conversely, the United States may have granted plaintiffs either patents, water rights, or contractual rights that would be sufficient, as a matter of state law, for plaintiffs to have acquired at a minimum an equitable property interest in the water.(25)  In sum, whatever conclusion we might draw on the basis of the first two factors noted above and whatever conclusion the Court of Federal Claims' summary of the various agreements might suggest, we lack a sufficient basis to provide a definitive answer to the court's second question. C The Federal Circuit's third question asks: "With respect to surface water rights where appropriation was initiated under Oregon law prior to February 24, 1909, and where such rights are not within any previously adjudicated area of the Klamath Basin, does Oregon State law recognize any property interest, whether legal or equitable, in the use of the Klamath Basin water that is not subject to adjudication in the Klamath Basin Adjudication?" The answer to the Federal Circuit's third question is "yes."  A person asserting only a beneficial or equitable property interest in a water right is not a "claimant" who must appear in the Klamath Basin adjudication and file a claim to determine that interest.  Conversely, a person who claims legal title to a water right must file a claim in the adjudication or lose the right.(26) In answering the court's third question, we begin with the text of ORS 539.210, which governs adjudication of pre-1909 water rights.  That statute provides in part: "Whenever proceedings are instituted for determination of rights to the use of any water, it shall be the duty of all claimants interested therein to appear and submit proof of their respective claims, at the time and in the manner required by law. Any claimant who fails to appear in the proceedings and submit proof of the claims of the claimant shall be barred and estopped from subsequently asserting any rights theretofore acquired upon the stream or other body of water embraced in the proceedings, and shall be held to have forfeited all rights to the use of the water theretofore claimed by the claimant." The United States argues that "[l]andowners asserting vested property rights in the use of water diverted by the Klamath Project are 'claimants' interested in the 'determination of rights to the use' of the water in the Klamath Basin.  Accordingly, any such rights must be claimed in the [a]djudication or be forfeited."  Plaintiffs and the State of Oregon argue that, under Oregon law, a state water rights adjudication is a comprehensive proceeding to determine the relative rights of persons who have appropriated water rights and, as a consequence of that determination, issue water rights certificates.  They argue that persons holding derivative rights, whether in equity or contract, are not claimants within the meaning of ORS 539.210 and need not file a claim in the water rights adjudication. Oregon's water code does not define the term "claimant," and both the United States and plaintiffs have proposed plausible interpretations of that term.  The statutory context, however, cuts against the United States' interpretation in two respects.  First, what is now ORS 539.210 was first enacted as part of Oregon's 1909 water code, and the current version of ORS 539.210 is virtually identical to that provision as it first was enacted.  Compare ORS 539.210, with Or Laws 1909, ch 216, § 34.  When the Oregon legislature adopted the 1909 code, it did not define the term "claimant."  However, it used that term to refer to a person who had appropriated a water right and could thus claim legal title to the right; for example, it required "claimants" to file a statement setting out facts necessary to establish an appropriation.  See Or Laws 1909, ch 216, § 14.  Conversely, it did not require "claimants" to file a statement showing that they had a right to take water under another person's appropriation.  Given that context, we conclude tentatively that the term "claimant," as used generally in the 1909 act and as used specifically in the section that became ORS 539.210, does not refer to a person asserting only an equitable or beneficial property interest in a water right that another person appropriated. A second statutory clue points in the same direction.  Under Oregon's water code, a claim for water, if proved, results in the issuance of a certificated water right giving the holder title to the right.  See Fort Vannoy, 345 Or at 84 (describing that process); ORS 539.140 (same).  A person claiming an equitable interest in a water right does not receive a certificated right.  See Fort Vannoy, 345 Or at 84-86 (recognizing that a member of an irrigation district had an equitable interest in a certificated water right issued to the district).  By implication, a person holding an equitable interest need not file a claim in a water rights adjudication and is thus not a "claimant" within the meaning of ORS 539.210. That has long been the rule in Oregon.  As this court explained 85 years ago, "[i]f this were a proceeding for determining the relative rights between different appropriators [i.e., a streamwide adjudication], the court would not consider the controversy between an appropriator and those claiming under him."  Willow Creek, 119 Or at 191.  Under Oregon law, controversies between appropriators and those claiming under them are not part of a water rights adjudication to determine the relative rights of different appropriators.  The court has, however, recognized one exception, and that exception proves the rule, as the facts in Willow Creek illustrate. In Willow Creek, two persons had initiated a water rights adjudication in 1909 to determine the right to use the water in Willow Creek.  Id. at 163.(27)  The Willow Creek Land and Irrigation Company (the irrigation company) had appropriated water from that creek for others' use, and the irrigation company (but not its shareholders who claimed a beneficial property right) appeared in the 1909 adjudication.  Id. at 163, 181-82.  Some of the irrigation company's water rights "had become vested through appropriation and use, while others were at that time inchoate."  Id. at 163.  Recognizing that fact, the first decree entered in 1916 provided that the irrigation company would be allowed until January 1, 1918, "to complete its said irrigation system and apply the impounded waters to beneficial use."  Id. at 163-64.(28) In 1920, the state gave notice to all parties interested in the inchoate rights of the irrigation company to appear and determine the extent to which those inchoate rights had been realized.  The irrigation company(29) appeared at the supplemental proceeding and argued that the only issue properly before the court was the extent to which water had been put to beneficial use -- i.e., the extent to which the inchoate rights had been realized.  Persons who had agreed to purchase land and appurtenant water rights from the irrigation company appeared and claimed that the irrigation company unlawfully had prevented them from putting water to beneficial use on their lands by putting the water to use instead on the company's lands.  Id. at 182, 191-92.  Those persons did not own the water rights directly but held shares in the irrigation company, which claimed legal title to the water right.  Id. at 165. In resolving the parties' arguments, this court noted that the only issue before it was the right to water under a single certificate and that the disputes between an appropriator and persons taking under the appropriator "ordinarily would not be considered in a proceeding of this nature" -- i.e., in a supplemental proceeding to adjudicate rights among different appropriators.  Id. at 182.  The court reasoned, however, that it could not determine the land on which the water had been put to beneficial use and thus could not issue a water rights certificate to the irrigation company without first resolving the subsidiary dispute between the irrigation company and the persons who took water under it.  Id.  In resolving that subsidiary dispute, the court held that the irrigation company could not use the water it had appropriated to benefit its land to the detriment of the persons who had acquired land and derivative water rights from it.  Id. at 196-98.  The court determined the land to which the water rights attached and held that the irrigation company "is entitled to a certificate of its water right for the benefit of the land owned by its stockholders."  Id. at 199. Willow Creek is telling in at least four respects.  First, the court recognized that the irrigation company held the water right for the benefit of the stockholders.  Second, the court did not hold that the stockholders' failure to file a claim in the initial adjudication precluded them asserting an equitable interest in the certificated water right that the irrigation company sought.  Third, the court recognized that, as a general rule, the only claims that will be adjudicated in a water rights adjudication are the competing claims of different appropriators, not the equitable interests of those persons who take under an appropriator.  Finally, it held that that rule is not without exceptions; controversies between an appropriator and the persons who take under that appropriator may be resolved in a general adjudication when necessary to determine the extent of a certificated water right. Given Willow Creek and the other statutory context discussed above, we conclude that the term "claimant" in ORS 539.210 refers to persons claiming legal title to a water right.  The term does not include persons asserting only an equitable or beneficial interest in a water right that another person appropriated.  It follows that, to the extent that plaintiffs assert only a beneficial or equitable property interest in water rights that the United States appropriated, plaintiffs are not claimants within the meaning of ORS 539.210 who must file claims in the Klamath Basin adjudication or lose their right to claim a beneficial or equitable property interest in that water right. It is necessary to add a caveat to our answer.  Given the limited record before us, we cannot foreclose the possibility that circumstances comparable to those in Willow Creek might arise in the Klamath Basin adjudication that would permit, in that adjudication, the determination of the interests of persons claiming an equitable or beneficial property interest in a water right that another person had appropriated.  Subject to that caveat, however, we can say that persons asserting only an equitable or beneficial property interest in a water right that someone else appropriated are not "claimants" within the meaning of ORS 539.210 who must file claims in the Klamath Basin adjudication. IV In summary, in answering the Federal Circuit's questions, we have assumed that the United States appropriated the right to use the waters described in its notice and that it presently holds legal title to that water right.  We also have assumed that plaintiffs are asserting only an equitable or beneficial property interest in the water right to which the United States holds legal title.  Who presently holds legal title to that water right and the scope of that right are questions for the Klamath Basin adjudication, and we express no opinion on those issues.  Given those assumptions, we have answered the court's questions as follows: 1.  The 1905 Oregon act did not preclude plaintiffs from acquiring an equitable or beneficial property interest in a water right to which the United States holds legal title.  Moreover, under the 1905 act, a formal written release from the United States is not necessary for plaintiffs to have acquired an equitable or beneficial property interest in the water right that the United States appropriated. 2.  Under Oregon law, whether plaintiffs acquired an equitable or beneficial property interest in the water right turns on three factors:  whether plaintiffs put the water to beneficial use with the result that it became appurtenant to their land, whether the United States acquired the water right for plaintiffs' use and benefit, and, if it did, whether the contractual agreements between the United States and plaintiffs somehow have altered that relationship.  In this case, the first two factors suggest that plaintiffs acquired a beneficial or equitable property interest in the water right to which the United States claims legal title, but we cannot provide a definitive answer to the court's second question because all the agreements between the parties are not before us. 3.  To the extent that plaintiffs assert only an equitable or beneficial property interest in the water right to which the United States claims legal title in the Klamath Basin adjudication, plaintiffs are not "claimants" who must appear in that adjudication or lose the right.  As a general rule, equitable or beneficial property interests in a water right to which someone else claims legal title are not subject to determination in a state water rights adjudication. The certified questions are answered. WALTERS, J., concurring. The court answers "no" to the restated second question posed by the Federal Circuit:  whether, under Oregon law, beneficial use alone is sufficient to acquire a beneficial or equitable property interest in a water right to which another person holds legal title.  ___ Or at ___ (slip op at 29).(1)  I agree with that answer and with the majority's further statement that, even considering additional factors, we cannot reach a definitive answer to a more pointed question -- whether plaintiffs in this case acquired a beneficial or equitable property interest in a water right held by the United States.  ___ Or at ___ (slip op at 41). I write to explain the reasons that the latter, more specific, question is an open one that, in my view, cannot be resolved at this time on this record. First, this case reaches us in a posture in which the following issues are contested in the Klamath Basin adjudication and have not been decided by any court:  (1) whether beneficial use is necessary to the United States' appropriation of water rights; (2) whether the United States has appropriated the water rights at issue here; and (3) whether plaintiffs also have appropriated water rights and own them independently or jointly with the United States.  ___Or at ___ (slip op at 22 n 14).  In answering the questions posed by the Federal Circuit, we are nevertheless asked to assume that the United States has appropriated and acquired sole ownership of the water rights at issue.  See ___ Or at ___ (slip op at 22) ("[W]e assume that the United States appropriated water rights pursuant to the 1905 statute and that it acquired and presently holds legal title to use the water for the purposes stated in its notice) (footnote omitted); see also ___ Or at ___ (slip op at 47-48 (summarizing assumptions used in answering certified questions).   In other words, we are asked to assume that the United States has accomplished whatever measures were necessary to perfect appropriation, without deciding whether beneficial use by landowners was one of those measures and without deciding whether plaintiffs also appropriated and acquired ownership of the rights at issue. When this court previously has considered the nature of the interests of water users or providers, it has done so on the premise that beneficial use is a necessary prerequisite to perfection of appropriation and in the context of discussing perfected (and sometimes certificated and thereby vested) appropriation.  As the majority explains, it has been the law in Oregon since at least 1896 that appropriation is perfected "only when the ditches and canals are completed, the water diverted from its natural stream or channel, and actually used for beneficial purposes."  Nevada Ditch Co. v. Bennett, 30 Or 59, 90, 45 P 472 (1896).  Thus, as the court recently stated, in Fort Vannoy Irrigation v. Water Resources Comm., 345 Or 56, 88, 188 P3d 277 (2008), a joint effort between landowners and irrigation companies or districts has been required to "bring the certificated water rights into existence" and beneficial use has been one action required in that joint effort.(2)  When we are asked to assume instead, as we understand that we have been instructed to do, that beneficial use may not be necessary to perfected appropriation, and that plaintiffs do not hold perfected or certificated interests, our precedent, premised as it is on different assumptions, is of little assistance.  Second, the Federal Circuit Court has not defined what it means by the term "beneficial or equitable property interest."  This court's prior consideration of the nature of the interests held by landowners who apply water to beneficial use has not been for the purpose of determining whether those interests are "property" as that term is used in the United States or Oregon Constitutions or whether the government must pay just compensation if it "takes" those interests.(3)  When the court's prior cases use terms such as "equitable title," or liken the relationships between the parties to other equitable relationships, they do so not only on the basis of assumptions that are inapplicable here, but also for the purpose of answering legal questions very different from the one that the Federal Circuit poses.  A brief survey of the questions addressed in those cases demonstrates my point.  In Eldredge v. Mill Ditch Co., 90 Or 590, 177 P 939 (1919), this court concluded that a quasi-public irrigation company served as the agent of its stockholders when it delivered water for their use.  The court held that equity precluded a third party judgment creditor from forcing a sale of the company's interests to the detriment of the stockholders.  Id. at 596. Re Rights to Waters of Silvies River, 115 Or 27, 237 P 322 (1925), was a case in which three men posted a notice of appropriation and then formed a corporation to serve as their agent in constructing irrigation ditches and making water available for use.  The court held that the priority date for the water right that the corporation acquired related back to the date of the men's original notice of appropriation.  Id. at 98-103. In In Re Waters of Walla Walla River, 141 Or 492, 16 P2d 939 (1933), this court reached a different conclusion concerning a disputed priority date.  The court held that a private irrigation company that had appropriated water in 1903 was the principal and that landowners who were not shareholders in the company, but who put its water to beneficial use pursuant to rental contracts, served as the company's agents. When some of the landowners later formed a new irrigation company, the new water rights acquired did not relate back to the earlier 1903 appropriation because the landowners previously had not obtained "any rights in the use of the water supplied by [the original company] except those given by, and to the extent of, their rental contracts."  Id. at 498. In Fort Vannoy, the court noted that a statute that required an irrigation district to hold all property it acquired "in trust for * * * the uses and purposes set forth in the Irrigation District Law," gave rise to a trust relationship between the irrigation district and its members, 345 Or at 85-86 (emphasis omitted), but the court characterized the relationship between the district and the landowners who put the water to beneficial use as one of principal (district) and agents (landowners).  Id. at 88-90.  To resolve the particular question before it, the court looked to the statutory allocation of rights and responsibilities between the irrigation district, on the one hand, and its members and water users, on the other hand, and concluded that neither the members nor the users were "holder[s] of any water use subject to transfer."  Therefore, the court held, the members did not have the right to change the point of diversion associated with the water right.  Id. at 86-93. Although in each of those cases "the water of a public stream [was] eventually applied to a beneficial use, and the general purposes of such appropriations accomplished," Nevada Ditch, 30 Or at 98, factors other than intended benefit or use determined the answers to the particular legal questions presented.  And, for the most part, those cases involved the rights of third parties vis-à-vis the irrigation districts.  Only Fort Vannoy decided the nature of the interests acquired by water users.  In that case, it was the statutory allocation of rights and responsibilities, not whether the legislature intended that users benefit by the actions of irrigation districts, that was determinative. Labels and short-hand descriptions used by the court in particular contexts for particular purposes do not resolve other legal questions, particularly difficult ones.  In enacting and proceeding under the Reclamation Act, the United States intended, among other things, to provide some benefit to the lands that it helped to irrigate.  Our cases, however, have not decided whether a government's intent to bestow such a benefit alone creates an interest of legal consequence.  Without actually resolving the threshold legal issue of whether beneficial use is necessary to perfected appropriation by the United States, without a clear understanding of the federal standard that a "beneficial or equitable property interest" must meet, and without all the facts necessary to determine whether that standard has been met, we certainly can say that the answer to the Federal Circuit Court's second question is "no," but I emphasize that that is all that we can say. Balmer and Linder, JJ., join in this opinion. 1. The Bureau was able to make some water (approximately 70,000 acre feet) available in July 2001. 2. We understand that some or all plaintiffs have asserted in the state water rights adjudication that they hold legal title to the water right and are entitled to have a certificated water right issued to them.  In answering the certified questions, we accept plaintiffs' claim as they have narrowed it in the federal proceeding; that is, we assume that the United States holds legal title to the water and that plaintiffs claim only an equitable or beneficial interest in the water.  We express no opinion on plaintiffs' claims that they obtained and hold legal title to water from the Klamath Project.  We leave that question for the state water rights adjudication. 3. We do not describe the Court of Federal Claims' reasoning regarding plaintiffs' claims under section 8 of the Reclamation Act.  That issue is beyond the scope of the questions that the Federal Circuit has posed. 4. It is not completely clear from the Court of Federal Claims' opinion why, in its view, the agreements in the first three categories gave rise only to contractual rights to receive water. 5. Because no legislative history of the 1905 act remains, we are left with the text and context of that statute to determine the legislature's intent. 6. The question arose because, after 1863 but before 1882, another person had put water to beneficial use on land that he owned and claimed that his appropriation was prior to the plaintiff's, whose water rights he contended did not vest until plaintiff's predecessor in interest perfected title to the land in 1882. 7. The court's holding in this regard is expressed in its resolution of the parties' claims.  Accordingly, we describe the relevant facts and the court's resolution of the parties' claims briefly.  On July 12, 1881, the principals of what became the Nevada Ditch Co. posted a notice of their intent to divert 8,000 miners' inches of water from the Malheur River for agricultural and milling purposes.  Nevada Ditch, 30 Or at 64-65.  The notice set out generally the route and terminals of the ditch.  Id. at 65.  Other settlers came as late as 1886 and took subdivided interests in the ditch according to the original plan.  Id. at 69.  Meanwhile, other persons appropriated water from the Malheur River after 1881 but before the later settlers came in 1886 and began putting the water to beneficial use.  Although those persons claimed a prior right to the water than the later settlers claiming under Nevada Ditch's appropriation, this court held that the priority date for the later settlers' water rights related back to the date of the 1881 notice.  Id. at 102.  This court also held that the priority date for subsequent extensions of the ditch, which went beyond the original plan, did not relate back to the 1881 notice but had a separate priority date.  Id. at 100. 8. In making that observation, the court distinguished Oregon law from Colorado law, which regarded the person who diverted the water as the agent for the person who put it to beneficial use.  Id. at 97. 9. In Walla Walla River, one water company that had organized under the 1891 act appropriated water in 1903, which it supplied to water users pursuant to annual rental contracts.  114 Or at 495.  Later, those same users began to take water from a second water company.  Id. at 496.  The second company contended that, because the water was appurtenant to the land, the users (and it derivatively) could claim an appropriation date of 1903.  As explained above, this court disagreed, holding that the first company, not the users, held the entire water right. 10. The Desert Land Act is notable primarily because it confirmed that "all non-navigable waters then a part of the [federal] public domain became publici juris, subject to the plenary control of the designated states * * * the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain." California Oregon Power Co. v. Beaver Portland Cement Co., 295 US 142, 163-64, 55 S Ct 725, 79 L Ed 1356 (1935). 11. To take advantage of the Carey Act, Oregon passed a law in 1901 accepting the conditions that Congress had placed on the grant of desert lands to the states.  Or Laws 1901, p 378, § 1.  The Oregon legislature authorized the State Land Board to enter into contracts with private companies to construct ditches, if the companies agreed to meet certain conditions.  Id. §§ 2-5.  The act also provided that "[t]he right to the use of water for irrigation of any tract or subdivision of lands reclaimed under the provisions of this act shall become and perpetually remain appurtenant thereto," subject to annual maintenance charges and "proper and reasonable rules and regulations adopted for the irrigation system under and by which the said land has been reclaimed."  Id. § 8. 12. Since 1902, Congress has amended the Reclamation Act on numerous occasions.  We describe the Reclamation Act as originally enacted because Congress had not amended it substantively before the Oregon legislature enacted the 1905 statute that gives rise to the certified questions. 13. The Court of Federal Claims noted that the United States also posted a notice of appropriation for the Lost River system but did not set out the terms of that notice.  67 Fed Cl at 524. 14. The parties disagree whether the United States appropriated the water rights solely by complying with the three conditions specified in the 1905 statute or whether the water also had to be put to beneficial use to perfect the appropriation.  The court's first question, however, asks us to assume that the United States appropriated the water rights.  The mechanism by which it accomplished that appropriation may be important to answer whether, as the state contends, both the United States and the landowners own legal title to the water right jointly.  That issue, however, is not before us, and we can answer the questions that the Federal Circuit has asked us without resolving it.  Accordingly, we leave that issue for another day. 15. The Federal Circuit's questions ask us to interpret state law.  We cannot, however, interpret the meaning of the 1905 Oregon statute without considering the terms and purposes of the Reclamation Act that the Oregon statute was intended to facilitate. 16. Plaintiffs ask us to resolve a related but separate question; they ask us to decide whether the water right that the United States appropriated is limited to the uses specified in the notice that it filed in 1905.  The scope of the right that the United States appropriated is separate from the question whether plaintiffs have an equitable property interest in that right (whatever its scope).  As we understand the Federal Circuit's questions, they ask us to address the latter question, not the former.  The scope of the water right that the United States appropriated in 1905 is a question for the state water rights adjudication, as well as the question of who holds legal title to that right.  We express no opinion on those questions. 17. In answering the Federal Circuit's second question, we address only whether plaintiffs acquired a beneficial or equitable property interest under state law.  The question whether that state property interest, if acquired, gives rise to a federal takings claim is a matter of federal law that goes beyond the scope of the court's questions, and we do not address it. 18. In Fort Vannoy, a statute provided that the irrigation district held the water right in trust for its members.  See 345 Or at 85 (citing ORS 545.239).  The court held, however, that the common law established that, as a consequence of that trust relationship, the district had legal title to the right while the members held equitable title.  See id. at 86 (looking to common law to determine the effect of the trust relationship). 19. The specific issue in Silvies River was whether the priority date for the corporation's water right related back to a notice of appropriation signed by the shareholders but not the corporation.  115 Or at 98-99.  The court concluded that, because the corporation held the right for the use and benefit of its members, the signatures of the shareholders were sufficient.  Id. at 102. 20. The Court explained that, under Nevada law, beneficial use was necessary to perfect appropriation and that the right became appurtenant to the land on which it was used.  463 US at 126.  As discussed above, the Federal Circuit's questions assume that the United States appropriated the water right, and we need not decide, in answering the court's questions, whether, under Oregon law, beneficial use was necessary to perfect the United States' appropriation of water rights under the 1905 act.  See note 14 above (reserving that issue). 21. Hindman discusses publicly held land that a settler reclaims and acquires.  Section 5 of the Reclamation Act also addresses privately held land.  It provides that "no such right [a right to the use of water] shall permanently attach [to the privately held land] until all payments therefore are made."  32 Stat 389, § 5..  Section 5 thus recognizes that, even though water put to beneficial use on privately owned land will become appurtenant to the land, the right does not attach permanently until the landowner pays his or her proportionate share of the cost of constructing the irrigation works. 22. To be sure, Congress required persons taking water from a reclamation project to repay a proportionate share of the costs of constructing the irrigation works.  But the same was true in both Ickes and Nevada.  The payments were not intended for the United States to turn a profit but to make the reclamation program self-funding. 23. In Ickes, the landowners had entered into contracts with the Secretary of the Interior to acquire water rights from a reclamation project by repaying the proportionate share of the project's cost in ten annual installments.  300 US at 89-90.  The Court explained that the landowners "had made all stipulated payments and complied with all obligations by which they were bound to the government, and * * * had acquired a vested right to the perpetual use of the waters as appurtenant to their lands."  Id. at 94.  In Nebraska, the landowners applied for and received state water rights certificates as a result of putting the water to beneficial use on their land.  325 US at 613.  In both cases, the court concluded that the landowners acquired the water right. 24. Plaintiffs included four agreements in their excerpts of record and the record discloses other agreements.  Not only does it appear from the Court of Federal Claims decision that many other agreements exist, but the parties have not briefed either the history or the significance of those different agreements in any detail. 25. We also note that some of the agreements that the Court of Federal Claims mentioned, coupled with the fact that the parties have stipulated that plaintiffs have paid all the costs of irrigation works, suggest that plaintiffs may themselves hold a vested water right.  See Ickes, 300 US at 94 (explaining that the landowners in that case had acquired a vested water right by paying their proportionate share of the irrigation project's construction costs and complying with their other contractual obligations).  We express no opinion on that point but mention it only to note that the procedural posture in which this case arises poses additional difficulties in answering the court's second question; that is, it is difficult to discuss in the abstract whether plaintiffs have an equitable interest in the water right in light of facts that suggest that some or all of them may have a greater property interest. 26. Our answer to the court's question is limited to the facts, as we understand them to exist in the Klamath Basin adjudication -- i.e., that the United States has filed a claim for legal title to the water right that it appropriated under the 1905 Oregon statute.  We express no opinion on the permissible procedure if the person who appropriated the water right fails to file a claim for that right in the water rights adjudication, and another person claims only an equitable interest in that right. 27. The water rights adjudication in Willow Creek arose under Oregon's 1909 water rights code.  See In re Willow Creek, 74 Or 592, 144 P 505, 146 P 475 (1915) (considering challenges to the procedure that gave rise to the first decree regarding Willow Creek). 28. The inchoate water rights apparently resulted from the common-law rule, stated in Nevada Ditch, that one person can appropriate water for future users with an appropriation date that relates back to the date of the notice, as long as the water is diverted and put to beneficial use within a reasonable time.  In Willow Creek, the 1909 streamwide adjudication occurred before a reasonable time had passed, with the result that the 1916 decree recognized that the irrigation company held inchoate water rights but that the court could not determine the extent of those rights at that time. 29. Between the 1909 adjudication and the 1920 supplemental adjudication, the irrigation company transferred the irrigation works and the water rights to a holding company.  Willow Creek, 119 Or at 165, 179.  The irrigation company sold land to settlers and gave them a proportionate share of the stock in the holding company.  Id. at 165.  The irrigation company also went into bankruptcy during that period, and another corporation acquired its remaining assets.  Id.  Those corporate changes are not material to our answer to the Federal Circuit's third question, and we have referred solely to the "irrigation company" for ease of reference. 1. We do not expressly consider the interests of irrigation districts that "receive" water from the Klamath Basin Reclamation Project. 2. In Fort Vannoy, the water rights at issue were not only appropriated, they were also certificated.  As the court explained in that case, "the issuance of a water right certificate is the act that vests a certificated water right in a party.  See, e.g., ORS 537.250(3) (describing significance of issuance of water right certificate)."  Fort Vannoy, 345 Or at 76. 3. As we noted in Doyle v. City of Medford, 347 Or ___, ___ n 4, ___ P3d ___ (2010), the question whether a state interest amounts to a federally protected property interest (in that case under the Due Process Clause) is a federal question.  Although we can describe state interests, the legal conclusion as to whether those interests constitute "vested rights" or "property" is a federal question.

55d7fe9f5520b17c435a74d355c40959ecd8fd97b2781c5b7c80410236e144ee

2010-03-11T00:00:00Z

86101bbf-7130-4e36-b0c0-6fe7f6dcc960

State v. Haugen

S054853

oregon

Oregon Supreme Court

FILED: November 4, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent, v. GARY HAUGEN, Appellant. (CC 04C46224; SC S054853) En Banc On automatic and direct review of the judgment of conviction and sentence of death imposed by the Marion County Circuit Court. Joseph Guimond, Judge. Argued and submitted June 30, 2010. Daniel J. Casey, Portland, argued the cause and filed the briefs for appellant.  David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent.  With him on the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, Timothy A. Sylwester, Assistant Attorney General, Erika L. Hadlock, Deputy Solicitor General, and Gregory Rios, Assistant Attorney General. BALMER, J. The judgment of conviction and sentence of death are affirmed. De Muniz, C. J., filed a concurring opinion in which Gillette and Durham, JJ., joined. BALMER, J.  This case is before the court on automatic and direct review of defendant's conviction and sentence of death for aggravated murder.  See ORS 138.012 (providing for direct review in Supreme Court when jury imposes death sentence).  Defendant has been an inmate in the Oregon State Penitentiary since 1981, when he was convicted of killing his girlfriend's mother.  In 2004, the state indicted defendant and another inmate, Jason Brumwell, for the killing of a third inmate.  A jury convicted defendant of one count of aggravated murder for committing murder after previously having been convicted of murder, ORS 163.095(1)(c), and one count of aggravated murder for committing murder while confined in prison, ORS 163.095(2)(b).(1)  In a separate penalty-phase proceeding, the jury affirmatively answered the four questions set out in ORS 163.150(1)(b), and the trial court entered a sentence of death.  For the reasons that follow, we affirm the judgment of conviction and the sentence of death. I. FACTS AND PROCEDURAL HISTORY In reviewing a judgment of conviction, we state the facts in the light most favorable to the state.  See, e.g., State v. Gibson, 338 Or 560, 562, 113 P3d 423 (2005), cert den, 546 US 1044 (2005) (so stating).  Shortly after 9:00 a.m. on September 2, 2003, the body of inmate David "Sleepy" Polin (the victim) was found in the band room of the activities section of the Oregon State Penitentiary.  He was scheduled to be working in that section of the prison that morning.  The victim had sustained 84 stab wounds and a blunt-force trauma to the head resulting in skull fracture.  The victim's hands reflected wounds that appeared to have been suffered in defending himself against an attack.  The attack had occurred in an alcove outside the band room, which was smeared with blood.  Subsequently, the body had been dragged into the band room.  The victim's blood also was found in a trash can just outside the alcove.  Inside the trash can was a t-shirt soaked with the victim's blood, one of his shoes, his inmate identification, bloody rags, and a large threaded metal rod with victim's blood on it.  The rod was part of a stool from the band room.  Two "shanks" or homemade knives also were found in the vicinity (although not in the band room), one of which was hidden in a bathroom drain.  Strands of Brumwell's hair were found on the victim's clothing. Security cameras captured images of defendant and Brumwell shortly before and after 8:00 a.m.  Images from several cameras at different locations in the activities section showed defendants and the victim in the general area near the band room in the minutes before the attack.  The images showed defendants repeatedly visiting a bathroom, in which one of the shanks later was found, and then showed defendant shortly before the attack with an oddly shaped item concealed under his t-shirt, possibly the metal rod from the stool.  Another camera was located in the band room.  That camera showed defendants dragging the body into that room.  Images from the camera also showed movement through a window in the door to the alcove, just before defendants dragged the body into the band room.  Images taken shortly after the attack showed defendants leaving the area and wearing at least some different clothing than they had been wearing 15 minutes earlier. The day of the murder was "shower" day, when inmates take showers and exchange their clothing.  On the morning of the murder, an inmate observed defendant in the shower clipping his fingernails with fingernail clippers and scrubbing his fingernails with a toothbrush.  His hands were soiled by some dark substance.  The inmate saw Brumwell, whose hands also were soiled, do the same after defendant handed him the fingernail clippers and toothbrush.  The dark substance turned red as Brumwell washed.  When defendant entered his cell at 9:00 a.m., the pants he was wearing were several sizes too large, and he did not have a belt.  Later, in a clothing bin in the shower area, police recovered pants and t-shirts, stained with victim's blood, matching the sizes worn by defendants.  One pair of pants had DNA material in the thigh area matching defendant's DNA, suggesting that he had worn them.  Those pants also had a splatter pattern of liquid that matched the victim's blood. Inmate Robert Cameron testified at the trial.  He and defendants were members of a band.  Cameron did not go to the activities section the morning of the murder, because Brumwell told him that another band had taken their time slot, which was not true.  Instead, Cameron was at his station working as a clerk.  Sometime that morning, prior to the discovery of the victim, defendant and Brumwell came to Cameron's work station.  Cameron noticed that defendant had a "fat lip."  Defendant asked Cameron to get a jacket out of the laundry cart.  Brumwell asked Cameron to locate Brumwell's jacket in the laundry cart and rip out the state identification number.  Brumwell said that his jacket had a "t-shirt lining," rather than the usual flannel lining.  Cameron found such a jacket that had a dark stain on it that appeared to be blood.  Cameron did not remove the state identification number as Brumwell had asked; instead, he hid the jacket under a yellow raincoat hanging at the work station.  Later, police recovered the jacket and identified the blood on the jacket as the victim's.  Cameron also saw defendant and Brumwell take off their shower sandals and put them in a bag.  When he asked them about that, Brumwell said something about blood. Later, in defendant's cell, defendant stated to Cameron that he had killed Polin because he was a "rat."  Defendant stated that he and Brumwell had attacked the victim in the alcove outside the band room.  Defendant stated that he had stabbed Polin 30 times and related that, despite the wounds he had inflicted, Polin "wouldn't die."  He said that he had hit the victim with a "drum chair" from the band room and had "caved his fucking head in."  Defendant referred to wounds on his hands and asked Cameron if they were noticeable.(2)  Brumwell also admitted to Cameron that he had killed the victim.  Defendants had suspected that someone was informing prison officials about their drug use.  Prisoners had noticed that prison officials usually administered drug tests during the week.  Accordingly, prisoners timed their drug use for weekends so that they could produce a clean urinalysis during the week.  Contrary to the ordinary timing, prison officials gave a Saturday drug test on August 23, 2003, to a friend of defendants, a member of their band, which identified him as having used drugs.  The following Sunday, prison officials gave another test, this time to defendants.  Defendants were upset about the tests and suspected the presence of an informant.  They believed that Polin was the informant.(3)  According to Cameron, defendant indicated that he wanted to do "something really bad to that Mexican downstairs," referring to Polin.  The day before the murder, another inmate overheard defendants say, referring to the victim, "we've got to get him."  The inmate saw Brumwell walk toward the victim clenching his fist until defendant stopped him and said, "Stop, not here."(4)  The homicide occurred on Tuesday, September 2.  Defendant and Brumwell both tested positive for the presence of marijuana based on the sample from the Sunday test.  The test results came back September 5, three days after the murder. The state indicted defendant and Brumwell for Polin's murder.  As noted, after the joint guilt-phase trial, a jury convicted defendants of one count of aggravated murder for committing murder after previously having been convicted of murder, ORS 163.095(1)(c), and one count of aggravated murder for committing murder while confined in prison, ORS 163.095(2)(b).  Defendant and Brumwell had separate proceedings for the penalty phase of the trial.  At defendant's penalty-phase proceeding, the jury answered the four questions set out in ORS 163.150(1)(b)(5) in the affirmative.  The trial court then entered a judgment of conviction merging the two counts into a single conviction for aggravated murder and imposing the death penalty. II. ANALYSIS Defendant asserts 29 assignments of error.  After reviewing the arguments of counsel, the record, and the court file, we have determined that four of the assignments of error merit discussion.  We summarily reject the remaining assignments of error without discussion, concluding that they either are unpreserved, are controlled by this court's prior decisions, or are otherwise without merit. A.        Voir Dire and Guilt Phase 1.         Interpreters for Jurors (Assignment of Error Number 1) Defendant argues that the trial court erred in excusing sua sponte two prospective jurors who lacked proficiency in the English language and who needed an interpreter.  During voir dire, the trial court invited prospective jurors to indicate any reasons for which they should be excused.  One prospective juror, Lamloc, stated that his English was "not good enough" and that he had memory problems.  Lamloc indicated that it would be difficult for him to concentrate through a lengthy trial and to understand and "process" the evidence adduced at trial.  Defense counsel inquired whether an interpreter could be provided, to which the trial court responded that it was not allowed to provide one for jurors.  Over defendant's objections, the trial court released Lamloc, explaining that it was doing so both because of "the language issue" and because of Lamloc's admittedly limited "cognitive abilities."  The trial court also clarified its position with respect to translators by noting that the Judicial Department would not provide funds for the use of translators for jurors. Several days later, defense counsel raised concerns that another prospective juror, Montesinos, lacked sufficient proficiency in English to serve as a juror.  In response, the trial court indicated that it would obtain an interpreter to assist with voir dire.  During voir dire, defense counsel tried questioning Montesinos without using an interpreter.  Listening to the responses, the trial court was concerned that Montesinos did not understand the questions.  Montesinos then indicated that he would need an interpreter to understand the testimony at trial.  The trial court explained that the Judicial Department would provide an interpreter for voir dire, but not for trial.  As a result, the trial court excused Montesinos over defense objections. Defendant challenges the trial court's ruling on the grounds that it violated his rights under the Sixth Amendment to the United States Constitution, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Oregon statutory law.  In accordance with our ordinary practice of considering state law issues before federal law issues, see State v. Langley, 314 Or 247, 252, 839 P2d 692 (1992), adh'd to on recons, 318 Or 28, 861 P2d 1012 (1993) (describing practice), we turn first to defendant's argument that the trial court violated Oregon statutes by refusing to provide interpreters that would enable prospective jurors who were not proficient in English to serve on the jury. a.         Oregon Statutes The parties agree that the trial court excused at least one prospective juror, Montesinos, because his proficiency in English was insufficient for him serve as a juror without an interpreter, and the court had declined to appoint an interpreter for him.(6)  Defendant argues that Oregon law -- specifically, ORS 45.275 and ORS 45.273 -- requires the state to provide interpreters for prospective jurors who could serve but for their lack of proficiency in English.  For the reasons that follow, we disagree with defendant's interpretation of those provisions. ORS 45.275 provides, in part: "The court shall appoint a qualified interpreter in a civil or criminal proceeding, and a hearing officer or the designee of a hearing officer shall appoint a qualified interpreter in an adjudicatory proceeding, whenever it is necessary: "(a) To interpret the proceedings to a non-English-speaking party; "(b) To interpret the testimony of a non-English-speaking party or witness; or "(c) To assist the court, agency or hearing officer in performing the duties and responsibilities of the court, agency or hearing officer." Defendant also relies on ORS 45.273, which sets out the legislature's policy for creating procedures for the qualification and use of court interpreters.  ORS 45.273(1) provides: "It is declared to be the policy of this state to secure the constitutional rights and other rights of persons who are unable to readily understand or communicate in the English language because of a non-English-speaking cultural background or a disability, and who as a result cannot be fully protected in administrative and court proceedings unless qualified interpreters are available to provide assistance." Nothing in the text of ORS 45.273 either authorizes or requires the provision of interpreters for non-English speakers.  Rather, that statute is a general statement of a policy to "protect" the "constitutional and other rights" of persons who are not proficient in English "in administrative and court proceedings."  That general statement is implemented by the specific provisions in ORS 45.275 and ORS 45.285 for the appointment of an interpreter for a non-English-speaking party in a civil or criminal case, a non-English-speaking witness, or a witness who cannot communicate because of a physical hearing or speaking impairment.  See ORS 45.275(1)(a), (b); ORS 45.285(1)(c)(2) (so providing).  Apparently recognizing the absence of any specific statute regarding non-English-speaking jurors or prospective jurors, defendant argues that ORS 45.275(1)(c) requires the appointment of an interpreter for such a person.  Paragraph (c), however, provides for the appointment of an interpreter "to assist the court, agency or hearing officer" in performing their official duties.  It does not mention the appointment of an interpreter to assist prospective jurors.  Even assuming, without deciding, that ORS 45.275(1)(c) would authorize a trial court to appoint an interpreter for a non-English-speaking juror because that appointment would "assist the court," the statute nevertheless does not require the trial court to make such an appointment.  Nothing in the statutes cited by defendant suggests that the trial court may not respond to the potential difficulties of seating a non-English-speaking juror by excusing that juror.  Indeed, ORS 10.050(2) specifically provides that the trial court may "excuse a juror whose presence on the jury would substantially impair the progress of the action on trial * * *."  We conclude that the trial court's decision not to provide an interpreter for a non-English-speaking prospective juror, and its subsequent decision to exclude the prospective juror because he was unable to participate at trial without an interpreter, did not violate Oregon statutes.          b.         Federal Law Defendant next argues that the exclusion of a non-English-speaking person from the jury pool violated his Sixth Amendment right to have his jury drawn from a fair cross-section of the community.(7)  Under the Sixth Amendment, a person who has been charged with a serious offense has a fundamental right to a trial by jury, Duncan v. Louisiana, 391 US 145, 157-58, 88 S Ct 1444, 20 L Ed 2d 491 (1968), which includes the right to trial by a jury that is drawn from a "fair cross section of the community."  Taylor v. Louisiana, 419 US 522, 530, 95 S Ct 692, 42 L Ed 2d 690 (1975). This court identified the elements of a "fair cross-section" claim in State v. Rogers, 334 Or 633, 642, 55 P3d 488 (2002): "[T]he elements of a prima facie case, with regard to the Sixth Amendment fair cross-section requirement, require a criminal defendant to show:  (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of that group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id. at 642 (quoting Duren v. Missouri, 439 US 357, 364, 99 S Ct 664, 58 L Ed 2d 579 (1979) (internal quotation marks omitted)).(8) Defendant advances a similar argument under the Equal Protection Clause of the Fourteenth Amendment.(9)  See Rogers, 334 Or at 642 n 8 (summarizing requirements) (quoting Castaneda v. Partida, 430 US 482, 494, 97 S Ct 1272, 51 L Ed 2d 498 (1977)). There are four requirements for proving that the selection of the jury panel violates the Equal Protection Clause.  Rogers, 334 Or at 642 n 8.  First, the defendant must establish that the group is one that is a "recognizable, distinct class," singled out for different treatment under the law, as written or as applied.  Second, the defendant must show the degree of under-representation by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time.  Third, the defendant must demonstrate that the state's selection procedure is susceptible of abuse or is not racially neutral in order to support the presumption of discrimination raised by the statistical showing.  Finally, to make out an equal-protection challenge, the defendant must show that the exclusion of a cognizable group is "purposeful," which requires the party to establish a clear pattern that emerges from the effect of the state's action, inexplicable on grounds other than race, even when the governing legislation appears neutral on its face.  Id. Defendant argues that prospective jurors who lack fluency in English are a "distinctive group," as that term is used in the fair cross-section cases and a "recognizable, distinct class," as that term is used in the equal protection cases.  For example, he points out that the legislature has declared that individuals whose communication skills in the English language are deficient -- because of a non-English-speaking cultural background -- are such a distinctive and sufficiently cognizable class that they need to be protected in administrative and court proceedings.(10)  That declaration, defendant asserts, shows that the legislature has recognized non-English-speaking persons as a distinctive and recognizable group.  Defendant argues that "it is the very lack of this group's English-language proficiency that 'defines' and 'limits' it," consistent with the concerns expressed in the legislative policy statement.  Defendant continues: "[E]xcluding those lacking English-language proficiency from jury pools in indigent criminal cases would not serve those purposes [of the fair-cross-section requirement outlined in Lockhart], but instead would erode the confidence of such citizens in the criminal justice system, as well as their belief that they have a civic responsibility to share in the administration of justice."    In addition to characterizing the issue as one of civic participation and legislative concern, defendant suggests, more significantly, that language is a measure of race and ethnicity.  In analyzing some ethnic groups or communities for purposes of an equal protection claim, proficiency in a particular language may be treated as a surrogate for race or ethnicity.  See Hernandez v. New York, 500 US 352, 371, 111 S Ct 1859, 114 L Ed 2d 395 (1991) (plurality opinion) (so stating).  In Hernandez, the plurality observed that eliminating persons who speak a particular language from a jury pool, "without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination."  Id. at 371-72.  Accordingly, defendant argues that the state's failure to provide funding for jurors who lack proficiency in English effectively excludes potential jurors from the jury pool on the grounds of language, which, in effect, excludes them on the impermissible basis of race or ethnicity. Defendant faces a difficult hurdle in claiming that the exclusion of non-English-speaking jurors violates the United States Constitution.  A federal statute provides that the ability to speak and understand English is a requirement for service on a federal jury, 28 USC § 1865(b)(2), (3), and every court that has considered the issue has upheld that requirement against constitutional challenge.  E.g., United States v. Angulo-Hernandez, 565 F3d 2, 12 (1st Cir 2009), cert den, ___ US ___, 130 S Ct 776 (2009) (28 USC § 1865 does not violate fair cross-section requirement of Sixth Amendment); United States v. Aponte-Suarez, 905 F2d 483, 492 (1st Cir 1990) (English proficiency requirement for jury service is constitutional and serves "overwhelming national interest.").  Moreover, every state court that has considered whether a requirement that jurors be proficient in English violates the Sixth Amendment, the Due Process Clause, or the Equal Protection Clause has concluded that it does not.  See, e.g., State v. Gibbs, 254 Conn 578, 597-98, 758 A2d 327, 340-41 (2000) (citing cases).  Defendant does not assert that those cases were wrongly decided, nor does he explain why, if statutes that exclude those without English proficiency from juries are constitutional, then a state's administrative decision not to provide interpreters for jurors without English proficiency would be unconstitutional.  Simply put, no case supports defendant's position. Turning to the first element that is required to make out a violation of the Sixth Amendment's fair-cross section requirement -- the existence of a "distinctive group" -- defendant again encounters the problem that, although numerous courts have considered the issue, no court has concluded that non-English-speaking persons constitute a distinctive group for Sixth Amendment purposes.  See Commonwealth v. Acen, 396 Mass 472, 479, 487 NE2d 189, 194 (1986), appeal dismissed, 476 US 1155 (1986) (so stating).  Although defendant cites Hernandez for the proposition that a trial judge could find that excluding jurors because they spoke a particular language was a pretext for racial discrimination, that case involved proficiency in Spanish, rather than lack of proficiency in English, and here, of course, the trial court made no finding of racial discrimination, pretextual or otherwise. Even assuming, without deciding, that non-English-speaking prospective jurors constitute a "distinctive group" -- and also assuming that the group is under-represented in jury pools due to systematic exclusion -- the United States Supreme Court has consistently held that states may exclude individuals who are members of such groups from juries if the exclusion is required to advance significant state interests and is no broader than necessary to serve those interests.  E.g., Duren, 439 US at 367-68 (so holding for purposes of Sixth Amendment right to jury trial).  The state argues that its interests in excluding prospective jurors who are not proficient in English -- including ensuring that jurors understand the proceedings at trial and are able to participate in deliberations, avoiding the disruption of having interpreters in the jury room, and not incurring the costs of providing interpreters -- are compelling.  We agree that the interests articulated by the state are sufficient to justify excluding non-English-speaking persons from the jury pool.  It is critical for jurors to be able to follow the proceedings in the courtroom and to be able to participate meaningfully in deliberations.  The state may also reasonably conclude that the cost of providing interpreters for one or more non-English-speaking jurors is an expense that the state should not incur.  Those justifications are similar to the reasons that have led every state and federal court that has considered the issue to conclude that a state permissibly may decline to provide interpreters for non-English-speaking jurors.  See Gibbs, 54 Conn at 598-99, 758 A2d at 341; Acen, 396 Mass at 480, 487 NE2d at 194; Aponte-Suarez, 905 F2d at 492 (all so holding). For similar reasons, defendant's equal protection argument also is unavailing.  Even assuming, without deciding, that persons lacking proficiency in English constitute a "distinct, recognizable class" for purposes of the Equal Protection Clause, the state's strong interest in the integrity and efficiency of jury trials justifies its decision not to provide interpreters for those persons.  Again, every court that has considered the issue has concluded that the exclusion of such prospective jurors does not violate the Equal Protection Clause, just as it does not violate the Sixth Amendment.  See, e.g., Gibbs, 254 Conn at 598-99, 758 A2d at 341 (assuming non-English speakers are cognizable group for equal protection purposes, no constitutional violation because state's interests in having jurors understand proceedings and avoiding jury disruption and costs associated with interpreters are "compelling"); State v. Garza, 241 Neb 934, 958, 492 NW2d 32, 49 (2007) (rejecting Sixth Amendment and equal protection challenges because excluding non-English speakers from juries "promotes the interests of the state's judicial process by assuring that jurors can understand the proceedings"); State v. Paz, 118 Idaho 542, 552, 798 P2d 1, 11 (1990), cert den, 501 US 1259 (1991) (rejecting Sixth Amendment and equal protection challenges because state "has a significant interest in the integrity of the jury system * * * [which] is manifestly and primarily advanced by limiting jurors to those who are capable of understanding the proceedings").     Defendant, recognizing the absence of case law supporting his position, argues that Oregon statutes should lead to a different resolution of the federal constitutional issues.  He notes that, in contrast to the federal statute and statutes in some other states requiring English proficiency to serve on a jury, Oregon does not explicitly bar non-English-speaking jurors from serving.  On the contrary, defendant points to ORS 45.273(1), quoted above, as establishing a state policy "to secure the constitutional rights and other rights" of those who cannot understand English and whose rights cannot be protected "unless qualified interpreters are available to provide assistance."  Defendant argues that, even if it is permissible to exclude non-English-speaking jurors by statute, Oregon has declined to enact such a law and instead has adopted a policy in favor of interpreters that is intended to secure the rights of its non-English-speaking citizens.  Therefore, the state violates a defendant's fair trial and equal protection rights by failing to provide interpreters for potential jurors who lack proficiency in English. We disagree.  As discussed above, see ___ Or at ___ (slip op at 8-10), no Oregon statute articulates a policy in favor of, much less requires, interpreters for non-English-speaking jurors, as opposed to parties to a legal proceeding or witnesses in such a proceeding.  Moreover, we fail to see how an administrative or judicial decision not to fund interpreters -- as long as it is applied in a nondiscriminatory manner -- would violate a defendant's constitutional rights, when a statute excluding non-English-speaking jurors does not.   We conclude that the state's decision not to provide funding for interpreters for jurors who are not proficient in English does not violate the Sixth or Fourteenth Amendments to the United States Constitution. 2.         Exclusion of Evidence of Witness Bias (Assignment of Error Number 6) Defendant argues that the trial court erred in excluding evidence of bias on the part of Robert Cameron, one of the state's primary witnesses, after Cameron made a comment to defendant while Cameron was leaving the courtroom.  Cameron testified during the state's case-in-chief and was extensively cross-examined with respect to the substance of his testimony and his credibility, as we discuss in greater detail below.  During the defendants' case-in-chief, they presented a witness, Brown, who asserted that Cameron had told him that he had lied to prison officials about defendants' involvement in Polin's death.(11)  In the state's rebuttal, it again called Cameron, and he testified briefly that he had never talked to Brown about the case.  As Cameron left the stand, he allegedly made a remark to defendants, which defense counsel described to the court, outside the jury's presence: "As Mr. Cameron was leaving the courtroom, he looked at our clients and maybe defense counsel as well and said:  How do you like me now?  And it was audible, certainly to our clients and people at counsel table.  We believe the jury may or may not have heard it.  We would like to make sure that the jury is informed that he made that statement." After a colloquy, the trial court stated: "Mr. Cameron, when he got up, I saw him look towards both Mr. Haugen and Mr. Brumwell and I don't doubt he said something.  I find that to be inappropriate on Mr. Cameron's behalf.  I do not find it to be any evidence of anything that the jury should hear about. "So, you've made a record of what Mr. Cameron said.  It was inappropriate.  If he was here, I would tell him that, but I'm not going to allow the jury to hear it." Defendant's attorney then said, "[T]he jury doesn't have to hear it, but it may indicate his bias."  (Emphasis added.)  Two days later, before instructions and closing argument, defendant made a pro se objection, arguing that certain "evidence" should have been admitted, including "Robert Cameron leaving the stand stating:  How do you like me now?" a.         Preservation The state first contends that defendant failed to preserve his argument that the trial court erred in excluding Cameron's remark from evidence.  Requiring preservation of issues at trial is important to judicial efficiency because it allows the trial court to consider legal argument and correct the error.  State ex rel Juv. Dept. v. S. P., 346 Or 592, 604, 215 P3d 847 (2009).  In addition, "the preservation requirement promotes fairness to the adversary parties."  Id.  There are various levels of specificity by which an issue may be preserved for review, consistent with those purposes.  See State v. Stevens, 328 Or 116, 122, 970 P2d 215 (1998) (In analyzing preservation of error, "an appellate court must view the facts in light of the purposes of fairness and efficiency that underlie the requirement.").  A party ordinarily may preserve an issue for review merely by raising an issue at trial; alternatively (and preferably), a party may preserve an issue by raising the issue, identifying a source for the party's position, and advancing a particular argument.  See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (discussing alternative methods of preserving issues for review). Making an offer of proof is ordinarily part of preserving an argument that the trial court erred in excluding evidence.  See State v. Bowen, 340 Or 487, 500, 135 P3d 272 (2006), cert den, 549 US 1214 (2007) (so stating).  "The purpose of this rule [requiring an offer of proof] is to assure that appellate courts are able to determine whether it was error to exclude the evidence and whether any error was likely to have affected the result of the case."  State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988).  The state argues that an offer of proof requires a party to identify the evidence that the party believes should have been admitted.  See State v. Busby, 315 Or 292, 298, 844 P2d 897 (1993) (An offer of proof must identify what the evidence would have shown.).  The state asserts that defendant did not make clear to the trial court what evidence defendant wanted to put on regarding Cameron's bias; defendant did not suggest that Cameron be recalled to the stand to be examined about his statement or that either of the defendants or one of the four defense counsel take the stand to testify as to the statement.  Instead, defendant asked only that "the jury be informed that he made that statement."  The state argues that, because defendant failed to offer any "evidentiary vehicle" for presenting evidence of Cameron's possible bias to the jury, his argument was not preserved. We conclude that the issue was sufficiently preserved for us to consider it.  After Cameron left the stand, and before the jury was excused, the trial court asked whether defendants had any further evidence.  Defense counsel replied that he might have "one more witness" and wanted "a few minutes to discuss it."  The jury was then excused, and defense counsel described the remark that Cameron had made when he stepped down, as quoted above.  Defendant now responds to the state's argument that he did not indicate how Cameron's remark might be introduced as evidence by asserting that the reference to "one more witness" was a reference to recalling Cameron to testify about the remark if the court would permit it.  Although defense counsel could have been clearer in stating to the trial court, after the jury had been excused, that he wished to recall Cameron as a witness to testify about the remark, we believe the purposes of preservation were served by what defense counsel did say.  Having previously informed the court that he might "have one more witness," defense counsel later stated that Cameron had made a comment while passing the defense table and repeated the substance of that comment.(12)  He told the court that he wanted the jury to be informed of the remark.  With knowledge that a comment had been made and what the comment was, the trial court then ruled that it was "not going to allow the jury to hear it." The state also argues that defense counsel's statement, after the court had ruled, that "the jury doesn't have to hear it, but it may indicate his bias," indicates that defendant did not disagree with the court and accepted its ruling.  However, defendant's equally plausible reading of that remark was that defense counsel was acknowledging (by repeating) the court's unfavorable ruling ("the jury doesn't have to hear it"), but continuing to object that the witness's statement reflected bias and that the jury should know about it.  In addition, defendant himself later stated to the trial court that the jury should have been told of Cameron's remark.  Moreover, the trial court, immediately after ruling against defendant's request that the jury be informed of Cameron's remark, told defense counsel, "So, you've made a record of what Mr. Cameron said." As noted, it would have been preferable for defense counsel to have requested that Cameron immediately be recalled to the stand or to have made an offer of proof by identifying the witness he would have called and what that witness's testimony would have been, but we think, in these circumstances, that defendant sufficiently apprised the trial court of his objection and the reasons for it.  See State v. Milbradt, 305 Or 621, 630, 756 P2d 620 (1988) (citing State v. Foster, 296 Or 174, 183, 674 P2d 587 (1983)) ("[A] defense attorney does not have to walk over any more legal coals to protect the record after first stating the grounds for the objection.").  b.         Exclusion of Statement Having concluded that defendant preserved his objection, we turn to the question whether the trial court erred in excluding evidence of Cameron's comment to defendants as he left the witness stand.  Evidence of a witness's bias is generally admissible.  OEC 609-1 ("The credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias or interest."); State v. Hubbard, 297 Or 789, 796, 688 P2d 1311 (1984) ("A principle of evidence law in Oregon is that:  It is always permissible to show the interest or bias of an adverse witness."  (Internal quotation marks omitted.)). However, our cases also make clear that, while evidence of bias is relevant and may be admitted, it is not necessarily error to exclude such evidence: "Evidence relevant to the bias or interest of a witness need not always be admitted.  * * * * Where bias or interest is shown, but further questioning is objected to, the decision is within the discretion of the trial judge. "   Hubbard, 297 Or at 799-800.  As the 1981 Conference Committee Commentary on OEC 609-1 states,  although the rule permits the credibility of a witness to be attacked by evidence of conduct or statements showing bias or interest, "[t]he trial judge retains discretion to control the extent to which proof of bias or interest may go."  As with other evidence, where the evidence of conduct or statements showing bias is merely cumulative of other evidence of bias, the trial court has discretion to exclude it.  See State v. Cox, 337 Or 477, 487, 98 P3d 1103 (2004), cert den, 546 US 830 (2005) (trial court did not err in excluding evidence of victim's violent acts towards others to show defendant's reasons for fearing victim, because evidence, although relevant, "would not have added greatly to the evidence already before the jury").   Defendant now argues in great detail that Cameron's statement was evidence of his "animosity" towards defendants and was therefore probative of his bias against them.  Accordingly, defendant asserts, the statement should have been admitted as evidence of bias under OEC 609-1.  Although the state responds that Cameron's statement did not necessarily demonstrate any particular hostility towards defendants, it also concedes that the comment might be susceptible of such a reading.  If so, the statement was at least marginally relevant to the issues at trial because it tended to show Cameron's bias.  Thus, it would have been permissible for the trial court to admit evidence that Cameron had made the statement.  That does not mean, however, that the trial court erred in excluding evidence of the comment.  As noted, our cases hold that a trial court has discretion to limit evidence of bias or interest under OEC 609-1 if it is simply cumulative of other, similar evidence of bias. The state argues that Cameron's remark itself "was no more probative of [his general hostility towards defendants] than other evidence received at trial."  Further, according to the state, because there was "ample and specific evidence" of Cameron's hostility, the admission of his comment would not have substantially assisted the jury in making a decision about his credibility.(13)  We agree.              Defendant cross-examined Cameron extensively during the state's case-in-chief and sought to develop evidence that he was hostile towards defendants and biased against them.(14)  The record reflects that, while testifying before the jury, Cameron was mocking, hostile, and uncooperative toward defense counsel, calling one of defendant's attorneys a "jerk off" and asserting that the attorney was trying to "peg [him] in a corner."  Cameron testified that, after he had decided to testify against defendants, he received a "death contract" in the mail, threatening him and his brother.  Cameron was upset with defendants for making him (as well as themselves) look guilty by committing the murder near the band room during the time when the band in which he and they were members was scheduled to practice.  Moreover, they involved him in the attempted cover-up by trying to get him to hide their bloody clothes.  He thought that murdering Polin because he was a "rat" made little sense, when there were "baby killers," "child molesters," "all kinds of rats in this prison bigger than him.  Why not them?"  And Cameron was hostile to defendants because they had killed a friend:  "I liked [Polin].  * * * And had I known that somebody was going to kill him, I would have g[iven] him a head's up, you know.  I wouldn't let somebody just, you know, sneak attack.  I mean, there's -- I mean, for what?  For nothing."  In short, Cameron's direct testimony and his answers on cross-examination provided evidence of bias against defendants. Cameron also testified that his life in prison had changed for the worse, not for the better, after coming forward to testify against defendants -- testimony from which the jury could have inferred that he now bore some level of hostility towards defendants.  He said that telling the authorities about defendants had "turned my life upside down" and that he now was being "treated like shit."  Cameron stated that the defendants were "doing better time than I'm doing" and that he was "clearly upset" about being placed in a segregation unit after coming forward as a witness.  He concluded that, "Since I came forward on this, I have got nothing but dicked.  So, you [defense counsel] are sitting over there making all of these innuendos like I am getting something or I did this [coming forward to testify] for something.  I was doing fine on my own.  I didn't ask them to come to me with this shit."    Given the detailed cross-examination of Cameron and the other evidence that defendant adduced at trial to show Cameron's dislike of defendants and the multiple reasons that the jury should view Cameron's testimony with suspicion, we conclude that the trial court's decision to exclude what defendant now asserts is additional evidence of bias -- Cameron's remark to defendants as he left the witness stand -- was within the trial court's discretion.  It was not error. B.        Penalty Phase 1.         Admission of Testimony of Psychologists (Assignment of Error Number 22) Defendant argues that the trial court erred in admitting testimony from the psychologists who evaluated defendant for the parole board and in connection with the presentence investigation in the trial for his earlier murder, because that testimony did not satisfy the requirements for admitting scientific evidence.  We conclude that the objection was not preserved. A court may hold a pretrial hearing under OEC 104 to consider whether proposed evidence meets the standards for admission of scientific evidence set out in State v. Brown, 297 Or 404, 687 P2d 751 (1984), and subsequent cases.  See State v. Lyons, 324 Or 256, 260, 924 P2d 802 (1996) (conducting pretrial hearing on admissibility of scientific evidence in light of Brown); State v. O'Key, 321 Or 285, 288, 899 P2d 663 (1995) (same).  Here, defendant filed a motion for an OEC 104 hearing to challenge the admissibility of the state's anticipated scientific evidence and the qualifications of certain of the state's expert witnesses.  Defendant's motion requested a hearing that would cover a wide range of anticipated scientific testimony, from DNA test results to the operations of the security cameras to medical testimony concerning the victim's death.  Defendant also asked that the trial court, at that hearing, consider the anticipated testimony of psychologists that would relate to the jury's determination of defendant's "future dangerousness" under ORS 163.150(1)(b)(B).   In response to defendant's motion, the trial court issued a letter opinion in which it denied the motion for a pretrial hearing and made several rulings regarding the scientific evidence that the state intended to introduce.  Two of those rulings are relevant to the testimony regarding future dangerousness.  As to defendant's general request for a pretrial determination as to whether the state's proposed expert witnesses were "properly qualified to present the scientific evidence and whether they followed the scientifically valid process," the court stated that those issues did not need to be decided in advance of trial.  The court noted that defendant would be able to examine all the state's proffered expert witnesses on their qualifications and the scientific basis for their testimony -- and to seek to exclude or limit their testimony -- at trial.  As to defendant's specific request for a hearing "into the science behind the evidence that will be presented as to defendant's future dangerousness," the court concluded that a pretrial hearing was not required because such a hearing was premature.  The trial court agreed with defendant that, if one of the state's psychologists were to offer an expert opinion as to future dangerousness, then that testimony would "be subject to the standards for scientific admissibility set forth in Brown."  It noted, however, that the psychologists' testimony was expected to relate only to defendant's prior acts and the psychologists' evaluation of those acts; there was "no indication" that the witnesses would give an expert opinion as to "future dangerousness or the probability that [defendant] will commit future acts of violence."   The trial court specifically stated, "If there is any indication that one or more of the witnesses will [give such an expert opinion], this court will hold a hearing, outside the presence of the jury, to determine the admissibility of the proposed evidence."  (Emphasis added.)  During the penalty phase of the trial, five psychologists discussed evaluations of defendant that they had conducted for the parole board between 1994 and 2004.  One of those five also testified regarding his participation in the presentence investigation following defendant's 1981 murder conviction.  Defendant made no objection at trial to the testimony of any of the psychologists on the grounds that it failed to meet the standards for scientific evidence set out in Brown and O'Key.  Defendant did not object to the witnesses' qualifications, the scientific basis for their testimony, or any of their statements about defendant's psychological condition.  Nor did defendant -- before or during trial -- disagree with the trial court's initial ruling that, if it appeared at trial that one of the experts would give an opinion as to future dangerousness or the probability that defendant would commit future acts of violence, a hearing on the admissibility of that evidence could be held at that time.  On appeal, defendant now argues that the psychologists' testimony was inadmissible because it constituted scientific evidence, but did not meet the Brown/O'Key standards. We agree with the state that defendant's argument is not preserved, because he did not raise his scientific evidence objection when each of the state's witnesses testified.  The trial court's pretrial ruling was clear:  The psychologists who had evaluated defendant for the parole board could testify at the penalty phase; however, if those witnesses were to offer a scientific opinion as to the probability of future dangerousness, that testimony would be subject to a possible Brown/O'Key objection, and the court would hold a hearing on the objection at that time.  Accordingly, it was incumbent on defendant to make an appropriate objection at trial.  A similar issue arose in State v. Perry, 347 Or 110, 218 P3d 95 (2009).  The defendant had filed a pretrial motion seeking to exclude the testimony of an expert that the state intended to call on the phenomenon of "delayed reporting" in child sex abuse cases.  At an OEC 104 hearing held before trial, the trial court indicated that it would allow the expert to testify, but it expressed the view that its ruling was conditioned upon the expert providing "more detail" about what was meant by "delayed reporting."  Id. at 115-16.  Moreover, the trial court's ruling, as this court noted, left the expert's testimony "subject to any specific objections that [the] defendant might make at trial."  Id. at 116.  Discussing more generally the limits of using a motion for a pretrial hearing to challenge the validity of scientific testimony, this court stated that a "general" pretrial ruling "that a certain type of evidence (even scientific evidence ) is minimally relevant * * * does not relieve a party of the obligation to make specific objections to discrete pieces of that evidence at trial, if the dynamics of the trial process reveal other grounds for objection."  Id. at 116-17. Perry describes the situation here.  The trial court made a general pretrial ruling that the psychologists would be permitted to testify, and it specifically reserved for trial the possibility of objections to "discrete pieces of that evidence," such as scientifically based opinion testimony on the probability of further dangerousness.  Defendant therefore had the obligation to make specific objections at trial to testimony by the psychologists that he believed should not have been admitted.  Defendant failed to do so. We also agree with the state that defendant was required to raise at trial the specific grounds for his objections to the scientific foundation for any testimony by the state's psychologists that he believed was improper.  One purpose of the preservation requirement is to allow the trial court a fair opportunity to correct any potential mistakes.  Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008) ("Preservation gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal.").  The trial court did not bear the responsibility for remembering defendant's general objection to the psychologists' testimony, detecting such testimony when it occurred, and ruling that all, some, or none of it was appropriate, without any objection or argument having been offered by defendant.  The responsibility for watching for such testimony and raising defendant's earlier objection again or making some other, more specific, objection rested with defendant's counsel.  See Perry, 347 Or at 116 (stating rule).  Moreover, as noted, before trial the trial court had not rejected all of defendant's arguments -- rather, it had stated that, if the experts gave scientifically based opinion testimony, defendant could raise the issue of whether that testimony met the Brown/O'Key standards when the testimony was offered.  If the trial court had been apprised of the objectionable testimony, the trial court, as it had agreed to do before trial, could have held a hearing -- outside the presence of the jury, if necessary -- to determine the admissibility of the proposed evidence.  The trial court then either could have excluded the testimony, explained why it was appropriate that the jury hear it, or allowed the state to make a further record.  Defendant never gave the trial court that opportunity.  We conclude that the issue was not preserved for review. 2.         Consecutive Sentences (Assignment of Error Number 24) Defendant argues that the trial court erred in refusing to impose his death sentence consecutively to the life sentence that he was already serving.  The basis for defendant's argument is ORS 137.123(3), which provides: "When a defendant is sentenced for a crime committed while the defendant was incarcerated after sentencing for the commission of a previous crime, the court shall provide that the sentence for the new crime be consecutive to the sentence for the previous crime." (Emphasis added.)  This court determines legislative intent, in the first instance, from the text and context of the statute, and we must apply the text as the legislature has written it, particularly when the text is not ambiguous.  See State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009) (explaining paradigm); PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993) (same).  Defendant urges that, as applicable to this case, the meaning of ORS 137.123(3) is clear from the text.  Defendant's sentence of death was imposed for the crime of aggravated murder, which he committed while incarcerated on a sentence of life imprisonment.(15)  Under those circumstances, according to defendant, "the plain language of ORS 137.123(3) directs that the trial court 'shall provide that the sentence for the new crime' -- i.e., the death sentence -- 'be consecutive to the sentence for the previous crime' -- i.e., the life sentence." (Emphasis supplied by defendant.)  Defendant argues that the trial court erred because it did not provide that defendant's death sentence "be consecutive" to his life sentence.(16)  In defendant's view, then, his death sentence cannot be carried out until he has completed his prior sentence of life imprisonment.  Defendant, of course, recognizes that if his existing sentence of life imprisonment is completed only when he dies in prison, then his death sentence never can be carried out.  Defendant argues that ORS 137.123(3) must be followed, despite that counterintuitive result. The state responds that defendant's interpretation of ORS 137.123(3) is incorrect because it would require that the execution of the death sentence be delayed until the life sentence has been fully served -- and therefore not be carried out at all.  That result, the state argues, would conflict with the death penalty statutes.  The state points out that the death penalty statutes provide that the execution of a death sentence is automatically delayed to allow for direct review by this court, the filing and disposition of a petition for certiorari with the United States Supreme Court, and exhaustion of collateral remedies.  ORS 137.463(1); ORS 138.686.  After the defendant has exhausted or waived those remedies, the trial court must hold a death warrant hearing.  ORS 137.463(3), (4).  Following that hearing, if the trial court determines that the defendant has exhausted or waived all remedies and is mentally competent, the court issues a death warrant that "shall specify a date [on which the death sentence is to be executed] not less than 90 days nor more than 120 days following the effective date of the appellate judgment."  ORS 137.463(5).  If the death sentence "for any reason * * * is not executed on the date appointed in the death warrant" and is not "stayed under ORS 138.686 or otherwise by a court of competent jurisdiction," the court must then issue a new death warrant "on motion of the state and without further hearing."  ORS 137.463(7).  The new warrant must specify an execution date, not more than 20 days after the date of the state's motion.  Id.  In other words, the state argues, the statutory scheme "prescribes a closed set of automatic stays and procedures that act to move the case * * * along," but does not permit delay of execution while the defendant completes service of another sentence. In the state's view, ORS 137.123(3) can be harmonized with the death penalty statutes by either (1) interpreting "consecutive to" to mean only that the sentences must be served one after another without overlap, but not in any particular order, or (2) interpreting "sentence" in ORS 137.123(3) to mean "sentence of incarceration," so that death sentences would be excluded from the statute's reach.  Defendant responds that either interpretation would conflict with the text of the statute.  In particular, he argues that even the state concedes that to be "consecutive to" means "following" or "right after."  Thus, he argues, the new sentence must "follow" the old sentence.  Additionally, defendant asserts, the legislature used the term "sentence" without qualification in ORS 137.123(3) and thus likely intended that term to include a death sentence.  Further, the legislature used the phrase "term of imprisonment" in other provisions, e.g., ORS 137.123(5), which demonstrates that the legislature knew how to use such a term but did not do so in ORS 137.123(3). To the extent that the statutes conflict and cannot be reconciled, each party claims that one statute is more particular than the other.  "When a general and [a] particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent."  ORS 174.020(2).  Defendant argues that ORS 137.123(3) applies only to sentences for aggravated murder committed while the defendant is incarcerated after the commission of a previous crime, whereas the death penalty statutes apply to all aggravated murder sentences.  It follows, defendant claims, that ORS 137.123(3) is the more particular statute and that it trumps the applicable death penalty statutes.  The state argues that the death penalty statutes apply only to death sentences, whereas ORS 137.123(3) applies to sentences imposed for any crime, if the defendant is incarcerated at the time of the crime, and, accordingly, the more specific death penalty statutes should be applied.  The state further argues that one of the two counts of aggravated murder of which defendant was convicted was for committing a crime while confined in a correctional facility, ORS 163.095(2)(b).  To give effect to the legislature's specific decision to authorize such a murder to be prosecuted as aggravated murder -- with the attendant possibility that a jury will decide to impose the death penalty -- ORS 137.123(3) must be interpreted to permit the imposition of the death penalty even if a defendant is still serving a term of imprisonment. Following the rules of statutory construction mentioned previously, we cannot give effect to ORS 137.123(3) with its requirement of consecutive sentences and, at the same time, give effect to the statutes that provide for the death penalty for an aggravated murder that is committed when the defendant is already serving a life sentence for another murder.  The statutes are in conflict.  In such an instance, under ORS 174.010 and ORS 174.020(2), we must give effect to all provisions or particulars of the statutes, if possible, and let the specific legislative intent control the general. To state the obvious, the penalty of death is different in kind from incarceration.  Incarceration involves the denial of freedoms and privileges through imprisonment in a state or county facility for a period of years, sometimes for the life of the inmate.  By contrast, an execution is a single event at the end of a lengthy process of ensuring that the sentence of death is consistent with applicable constitutional and statutory standards.  Incarceration of inmates subject solely to the death penalty is necessary only until the execution, assuming that the execution is not foreclosed by some  intervening event.  The two forms of punishment, particularly in a temporal sense, are not only unlike but are mutually inconsistent.  To treat them as interchangeable or capable of treatment as consecutive to one another makes little sense. The foregoing observation assists in distinguishing between general and particular legislative intent.  A "particular" legislative intent is "paramount" and must "control" the general legislative intent.  ORS 174.020(2).  In terms of criminal law sanctions, the death penalty is the seldom-used exception to the more often-used punishment of incarceration.  Moreover, it is the most severe, singular sanction that the state can impose for any crime -- and it can be imposed only for one crime, aggravated murder.  The statutes providing for the imposition of a sentence of death are a more specific expression of legislative intent when compared with a sentence of incarceration, because a sentence of death is exceptional.  For that reason, as previously explained, the legislature has enacted a number of specific statutes to regulate the manner in which a death sentence moves toward the issuance of a death warrant and the date of execution.  The general intent of the legislature, expressed in ORS 137.123(3), is that sentences for crimes committed in prison must be consecutive to previously imposed sentences.  While consecutively adding like forms of punishment is appropriate when multiple sentences of imprisonment are involved, the penalty of death that the legislature provided for this particular crime would rarely be carried out if it is consecutive to an existing sentence of life imprisonment.  The legislature has provided a timetable for carrying out the sequence of events following the imposition of a death sentence, and it is that schedule which the legislature intended trial courts and prison officials to observe.  Put differently, the legislature did not intend that the schedule for imposition of a sentence of death depend on another, existing, sentence; instead, the schedule depends on the exhaustion of legal proceedings related to the aggravated murder conviction that lead to the imposition of the death penalty and the issuance of the death warrant. We conclude that the particular legislative intent is that the sentence of death be carried out, when its imposition is consistent with proper legal standards, for aggravated murder committed in prison.  See ORS 163.095(2)(b) (penalty for aggravated murder applies when "[t]he defendant was confined in a state, county or municipal penal or correctional facility or was otherwise in custody when the murder occurred").  If we accepted defendant's argument, the sentence of death would be contingent, rather than certain, because the state would have to wait for the completion of defendant's life sentence before executing the death sentence.  That result would be inconsistent with the legislature's more specific intent that the death penalty may be imposed for aggravated murders committed in prison.  Defendant must continue to serve a period of life imprisonment while he is confined awaiting the execution of the sentence of death.  Pursuant to the legislature's intent, the period of imprisonment for defendant's earlier crime runs until such time as the sentence of death for aggravated murder is carried out according to the schedule determined by statute.  We reject defendant's argument that the execution of the death sentence must be imposed only after he has served his life sentence. III. CONCLUSION As previously noted, we have considered defendant's other assignments of error, and we conclude that they are unpreserved, are disposed of by prior rulings of this court, or, as argued, are without merit.  In our view, discussion of those assignments would not benefit the bench, bar, or public. The judgment of conviction and the sentence of death are affirmed. DE MUNIZ, C.J., concurring. With one exception, I concur in both the reasoning and the result of the majority's opinion in this case.  The exception involves the sixth assignment of error, which dealt with the alleged statement "How do you like me now?" by witness Robert Cameron as he was stepping away from the witness stand.  The majority concludes that the alleged error was preserved, but concludes that, even assuming Cameron's statement was evidence of bias, the trial court did not err in refusing to admit the evidence.  ___ Or at ___ (slip op at 18-26).  In my view, defendant failed to preserve any error  regarding Cameron's alleged statement.   I, therefore, would not reach the merits of the assigned error.(1) The pertinent facts are correctly set out in the majority opinion.  After Cameron had left the witness stand -- and after the court had taken a recess -- defense counsel informed the court that, as Cameron was leaving the witness stand, he had stated "How do you like me now?" loud enough for counsel and co-counsel to hear the statement.  The judge and the prosecutor both indicated that they had not heard it.  Defense counsel stated that he "would like to make sure that the jury is informed that he [Cameron] made that statement."  Defense counsel did not request that Cameron be retained as a witness and counsel did not attempt to recall Cameron to the witness stand.  Neither did defense counsel offer to call any other witness to the statement.  The substance of defense counsel's offer of proof was the assertion that the statement had been made and a request that the jury be "informed" about it. It has long been the preferred practice in this state that offers of proof ordinarily be made by questioning a witness outside the presence of the jury, not by counsel summarizing the expected testimony.  "Unless the calling of witnesses is waived by the court or by the adverse party, we think the better practice is to call the witnesses relied on and ask appropriate questions."  Columbia R. I. Co. v. Alameda L. Co., 87 Or 277, 291, 168 P 64 (1917), on reh'g, 168 P 440 (1918); see Ashmun v. Nichols, 92 Or 223, 178 P 234, on reh'g, 180 P 510 (1919) (quoting Columbia with approval).  Offers of proof involving the mere "avowals of counsel" often are problematic.  See Null v. Siegrist, 262 Or 264, 267, 497 P2d 664 (1972) (evidentiary hearing conducted outside presence of jury "was in the nature of an offer of proof and, assuming that plaintiff did change doctors for the reason his counsel indicated, he should have so testified" (footnote omitted)); First Nat. Bank v. Oregon Paper Co., 42 Or 398, 402, 71 P 971 (1903) ("If the appellants were not allowed to prove their claims, they should have called witnesses, and stated to the court the testimony which it was expected would be elicited from them, and upon a refusal to receive such testimony take an exception." (Citation omitted.)). Here, defendant made no effort to recall Cameron, and defendant offered no additional witness to testify to what was said.  Defendant merely asked that the jury be "informed" about the statement.  Simply put, there was no offer of proof, because defendant did not offer to prove anything.  Requesting that the court inform the jury of a statement that the court did not even hear is not sufficient to preserve the evidentiary error, and this court errs in concluding otherwise. Although I concur in the majority's decision to reject defendant's sixth assignment of error, I do so only because the error was not preserved. Gillette and Durham, JJ., join in this concurring opinion. 1. Defendant and Brumwell were tried together in the guilt phase of the trial, and the jury also convicted Brumwell of aggravated murder.  The penalty-phase proceedings for the two defendants were conducted separately.  Brumwell also was sentenced to death.  The direct review proceeding of Brumwell's conviction and sentence is pending before this court.  We sometimes refer to defendant and Brumwell together as "defendants." 2. A physician examined defendant's hands a few days later and observed soft-tissue injuries. 3. There was an informant, but it was not Polin. 4. In addition, a few days before the murder, defendant told two other inmates that "he was getting ready to do something kind of -- kind of foolish and that he was probably getting more time and that we wouldn't be seeing him." 5. ORS 163.150(1)(b) provides: "Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: "(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result; "(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; "(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and "(D) Whether the defendant should receive a death sentence."    6. Defendant also asserts that Lamloc was excused solely because he could not participate without an interpreter.  The state, however, correctly points out that Lamloc was dismissed both because of his limited English skills and because of his cognitive limitations.  For that reason, the statutory and constitutional issues that defendant raises regarding the trial court's failure to provide an interpreter do not apply to Lamloc. 7. The Sixth Amendment to the United States Constitution provides, in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *." 8. Although the United States Supreme Court has not defined "distinctiveness" for purposes of the fair-cross-section requirement, it has outlined three considerations consistent with that requirement's broader purpose:  "[W]e think it obvious that the concept of 'distinctiveness' must be linked to the purposes of the fair-cross-section requirement[,] * * * [which are] (1) 'guarding against the exercise of arbitrary power' and ensuring that the 'commonsense judgment of the community' will act as 'a hedge against the overzealous or mistaken prosecutor,' (2) preserving 'public confidence in the fairness of the criminal justice system,' and (3) implementing our belief that 'sharing in the administration of justice is a phase of civic responsibility.'" Lockhart v. McCree, 476 US 162, 174-75, 106 S Ct 1758, 90 L Ed 2d 137 (1986) (quoting Taylor, 419 US at 530-31). 9. The Fourteenth Amendment to the United States Constitution provides, in part:  "No State shall * * * deny to any person within its jurisdiction the equal protection of the laws." 10. Defendant cites the legislature's policy statement regarding interpreters, which is set out in ORS 45.273, quoted above.  See ___ Or at ___ (slip op at 8-9).  As we have discussed, no Oregon statute requires the appointment of an interpreter for a juror or treats non-English-speaking jurors as a distinctive class. 11. In turn, the state adduced testimony suggesting that Brown was lying. 12. Neither the trial judge nor the prosecutors heard the substance of any comment by Cameron. 13. The state combines its argument that the trial court did not err in excluding Cameron's remark with its argument that any error was harmless.  Because we conclude that it was not error for the trial court to exclude the remark, we do not address the state's harmless error argument. 14. Defendant also sought to impeach Cameron by demonstrating, through cross-examination of Cameron and the testimony of other witnesses, that he had testified against defendants in exchange for favorable treatment in prison.  Like evidence of bias, such evidence of a personal "interest" is admissible under OEC 609-1 to attack the credibility of an adverse witness.  Although both "bias" and "interest" evidence relate to a witness' credibility, those kinds of evidence do so in different ways and thus evidence of bias is not cumulative of different evidence of interest.             15. Defendant was serving a life sentence, but he also was eligible for parole and had had several parole hearings. 16. The state initially asserts that defendant's argument is not ripe for review.  The state maintains that the issue that defendant raises is better characterized as when defendant's death sentence will be executed.  That issue, the state claims, will not be ripe until defendant has exhausted all post-conviction and federal habeas remedies, and the state seeks to carry out his death sentence.  The state further contends that, even if the trial court erred in failing to impose the death sentence consecutively to the life sentence, neither ORS 137.123(3) nor any other statute dictates the order in which the sentences must be executed.  Defendant responds that this assignment of error does not concern the execution of his sentence, but the imposition of the sentence of death as part of the judgment of conviction, which this court is obligated to review.  See ORS 138.012(1) (providing for direct review in this court when jury imposes a death sentence).  We agree with defendant that our automatic review of the judgment convicting defendant of aggravated murder and imposing the death penalty permits us to review defendant's claim that the judgment is inconsistent with ORS 137.123(3). 1. Because I would not reach the merits of the assigned error, I am not required to express an opinion about the correctness of the majority's conclusion regarding the trial court's ruling.  I note in passing, however, that the witness's expressed defiance of defendant (if it actually occurred), while it might have a benign or insignificant impact on a jury, also could be seen as an outburst of animosity that had finally found an outlet.  If the latter, I think that a reasonable juror could have considered it the pivotal piece of evidence concerning the witness's credibility, and a valid reason to question that credibility.

b86df3e8ec655be53e7ce8c3ae6cf763ca20143f47ed7c56168f3eeb9cd1d81e

2010-11-04T00:00:00Z

8cb717fe-e71d-4f5e-be63-887c2a97b8b8

McCollum v. Kmart Corporation

S057609

oregon

Oregon Supreme Court

FILED: February 19, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON RUTH McCOLLUM, Petitioner on Review, v. KMART CORPORATION, a Michigan Corporation doing business in Oregon, Respondent on Review. (CC0506-06750; CA A134457; SC S057609) En Banc On petition for review filed July 20, 2009.* Kathryn H. Clarke, Portland, filed the briefs for petitioner on review.  With her on the briefs was Dylan R. Lawrence, Sam Hochberg & Associates. Michael T. Garone, Heidi L. Mandt, and Amanda T. Gamblin, Schwabe, Williamson & Wyatt, PC, Portland, filed the response and supplemental briefs for respondent on review. LINDER, J. The petition for review is allowed.  The decision of the Court of Appeals is vacated.  The circuit court order granting plaintiff's motion for new trial is vacated, with instructions to reinstate the judgment. *Appeal from Multnomah County Circuit Court, Richard C. Baldwin, Judge. 228 Or App 101, 207 P3d 1200 (2009). LINDER, J. This is a personal injury case in which defendant appealed an order granting plaintiff a new trial.  The Court of Appeals determined that the trial court's stated grounds for ordering a new trial, as well as certain alternative grounds urged by plaintiff to support the order, were not adequate bases for that relief.  McCollum v. Kmart Corporation, 228 Or App 101, 207 P3d 1200 (2009) (McCollum II).  The Court of Appeals therefore reversed the trial court's order and remanded with instructions to reinstate the judgment for defendant.  Id. at 123. Plaintiff has filed a petition for review of the Court of Appeals decision, arguing that the Court of Appeals decision should be reversed and the case should be remanded to the trial court for a new trial.  As part of our consideration of plaintiff's petition, it is necessary to determine whether the trial court timely ordered a new trial; if it did not, the merits of that order were not properly before the Court of Appeals and would not properly be before this court.  As we shall explain, we conclude that the trial court's order was not timely.  We therefore allow the petition for review, vacate the Court of Appeals decision, vacate the order granting a new trial, and remand the case to the trial court with instructions to reinstate the judgment. The pertinent facts are procedural.  Plaintiff's personal injury action against defendant was tried to a jury, which returned a verdict for defendant.  On October 13, 2006, the trial court entered judgment for defendant, after which plaintiff timely moved for a new trial.  On November 17, 2006, the court held a hearing on the motion.  At the conclusion of the hearing, the court took the matter under advisement.  On December 4, 2006, the trial court signed and filed an order granting plaintiff's motion for new trial.  On that same date, the trial court also signed and filed a letter opinion addressed to counsel for the parties in which the court explained the basis for its decision.  On the second and last page of the letter opinion, the letter stated:  "Enclosed is a conformed copy of the Court's Order Allowing New Trial."  The letter also had the notation "enclosure" in a footer on the last page.  The trial court administrator entered the letter opinion into the registry (OJIN(1)) on December 6, 2006, which was 54 days after the entry of judgment.  Significantly, the trial court administrator did not enter the order granting the new trial on that same date.  Instead, that order was entered on December 11, 2006, which was 59 days after entry of that judgment.  On January 5, 2007, defendant filed a notice of appeal from the order granting a new trial.  Plaintiff neither appealed nor cross-appealed.  Approximately one month later, the Court of Appeals dismissed the appeal and issued an appellate judgment.  In the order of dismissal, the court noted that the motion for new trial was deemed denied as a matter of law on December 8, 2006 (which was three days before the order granting the new trial was entered in the register).(2)  Consequently, the Court of Appeals vacated the order allowing a new trial and dismissed the appeal.  Plaintiff filed a petition for reconsideration. The Court of Appeals granted the petition and, in a written decision, concluded that the order granting a new trial was timely entered -- that is, within 55 days of the date of judgment -- because the trial court's letter opinion "effectively incorporated the order" and therefore "itself constituted an order granting the motion for a new trial."  McCollum v. Kmart Corp., 214 Or App 367, 370, 165 P3d 372 (2007) (McCollum I). Following that threshold decision, the parties fully briefed and argued the case.  As noted, on the merits, the Court of Appeals concluded that the trial court had lacked adequate grounds to grant a new trial, and that the order therefore should be reversed and remanded and the judgment reinstated.  McCollum II, 228 Or App at 123.  Plaintiff petitioned for review.  As part of our consideration of that petition, we sent a letter to the parties inviting them to submit further briefing on whether the trial court had timely granted plaintiff's motion for a new trial.  We now conclude that that issue is dispositive of the case.  We therefore turn to it. The principles that bear on the timeliness of the trial court's order in this case are well-settled.  A party's right to seek a new trial following entry of judgment is created and controlled by statute.  Nendel v. Meyers, 162 Or 661, 663, 94 P2d 680 (1939) (litigant's right to move for a new trial arises only by statute; legislature may prescribe procedure for hearing and determination of such motions).  Although variously codified, the pertinent statute has remained unchanged for at least 85 years.(3)  It is now codified in ORCP 64 F(1), which provides, in part: "The motion [for new trial] shall be heard and determined by the court within 55 days from the time of the entry of the judgment, and not thereafter, and if not so heard and determined within said time, the motion shall conclusively be deemed denied." The requirements of the statute are mandatory:  If a trial court fails to "hear and determine[]" the motion within the 55-day period, any subsequent order granting the motion is "null and void."  Nendel, 162 Or at 663.  Instead, the motion is "conclusively deemed to have been denied."  Id.  After that time, the trial court has "no jurisdiction over the matter."  Id.; see also Clark v. Auto Wholesale Co. Inc., 237 Or 446, 449, 391 P2d 754 (1964) (untimely motion under the statute is "void"); Ernst v. Logan Oldsmobile Co., 208 Or 449, 451, 302 P2d 220 (1956) (trial court loses jurisdiction once order is conclusively deemed denied). Over the years, frequent issues have arisen over what it means for a motion for new trial to be "determined."  Consistently, this court has held that a trial court "determines" a motion for new trial when the trial court makes an "effective order" resolving it.  See Ryerse v. Haddock, 337 Or 273, 279, 95 P3d 1120 (2004) (so holding, and discussing prior cases so holding).  To determine when an order is "effective," the court has looked to ORS 3.070.  Until amended in 1991, that statute provided that orders, if not signed in open court, "shall become effective from the date of filing."  ORS 3.070 (1989); see Ryerse, 337 Or at 280 (quoting statute).  As amended in 1991, however, and as the statute continues to provide, orders, if not signed in open court, "shall become effective from date of entry in the register."  ORS 3.070 (1991).(4)  Thus, since 1991, the legislative policy has been that, for an order not signed in open court, it is not enough for the trial court to file such an order with the clerk with the intent that it be effective; instead, the order must be formally entered into the register of the court.(5) In Ryerse, this court examined at length the effect of that amendment on ORCP 64 F.  This court concluded, based on the text of ORS 3.070, that the legislature clearly intended to make "entry in the register," not "filing," the effective date for orders not signed in open court.  337 Or at 281.  The court further concluded that the legislature amended ORS 3.070 "with knowledge of the implications that a change to that statute would have on the operation of ORCP 64."  Id. at 280-81.  Consequently, this court held in Ryerse that an order granting a new trial, to be effective, must be entered in the register within the 55-day period specified within ORCP 64; otherwise, it is "deemed denied by operation of law."  Id. at 281. The other issue that has arisen with some frequency is what form of document will constitute an "order."  More specifically, the question has been whether a memorandum (or letter) opinion constitutes an order.  This court's answer has been:  it does not.  Ernst, 208 Or at 451.  In Ernst, we reasoned that, in general, an opinion (written or oral) is not the equivalent of an order.  Id. (citing cases).  Moreover, an appeal can be taken only from a "final appealable order," not from an "opinion."  Id. Those settled principles resolve this case.  Here, the trial court's letter opinion, although filed with the clerk and entered in the register within the 55-day period, was not an "order."  It thus was not "determined" within the meaning of ORCP 64 F(1).  And, although the trial court had signed and filed the requisite written order within the 55-day period, that order was not entered in the register within 55 days.  Instead, it was entered into the register 59 days after entry of judgment, on December 11, 2006.  By then, plaintiff's motion for new trial had been conclusively denied as a matter of law.  The trial court had no power to alter that disposition of the motion. In reaching a contrary conclusion, the Court of Appeals recognized the basic principles we have outlined.  See McCollum I, 214 Or App at 369-70 (citing authorities).  The Court of Appeals nevertheless concluded that the letter opinion in this case was exceptional, and constituted an order.  The court reasoned: "In this case, the trial court included a copy of its written order with the letter opinion that it sent to the parties and filed with the clerk.  The letter opinion expressly referred to the order.  By that reference, the letter opinion effectively incorporated the order and, thus, itself constituted an order granting the motion for a new trial.  The letter was entered in the register on December 6, 2006.  Consequently, entry of the letter opinion was sufficient to determine the motion within 55 days as required by ORCP 64 F." Id. at 370 (footnote omitted).  We disagree, both factually and legally, with that conclusion. Factually, the letter opinion did not "incorporate" the order or otherwise purport to be the order.  To the contrary, the letter opinion expressly declared that enclosed with it was a document entitled "Court's Order Allowing New Trial."  It thus referenced a separate and independent document that constituted the trial court's order.  That is exactly what the case law for many years has suggested must occur:  a letter or memorandum opinion that is made effective by a signed and filed (pre-1991) or entered (post-1991) order.  The form of this letter opinion and the separate order that apparently accompanied it seem, if anything, distinctly unexceptional.(6) Neither is the letter opinion legally exceptional in its form.  Legally, a letter opinion itself does not become effective until it is reduced to an order.  This court so held in Beardsley v. Hill, 219 Or 440, 442, 348 P2d 58 (1959), despite the fact that the letter opinion in that case concluded by stating:  "The verdict and judgment rendered are hereby set aside, and plaintiff's motion for a new trial is granted."  That wording was far more "order-like" than anything in the letter opinion in this case, but this court was unwilling to dispense with the requirement of an actual order.  The court explained why a memorandum or letter opinion is not an order: "The cases cited hold, and we consider it to be an important rule of orderly practice, that a memorandum opinion of the trial court does not become effective until it is reduced to a proper order, judgment or decree and entered in the records of the case in the office of the clerk.  Anything less than a rigid adherence to such a rule gives rise to uncertainty; it would then be impossible to determine what is an order and what a mere opinion and upon what date did it become effective." Id.(7) The requirement of an actual order is not just a matter of certainty and sound practice.  As Ernst recognized, finalizing the resolution of a motion granting a new trial with an order also comports with the statutory requirement that an appeal be from an order granting a new trial, not some less formal and less final determination in the movant's favor.  See Ernst, 208 Or at 451 (appeal must be taken from final order, not from an opinion).  The statutes, in those respects, are unchanged in their essential terms:  ORS 19.205(3) authorizes an appeal from "an order granting a new trial," and ORS 19.255(2)(a) requires the appeal to be filed within 30 days after an "order" disposing of a motion for new trial is "entered in the register."  For those reasons, we disagree with the Court of Appeals that the letter opinion was an order.  It was, instead, a letter opinion.  To be sure, it was accompanied by and prepared in tandem with a signed order.  But that fact reinforces our conclusion that the two were not one and the same; they were, instead, two distinct and different documents -- a letter opinion explaining the court's decision and an order granting plaintiff a new trial. Plaintiff makes two alternative arguments in support of the Court of Appeals disposition.  First, plaintiff urges that this court's decision in Ryerse was flawed and that this court should take a more flexible approach, one that would have the effectiveness of an order turn on the intent and conduct of the judge, not on a clerk's performance of the ministerial act of entry into the register.  This court in Ryerse considered many of the same arguments, both legal and practical, that plaintiff makes here.  Plaintiff has not demonstrated to us that our decision in Ryerse was in error, and we do not believe that it was.  Beyond that, if the legislature determines that the practical and policy points that plaintiff makes are well taken, it may change the statutes accordingly. Second, plaintiff proposes that the appropriate remedy here should be to permit the trial court to make a nunc pro tunc order, apparently one that would make the order effective as of the date of entry of the letter opinion.  We need not explore the parameters of a court's general authority to render orders and other documents nunc pro tunc.(8)  For our purposes here, it suffices to point out that the terms of ORCP 64 F(1) foreclose plaintiff's argument.  The rule declares that a motion for new trial "shall be heard and determined by the court within 55 days from the time of the entry of the judgment" and then, as if to emphasize the point again, the rule adds "and not thereafter[.]"  If the trial court fails to determine the motion as the rule requires -- viz., by entering an order in the register within the prescribed time -- a legal consequence flows from that failure:  the motion is conclusively deemed denied.  The trial court is thereafter "deprived of power to act by operation of ORCP 64 F."  Propp, 313 Or 218, 226, 831 P2d 685 (1992).  Thus, a nunc pro tunc order that would purport to enter an order in the register, when it in fact was not so entered, cannot alter the legal consequence that attaches to that omission.  To conclude otherwise would defeat the essential terms of the statute. The Court of Appeals therefore erred in concluding that the motion for new trial was determined, within the meaning of ORCP 64 F(1), when the trial court's letter opinion was entered in the register.  Because the trial court's order granting the new trial was entered in the register beyond the 55-day period that the rule allows, the trial court did not timely determine the motion, and the motion therefore was conclusively denied by operation of law.  We cannot, and the Court of Appeals could not, reach the merits of the trial court's order granting plaintiff a new trial.(9) The petition for review is allowed.  The decision of the Court of Appeals is vacated.  The circuit court order granting plaintiff's motion for new trial is vacated, with instructions to reinstate the judgment. 1. "OJIN" refers to the Oregon Judicial Information Network, which serves as the official register for the courts.  See ORS 7.010 (records of circuit and appellate courts to include register); ORS 7.020 (register to reflect, among other information, date of filing and entry of any order); ORS 7.095 (Chief Justice authorized to keep records through use of electronic data processing equipment). 2. As we later discuss, under ORCP 64 F(1), a motion for new trial is conclusively deemed denied if not "heard and determined" within 55 days of the date of judgment.  The denial therefore occurs on the fifty-sixth day, which the Court of Appeals correctly calculated to be December 8, 2006, in this case.  See Propp v. Long, 313 Or 218, 226, 831 P2d 685 (1992) (motion for new trial is deemed denied on the fifty-sixth day following entry of judgment, if not effectively resolved by order before that date). 3. In one of the earliest reported cases discussing a statutory predecessor to ORCP 64 F, this court traced what remains essentially the current form of the statute to "Section 2-803, Oregon Code 1930, as amended by chapter 233, Laws of Oregon for 1933 (§ 2-803, Oregon Code Supplement 1935)." Nendel, 162 Or at 663 (citing and quoting statute).  As set out in Nendel, that predecessor statute was substantively identical to the pertinent text of ORCP 64 F. 4. The pre-1991 version of ORS 3.070 was consistent with the general rule that this court followed -- that is, that filing was a sufficient act to make an order effective, unless a statute specified that entry in the register was required.  See, e.g., Robinson v. Phegley, 93 Or 299, 301, 177 P 942 (1919) (so observing).  The 1991 amendments to ORS 3.070 essentially changed the general rule for orders not signed in open court. 5. Older cases sometimes used the terms "filing" and "entry" inexactly and interchangeably.  See Charco, Inc. v. Cohn, 242 Or 566, 569-70, 411 P2d 264 (1966) (discussing inexact use of the terms and resulting confusion).  In more recent cases, we have attempted to use them with greater care and precision, and we do so here:  "filing" occurs when a document has been given to a clerk with the intention that it be filed; "entry" refers to formal recording of a document into the court's register.  See Ryerse, 337 Or at 276-77 (so explaining and using those terms).  6. The record is silent as to when the parties received the letter opinion and whether the separate order actually accompanied it.  In the physical trial court file, the letter opinion was placed in the file, without the order.  That is, the order was not physically attached to the letter opinion, nor does it appear in the file immediately before or after the letter opinion.  Instead, a lengthy document is interposed between the letter opinion and the order.  It, too, bears a file date of December 4, 2006, but was not entered until December 11, 2006.  The order granting a new trial is the next document in the file, and was entered, as we have noted, on December 11, 2006.  Per its placement in the court's physical file, then, the order comes later than the letter opinion and is separated from the letter opinion by a number of pages. 7. The legislature has added certainty to the process by requiring, through the 1991 amendment to ORS 3.070, that an order not signed in open court be entered in the register to become effective.  Entering an order in the register, unlike merely tendering it to the clerk, provides public notice of the court's disposition and makes that disposition a matter of record.  This case illustrates the importance of an entry of the order in the register.  Here, the letter opinion was entered in the register as "Letter from Jud[g]e Richard C Baldwin re [plaintiff's] motion for new trial."  The trial court administrator did not regard the letter as an order, and the entry for the letter made no notation as to whether or how the motion for new trial was resolved.  The entry for the order, on the other hand, expressly declares that it is an "Order" and follows that with "[plaintiff's] motion for new trial GRANTED."  Thus, a person or party examining the register would be unable to determine, from the entry regarding the letter, anything about the resolution of the motion.  The entry of the order, however, provides clear and unequivocal information about when and how the motion was resolved. 8. Literally translated, the phrase "nunc pro tunc" means "now for then." Black's Law Dictionary 1174 (9th ed 2009).  This court has described the function of a nunc pro tunc order as "to supply an omission in the record of action actually taken but omitted from the record."  Gillespie v. Kononen, 310 Or 272, 276 n 7, 797 P2d 361 (1990). 9. In its initial order, the Court of Appeals both vacated the order granting a new trial and dismissed the appeal.  However, the notice of appeal was filed timely, and the Court of Appeals at the least had jurisdiction to determine whether the trial court timely heard and determined the motion for new trial.  Because the motion was deemed denied as a matter of law, the proper remedy was to vacate the trial court's order, not also to dismiss the appeal.

2c351412effeeda17eab1215b949ab44889e07fe58333b29a12ef5b0e11d4d41

2010-02-19T00:00:00Z

5d929f2d-d281-4ade-9c5b-fb51ce2257d7

Rogers v. Kroger (Ballot Title Certified)

S058169

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED March 25, 2010 Benoit v. Kroger (S058242). Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 72 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. Benoit v. Kroger (S058243). Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 73 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. Caruthers et al v. Kroger (S058211). Petitioners' request for oral argument is denied. Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 66 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. Caruthers et al v. Kroger (S058219). Petitioners' argument that the Attorney General's certified ballot title for Initiative Petition No. 67 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. Caruthers et al v. Kroger (S058220). Petitioners' argument that the Attorney General's certified ballot title for Initiative Petition No. 69 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. Caruthers et al v. Kroger (S058262). Petitioners' argument that the Attorney General's certified ballot title for Initiative Petition No. 3 (2012) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. Rogers et al v. Kroger (S058169). Petitioners' argument that the Attorney General's certified ballot title for Initiative Petition No. 65 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure.

d14a4aeff15dfa6d2ccd8012a07afc8e5986f29514c90863fe01f999d180094d

2010-03-25T00:00:00Z

02671d07-3314-4ea8-bdbd-186899374f15

Caruthers v. Kroger

oregon

Oregon Supreme Court

FILED: February 11, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON JERRY CARUTHERS, Petitioner, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S057678) En Banc On petition to review ballot title filed August 10, 2009; considered and under advisement on November 17, 2009. Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the petition and reply memorandum for petitioner. Douglas F. Zier, Assistant Attorney General, Salem, filed the answering memorandum for respondent.  With him on the memorandum were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. GILLETTE, J. The ballot title is referred to the Attorney General for modification. GILLETTE, J. Petitioner seeks review of the certified ballot title for Initiative Petition 43 (2010).  See ORS 250.085(2) (describing ballot title review process).  Initiative Petition 43 (2010), if approved, would add to the Oregon Constitution's provisions concerning the collection of voter signatures and the qualification of proposed initiative and referendum measures for submission to the voters.  We review the certified ballot title for substantial compliance with statutory requirements.  ORS 250.085(5). The complete text of Initiative Petition 43 (2010) is as follows: "In order to respect voter participation in the initiative and referendum process, and in order to ensure the integrity of public officials in reviewing signatures on petitions, the People add the following provision to Section 1, Article IV of their Constitution: "Every registered voter who has signed an initiative or referendum petition that has been filed as provided in section (1)(2)(e) or section (1)(3)(b) of this Article is guaranteed the right to have his or her signature counted for purposes of determining whether the initiative or referendum petition has obtained enough signatures to qualify for submission to the voters.  No statute or rule may restrict this right." The Attorney General certified the following ballot title for that proposed constitutional amendment: "Amends Constitution:  Guarantees registered voter right to have signature counted in determining initiative/referendum qualification for ballot "Result of 'Yes' Vote:  'Yes' vote requires every registered voter's signature on initiative/referendum petitions to be counted in determining if sufficient number were collected to qualify measure for ballot. "Result of 'No' Vote:  'No' vote retains laws regarding acceptance, verification of signatures on initiative/referendum petitions, including use of statistical sampling in determining if sufficient number were collected. "Summary:  Amends constitution.  Initiative/referendum petitions qualify for submission to voters only when they are signed by sufficient number of qualified voters; exact number depends on type of measure.  Currently, laws and administrative rules establish requirements for signature collection and verification to prevent fraud, forgery, or improper signature gathering.  Instead of counting each signature submitted, elections officials use statistical sampling of signatures from valid petition forms to determine if sufficient number of qualified voter signatures were collected.  Measure guarantees registered voters right to have their signatures counted in determining if sufficient number of signatures were submitted to qualify measure for ballot; prohibits any statute or administrative rule from restricting this right; may invalidate existing constitutional provisions, statutes, administrative rules regarding initiative/referendum petition requirements.  Other provisions." Petitioner is an elector who timely submitted comments regarding the draft ballot title, and who therefore is entitled to challenge the certified ballot title in this court.  Petitioner contends that the ballot title's caption, its "yes" and "no" vote result statements, and its summary all are insufficient.  Before addressing petitioner's specific challenges, however, we describe briefly the existing legal context in which Initiative Petition 43 (2010), if it were approved, would apply. Article IV, section 1(2)(a), of the Oregon Constitution provides that "[t]he people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them * * *." Section (3)(a) of that same Article similarly provides that "[t]he people reserve to themselves the referendum power, which is to approve or reject at an election any Act, or part thereof, of the Legislative Assembly that does not become effective earlier than 90 days after the end of the session at which the Act is passed."  An initiative proposing a statutory enactment may be brought by filing a petition signed by a number of qualified voters equal to at least six percent of the total number of votes cast for all candidates for governor at the last preceding election at which a governor was elected to a four-year term.  Or Const, Art IV, § 1(2)(b).  An initiative proposing a constitutional amendment may be initiated by filing a petition signed by a number of qualified voters equal to at least eight percent of such votes.  Or Cont, Art IV, § 1(2)(c).  A referendum commenced by petition must be supported by a petition signed by a number of qualified voters equal to at least four percent of such votes.(1)  Or Cont, Art IV, § 1(3)(b). The Oregon Constitution also identifies the way in which rules respecting the initiative and referendum process are to be created.  Article IV, section 1(4)(b), provides: "Initiative and referendum measures shall be submitted to the people as provided in this section and by law not inconsistent therewith." In addition, and after referring to "[t]he initiative and referendum powers reserved to the people by subsections (2) and (3) of this section," Article IV, section 1(5), provides, in part: "The manner of exercising those powers shall be provided by general laws." That is to say, the constitution empowers the legislature with the authority and responsibility of fleshing out the process. Acting pursuant to the authority granted in the foregoing provisions, the legislature has enacted a number of statutes that govern, among other things, the collection and counting of voter signatures on initiative and referendum petitions.  Several of those statutes are designed to assist in the enforcement of Article IV, section 1b, of the Oregon Constitution, which the people added to the Oregon Constitution by initiative in 2002, and which provides: "It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition.  Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained." In addition, the Secretary of State (who is charged with the responsibility of overseeing the initiative and referendum process) has promulgated an extensive set of rules relating to signature gathering, signature counting, and other parts of the process.  OAR ch 165, div 14. Under the pertinent statutes and rules, the Secretary of State currently cannot count any signature on an initiative or referendum petition sheet (including the signature of a person who is, in fact, a "qualified voter," as that term is used in Article IV, section 1, of the Oregon Constitution) if the petition sheet on which the signature appears suffers from any of the following defects: (1)  The sheet is not verified by the person who circulated it (ORS 250.042, OAR 165-014-0030(3)(c), OAR 165-014-0270); (2)  The sheet was circulated for collection of signatures by a paid circulator who was not registered as such with the Secretary of State (ORS 250.048); (3)  The sheet was circulated during a period of time in which the right to circulate it was suspended for failure of a chief petitioner to provide certain statutorily required "accounts" (ORS 260.262(6)(b)); (4)  The petition being circulated is not the same as the version approved by the Secretary of State for circulation (OAR 165-014-0030(3)(a)); (5)  The sheets do not comply with the requirements of ORS 260.567 (prohibiting circulators from filling in information for petition signers) (OAR 165-014-0030(3)(c), OAR 165-014-0275(2)); or (6)  The sheet was circulated by a paid circulator who is unable to produce an identification and registration badge issued by the Secretary of State (OAR 165-014-0280(5)(c)).(2) The foregoing statutes and rules are not the only ones relating to qualifying a proposed initiative or referendum for the ballot.  Once a number of signatures has been gathered, the proposed initiative or referendum may be placed on the ballot if a sufficiently high percentage of them is valid.  Before that placement, however, it is the duty of the Secretary of State to eliminate signatures and reject signatures sheets that fail to meet statutory or rule requirements.  When that process is completed, the Secretary then determines whether there remain sufficient signatures to place the measure on the ballot.  That action by the Secretary of State presently does not involve counting each signature individually; instead, the Secretary uses a scientific sampling method.  See ORS 250.105(2); OAR 165-014-0030(5) - (16) (stating rules for statistical sampling). Although some of the effects of Initiative Petition 43 (2010), should it be enacted by the people, are not clear, it is clear that the proposed measure is intended to alter the signature gathering and sampling processes that we have described.  That conclusion is suggested by the phrase, "in order to ensure the integrity of public officials in reviewing signatures on petitions," in the first paragraph of the proposed measure.  And it follows ineluctably from the statement in the proposed measure that provides: "Every registered voter who has signed an initiative or referendum petition * * * is guaranteed the right to have his or her signature counted for purposes of determining whether the initiative or referendum petition has obtained enough signatures to qualify for submission to the voters.  No statute or rule may restrict this right." To offer but one example, under present law, no signature on a particular signature sheet may be considered if the person who circulated the sheet does not verify it in the manner provided by law.  ORS 250.042; OAR 165-014-0030(3)(b); OAR 165-014-0270.  The proposed measure would overturn that restriction by granting every registered voter who has signed such a sheet a constitutional right to have his or her signature "counted" for the purpose stated in the proposed measure.  With that understanding respecting the necessary scope of the proposed measure in mind, we turn again to the Attorney General's certified ballot title and to petitioner's challenges to that title. Every ballot title must contain a "caption of not more than 15 words that reasonably identifies the subject matter" of the measure.  ORS 250.035(2)(a).  Thus, the Attorney General's caption for Initiative Petition 43 (2010) must "substantially comply" with that standard.  See ORS 250.085(5) (establishing that standard of judicial review of ballot titles).  For the convenience of the reader, we repeat the Attorney General's caption here: "Amends Constitution:  Guarantees registered voter right to have signature counted in determining initiative/referendum qualification for ballot" This court identifies the true "subject matter" of a proposed measure for purposes of ORS 250.035(2)(a) by examining the wording of the measure in light of the existing statutory and constitutional context in which the measure, if adopted, would be placed.  See, e.g., Novick/Bosak v. Myers, 333 Or 18, 24, 36 P3d 464 (2001) (to that effect).  Petitioner asserts that, in this case, the Attorney General, instead of independently attempting to identify the subject matter of the proposed measure, has chosen simply to repeat the words of the proposed measure in the caption.  That choice, petitioner insists, obscures the measure's actual subject.  That subject, petitioner states, is "preventing enforcement of anti-circulator fraud laws." Although we decline to approve petitioner's particular description of the subject of the proposed measure, we agree with his assertion that the present caption does not capture the true subject matter of Initiative Petition 43 (2010).  As we have explained, the subject of the proposed measure is perhaps best identified by noting the connection between two separate parts of the proposed measure:  The second clause of the measure's introductory sentence states that the proposed measure is to be added to Article IV, section 4, of the Oregon Constitution, "in order to ensure the integrity of public officials in reviewing signatures on petitions."  The way in which that integrity is to be "ensured" is then found in the proposed measure's statement that "no statute or rule" may restrict the "right" of a qualified voter to have the voter's signature "counted."  From those two provisions, it becomes clear that the subject of the measure is the removal of impediments to that counting, whether those impediments be statutory or rule-based.  And that necessarily means that some of the processes by which signatures presently are vetted -- processes that can prevent the counting of certain individual signatures -- are to be set aside and that the legislature is forbidden to enact substitutes for them.  The Attorney General's caption fails to identify this subject, which is at the heart of the proposed measure.  The Attorney General's certified caption, therefore, does not substantially comply with the requirements of ORS 250.035(2)(a).  The ballot title therefore must be referred to the Attorney General for modification.  ORS 250.085(8).(3) We note at the same time that it also is true, as petitioner argues, that the Attorney General's caption suffers from another defect.  Petitioner argues that the Attorney General's use in the caption of a phrase like "right to have signature counted" unnecessarily introduces a "loaded term" into the caption, one that is designed to create the impression that certain classes of signatures arbitrarily are given no weight in the initiative and referendum process.  The phrase is found in the measure itself.  As petitioner points out, however, this court previously has been critical of using wording drawn from a proposed measure in a caption if that wording "is not neutral and might mislead voters into supporting the proposal without understanding its true effects."  Mabon v. Myers, 332 Or 633, 638 n 2, 33 P3d 988 (2001), quoting Earls v. Myers, 330 Or 171, 176, 999 P2d 1134 (2000).  We agree with petitioner that that same concern is pertinent here.  On referral, the Attorney General should select other words to identify the proposed measure's subject. ORS 250.035(2)(b) requires that a ballot title contain "a simple and understandable statement of not more than 25 words that describes the result" if the measure is approved.  We again set out the Attorney General's "yes" vote result statement for the proposed measure: "Result of 'Yes' Vote:  'Yes' vote requires every registered voter's signature on initiative/referendum petitions to be counted in determining if sufficient number were collected to qualify measure for ballot." Petitioner argues that the Attorney General's "yes" vote result statement suffers from the same defects as did the caption.  We agree.  The "yes" vote result statement must be modified. ORS 250.035(2)(c) requires that a ballot title contain a "simple and understandable statement of not more than 25 words that describes the result" if the measure is rejected.  The Attorney General's "no" vote result statement provides: "Result of 'No' Vote:  'No' vote retains laws regarding acceptance, verification of signatures on initiative/referendum petitions, including use of statistical sampling in determining if sufficient number were collected." Petitioner objects to this part of the Attorney General's certified ballot title for Initiative Measure 43 (2010) on different grounds than those asserted concerning other parts of the ballot title.  He argues that the Attorney General's focus on the "statistical sampling" practice used by the Secretary of State in counting petition signatures is too narrow and selective in at least two ways.  First, it ignores a host of other ways in which the Secretary of State presently tests the validity of signatures on initiative petitions, including determining whether the petition circulator was authorized to circulate petitions, whether the circulator followed the correct procedures, and the like.  Second, it assumes that the proposed measure, if adopted, necessarily would deny the Secretary of State the right to use statistical sampling methods to validate (and count) signatures.  Again, we agree.  On referral, the Attorney General should, consistent with the word number limitation applicable to this part of the ballot title, avoid singling out and concentrating on any particular way by which the Secretary of State limits the eligibility of signatures to be counted, and avoid making debatable assumptions respecting the effect of passage of the proposed measure. The Attorney General certified the following summary: "Summary:  Amends constitution.  Initiative/referendum petitions qualify for submission to voters only when they are signed by sufficient number of qualified voters; exact number depends on type of measure.  Currently, laws and administrative rules establish requirements for signature collection and verification to prevent fraud, forgery, or improper signature gathering.  Instead of counting each signature submitted, elections officials use statistical sampling of signatures from valid petition forms to determine if sufficient number of qualified voter signatures were collected.  Measure guarantees registered voters right to have their signatures counted in determining if sufficient number of signatures were submitted to qualify measure for ballot; prohibits any statute or administrative rule from restricting this right; may invalidate existing constitutional provisions, statutes, administrative rules regarding initiative/referendum petition requirements.  Other provisions." Under ORS 250.035(2)(d), a ballot title must contain a "concise and impartial statement of not more than 125 words summarizing the state measure and its major effect."  The function of that summary is to provide voters with enough information to understand what will happen if the measure is approved, i.e., to advise voters of the "breadth" of a measure's impact.  See Fred Meyer, Inc. v. Roberts, 308 Or 169, 175, 777 P2d 406 (1989) (stating that principle).  Petitioner attacks the summary on several grounds.  Petitioner argues that the summary suffers from some of the same defects from which the caption and "yes" vote result statement suffer.  We agree that those same defects are present in the summary.  We hold that the Attorney General's summary does not comply substantially with the statutory standards established for such summaries.(4) Based on the foregoing analysis of the issues presented by the present ballot title challenge, we hold that the caption, the "yes" vote result statement, the "no" vote result statement, and the summary certified by the Attorney General in his ballot title for Initiative Petition 43 (2010) do not substantially comply with statutory requirements.  The matter is referred to the Attorney General for modification of the certified ballot title. The ballot title is referred to the Attorney General for modification. 1. A referendum also may be ordered by the Legislature Assembly, in which case no requirement for signatures of qualified voters applies.  Or Const, Art IV, § 1(3)(c). 2. The foregoing list is not exhaustive, and we make no attempt to itemize the additional provisions relating to the Secretary of State's authority over circulation of initiative petition signature sheets found in HB 2005 (2009), which the legislature enacted at its last session.  Or Laws 2009, ch 533. 3. The Attorney General argues that petitioner is confusing an alleged effect of the proposed measure with the measure's subject matter, while the focus of the caption is supposed to be on the latter.  See, e.g., Kain v. Myers, 335 Or 228, 233, 64 P3d 1129 (2003) (focusing on that distinction).  We think, however, that the two concepts are the same for the purposes of this narrowly focused measure. 4. We reject, without discussion, an alternative argument that petitioner offers in connection with the summary.

ed7ed6f7e36255fb514335e00484d6a2f243e39552120ed2791416b740bc9dad

2010-02-11T00:00:00Z

76b6c474-ca87-437c-9979-7ab5f10e8445

Brady / Berman v. Kroger (Ballot Title Certified)

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED January 19, 2010 Brady et al v. Kroger / Berman v. Kroger (S057816). Having received no timely filed objections, the court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative Petition No. 56 (2010), ORS 250.085(9).

1ea33637728fd8f958465aa24a67b9512e58dc8e4130e531f328f13a97215e6f

2010-01-19T00:00:00Z

02b03aa4-61ac-4e7d-ac2a-d6c516ce5447

Hoffman v. City of Portland

294 Or. 150, 654 P.2d 1106

oregon

Oregon Supreme Court

654 P.2d 1106 (1982) 294 Or. 150 Peter B. HOFFMAN, Petitioner On Review, v. CITY OF PORTLAND, Rkh Developers, Inc., Eric Hoffman and Jean Hoffman, Respondents On Review. LUBA No. 81-058; CA A21857; SC 28787. Supreme Court of Oregon, In Banc[*]. Argued and Submitted October 4, 1982. Decided December 7, 1982. *1107 Susan P. Graber, Portland, argued the cause and filed briefs for petitioner on review. With her on the briefs were George H. Fraser, Stephen T. Janik, Elizabeth F. Cosgriff and Stoel, Rives Boley, Fraser & Wyse, Portland. William F. Bernard, Portland, argued the cause and filed briefs for respondents, RKH Developers, Inc., Eric Hoffman and Jean Hoffman. With him on the briefs was Bernard, Hurley, Crawford & Kneeland, Portland. Kathryn Beaumont Imperati, Deputy City Atty., Portland, argued the cause and filed briefs for respondent City of Portland. With her on the briefs was Christopher P. Thomas, City Atty. Virginia L. Linder, Asst. Atty. Gen., Salem, filed memorandum on behalf of Land Use Bd. of Appeals. With her on the memorandum were Dave Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen., and William F. Gary, Sol. Gen., Salem. LINDE, Justice. The statute providing for review of land use decisions by the Land Use Board of Appeals (LUBA) requires that review be initiated by filing a notice of intent to appeal "not less than 30 days after the date the decision sought to be reviewed becomes final." Or. Laws 1979 ch. 772, § 4(1), (4). This notice obliges the local governmental body to transmit the record of the proceeding to LUBA. Or. Laws 1979 ch. 772, § 4(5). The statute then provides that "[w]ithin 20 days after the date of transmittal of the record, a petition for review of the land use decision and supporting brief shall be filed with the board." Or. Laws 1979 ch. 772, § 4(6). In this case, LUBA dismissed the petition for review as untimely and the Court of Appeals affirmed the dismissal. 57 Or. App. 688, 646 P.2d 49 (1982). The record had been transmitted to LUBA on June 10, 1981. According to an affidavit by petitioner's counsel, a messenger delivering the petition and brief arrived at LUBA's offices at about 5:10 p.m. on June 30 and, finding the office closed and no one available to accept delivery, left the documents outside the office door. They were discovered the next morning and filed as of 8:51 a.m. on July 1. Certainly LUBA could dismiss the petition as untimely if it so chose. Petitioner argues on two alternative theories that the delivery was actually made on the 20th day, but both LUBA and the Court of Appeals rejected these theories for reasons with which we agree. See 57 Or. App. at 690-691, 646 P.2d 49. Whatever might be the case if an office maintained unreasonable hours or were unexpectedly closed during its normal work day, LUBA's published rules specify that its offices are open from 8:30 a.m. to 5:00 p.m. If a document is not in fact received on the 20th day by someone who may accept it, LUBA may consider it not "filed" within the meaning of section 4(6). Although LUBA could dismiss this petition if it so chose, the difficulty is that we do not know whether LUBA would so choose. At the time LUBA dismissed the petition, the Court of Appeals had recently rendered a decision denying that LUBA had any choice in the matter. Gordon v. City of Beaverton, 52 Or. App. 937, 630 P.2d 366 (1981). LUBA's own view, expressed by a rule, had been that it legally could extend the 20-day filing deadline and would do so upon stipulation of all parties. After the Gordon decision of the Court of Appeals, LUBA considered itself bound to dismiss the present petition and temporarily withdrew its rule. This court allowed review in Gordon to consider whether that holding "unnecessarily *1108 restricted the procedural authority of the board..." Gordon v. City of Beaverton, 292 Or. 228, 230, 637 P.2d 125 (1981). We affirmed the dismissal in that case, not because LUBA had no authority to forgive a one-day delay in filing, but because LUBA was not legally obliged to do so, and its rule required the consent of all other parties for any extension of the filing deadline. 292 Or. at 231, 637 P.2d 125. As it therefore was unnecessary to decide in the abstract whether LUBA could accept belated filings under any circumstances, our decision replaced the Court of Appeals' opinion that LUBA could never do so. LUBA dismissed the present petition and brief before our decision in Gordon. In affirming the dismissal, the Court of Appeals reasserted its Gordon holding that the board "had no authority to waive or extend the time for filing." 57 Or. App. at 691, 646 P.2d 49. Judge Buttler, dissenting, believed that this premise had been undermined by this court's opinion in Gordon. He therefore voted to remand the order to LUBA to allow the board to decide in the first instance whether it would accept the petition if it were free to do so. For the reasons that follow, we agree with Judge Buttler that the order should have been remanded. As both opinions in the Court of Appeals note, this court in Gordon did not decide the extent of LUBA's authority to waive or extend the filing deadline. We did hold that the Court of Appeals also should not have decided that question when LUBA had not asserted or attempted to exercise such an authority in the case on review. The reason is not the merely formal one that an answer to that question was unnecessary to the disposition of the case. There are weightier reasons why a court should not declare that an agency lacks some particular authority over its own procedure before it knows whether and how the agency might assert such authority. First, it is the agency's responsibility in the first instance to conduct its affairs under its governing statute. The statute here involved, section 4(6), is addressed to LUBA; it reaches a court only on judicial review of LUBA action. But LUBA never decided whether it would accept an attempted filing which missed the closing hour of its office and was date stamped when the office opened the next morning, because the Court of Appeals opinion in Gordon appeared to foreclose such an acceptance as a matter of law.[1] Second, lacking an agency's own decision of the question, its procedural authority tends to be decided in judicial proceedings between two other parties in which the agency whose action is attacked often chooses not to appear. This case is an example. But an agency's legal authority should not be left to the opposing arguments of private parties whose interest may be limited to a narrow question and who may have only a limited perspective of the agency's overall statutory program and its background. The agency itself may be in a better position to present the institutional and practical reasons for its choice of procedure. It may be more familiar with the legislative history of the statute under which it operates and whether those institutional or practical reasons were known to the legislature. Apart from the legal issue itself, the agency may have a different view of the applicable judicial review. To take just one example, without deciding it here, the Court of Appeals in these cases has treated what it held to be a "mandatory" filing deadline as equivalent in effect to a "jurisdictional" bar. See 52 Or. App. at 941, 630 P.2d 366. But a failure to follow even a mandatory procedure is not cause for reversal "unless the court shall find that substantial rights of the petitioner were prejudiced thereby..." Or. Laws 1979 ch. 772, § 6a(8)(a). See Patton v. State Board of Higher Education, 293 Or. 363, 647 P.2d 931 *1109 (1982). A prescribed procedure is nonetheless mandatory, unless waived, whether or not failure to follow it requires reversal of a decision. Compare Anaconda Co. v. Department of Revenue, 278 Or. 723, 727-29 and n. 3, 565 P.2d 1084 (1977).[2] Here we are informed of LUBA's legal position only indirectly by a memorandum filed at our request by the attorney general. The memorandum states the following views: (1) The timely filing of the statutory notice of intent to appeal pursuant to § 4(1) suffices to give LUBA jurisdiction of the appeal. Untimely filing of the petition and brief may be grounds for dismissal, maybe even obligatory dismissal in the absence of consent, but it is not "jurisdictional." (As suggested above, arguably an agency error in this respect would be subject to the test of prejudice stated in § 6a(8)(a).) (2) Therefore LUBA is not precluded from extending the second filing deadline by consent of all parties, given either before or after the deadline passes. (3) "LUBA's authority unilaterally, or on the motion of only one party, to waive or extend a deadline for filing the petition presents a close question," on which the attorney general declines to take a position "until LUBA, through its collegial decision-making process, has had an opportunity to address the question on the merits." In the attorney general's view, if LUBA believes that it should accept later petitions under some circumstances, LUBA should first promulgate a procedural rule to that effect under the authority given it by § 2a(4). In short, the attorney general does not assert a firm legal position on the precise issue in the present case on the ground that LUBA has not had an opportunity to address it. He does argue that the deadline for filing the petition and brief with LUBA is not "jurisdictional." His views, on behalf of LUBA or otherwise, were not available to the Court of Appeals because the agency, for budgetary or other reasons, made no appearance to explain its action on judicial review. As a result, what we know about LUBA's view of its authority is that before Gordon the board believed that it could extend the deadline for filing the petition and brief upon a stipulation of all parties. A "jurisdictional" requirement, of course, cannot be waived by stipulation. City of Hermiston v. Employment Relations Board, 280 Or. 291, 570 P.2d 663 (1977). LUBA also has held that it could accept a petition delivered after its official 5 p.m. closing hour if an employee still happens to be in the office to receive it, on the ground that this waives only LUBA's rule as to its business hours, not the statutory date. Housing Development Corp. of Washington County v. City of Hillsboro, 5 Or.LUBA 122 (1982). Perhaps LUBA would reach the same result if an employee returned to the office after dinner and found the petition on the doorstep. From LUBA's past actions, it is difficult to say with certainty what view it would take of a petition similarly left but found after midnight, or of a respondent's consent given after the belated delivery, if the agency did not consider the question foreclosed by Gordon. Quite possibly LUBA would decide to reject the present petition and brief in any event. But the agency believed that there was no decision to make. Petitioner should have an opportunity to present its arguments for accepting the filing to LUBA free from the constraint of the Gordon ruling that we later held to have been premature. The time to decide whether LUBA has exceeded its authority is when LUBA exercises it. The decision of the Court of Appeals is reversed and the case is remanded to the Land Use Board of Appeals for further proceedings. [*] Carson, J. did not participate in this decision. [1] In Fish & Wildlife Department v. LCDC, 288 Or. 203, 603 P.2d 1371 (1979), which we cited in Gordon, and which held that the agency was not authorized to withhold review because of a petitioner's failure to exhaust local remedies, the agency itself had decided that issue in the case under review. [2] Cf. also State v. Newton, 291 Or. 788, 636 P.2d 393 (1981); State v. Brock, 294 Or. 15, 653 P.2d 543 (1982) (procedures mandatory even though not requiring exclusion of evidence).

0d3d4362ac4f2cd95e2cad555021db3106fd49cc6081394e810baca52281c10c

1982-12-07T00:00:00Z

18e8cedd-eae6-487b-94d3-b8cc566914b7

Rennie v. Freeway Transport

294 Or. 319, 656 P.2d 919

oregon

Oregon Supreme Court

656 P.2d 919 (1982) 294 Or. 319 Richard RENNIE, As Administrator of the Estate of Eugene David Rennie, and in His Own Individual Capacity, Respondent On Review, v. FREEWAY TRANSPORT, Leon Spada, Ernest Spada, and Sam Terese, Petitioners On Review. CA 19045; SC 28446. Supreme Court of Oregon, In banc.[*] Argued and Submitted June 8, 1982. Decided December 30, 1982. *920 Marvin S. Nepom, Portland, argued the cause and filed the petition and briefs for petitioners on review. Magar E. Magar, Portland, filed the briefs for respondent on review. ROBERTS, Justice. This case presents an issue identical to the one decided this day in Rennie v. Pozzi, 294 Or. 334, 656 P.2d 934 (1982). For the reasons set forth in that opinion, we also hold here that the trial court erred in granting defendants' motion for summary judgment based upon the statute of limitations. By operation of ORS 114.255, plaintiff's appointment as personal representative related back to the commencement of this action making it valid and timely. Defendants here, however, advance a second and alternative ground for upholding the dismissal of plaintiff's action against them. They contend that it is barred due to res judicata because of a prior federal court judgment in their favor based on the same factual transaction. The facts relevant to this contention are as follows. Immediately after being reappointed personal representative the plaintiff commenced an action in the federal district court against the same defendants named herein; the complaint alleged that they had violated federal securities laws and regulations in the course of repurchasing the Freeway Transport stock from him.[1] Soon thereafter, plaintiff commenced this action in Multnomah County Circuit Court alleging a cause of action in common law fraud.[2] Although the latter action is based on the same set of facts as the former and the named defendants in both actions are the same, plaintiff made no attempt to join the state law claim to the pending federal court action. Defendants then filed a motion to dismiss or abate this action which stated: See ORCP 21 A.(3). Plaintiff opposed the motion contending that, although the relevant facts were the same, the two actions were legally distinct. He further argued that he preferred the two actions to be tried separately and noted that "[i]f defendants want to take the initiative in invoking the pendent jurisdiction of the Federal Court they are, of course, free to do so." The trial court denied defendants' motion to dismiss but it did allow their plea in abatement; it thereupon ordered this action stayed pending resolution of the federal court proceedings. Before the federal court the defendants, besides defending on the merits, argued that a "jurisdictional" prerequisite to relief under the federal laws was lacking, namely, utilization by the defendants of an instrumentality of interstate commerce. That issue was controverted at trial and ultimately was submitted to the jury, along with the substantive issues. The jury returned a general verdict for defendants; however, given the nature of the verdict it cannot be *921 determined whether the verdict was based on the "jurisdictional" question or on the merits. Plaintiff did not appeal that decision.[3] After entry of judgment in the federal court action, defendants by answer and demurrer in this case raised the defense that the action here was barred by res judicata. In the subsequent summary judgment motion on that ground they contended that the federal court judgment was a final adjudication binding on plaintiff with regard to the stock repurchase transaction and that it consequently barred further litigation based on the transaction. The trial court denied the motion and defendants cited this ruling as error in their cross-appeal. The Court of Appeals affirmed that aspect of the case; it reasoned that since plaintiff did not have a right to have his state law claim joined in his federal court action res judicata would not result from his failure to do so. Rennie v. Freeway Transport, 55 Or. App. 1008, 1013, 640 P.2d 704 (1982). We start with the general rule, well established in this state, that a plaintiff who has prosecuted one action against a defendant through to a final judgment binding on the parties is barred on res judicata grounds from prosecuting another action against the same defendant where the claim in the second action is one which is based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action. Troutman v. Erlandson, 287 Or. 187, 201-207, 598 P.2d 1211 (1979); Dean v. Exotic Veneers, Inc., 271 Or. 188, 531 P.2d 266 (1975). In Dean we held that an unsuccessful action for breach of an express contract barred on res judicata grounds a subsequent suit for quantum meruit against the same defendant based on the same transaction. In explanation of this holding we stated: This type of res judicata, often denominated "claim preclusion,"[4] is broader than traditional notions of res judicata in that it bars prosecution of claims which have never in fact been litigated between the parties. The prior judgment is deemed to have effected a merger or bar of all claims against *922 the defendant available to the plaintiff arising from the transaction that was at issue irrespective of whether plaintiff had actually asserted them in that action. See Restatement (Second) of Judgments §§ 17, 24-25 (1982). As the Restatement notes, claim preclusion is based upon, and limited by, the ability of a plaintiff under modern liberalized joinder-of-claims rules to present all of his or her claims in one proceeding: The stated general rule is clearly applicable here. The present action involves the same parties and factual transaction as the prior federal court action and seeks remedies which are additional or alternative to those that were sought there. Moreover, plaintiff might have brought his state and federal claims together, through pendent jurisdiction, in the federal district court. See Annot., 5 A.L.R.3d 1040, 1115 [§ 26] (1966). Nonetheless, plaintiff advances three separate arguments in support of his contention that this action should not be barred: (1) Since the prior action was prosecuted in federal court, he had no absolute right to have the state law claims joined there; (2) defendants had acquiesced in his decision to split and separately prosecute his state and federal claims; and (3) in any event, since the verdict in the prior federal court case could have been based on the "jurisdictional" issue, it should not be viewed as a bar here. We will discuss these arguments in turn. 1. Split jurisdiction problem. The Court of Appeals concluded that the federal court judgment was not res judicata on plaintiff's state law claim because, although that court might have exercised pendent jurisdiction over the claim, plaintiff had no absolute right to have it adjudicated there:[5] *923 The declared "better rule" is, however, contrary to the weight of authority. The Restatement, for example, takes the position that a state law claim should be precluded under these circumstances: Restatement (Second) of Judgments § 25, com. e. See also illustration 10 and the notes to that section; Restatement (Second) of Judgments §§ 86-87; Note, The Res Judicata Implications of Pendent Jurisdiction, 66 Cornell L.Rev. 608 (1981).[6] The authors of the major treatise on federal practice take a similar position and suggest that where a plaintiff has a colorable right to invoke the pendent jurisdiction of the federal court with regard to a state law claim, he or she is obliged to at least attempt joinder or else face preclusion in a subsequent state court action based on that claim. 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4412, at 95-99 (1981). Recent decisions from the federal and other state courts are in accord with this approach.[7] A rule requiring the plaintiff, under circumstances such as this, at least to attempt joinder is congruent with the policies behind the res judicata doctrine. It may have been plaintiff's preference to split his claim into the state and federal law components and to try them each separately, but his unilateral claim-splitting and the consequent multiplicity of lawsuits the defendants were obligated to defend is precisely the evil sought to be avoided by the res judicata doctrine. We are convinced that the better rule, the one more consonant with the policies behind res judicata, is that a plaintiff must attempt to have all claims against a defendant arising out of one transaction adjudicated in one court in one proceeding, at least insofar as possible, despite the fact that the various claims may be based on different sources of law. We emphasize that this case does not present a situation where one of the claims falls within the exclusive jurisdiction of a tribunal that is incompetent to adjudicate the other claims or where the federal court, after a proper request, expressly declined to exercise pendent jurisdiction over the state law claim. Cf. Restatement (Second) of Judgments § 26(1)(c) and com. c thereto.[8] Nor is this a case where, due to the nature of the claims or the fact that the federal law claim was summarily dismissed, the federal court would have clearly declined to exercise pendent jurisdiction. Cf. Ron Tonkin Gran Turismo v. Wakehouse Motors, 46 Or. App. 199, 204-207, 611 P.2d 658, rev. denied, 289 Or. 373 (1980). Accordingly, we conclude that even though plaintiff did not have an absolute right to have his state law claim joined in the federal court action, that fact does not of itself operate to prevent the federal court judgment from effecting a claim preclusion, under res judicata, in this separate and subsequent state court action based on that claim. 2. Defendants' acquiescence. Since one of the primary policies behind the res judicata doctrine is to protect defendants from serial suits, generally a defendant is free to waive the right to a combined action and the parties are competent to agree mutually to the splitting and separate litigation of the various aspects of a plaintiff's claim. Severance of particular issues for separate trial, for example, is a well established procedural device. See ORCP 53 B. Where the parties have agreed to the separate litigation of plaintiff's claim and the first judgment expressly withholds any decision as to the other aspects of the claim, reserving them for later litigation, a subsequent action by plaintiff based on those parts of the claim reserved is not precluded by res judicata. See Restatement (Second) of Judgments § 26(1)(a). Plaintiff here argues that defendants acquiesced in his decision to try his state and federal law claims separately and that the federal court judgment should thus not preclude this action. The record clearly indicates, however, that defendants did not in any manner agree to plaintiff's claim-splitting. Immediately after the complaint in this action was filed, the defendants moved to dismiss or abate citing the pending federal court proceedings as grounds for the motion. Plaintiff argued in opposition to defendants' motion to dismiss or abate that defendants could invoke the pendent jurisdiction of the federal court if they objected to separate actions. He cited no authority for that proposition, however, and we are *925 not aware of any procedural device whereby a defendant in a state court action can remove a nonfederal claim and force a pendent jurisdiction joinder with a federal claim already pending in federal court. See 28 U.S.C. § 1441. Even if defendants, through some procedural manipulation, could have engineered a rejoining of plaintiff's claim, we do not believe that their failure to do so is tantamount to acquiescence in plaintiff's claim-splitting. Where, as here, a defendant has timely voiced objections to a plaintiff's simultaneous prosecution of multiple actions arising from one transaction, through an ORCP 21 A.(3) motion or the like, the onus is upon the plaintiff not the defendant to accomplish any necessary joinder.[9] Accordingly, we find nothing in the record to support plaintiff's contention that defendants had acquiesced in the claim-splitting. Furthermore, this is not a case where the plaintiff's state law claim was expressly reserved for later litigation. The circuit court's denial of defendants' demurrer and its grant of an abatement did not operate to immunize plaintiff's state court action from any possible preclusive effects arising from the federal court proceedings. And, although a court may be able to preserve part of a plaintiff's claim for subsequent litigation by expressly omitting any decision with regard to it in the first judgment (see Western Baptist Home Mission Board v. Griggs, 248 Or. 204, 211, 433 P.2d 252 (1967); Restatement (Second) of Judgments § 26(1)(b)), the federal court judgment here did not by its terms preserve plaintiff's state law claim. Therefore, we conclude that this case does not fall within any "acquiescence" or "reserved issue" exception to the claim preclusion rules. 3. "Jurisdictional" problem. Plaintiff's final argument to avoid res judicata is based on the fact that the jury verdict, upon which the federal court judgment was based, could have resulted from a jury finding that plaintiff had failed to establish that any of defendants' acts involved interstate commerce. Since the utilization of an instrumentality of interstate commerce is a prerequisite to relief under the federal laws under which plaintiff was suing (see Securities Exchange Act of 1934, § 10, 15 U.S.C. § 78j; 28 U.S.C. § 1337), he argues that the verdict and judgment here were possibly based on a "lack of jurisdiction" rather than "on the merits." The trial court here cited this ground when it denied defendants' summary judgment motion on their res judicata defense. It is true, as a general proposition, that for a judgment to effect a preclusion of further litigation based on the same claim it must be a final judgment "on the merits." Sibold v. Sibold, 217 Or. 27, 32, 340 P.2d 974 (1959); Swingle v. Medford Irr. Dist., 121 Or. 221, 253 P. 1051 (1927). The term "on the merits" connotes a final definitive decision as to the substantive validity of plaintiff's cause of action, in contrast to a ruling based wholly on a procedural aspect of the case. Thus, where a court dismisses a plaintiff's action on a matter of procedure e.g., improper venue, lack of jurisdiction, or nonjoinder of an essential party without ruling as to the substantive validity of plaintiff's claim for relief, that dismissal will not generally be res judicata so as to preclude subsequent action based on the same claim. See Restatement (Second) of Judgments § 20. We need not resolve whether the prior federal adjudication went to the merits of *926 plaintiff's federal claim. We have already decided that plaintiff had an obligation to attempt to join all his claims in one forum. His failure to assert his state claim in the federal action results in its preclusion here insofar as it was triable in that proceeding. If the state law claim could have been finally adjudicated there the reason behind the dismissal of the federal claim is irrelevant. It is for this reason that the "jurisdictional" problem here is distinguishable from the general rule stated above. In the usual case where a court dismisses an action for lack of jurisdiction, there is no res judicata on the merits because the court was without power to address the merits. The lack of "jurisdiction" here, in contrast, would not have prevented the federal court from adjudicating plaintiff's state law claim, had it been properly joined through pendent jurisdiction. An adverse adjudication on the federal law claim does not necessarily deprive the federal court of the authority to decide the state law claim, particularly where, as here, the federal claim was colorable and substantial, i.e., it was only rejected after a full evidentiary trial. See Annot., 5 A.L.R.3d 1040, 1065 [§ 9].[10] In Belliston v. Texaco, Inc., 521 P.2d 379 (Utah 1974), the court was faced with a situation similar to that presented by this case. The plaintiff had filed an action in federal court based wholly on federal law. A judgment in plaintiff's favor was reversed on appeal; the appellate court held that since the acts of the defendant had not occurred in interstate commerce, the trial court had been without "jurisdiction" to award the relief granted. The plaintiff then filed an action under state law in state court based on the same facts. The Utah Supreme Court held the action barred: In other words, the court concluded that even though the federal court had been without jurisdiction to award relief under the federal law, the federal claim in the prior action was sufficiently substantial and disputable to have given that court power under the pendent jurisdiction doctrine to accept, adjudicate, and enter a valid final judgment on the concomitant state law claim and that, consequently, the plaintiff's failure to join the state claim in the federal action barred later litigation in state court based on it. The Belliston result has been criticized,[11] but we believe that it states the better rule. Accordingly, we conclude that the circumstance here that the federal law claim may have been rejected on "jurisdictional" *927 grounds does not excuse plaintiff's failure to join his state law claim to that action and does not operate to limit or bar the claim preclusion effect of the judgment entered there. In summary, we conclude as follows: Since the present common law fraud claim arose out of the same transaction as plaintiff's claim under the federal securities laws, involves the same defendants, and seeks remedies which are additional or alternative to those available under that claim, under the res judicata doctrine plaintiff was obligated, to the extent procedurally feasible, to prosecute both actions in one court in one proceeding. Although plaintiff's federal claim was within the exclusive jurisdiction of the federal court, he had a colorable right to invoke the pendent jurisdiction of that court with regard to his state claim and was obliged to seek such joinder, notwithstanding the fact that the federal court's acceptance of jurisdiction over the state claim was only discretionary. Plaintiff's concurrent prosecution of the state claim in state court did not operate to prevent the federal court judgment from effecting a claim preclusion where defendants did not consent or acquiesce in the separate actions. Finally, although the federal court judgment for defendants may have been based on a "jurisdictional" defect, that fact alone does not prevent that judgment from effecting a claim preclusion in this action since it appears that that court could have, nonetheless, entered a final and binding judgment on this state claim had it been properly joined in that action. Since plaintiff has failed to advance any substantial justification for having neglected to attempt joinder of the present claim in the prior federal court action, where it could have been finally adjudicated, we hold that the judgment there bars this action under res judicata. For these reasons, the Court of Appeals decision remanding this case for trial is reversed and the trial court's judgment of dismissal is affirmed. [*] Denecke, C.J., retired June 30, 1982. [1] That action was filed in United States District Court for the District of Oregon (Civil Case No. 78-112) and was based on plaintiff's allegations that defendants, through false representations made in furtherance of a device, scheme, or artifice to defraud, induced him to sell Freeway Transport Company stock to them for less than it was worth, in violation of § 10(b), Securities Exchange Act of 1934 (15 U.S.C. § 78j(b)), and Securities and Exchange Commission Rule 10b-5 (17 CFR § 240.10b-5). Such an action is within the exclusive jurisdiction of the federal district courts. 15 U.S.C. § 78aa. [2] His circuit court complaint also alleged a cause of action for violation of Oregon securities laws, ORS 59.135. Defendants' demurrer to that part of the complaint, however, was sustained and plaintiff has not appealed that ruling. [3] Although hesitant to heap even more confusion onto an already complex case, we should point out that the federal court judgment was issued prior to the time when plaintiff's standing as personal representative was retroactively set aside and prior to the second and proper order reopening the estate and reappointing him personal representative. See Rennie v. Pozzi, 294 Or. 334, 656 P.2d 934 (1982). Neither party, however, has questioned the validity of that judgment and we consequently hazard no guess as to whether it should be binding on the estate. For purposes here, we assume that it is a final judgment binding on plaintiff and defendants. [4] The res judicata nomenclature has not been standardized. See 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4402 (1981). The Restatement uses the terms "merger" and "bar" to describe the process by which a final judgment binding on the parties extinguishes all of plaintiff's claims arising from the factual transaction that was at issue, whether or not those claims were actually litigated. Restatement (Second) of Judgments § 17, com. a, b. It uses the term "issue preclusion" to describe the situation where, although the second and subsequent cause of action is not barred by the prior judgment, such judgment is deemed conclusive between the parties with regard to those issues actually litigated and necessarily determined in the prior action. Id., at com. c. [5] While the federal courts have the power to exercise jurisdiction over pendent state law claims (i.e., claims without an independent basis for federal court jurisdiction but which arise from the same factual transaction as a federal law claim already properly before the federal court), "[t]hat power need not be exercised in every case in which it is found to exist. * * * [P]endent jurisdiction is a doctrine of discretion, not of plaintiff's right." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966). See generally, Annot., Modern status of rules as to pendent federal jurisdiction over nonfederal claims, 5 A.L.R.3d 1040 (1966); 13 Wright, Miller & Cooper, supra n. 4 at § 3567 (1975). [6] The author of the Note describes the Restatement Second approach: "When the plaintiff fully litigates his federal claim in federal court, that court clearly has the power to hear a closely related pendent claim and will usually choose to exercise pendent jurisdiction. Unless the plaintiff can persuade the state court that the federal court would have declined pendent jurisdiction because of the importance of the state claim or because of possible jury confusion, the state court must bar him from bringing a second action. Although courts will not always exercise their discretion to hear a pendent claim, the Restatement Second forces the plaintiff to assert his state claim in federal court, or risk forfeiting his right to pursue it in any forum. "Several policies strongly support precluding the plaintiff in this context, First, fairness dictates that the plaintiff should not have two opportunities to pursue one claim. Second, the federal rules liberally allow amendment of pleadings and joinder of claims, giving the plaintiff every chance to assert his related state claim in the federal action. Furthermore, because the plaintiff chose the federal forum, it is fair to require him to litigate his entire claim there. Finally, barring the second action conserves judicial resources that might otherwise be spent in duplicating the federal court's efforts." 66 Cornell L.Rev. at 618-621 (footnotes omitted). [7] See, e.g., Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1311-1316 (5th Cir.1971), cert. den. 404 U.S. 1047, 92 S. Ct. 701, 30 L. Ed. 2d 736 (1972); Boccardo v. Safeway Stores, Inc., 134 Cal. App. 3d 1037, 184 Cal. Rptr. 903 (1982); City of Los Angeles v. Superior Court, 85 Cal. App. 3d 143, 149 Cal. Rptr. 320 (1978); Maldonado v. Flynn, 417 A.2d 378 (Del. 1980), rev'd on other grounds sub nom Zapata Corp. v. Maldonado, 430 A.2d 779 (Del. Super. Ct. 1981); Hill v. Wooten, 247 Ga. 737, 279 S.E.2d 227 (1981); Silver v. Queen's Hospital, 629 P.2d 1116 (Hawaii 1981); McCann v. Whitney, 25 N.Y.S.2d 354 (Sup.Ct. 1941); Belliston v. Texaco, Inc., 521 P.2d 379 (Utah 1974). [8] A number of cases have held or noted that where the federal court declines to exercise pendent jurisdiction over a related state law claim, the plaintiff cannot be barred from bringing a separate and subsequent action on that claim in state court. See, e.g. Nilsen v. City of Moss Point, 674 F.2d 379, 385 (5th Cir.1982); In Re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1134 (7th Cir.1979); Calderone Enter. Corp. v. United Artists Theatre Circuit, 454 F.2d 1292, 1297 (2d Cir.1971) cert. den. 406 U.S. 930, 92 S. Ct. 1776, 32 L. Ed. 2d 132 (1972); Terrell v. City of Bessemer, 406 So. 2d 337 (Ala. 1981); Gamble v. Webb Quarterback Club, 386 So. 2d 455, 458 (Ala. Civ. App.) cert. den. (1980); Penn Mart Realty Co. v. Becker, 298 A.2d 349, 352 (Del. 1972). But see Mattson v. City of Costa Mesa, 106 Cal. App. 3d 441, 164 Cal. Rptr. 913 (1980). [9] The Restatement takes the approach that defendants are at least obligated to expressly object to a plaintiff's claim-splitting, i.e., that silence in the face of simultaneous multiple actions based on the same transaction constitutes "acquiescence": "Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim, judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiff's claim is effective as an acquiescence in the splitting of the claim." Restatement (Second) of Judgments § 26(1)(c), com. a. See also Wright, Miller & Cooper, supra n. 4, at § 4415, 124-125; Annot., 40 A.L.R.3d 108 (1971). None of these authorities suggest that more should be required of defendants than the timely objection in order to preserve their res judicata defense. [10] To illustrate this point, consider the following hypothetical. Assume plaintiff joined his state law claim to the federal action and the federal court accepted pendent jurisdiction over the claim. A full trial was held on both claims and the cause was submitted to the jury. Instead of a general verdict, however, special interrogatories were used on: (1) the "interstate commerce" issue, (2) liability under federal law, and (3) liability under the state law claim. Assume further that the jury returned a verdict in the negative on (1) and in the affirmative on (2) and (3). Notwithstanding the fact that the court would not have been able to award judgment on the federal claim, it could have rendered a valid judgment for plaintiff on the state law claim. The "jurisdictional" defect, in short, would not have prevented the court from finally adjudicating plaintiff's state law claim. [11] See the dissent, 521 P.2d at 382-383; Note, Judgments: Res Judicata and Pendent Jurisdiction, 28 Okl.L.Rev. 413 (1975). Those criticisms make a fundamental mistake, however, in assuming that an adjudication adverse to the plaintiff on the federal claim necessarily deprives the court of jurisdiction to reach and decide a pendent state law claim. The federal caselaw is to the contrary. See, e.g., Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970) ("We are not willing to defeat the commonsense policy of pendent jurisdiction the conservation of judicial energy and the avoidance of multiplicity of litigation by a conceptual approach that would require jurisdiction over the primary [federal law] claim at all stages as a prerequisite to resolution of the pendent [state law] claim." Id., 397 U.S. at 405, 90 S.Ct. at 1214); In re Carter, 618 F.2d 1093, 1104-1105 (5th Cir.1980) cert. den. 450 U.S. 949, 101 S. Ct. 1410, 67 L. Ed. 2d 378 (1981); O'Connell v. Economic Research Analysts, Inc., 499 F.2d 994, 996 (5th Cir.1974) cert. den. 419 U.S. 1122, 95 S. Ct. 805, 42 L. Ed. 2d 821 (1975); Annot., 5 A.L.R.3d 1040, 1065 [§ 9] (1966).

8f50087e5f024c039a937130ab5ccb8807e88156b4f4e87a9fbd1b1137e69c6b

1982-12-30T00:00:00Z

5305adeb-8f76-4ae9-b5c1-b5894e3a22fc

Suess Builders Co. v. City of Beaverton

294 Or. 254, 656 P.2d 306

oregon

Oregon Supreme Court

656 P.2d 306 (1982) 294 Or. 254 SUESS BUILDERS COMPANY, C. Robert Suess and Helen Suess, Petitioners On Review, v. CITY OF BEAVERTON, and Tualatin Hills Park and Recreation District, Respondents On Review. SC 28615, CA A20101; TC 40569. Supreme Court of Oregon. Argued and Submitted October 5, 1982. Decided December 29, 1982. *307 Terry D. Morgan, Portland, argued the cause and filed briefs for petitioners on review. With him on the brief was Morgan & Shonkwiler, P.C., Portland. Carrell F. Bradley, Hillsboro, argued the cause and filed briefs for respondents on review. With him on the brief was Schwenn, Bradley, Batchelor & Brisbee, Hillsboro. Kevin L. Hanway, Lake Oswego, filed briefs for amici curiae Home Builders Ass'n of Metropolitan Portland, and Oregon State Home Builders Ass'n. Roger J. Marzulla and Alison Ling Noven, Denver, Colo., filed an amicus curiae brief for Mountain States Legal Foundation. With them on the brief was Steven P. Couch, Co-counsel, Klamath Falls. Before LENT, C.J., and LINDE, PETERSON, TANZER, CAMPBELL and CARSON, JJ. LINDE, Justice. Plaintiffs own 9.4 acres of land in the city of Beaverton. In a complaint against the city and the Tualatin Hills Park and Recreation District, plaintiffs allege that these governmental bodies temporarily deprived *308 them of the rental value of the property and caused a permanent depression of its market value by designating the major part of the property as a future park site in the city's comprehensive land use plan, and that this constituted a compensable taking of their property for public use under Oregon Constitution article I, section 18 and the federal fifth and fourteenth amendments.[1] The complaint also alleged claims under 42 U.S.C. §§ 1983 and 1985(3). Upon the defendants' motion to dismiss the complaint, the trial court entered judgment for defendants. The Court of Appeals affirmed on the strength of this court's decision in Fifth Avenue Corp. v. Washington County, 282 Or. 591, 581 P.2d 50 (1978). We allowed review to consider plaintiffs' claim that their complaint satisfied the criteria stated in that decision or, if not, that those criteria should be reconsidered. We hold that the complaint sufficed to survive a motion to dismiss. In Fifth Avenue Corp., a landowner sought compensation from Washington County for portions of its property which were designated for a public transit station and a greenway on the county's comprehensive plan but which neither the county nor another public authority then proceeded to acquire. The court noted that planning for future acquisition as such does not constitute a compensable taking of property, even if anticipation of the eventual taking substantially diminishes the uses of the property that will seem worthwhile to its owner or to potential buyers, but that the result might be different where the plan designation itself imposes a present prohibition on inconsistent private uses. Such a prohibition might result from the rule that zoning or other land use decisions must be consistent with the comprehensive plan. ORS 197.175(2); Baker v. City of Milwaukie, 271 Or. 500, 533 P.2d 772 (1975). But the court also noted that the Baker rule, which precludes allowing a private use more intensive than the private use contemplated in a comprehensive plan, might not apply with equal force to allowing some private use pending public acquisition of the property for a planned public use, even if the public use will be less "intensive" than the prior private use. Fifth Avenue Corp., supra, 282 Or. at 611 n. 15, 581 P.2d 50. In other words, a landowner who requests or a local government that would allow a present use more intensive than a different private use designated in the comprehensive plan normally cannot show how the two are compatible or how the intensive, financially more valuable use will be replaced by the later less intensive private use; but such a showing may be possible if the eventual use designated in the plan contemplates acquisition of the land by one of the public entities participating in the plan.[2] The court therefore stated that a landowner could not seek compensation in an "inverse condemnation" action unless he could show that the city or county would *309 permit no economically feasible private uses of the land pending the eventual taking for public use.[3] The designation of the eventual public use in the plan and citation of Baker v. City of Milwaukie, supra, alone do not suffice to show preclusion of all interim uses. Rather, the court concluded that Fifth Avenue Corp., supra, 282 Or. at 614, 581 P.2d 50. Petitioners and amici curiae invite us to reconsider Fifth Avenue Corp. v. Washington County, supra, to pursue what they claim to be a more sophisticated analysis of "regulatory takings." We see no occasion to do so. The issue in this case does not arise from regulation of the private use of property. That happens to many forms of business enterprise and private investment, not peculiarly to investment in real property, where it perhaps stirs special atavistic memories of the feudal and pioneering past. And land use control is not the only kind of regulation directed to specific identifiable property. The generality of a rule often safeguards against biased and unequal political decisions, but that alone does not turn a more narrowly focused ruling into a taking. A newly adopted health or environmental regulation may forbid the use of a fuel or the production of certain wastes and thereby cause the closure of a large plant. A tightened safety standard may devastate an investment in expensive machinery or product inventory.[4] New building codes or other rules concerning fire safety or access for handicapped persons may make it uneconomic to maintain a hotel or residential building, with consequent financial loss. Business invests with knowledge of such governmental power to make laws for its conduct, and the balancing of regulatory goals against their economic consequences is the daily stuff of politics rather than of litigation for "just compensation." See Anthony v. Veatch, 189 Or. 462, 494, 220 P.2d 493 (1950) (prohibition of "fixed gear" fishing); City of Portland v. Meyer, 32 Or. 371, 52 P. 21 (1898) (prohibition of slaughter house). Regulation in pursuit of a public policy is not equivalent to taking for a public use, even if the regulated property is land.[5] *310 The issue in this case, however, arises from a governmental plan to acquire private land for public ownership. Regulation enters this case only because plaintiffs claim that the plan designation in legal and practical effect made the property unusable for anything other than the indicated public taking until the defendants changed their minds and rescinded their decision to acquire it. Except for the planned acquisition, the city's regulatory policy, in the form of its zoning ordinance, was to allow low density residential development of the land. According to this claim, the governmental bodies in effect told plaintiffs to hold parts of their land for the park district, subject to taxes and without an opportunity to make economic use of it or to place it on the market, until the district was politically and financially ready to buy it for the planned park. If so, that would not be the equivalent of taking the property entirely when the comprehensive plan was adopted. Adoption of the plan would not mean that defendants were obligated to buy the land and plaintiffs could sue for the price. The governmental bodies could change their minds, as they in fact did, and the landowners would retain their property. Given that governments, like other buyers, do change their plans and that if they do not, they would eventually pay for the property, it cannot even be taken for granted that the property could not be sold in the interim. But adoption of a plan could be the equivalent of taking the use of the property until the government decided to buy it or to release it, if the legal effect of defendants' actions is to "freeze" the status of the land for that purpose without any possibility of an economic use. If that is the effect, it might be described as analogous to seizing from the landowner an option to buy the land during an indefinite term. As this case comes before us upon a judgment dismissing the complaint, the narrow issue is whether the plaintiffs sufficiently plead such action by the defendants to require them to answer. We therefore turn to the complaint. The complaint alleges, in summary, that plaintiffs' property was zoned for low density residential use under a 1960 city ordinance; that between 1966 and 1971 plaintiffs pursued with the city their proposals for residential development of the property, which were not approved; that between 1971 and 1976 the park district offered to purchase the property at a price below its fair market value; that in 1972 the city adopted a comprehensive plan which designated two-thirds of plaintiffs' property as a site for a future public park; that the park district refused to exercise its condemnation powers "but rather has placed a cloud of condemnation over the property in order to acquire Plaintiffs' land at less than its fair market value," conspiring with the city "in order to acquire a park for the City without exercising its condemnation authority;" and that defendants' actions "irreversibly deprived the Plaintiffs of the fair rental value of all their property" until April 1979, when the city removed the park designation of plaintiffs' property from its comprehensive plan. These actions are alleged to give rise to a claim of just compensation and to *311 damages under the state and federal constitutions, and to "civil rights damages" under 42 U.S.C. § 1983. For a third cause of action the complainant alleges that the defendants "acting in concert and with discriminatory animus, have conspired on a continuing basis to deprive Plaintiffs of their rights to the use and enjoyment of their property," giving rise to liability under 42 U.S.C. § 1985(3). The critical question under Fifth Avenue Corp., as stated above, is whether the landowner faced with a plan designation of his land for a public use can show that he is precluded from all feasible private use of the property pending its eventual acquisition. The decision also held that in making this showing, the landowner may not simply rest on the apparent preclusive effect of the plan or other regulation when administrative procedures exist by which he might obtain at least temporary or partial relief, including administrative procedures for amending the plan. If such procedures for seeking relief exist, they must be pursued. 282 Or. at 614-621, 581 P.2d 50.[6] Petitioners contend that the discussion of the exhaustion requirement in Fifth Avenue Corp. referred to a claim that the prohibitory effect of the plan was invalid, not a claim for compensation, but we are not persuaded that this makes a difference. The significance of exhaustion is not to fix the time when the infringement of plaintiffs' rights occurred. Rather, if a means of relief from the alleged confiscatory restraint remains available, the property has not been taken. In Fifth Avenue Corp., the court concluded that the landowner's complaint did not allege facts which, if proved, would show that plaintiff was precluded from all economically feasible private uses pending eventual taking of the property planned for a transit station or a greenway, so that a demurrer to the complaint was property sustained. 282 Or. at 614, 581 P.2d 50. The present plaintiffs contend that they have pleaded sufficient facts to survive a motion to dismiss. Their first argument, that as a matter of law the land could have no economic use once the comprehensive plan destined it to become a public park, is not new and has been dealt with above. Nor does plaintiffs' allegation that the city and the park district acted in concert differentiate this case from Fifth Avenue Corp., where we noted that the county, whose comprehensive plan was alleged to take plaintiff's property for a transit station, might not be the governmental agency that would acquire the property for that purpose. 282 Or. at 609 n. 14, 581 P.2d 50. To find that the case pleaded in this complaint goes beyond the simple restrictive effect of the comprehensive plan itself, the additional elements must be found in the alleged dealings between the plaintiffs and the governmental entities. Paragraphs IV and VIII of the complaint allege unsuccessful efforts by plaintiffs to have the property rezoned from low density to medium density residential use. Those paragraphs do not amount to an allegation of refusal to allow any present development whatever. Other paragraphs allege that the plan called for the defendants to begin acquiring and developing park land, that the park district attempted to negotiate a purchase from plaintiffs between 1971 and 1976, and that the city acquired easements across plaintiffs' land for drainage ways and bike paths. (It is not clear from the last allegation whether these were steps toward future park development.) Paragraph IX alleges that defendants "induced" plaintiffs to believe that their property *312 would be acquired, to grant the easements, and "to refrain from submission of further development applications on the subject property." The last mentioned allegations do not set forth in detail how the governmental bodies "induced" plaintiffs to forego further attempts to develop their property. These allegations may refer only to plaintiffs' applications for multifamily residential development, which would require zone changes quite apart from the park designation, or they may refer to "inducing" plaintiffs to abandon any development whatever because of defendants' determination to acquire the land. The language is broad enough to encompass a hypothetical claim that defendants told plaintiffs that the property was certain to be acquired, that it would be useless to pursue any proposals for private development, and that defendants began to acquire easements for certain facilities. If that were the case, and the defendants later abandoned their plans, a court could find that one or perhaps both of the governmental bodies had temporarily taken all economic use of plaintiffs' property. The complaint may, of course, not mean to claim so much, or the evidence may not support it. These are matters for an answer, motions, and subsequent procedures on summary judgment or trial. As the trial court dismissed the complaint, we judge it only on its face. It is to be "liberally construed." ORCP 12 A. For the reasons stated, the complaint was sufficient to survive defendants' motion to dismiss. Plaintiffs' claim under 42 U.S.C. § 1983 differs from the foregoing insofar as it rests on the protection of plaintiffs' property rights only under the federal but not under the state constitution.[7] Otherwise it incorporates by reference the factual allegations discussed above. The third cause of action, under 42 U.S.C. § 1985, adds the allegation that defendants acted "with discriminatory animus." The crux of a claim under section 1985 is that defendants conspired to deprive plaintiffs of equal treatment under the laws.[8] If an act in furtherance of the conspiracy injured plaintiffs, the injury need not be to some other constitutional right. We think, however, that the insertion of the phrase "with discriminatory animus" without more is not sufficient to allege an intended denial "of the equal protection of the laws, or of equal privileges and immunities under the laws." A claim of denial of equal treatment, or "discrimination," necessarily requires a comparison with the rights, privileges, or immunities allegedly accorded someone else. Nothing in this complaint, even liberally construed, states or implies how the selection of plaintiffs' land rather than some other land as a future park site resulted from a "discriminatory animus," or that defendants singled them out for adverse treatment for an impermissible reason. We therefore affirm the dismissal of the claim under 42 U.S.C. § 1985 for "failure to state ultimate facts sufficient to constitute a claim," ORCP Rule 21 A(8). Plaintiffs' coupling of a claim for damages under 42 U.S.C. § 1983 with its claim for compensation under state law potentially *313 involves a series of difficult and unsettled issues. Defendants assert, apart from the insufficiency of plaintiffs' allegations, that the § 1983 claim is barred because plaintiffs did not give the notice required by the Oregon Tort Claims Act, ORS 30.275. If the legislature intended to make claims under the federal law contingent on giving such notice to the designated official, this raises the question whether such a requirement is "inconsistent with the Constitution and laws of the United States," 42 U.S.C. § 1988,[9] or whether the legislature has decided to open the state courts only conditionally to the vindication of federal civil rights.[10] The court found it unnecessary to decide a similar issue in Maddox v. Clackamas County School District No. 25, 293 Or. 27, 35-36, 643 P.2d 1253 (1982), a school teacher's claim alleging an unconstitutional discharge, because the teacher had given notice of his claim under ORS 30.275 within 180 days of the post-termination hearing procedures that allegedly fell short of 14th amendment due process.[11] Whether the same ruling as in Maddox is proper here depends on whether the 42 U.S.C. § 1983 claim pleaded by these plaintiffs arises before they are denied compensation for the alleged taking of their property. Except for the interpretation of ORS 30.275, all the foregoing are questions of federal law, several of them not yet answered by the United States Supreme Court. They have not been analyzed or briefed in depth in the present appeal. As a matter of theory, it can be argued that a violation of the 14th amendment, actionable under 42 U.S.C. § 1983, arises not from the taking of plaintiff's property but only when the state fails to provide compensation, in this case only when the "inverse condemnation" action is decided. Until then, neither the period for giving notice under ORS 30.275 nor the period within which to sue on the federal claim begins to run. This differs from the injury a teacher suffers when he is wrongfully discharged from a teaching position. It also can be argued, to the contrary, that an inverse condemnation action is not a regular procedure provided by the state to settle claims for just compensation, which must be followed before there is a premise for a constitutional claim. Rather, as already noted, "inverse condemnation" is only a popular label for an action demanding a judicial remedy for what is alleged to be a completed unconstitutional act. Oregon law forbids local governments to take private property for public use "without such compensation first assessed and tendered," Oregon Constitution, article I, section 18, and see ORS 35.205-35.415. It does not provide a procedure for going forward with the local government's program while the claim for compensation is considered and decided, as it does when the condemnor expects to pay. See ORS 35.265. Federal court decisions are divided between the two theories. When the state initiates condemnation proceedings designed to award just compensation, there is no federal claim unless and until the state proceedings fall short of federal standards. See Ballard Fish & Oyster Co. v. Glaser Construction Co., 424 F.2d 473, 475 (4th Cir.1970), citing Dohany v. Rogers, 281 U.S. 362, 366, 50 S. Ct. 299, 301, 74 L. Ed. 904 (1930). A district court reached the same result where there was a prescribed procedure in the New York Court of Claims for recovering the fair market value of property *314 taken in a "de facto appropriation." Kohlasch v. New York State Thruway Authority, 460 F. Supp. 956, 960-961 (S.D.N.Y. 1978). These were not actions for damages under 42 U.S.C. § 1983, but the same reasoning has been applied in such actions. Elterich v. City of Sea Isle City, 477 F.2d 289 (3rd Cir.1973).[12] On the other hand, another decision in the same district as Kohlasch, supra, declined to follow that precedent in a § 1983 action alleging a conspiracy between the City of New York and a private corporation to delay acquisition of plaintiff's property until they could obtain a lower price in a tax foreclosure sale. Archer Gardens, Ltd. v. Brooklyn Center Development Corp., 468 F. Supp. 609, 613-14 (S.D.N.Y. 1979), citing earlier decisions.[13] Perhaps the theory that the inverse condemnation action is predicated upon a completed deprivation of federal as well as state constitutional rights and therefore coincides with a § 1983 claim is as logical as the contrary theory that there is no 14th amendment deprivation unless the state claim for compensation fails. As we have noted, however, it is a question of federal law, and most of the federal decisions adopt the second view. We do the same and hold that the § 1983 claim does not ripen until the claim under Oregon Constitution, article I, section 18, has been decided. It therefore is not precluded by lack of notice under ORS 30.275 or by the statute of limitations. The parties disagree about the period of limitation applicable to the claim for compensation if a plaintiff can establish a taking for public use. This is a question that has led to divergent holdings under different state statutes. Annotation, 123 ALR 676 (1939). Plaintiffs argued in the trial court that the applicable statute of limitations is ORS 12.080(3), which allows six years within which to commence an action "for interference with or injury to any interest of another in real property." On appeal, they argue for a 10-year limitation under that part of ORS 12.040(1) which ties suits "for the determination of any right or claim to or interest in real property" to the period allowed for actions for the recovery of real property, ORS 12.050. Defendants hold out for a two-year period of limitations under their tort theory. This is not a "suit" to determine plaintiffs' rights, claims, or interest in their real property. Their present rights in that property are undisputed. Several subsections of ORS 12.080 arguably apply. The action may be one for interference with their interest in real property within ORS 12.080(3). Possibly it might be characterized as an action upon a liability which is either statutory and thus within ORS 12.080(2), because the obligation to pay just compensation and a procedure for assessing *315 it are stated in ORS chapter 35 as well as being constitutionally required, or as an action upon an "implied" liability within ORS 12.080(1), because governmental conduct that takes property for a public use constitutionally implies the obligation to pay for such a taking, somewhat analogous to an obligation to pay for unjust enrichment. Cf. Richardson v. Investment Co., 124 Or. 569, 264 P. 458 (1928), and see Hunter v. City of Mobile, 244 Ala. 318, 13 So. 2d 656 (1943). Each of these subsections leads to a six-year period of limitation. Moreover, that would be the period under ORS 12.080(4) when property taken is characterized as "personal" instead of "real" property. We think that ORS 12.080(3) covers this case. The decision of the Court of Appeals is reversed and the case is remanded to the circuit court for further proceedings. [1] Or. Const. art. I, § 18: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; ...." U.S. Const. amend. V: "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const. amend. XIV, § 1: "No State shall ... deprive any person of life, liberty, or property, without due process of law; . .. ." [2] Counties, cities, and local districts are obliged to coordinate their plans, ORS 197.175 to 197.190. [3] "Inverse condemnation" is neither a constitutional nor a statutory term but only "the popular description of a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency." Thornburg v. Port of Portland, 233 Or. 178, 180 n. 1, 376 P.2d 100 (1963). Actions to recover compensation for such a governmental taking long preceded the label; see, e.g., Morrison v. Clackamas Cty., 141 Or. 564, 18 P.2d 814 (1933). The United States Supreme Court has said that "[t]he phrase `inverse condemnation' appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted." United States v. Clarke, 445 U.S. 253, 257, 100 S. Ct. 1127, 63 L. Ed. 2d 373 (1980). [4] Cf. Andrus v. Allard, 444 U.S. 51, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979), sustaining a prohibition against commercial transactions in eagle feathers against a claim that this constituted a "taking" of feathers in private ownership before the prohibition. [5] Although the basic thrust of the fifth amendment and art. I, § 18, is generally the same, see Cereghino v. State Highway Comm., 230 Or. 439, 444-445, 370 P.2d 694 (1962), the criteria of compensable "taking for public use" under art. I, § 18, are not necessarily identical to those pronounced from time to time by the United States Supreme Court under the fifth amendment. For instance, plaintiffs refer to the phrase "investment-backed expectations" in Penn Cent. Transp. Co. v. N.Y. City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631 (1978), but this court has not mentioned such an element in cases under art I, § 18. Nor have we regarded "fairness and justice" as a usable tool to draw a legal line between regulation and taking, as Penn Central suggests, 438 U.S. at 123-24, 98 S. Ct. at 2658-59. This referred to a phrase in Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569, 4 L. Ed. 2d 1554 (1960), that Justice Black probably did not mean to epitomize his legal theory. Investment-backed expectations, of course, exist in planned uses of other tangible or intangible private assets than land; the question is whether such expectations should take account of governmental power to change the laws. As we understand it, "investment-backed expectations" are a necessary but not a sufficient element before a regulation precluding any economic use of property can be attacked as a compensable taking or as a deprivation of property under the 14th amendment; but private property actually taken for public use must be paid for whether it represents an investment or not. Of course there are hypothetical and not so hypothetical situations in which it may be argued that government is misusing regulatory power to impose on private property the burdens of actual governmental or public uses as a means of circumventing its obligation to pay, as for instance by making a carrier provide free transportation for government employees or goods or by imposing a right of passage for the public across private land. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979); Griggs v. Cty. of Allegheny, 369 U.S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962). There is no occasion here to enter upon such arguments, because it is not claimed that defendants demanded any kind of use of plaintiffs' land beyond designating it for eventual acquisition for a park. [6] Petitioners suggest alternative ways by which a comprehensive plan can avoid the rigidity of the preclusive effect of the planned public use or its confiscatory impact or both. The planning devices suggested by petitioners may be useful as a matter of policy, but we do not impose them upon policymakers as a matter of constitutional law. An administrative procedure for raising and deciding the issues may not be as good a planning technique, particularly where plan changes are difficult and subject to time consuming review, yet if that is the available procedure a landowner who has not pursued it cannot show that the "taking" agencies will neither allow him some beneficial use of his property nor proceed to acquire it for the planned public use. [7] 42 U.S.C. § 1983 (1976): "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." [8] 42 U.S.C. § 1985(3) (1976): "If two or more persons ... conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages...." [9] See Bd. of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980); Robertson v. Wegmann, 436 U.S. 584, 98 S. Ct. 1991, 56 L. Ed. 2d 554 (1978). [10] The United States Supreme Court has not decided the question whether a state must entertain a claim under § 1983, perhaps because states generally do so. Martinez v. Cal., 444 U.S. 277, 283 n. 7, 100 S. Ct. 553, 558 n. 7, 62 L. Ed. 2d 481 (1980). [11] See also Roberts v. Mills, 291 Or. 21, 628 P.2d 714 (1981) (successful relief by state writ of habeas corpus makes § 1983 claim superfluous). The Supreme Court of California has held that application of that state's similar tort claim notice requirement to a claim under 42 U.S.C. § 1983 would contravene the supremacy of federal law. Williams v. Horvath, 16 Cal. 3d 834, 129 Cal. Rptr. 453, 548 P.2d 1125, 1127-30 (1976). [12] Accord, Kao v. Red Lion Mun. Auth., 381 F. Supp. 1163, 1166 (M.D.Pa. 1974): "The fact that there allegedly has been a taking of plaintiffs' property without compensation or before any condemnation has taken place does not mean plaintiffs' constitutional rights were violated, since compensation is available under Pennsylvania law." See also Light v. Blackwell, 472 F. Supp. 333 (E.D.Ark. 1979), aff'd 620 F.2d 307 (8th Cir.1980) (no federal claim because due process remedies available in state court and state claims commission). [13] As Archer Gardens, Ltd., illustrates, in the federal courts the question when a federal constitutional claim arises tends to merge with the question whether a plaintiff must exhaust available state remedies, although these are different issues. See Ballard Fish & Oyster Co., supra, 424 F.2d at 475. Courts on both sides cite United States Supreme Court decisions on the significance of state remedies in federal § 1983 actions, e.g. Ingraham v. Wright, 430 U.S. 651, 678, 97 S. Ct. 1401, 1416, 51 L. Ed. 2d 711 (1977) for exhaustion and Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 481, 5 L. Ed. 2d 492 (1961) against. Cf. also Bd. of Regents v. Tomanio, supra n. 9 (exhaustion not required), Parratt v. Taylor, 451 U.S. 527, 542-44, 101 S. Ct. 1908, 1916-17, 68 L. Ed. 2d 420 (1981) (no § 1983 claim for negligent loss of prisoner's property where state tort remedy is adequate) and Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976) (no § 1983 claim for defamation where tort action available). These cases, however, do not include a § 1983 claim alleging an unconstitutional "taking" of property. In a state court, of course, the issue is not exhaustion of state judicial remedies but only the question when the elements of a deprivation of property without due process ripen into a claim under 42 U.S.C. § 1983.

1702c6cf7b5480ddc691851d5e03107e132bcafc5457ac04bcb12e64090fb66c

1982-12-29T00:00:00Z

52763bdb-f490-46d4-8ee7-094e28c9c027

Thompson v. THOMPSON

233 Or. 262, 378 P.2d 281

oregon

Oregon Supreme Court

Affirmed January 23, 1963. *263 Harrison M. Weatherford, Albany, argued the cause for appellant. With him on the briefs was Mark V. Weatherford, Albany. Asa L. Lewelling, Salem, argued the cause for respondents. On the brief were Lewelling & Gies, Salem. Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, GOODWIN and LUSK, Justices. AFFIRMED. O'CONNELL, J. This is a suit brought by the judgment debtor to set aside a sale on execution and to require defendants to account for the reasonable rental value of the property sold. Plaintiff appeals from a judgment in favor of defendants. Defendant, Gladys Thompson, brought a suit for divorce against plaintiff, Kenneth Thompson. The decree granting her a divorce also awarded separate judgments against the present plaintiff for $25,000 as alimony, $3,000 as attorneys' fees, and $125 for unpaid temporary support. Kenneth Thompson appealed in that case. He did not file a supersedeas bond. Gladys *264 Thompson caused execution to issue on the judgments. Gladys Thompson was the purchaser at the sale on execution. The property consisted of a hotel in Albany which she obtained on a bid of $20,024.38, and a parcel of residential property in Salem which she obtained on a bid of $8,479.34. Kenneth Thompson failed to redeem the property within the statutory redemption period provided in ORS 23.560. The certificate of sale for the Albany property was assigned to defendants, Brown and Burt, and subsequently the sheriff's deed for that property was issued to them. The sheriff's deed for the Marion county property was delivered to defendant, Gladys Thompson. She conveyed this property to defendants, Brown and Burt. On June 22, 1960 this court handed down its opinion in the divorce suit which plaintiff had appealed. We sustained the decree awarding a divorce to Gladys Thompson but modified the judgment for alimony by reducing it from $25,000 to $10,000.[1] The defendants tendered the $15,000 difference to plaintiff. The tender was refused. Plaintiff's complaint was treated by the trial court as one seeking restitution for unjust enrichment. Defendants moved for judgment on the pleadings on the theory that the payment of the amount tendered by them would discharge their obligation to make restitution to plaintiff. The motion was granted. The court then granted plaintiff's motion to present evidence "under the rule." *265 The trial court heard the evidence and entered a decree which recited that there was no evidence which would support a decree setting aside the execution sale and that, therefore, the court adhered to the judgment on the pleadings. The principal assignment of error is based upon the theory that the modification of the divorce decree by this court rendered the sale on execution voidable by plaintiff and entitled him to specific restitution of the property sold to satisfy the judgment. Plaintiff relies upon ORS 19.140 which provides as follows: Defendants concede that where a judgment is reversed the judgment debtor may recover the specific property sold on execution.[2] However, defendants contend that the rule is otherwise where the judgment is only modified. Defendants argue that in the event that the judgment is merely modified and in the absence of fraud or some other distinct equitable basis for relief the judgment debtor's relief is limited to a recovery of the amount by which the judgment is reduced. The general rule on the effect of a modification *266 of a judgment is stated in Restatement, Restitution § 74, comment m (1937): The right of the judgment debtor to set aside an execution sale after a modification, as distinguished from the reversal of a judgment, has never been passed upon directly in any Oregon case. Thus in McFadden v. Swinerton, 36 Or 336, 355, 59 P 816, 62 P 12, 13 (1900), it was said that "Our statute provides that, when a judgment or decree is reversed or modified by the appellate court, it `may direct complete restitution *267 of all property and rights lost thereby.'" The case was remanded for further proceedings to restore whatever the judgment debtor lost by reason of the original decree. The court did not decide whether the judgment debtor was entitled to specific restitution as a matter of statutory right, as plaintiff contends in the present case. The court cited, with approval, California cases interpreting a California statute similar to ORS 19.140. California holds that the judgment debtor is entitled to recover only the amount by which the judgment was reduced upon a modification of the judgment.[4] It will be noted that the rule stated in § 74 of the Restatement, Restitution, does not permit the judgment creditor to keep the property sold on execution if "such result would be unfair to the judgment debtor." A similar statement of the rule is found in Martin v. Victor M & M Co., 19 Nev 197, 9 P 336, 337 (1886). There the court, interpreting a statute similar to ORS 19.140, said: 1. We are of the opinion that ORS 19.140 should be similarly construed. Therefore, if plaintiff is to prevail he must show that it would be inequitable to permit defendants to keep the property sold upon paying to plaintiff the difference between the original and the amended judgment. *268 Plaintiff asserts that an inequity resulted from the manner in which the defendants bid in the property at the execution sale. He contends that attorneys Brown and Burt "manipulated" the sale as a result of which they personally profited from the transaction. It was shown that Brown and Burt purchased the interest of defendant Gladys Thompson for $10,000. It was further shown that the defendants agreed among themselves to bid in the property for the total amount of the judgments. The purchase of Gladys Thompson's interest by Brown and Burt was made only after she was carefully advised not only by Brown and Burt but by other counsel at their suggestion. She was in urgent need of cash and gave up her interest fully realizing that her interest in the property might be of greater value than the price she received. Furthermore, even if there had been something inequitable about the conduct of Brown and Burt in connection with their transaction with Mrs. Thompson, it would have no relevancy in establishing any breach of duty to plaintiff. Similarly, the agreement to bid in the property for the amount of the judgment has no relation to any duty to plaintiff. Plaintiff and defendants were dealing at arm's length at the time of the execution sale. They had made no agreement relating to the bid which defendants would make. Under these circumstances defendants had the privilege of bidding any amount they pleased and were entitled to agree among themselves as to the bid which would be made. 2, 3. Plaintiff argues that the disparity between the amount bid at the execution sale and the value of the property is, in itself, a basis for setting aside the sale. We have held that a sale may be set aside where the amount paid for the property at the forced sale *269 is so grossly inadequate as to shock the court's conscience.[5] Without deciding whether the sale can be set aside for this reason alone after confirmation of the sale, we are of the opinion that the evidence does not clearly establish a shocking disparity between the amount bid and the value of the property. As we indicated above, the total amount bid at the execution sale was $28,503.72, of which $8,479.34 was bid for the residence and $20,024.38 was for an undivided one-half interest in the hotel. According to the testimony in the present case, the residence had a value of approximately $17,500 and a one-half interest in the hotel property was worth approximately $40,000. From this amount must be deducted about $4,000 in back taxes and judgment lien against the property. This would not produce a disparity shocking to the judicial conscience. The only other possible equitable consideration in the case is the fact plaintiff may have been able to pay a judgment of $13,125 (i.e., the amended judgment of $10,000 for alimony, the $3,000 judgment for attorneys' fees, and the $125 judgment for unpaid support money) and thus save his property from execution sale. He may not have been able to raise $28,125, the amount of the original judgment. Assuming, without deciding, that this fact alone would be sufficient to warrant setting aside the sale upon a modification as distinguished from a reversal of a decree, the record in this case contains no evidence that plaintiff would have been able to raise the lesser amount. Plaintiff testified that the original judgment in the divorce suit completely destroyed his credit *270 that he "couldn't do business with the bank."[6] The vague assertion that plaintiff's credit was impaired and that he was unable to raise the money necessary to pay off the judgment is not a sufficient basis for granting equitable relief. To accept plaintiff's position would for all practical purposes render the generally accepted rule permitting the judgment creditor to retain the property upon a modification of the judgment meaningless, because in most instances the judgment debtor can show that his property was sold on execution as a result of his inability to raise the money necessary to pay off the judgment. Even though the judgment was modified, it still represents a judicial declaration that the judgment debtor is obligated to the judgment creditor although in a lesser amount. The judgment creditor is entitled to realize upon this lesser judgment out of the judgment debtor's property already sold on execution unless the latter can show why it would be inequitable to permit the sale to stand. 4. Plaintiff argues that the divorce decree in this case created only a judicial lien and that Gladys *271 Thompson would have had to obtain an order of the court authorizing a sale to enforce the lien. In other words, he contends that a sale on execution upon a judgment is not authorized where a lien is created by judicial decree. There is no merit in this contention. A divorce decree requiring the defendant to pay money is a judgment. ORS 107.130 (2). Such a judgment is enforceable by sale on execution in the same manner as any other judgment.[7] Plaintiff has not shown any inequity in the present case. Therefore, the judgment of the lower court must be affirmed. [1] Thompson v. Thompson, 222 Or 505, 353 P2d 241 (1960). The court found that "the award of divorce to Mrs. Thompson is justified" but that the amount of the judgment for alimony was "excessive." The court concluded as follows: "We, therefore, reduce the amount of the alimony to $10,000 and affirm the decree in every other respect." [2] This court said in Lytle v. Payette-Oregon Irr. Dist., 175 Or 276, 286, 152 P2d 934, 938, 156 ALR 894 (1944), "If the judgment creditor has purchased the property at execution sale, and still retains it, [i.e., no bona fide purchaser acquired it] reversal of the judgment divests him of title. Annotation 29 ALR 1078." (The annotation cited contains an extensive collection of cases from the various jurisdictions). [3] Examples of cases where a modification or a reversal in part where the sale was not set aside include Yndart v. Den, 125 Cal 85, 57 P 761 (1889); Martin v. Victor M & M Co., 19 Nev 197, 9 P 336 (1886); Jesup v. City Bank of Racine, 15 Wis 668, 673 (1862). But see Munson v. Plummer, 58 Iowa 736, 13 NW 71 (1882) (distinguishable since creditor wanted sale set aside); Cowdery v. London & San Francisco Bank, 139 Cal 298, 73 P 196 (1903) (distinguishable since basis of holding was that a reversal in part is technically a reversal). The rule is sometimes stated with qualifying language. Thus in Sage v. Clopper, 19 Tex Civ App 502, 48 SW 36 (1898) it was said that the execution sale will stand where the amount bid at such sale was less than the amount of such judgment. See also, cases cited in note 4 infra. [4] Barnhart v. Edwards, 128 Cal 572, 61 P 176 (1900); Hewitt v. Dean, 91 Cal 617, 28 P 93 (1891). Oklahoma is in accord, Reuck v. Green, 103 Okla 288, 229 P 1070, 1071 (1924). See also, Sage v. Clopper, 19 Tex Civ App 502, 48 SW 36 (1898). [5] Ahlstrom v. Lyon, 169 Or 629, 131 P2d 219 (1942); Nodine v. Richmond, 48 Or 527, 87 P 775 (1906). [6] Plaintiff testified further as follows: "Q (By Mr. Weatherford) Well, could you protect yourself financially against this sale? "A Well, why, certainly not. It was by that time the business was with the bank and I never have been able to conclude personal loans with the bank since one of them said to me, `Well, I will hold this for awhile ' "Q You couldn't redeem the property? "A Well, certainly not with a preposterous deal of that nature. "Q You have no other assets except these properties? "A That's right, these are contingencies. That is why I used up all the money hauling timber piles and with the interest but, I can't have an interest and not keep it alive under proceedings of your right and the law of 1872 and it costs a lot of money and then the alimony and this all came in sequence and it is not as simple as it might look to some of these brighter people." [7] Forbes v. Jennings, 124 Or 497, 264 P 856 (1928). Statements in accord with this position are found in Shelley v. Shelley, 204 Or 436, 440, 283 P2d 663, 665 (1955); Stephens v. Stephens, 170 Or 363, 367, 368, 132 P2d 992, 994 (1943); Cousineau v. Cousineau, 155 Or 184, 192, 63 P2d 897, 900-901, 109 ALR 643 (1936).

2d023aba8271dcd73beb78c2c578d57c2048b2dc0c38eb3ff19cf04ca0e360b6

1963-01-23T00:00:00Z

1d34951a-9758-4673-8f66-fc6cb23bf966

Matter of Marriage of Jenks

294 Or. 236, 656 P.2d 286

oregon

Oregon Supreme Court

656 P.2d 286 (1982) 294 Or. 236 In the matter of the Marriage of Howard B. JENKS, Petitioner On Review, and Lynda Kay Jenks, Respondent On Review. CA A20529; SC 28485. Supreme Court of Oregon, In Banc.[*] Argued and Submitted June 7, 1982. Decided December 21, 1982. *287 J.W. Walton of Ringo, Walton & Eves, P.C., Corvallis, argued the cause and filed the petition for petitioner on review. Michael F. McClain of McClain & Brown, Corvallis, argued the cause for respondent on review. *288 TANZER, Justice. This dissolution case involves property division, spousal support and child support. We allowed review to consider whether property acquired by one spouse as a gift is to be deemed a "marital asset" as that term is used in ORS 107.105(1)(e). We have since held in the factually simpler case of Pierson and Pierson, 294 Or. 117, 653 P.2d 1258 (1982), that property acquired by one spouse through inheritance during the marriage is a marital asset. This case presents the further issue of distribution of assets acquired by gift in a more complex context of an involved financial history and the need for spousal and child support. We accept the facts found by the Court of Appeals, 55 Or. App. 824, 640 P.2d 1032, and stated in its opinion: *289 The Court of Appeals upheld the property division, upheld the award of spousal support, awarded sole custody to wife and remanded for reconsideration of child support in light of Smith and Smith, 290 Or. 675, 626 P.2d 342 (1981). The husband petitions for review contending that he is entitled to ownership of the house and acreage in his name and that his support obligation is excessive in light of his ability to pay. The personal property was divided approximately equally and there is no reason to disturb that part of the award. We also uphold the division of real property by the Court of Appeals, but on somewhat different reasoning. The real property in contention consists of the home and surrounding 10 acres in husband's name, the 67 acres also in husband's name and the 97 acres in both names. We begin our review of the property division by reference to the governing statute, ORS 107.105(1)(e), which now provides: As we held in Pierson, any property owned by either party is subject to the dispositional authority of the court pursuant to the first sentence of ORS 107.105(1)(e) and property acquired by either party during the marriage is a marital asset as that term is used in the statute. That is true even if the acquisition is by inheritance as in Pierson, and equally if the acquisition is by gift as in this case. Thus, in this case, the wife is entitled to the benefit of the statutory rebuttable presumption of equality of contribution and the husband is entitled to the tax benefit of the ownership provisions of the statute if the property in his name is awarded to the wife. The statutory presumption of equality of contribution to the acquisition of marital assets, as we stated in Grove and Grove, 280 Or. 341, 346, 571 P.2d 477, reh. den. and modified 280 Or. 769, 572 P.2d 1320 (1977), "indicates a legislative intent that the homemaker spouse who is most likely to seek spousal support, be recognized as an economic contributor to the marriage rather than as a passive recipient of economic benefits provided by the breadwinner." It would apply, for example, to a distribution of marital assets purchased with the earnings of one spouse. In the absence of evidence to the contrary, the presumption would require a holding that a non-earning spouse's efforts contributed to the accumulation of family property. The presumption may be overcome, however, by a finding that property was acquired by one spouse by gift or inheritance, uninfluenced by the other spouse. In such a case, there has been no economic or other contribution by the other spouse to the acquisition of the asset. Here, we must apply the presumption to all the marital assets including the house, 10 acres and 67 acres in husband's *290 name. Had husband's title been the only evidence regarding that property, the presumption of equal contribution to acquisition would require that the property be subject to equal division, absent other factors. See, Pierson and Pierson. The fact that it was acquired by gift, free from any finding that the gift was related to wife's efforts or that wife was an object of the donative intent, overcomes the statutory presumption.[1] Therefore, wife is not entitled by virtue of the statutory presumption to share in the distribution of the value of that real property as of the date of its acquisition.[2] Overcoming the statutory presumption of equality of contribution does not end our inquiry. The presumption is only one consideration in determining a property division which is "just and proper in all the circumstances." Although wife is not entitled to share in the husband's house and acreage by virtue of the statutory presumption, other equitable reasons dictate the same result. When couples enter marriage, they ordinarily commit themselves to an indefinite shared future of which shared finances are a part. Acquisitions are made, foregone or replaced for the good of the family unit rather than for the financial interests of either spouse. Property is bought, sold, enhanced, diminished, intermixed and used without regard to ease of division upon termination of the marriage. All this may be modified by agreement, of course, but, by the nature of the marital relationship, couples ordinarily pledge their troth for better or worse until death parts them and their financial affairs are conducted accordingly. If the marriage is terminated before the parties' financial affairs become commingled or committed to the needs of children to the point that the parties cannot readily be restored to their pre-marital situations, then property division is a relatively simple task in the nature of a rescission. See, York and York, 30 Or. App. 937, 569 P.2d 32 (1977). That, rather than any specific number of months or years, is what we mean by a "short-term marriage." With each common financial act or decision, however, the finances of the parties may become more interrelated, and extrication upon dissolution becomes increasingly difficult. The origin of each item becomes less significant in the overall task of making a property division which is "just and proper in all the circumstances." This marriage is an example of one in which finances have become interrelated past the point of simple extrication. Here, although husband's house and adjoining acreage are in husband's name as a result of gift, husband and wife contributed by their joint labor and expenditures to the conversion of the family home from its dilapidated state to its present comfortable, more valuable condition. There was no need to purchase a family home in both names because the husband's house was available for that use. Funds that might have been dedicated to that purpose went instead to purchase the jointly owned 97-acre addition and husband's house and acreage were pledged to secure that purchase. The children of both parties are being raised in the house without regard to which parent holds title. Unlike the inheritance in Pierson, this donated property has been integrated into the common financial affairs of the parties and their children. We conclude that it is properly a part of the property division equation. Here, unlike Pierson, the marital assets are capable of roughly equal division. The *291 trial court and the Court of Appeals made it by requiring husband to transfer his interest in the home and surrounding 10 acres to wife and requiring wife to transfer her interest in the 97-acre tract to husband. The obvious purpose in awarding wife the family home is to provide a residence for the children. We could award the 164 acres to wife and the home and surrounding 10 acres to husband. The trial court's award was apparently made in recognition of a need for a degree of stability for the children in an unstable time. While this may be a bitter sentimental disappointment to husband, we have no compelling reason to disturb that determination. We are required by ORS 107.105(1)(e) to consider tax consequences in formulating the award. An effect of designating husband's property a marital asset is to render it held in "a species of co-ownership" subject to "partitioning of jointly owned property." Engle and Engle, 293 Or. 207, 646 P.2d 20 (1982). Thus the transfer will theoretically generate no present tax liability.[3] Husband urges alternatively that he be allowed to retain ownership of the family home subject to wife's right to live there during the minority of the children. The proposal would continue a relationship between the parties, where the predominant purpose of a dissolution is to sever the parties to the greatest extent possible. As the Court of Appeals said in Slauson and Slauson, 29 Or. App. 177, 183-84, 562 P.2d 604 (1977): If the house becomes unsuitable, under husband's proposal wife would have no ability to use the house to obtain another home for herself and the children. Furthermore, husband would have no assurance that wife, as a tenant, would maintain the house satisfactorily. Simple ownership is a preferable way of severing the parties' financial interdependence. Although the house and 10 acres remain subject to the mortgage, entanglement to that degree is unavoidable. We cannot ignore the sentimental value of the house and 10 acres to the husband after 130 years of family ownership, however. We therefore modify the decree to require that husband have a right of first refusal, exercisable within 60 days of written notice of impending sale, in the event wife seeks to sell the property.[4] Finally, husband complains that his child support and spousal support obligation is too high, leaving him only $115 per month on which to support himself. Three hundred fifty dollars of his expenses go to mortgage payments for the purchase of the 97-acre tract. He has the option of selling the property to free the equity for some other form of investment.[5] Even so, a monthly support obligation of $800 (plus insurance) and $134 payments on wife's car payable from income of $1,399 will be difficult to meet. The remand by the Court of Appeals for reconsideration in light of Smith and Smith, 290 Or. 675, 626 P.2d 342 (1981), is not challenged on review. We trust that upon remand the total support obligation will be material to the reconsideration. Affirmed as modified and remanded. Costs to respondent on review. PETERSON, Justice, specially concurring. I concur in the result. I do not concur in the majority's analysis. The majority concludes *292 that the marital assets[1] should be equally divided. Its analysis is as follows: 1. The rebuttable presumption of equal contribution arising from the third sentence of ORS 107.105(1)(e) has been "overcome." 2. "Although wife is not entitled to share in the husband's house and acreage by virtue of the statutory presumption, other equitable reasons dictate the same result." (Emphasis added.) 294 Or. at 242, 656 P.2d 290. 3. "If a marriage is terminated before the parties' financial affairs become commingled or committed to the needs of children to the point that the parties cannot readily be restored to their pre-marital situations, then property division is a relatively simple task in the nature of a rescission." 294 Or. at 242, 656 P.2d 290. 4. "Property is bought, sold, enhanced, diminished, intermixed and used without regard to ease of division upon termination of the marriage. * * * With each common financial act or decision, however, the finances of the parties may become more interrelated, and extrication upon dissolution becomes increasingly difficult." 294 Or. at 242, 656 P.2d 290. 5. "* * * [T]his donated property has been integrated into the common financial affairs of the parties and their children. We conclude that it is properly a part of the property division equation." 294 Or. at 243, 656 P.2d 290. The majority opinion says that if the parties have "integrated" their financial affairs, particularly if there are children, for "equitable reasons" the property will be divided. The duration of the marriage is not a significant factor in the majority's analysis. Focusing upon the confusion of marital assets is neither a straightforward nor a productive way to analyze the problem. A clearer and more logical analysis can and should be made. Irrespective of the length of the marriage, "integrated" financial affairs will have to be "disintegrated" or "unintegrated." I will assume, for the sake of argument, that the rebuttable presumption has been "overcome."[2] Even if the rebuttable presumption has been overcome, the second sentence of ORS 107.105(1)(e) still requires that "[t]he court shall consider the contribution of a spouse as a homemaker as a contribution to the acquisition of marital assets." That sentence requires that the court consider the 13 years of contribution by the wife as a homemaker. Because of the duration of the wife's homemaking contribution, an equal division is appropriate in this case. Suppose that the husband and wife in this case had lived in a rented house during the entire marriage, that a house and 10 adjoining acres were given to the husband as a gift, that an additional 67 acres were given to the husband as a gift the following year, and that the income from the rural properties was exactly enough to pay all expenses on those properties. Suppose further that the wife never had anything to do with the rural properties. Finally, suppose that the rural properties are the only substantial asset in the marriage. I suggest that this court would order that the properties be divided about evenly because the wife made a substantial "contribution * * * as a homemaker," and because the marriage is of moderate duration, 13 years. Even though ORS 107.105(1)(e) makes no explicit reference to "the duration of the marriage,"[3] the quantum of a spouse's contribution *293 as a homemaker is directly related to the period of time the contribution was made. The extent to which "the finances of the parties * * * become more interrelated, and extrication upon dissolution becomes increasingly difficult" (majority opinion 294 Or. at 242, 656 P.2d 290), largely is a product of the duration of the marriage, and is not an independent justification or reason for dividing the assets equally. Were this a marriage of only one or two years, assuming a mixture of marital assets similar to those at bar, the result would be different. The division of property resulting from such a brief marriage would be markedly different from the result in this case because the wife's contribution as a homemaker would be less than the wife's contribution in this case, not because of the presence or absence of commingled assets. The majority opinion gives little direction to judges, lawyers and parties in an area of the law in which guidance is needed. The extent to which the assets have been commingled has little relevance to the division of property.[4] Our holding should be that in considering "the contribution of a spouse as a homemaker as a contribution to the acquisition of marital assets" (which ORS 107.105(1)(e) requires us to do), the longer the homemaker spouse contributes, the greater is the homemaker's entitlement to a share of the property. [*] Denecke, C.J., retired June 30, 1982. [1] Evidence that the gift was to the family rather than solely to husband was not accepted by the trial court or the Court of Appeals, see 55 Or. App. at 826, n. 2, 640 P.2d 1032. The point turns on an assessment of credibility by the trial court. We find no persuasive reason in the record to overturn the trial court's finding. [2] The Court of Appeals reasoned that wife's efforts in the improvement of the property established the fact of equal contribution. In our view, efforts expended after acquisition are relevant to division of the value of improvements or appreciation, but do not affect the preceding acquisition. [3] Although I questioned the correctness of the tax holding in Engle, see my dissent, I accept it as a controlling precedent in this case. [4] Upon remand, an appropriate provision shall be inserted in the decree spelling out the right of first refusal. If the parties cannot agree upon appropriate terms, the trial judge shall specify the terms of the right of first refusal. [5] We assume the present depressed market is not a permanent condition. [1] I use the term "marital assets" in the technical meaning it was given in Pierson and Pierson, 294 Or. 117, 121-22, 653 P.2d 1258 (1982). [2] Strictly speaking, upon a showing that the property was received as a gift, the rebuttable presumption has been overcome as to both the husband and the wife. Neither spouse "contributed" anything to the acquisition of the donated property. [3] Compare ORS 107.105(1)(c), which concerns support awards and which makes specific reference to "the duration of the marriage." See Glatt and Glatt, 41 Or. App. 615, 598 P.2d 1237 (1979), in which these statements were made: "* * * We have stated that the factors ORS 107.105(1)(c) mentions with respect to spousal support determinations, while not controlling, provide useful guidance in property divisions. * * * "In dissolution cases involving marriages of long duration, the courts have consistently been less concerned with identifying the relative contributions of the parties than they have been with ensuring that the parties separate on as equal a basis as possible, under the circumstances. * * *" 41 Or. App. at 621, 622, 598 P.2d 1237. [4] If a husband and wife each brought cash into a one-year marriage and an asset were purchased, with one spouse paying 90 percent of the purchase price, we would not divide the asset equally because their assets had become "interrelated and extrication * * * difficult." We would attempt to restore them to their respective positions before marriage because of the short duration of the marriage.

d3527c89128ed5153cef94f3a2259c9358e9e672af446bae9784669fb45b78de

1982-12-21T00:00:00Z

d910006e-a4a3-4cc1-8286-c554c4b3fa06

State v. Lennon

S057150

oregon

Oregon Supreme Court

FILED: April 8, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. CHARLES KAVIN LENNON, aka Charles Cavin Lennon, Respondent on Review. (CC 02C46833; CA A122082; SC S057150) En Banc On appeal from the Court of Appeals.* Argued and submitted January 5, 2010. Doug M. Petrina, Senior Assistant Attorney General, Salem, argued the cause for petitioner on review.  With him on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Meredith Allen, Senior Deputy Public Defender, Office of  Public Defense Services, Salem, argued the cause for respondent on review.  With her on the briefs were Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender. LINDER, J. The decision of the Court of Appeals is reversed.  The judgment of the circuit court is affirmed. *Appeal from Marion County Circuit Court, Albin W. Norblad, Judge. 225 Or App 318, 201 P3d 264 (2009). LINDER, J. This case is before us a second time.  In its first decision, the Court of Appeals determined that it was plain error for the sentencing court not to have given defendant the option of a jury trial to decide the facts on which the court imposed an upward departure sentence for his conviction; the Court of Appeals then exercised its discretion to correct that error.  State v. Lennon, 204 Or App 111, 129 P3d 209 (2008) (Lennon I).  On review, this court vacated that decision and remanded for reconsideration in light of State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh'd to as modified on recons, 344 Or 195, 179 P3d 673 (2008).(1)  State v. Lennon, 345 Or 315, 199 P3d 63 (2008).  On remand, the Court of Appeals reconsidered whether it should exercise its discretion to consider defendant's challenge to his sentence.  It determined that it should do so, and again remanded the case for resentencing.  State v. Lennon, 225 Or App 318, 320, 201 P3d 264 (2009) (Lennon II).  We allowed the state's petition for review.  For the reasons we explain below, we now reverse the decision of the Court of Appeals and affirm the judgment of the circuit court. Defendant was convicted after a jury trial of unlawful delivery of a controlled substance (methamphetamine).  After the jury returned its verdict, the trial court discharged the jury without objection.  About one month later, the court held a hearing to impose sentence.  Based on the seriousness of his current offense and the existence of two person-related felony convictions in his criminal history, the presumptive sentence for defendant's offense under the sentencing guidelines was 35 to 40 months of incarceration.  The presentence report prepared by the Department of Corrections for defendant's sentencing catalogued a much more extensive criminal record for defendant than had factored into defendant's presumptive sentence under the guidelines.  Based on the presentence report, the sentencing court imposed a durational departure sentence of an 80-month term of incarceration, followed by 36 months of post-prison supervision.  The sentencing court expressly found that "prior incarcerations, probations, paroles, sanctions haven't worked" to deter defendant from continued criminal activities.  Defendant did not object to his sentence at the time of sentencing. On appeal, defendant argued for the first time that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the sentencing court had committed plain error in imposing a departure sentence based on facts that were neither admitted by defendant nor found by a jury.  The Court of Appeals agreed.  The Court of Appeals further agreed with defendant that it should exercise its discretion to correct that error, and it reversed.  Lennon I, 204 Or App at 112.  The state petitioned for review and, while that petition was pending, this court issued its decision in Ramirez.  As we have noted, we thereafter allowed the state's petition for review in this case, vacated the Court of Appeals decision, and remanded for reconsideration in light of Ramirez.  On remand, the Court of Appeals adhered to its prior disposition.  Lennon II, 225 Or App at 320.  The state again petitioned for review, and we allowed the petition. To provide context for our discussion of the Court of Appeals decision on remand, we begin by briefly describing our decision in Ramirez.  In Ramirez, this court was presented with two issues.  The first was whether it was plain error for a sentencing court to make the factual findings supporting a departure sentence.  Under Blakely and Apprendi, such findings must be made by a jury unless the defendant waives his right to have the jury decide them.  More specifically, the issue was whether it was plain error for the sentencing court to make the departure findings, given that the defendant had invoked his right to a jury trial to determine guilt and then did not object when the jury was discharged and the trial court imposed the departure sentence.  Ramirez, 343 Or at 512.(2)  The second issue was whether, if the sentencing court committed plain error, the Court of Appeals properly exercised its discretion to reach it.  Id. This court declined to reach the first issue in Ramirez, concluding that the more "expeditious" way to resolve the case was to assume for purpose of that case that it was plain error for the sentencing court to have discharged the jury and made the findings necessary to support the departure sentence.  Id.  This court instead resolved the case based only on the second issue -- i.e., whether the Court of Appeals had properly exercised its discretion to correct the error.  Id.  In Ramirez, the defendant was convicted of attempted murder and first-degree assault after having shot the victim in the head.  The victim survived, but lost an eye.  At sentencing, the trial court imposed an upward departure sentence, based in part on the fact that the victim had sustained a permanent injury -- a factor, the trial court concluded, that alone was sufficient to support the departure.  After assuming that it had been error for the trial court, rather than the jury, to make the factual findings supporting the sentence, this court further concluded that the Court of Appeals should not have exercised its discretion to correct the error: "If, as the record reveals, there is no legitimate debate that the victim suffered a permanent injury as a result of the shooting, then defendant's interest in a second hearing is minimal, if not nonexistent:  A second hearing would only confirm that the departure sentence was warranted.  The state, for its part, has a significant interest in avoiding a second, unnecessary sentencing hearing.  Viewed in that light, the competing interests of the parties establish that this was not an appropriate case in which to consider defendant's unpreserved error." Id. at 513 (emphasis added). After this court remanded this case to the Court of Appeals for reconsideration in light of Ramirez, the Court of Appeals began by declining to reconsider whether the sentencing court had committed plain error by discharging the jury and judicially finding the facts on which the departure sentence was based.  In that regard, the Court of Appeals noted that Ramirez had not disturbed the Court of Appeals' plain error determination; instead, Ramirez had reversed only on the conclusion that the Court of Appeals should not have exercised its discretion to reach the error.  Lennon II, 225 Or App at 321. Consequently, the Court of Appeals on reconsideration revisited only whether it should exercise its discretion in this case to correct the error.  It concluded that it should.  Id.  Its decision in that regard was predicated on its view of what factual inferences are legally required to support a departure sentence on the ground that the trial court relied on in this case -- viz., that prior criminal sanctions had failed to deter defendant from further criminal conduct.  Relying on its own precedent, the Court of Appeals concluded that "failure to deter" could not be inferred from a defendant's criminal history alone.  Rather, a defendant's criminal history must support the further factual inference that the defendant possessed a "malevolent quality" as part of his character:                    "[T]he determination of whether a defendant had been undeterred by prior sanctions involves more than merely recounting the defendant's criminal history.  There also must be evidence that is sufficient to allow a factfinder to draw an inference about 'the malevolent quality of the offender,' and the failure of probation to serve as an effective deterrent." Id. at 323 (quoting State v. Allen, 198 Or App 392, 396, 108 P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123 P3d 331 (2005), disposition withdrawn, 207 Or App 295, 140 P3d 1135, rev den, 342 Or 46 (2006)) (emphasis added).  The Court of Appeals thus held that "a finding that a defendant has not been deterred by prior probations or incarcerations depends on inferences about the defendant's personal characteristics and circumstances that are subject to the jury trial right[.]"  Lennon II, 225 Or App at 322. Taking guidance from Ramirez, the Court of Appeals examined the record in this case to determine if there was "no legitimate debate" as to the inferences that the Court of Appeals believed the factfinder must draw.  In particular, the Court of Appeals reviewed defendant's extensive criminal history of prior incarcerations, arrests, other sanctions, and parole and probation violations, most of which were not considered in calculating the presumptive sentence for defendant's current crime of conviction.  The Court of Appeals was unable to conclude that there was "no legitimate debate" as to whether the jury would have found the departure factor that the sentencing court relied on.  As noted, the court reasoned that determining whether a defendant has been undeterred by prior criminal sanctions required "more than merely recounting the defendant's criminal history" and instead required a further inference "about the malevolent quality of the defendant."  In the Court of Appeals' view, "the record here -- which consists merely of defendant's criminal history and the state's characterization of defendant's performance while on probation -- does not satisfy that standard."  Lennon II, 225 Or App at 324.(3) On review, the parties take issue with whether the Court of Appeals correctly determined that, for a departure sentence to be based on "failure to deter," a factfinder must specifically infer that there is a separate "malevolent quality" to defendant's character.  The state contends that, as an upward departure sentencing factor, "failure to deter" may be permissibly inferred from the extensiveness and nature of a defendant's history.  According to the state, when that inference is drawn, it is a sufficient basis for a departure sentence; a further inference of a separate "malevolent quality" is not required by law, makes little sense, and should be discarded.(4)  In response, defendant acknowledges that the phrase "malevolent quality" may be a less-than-ideal way to describe what a factfinder must infer to support a departure sentence in this case.  Defendant argues, however, that the Court of Appeals was correct in requiring more than a finding of "failure to deter."  Defendant reasons that, under ORS 137.671(2), a sentencing court may impose a departure sentence only if "there are substantial and compelling reasons" for the departure.  According to defendant, it is a "truism" that prior criminal sanctions have not deterred a defendant whenever that defendant commits a subsequent crime.  Defendant thus argues that something more than a defendant's criminal history is required to establish a "failure to deter" sufficient to provide a substantial and compelling basis for a departure.(5) This court's decision in State v. Bray, 342 Or 711, 160 P3d 983 (2007), provides guidance in resolving the issue framed by the parties' arguments.  One of the issues in Bray was whether a departure factor -- "persistent involvement in similar offenses" -- fell within the prior conviction exception to the rule in Apprendi.  If so, then the factor was not subject to the Blakely/Apprendi jury trial right; if not, then defendant was entitled to have a jury decide his "persistent involvement in similar offenses" unless he waived a jury trial on the issue.  This court held that, in determining whether the record establishes a defendant's "persistent involvement in similar offenses," a sentencing court "must do more than find that a defendant has two or more prior convictions for similar offenses."  Bray, 342 Or at 724.  Rather, the trier of fact "must infer from the number and frequency of those prior convictions whether the defendant's involvement in those offenses is 'persistent[.]'"  Id.  In determining what "persistent" entails, this court drew from the ordinary understanding of that term -- i.e., recurring or continuing.  Id. (citing dictionary definition).  Given the particular record in Bray, this court concluded that more than one inference could have been drawn from the defendant's criminal history as to whether his criminal conduct was recurring or continuing because, although defendant had 10  offenses in his criminal history that were similar to his current crime of conviction, all had arisen out of a single prior criminal incident involving two victims.  As a result, this court determined that the failure to submit the issue of "persistent involvement" to a jury -- which was a preserved claim of error in Bray -- was not harmless.  Id. Bray is significant here, because this court required no further inference to support a departure, beyond the inference of "persistent involvement" that a factfinder might permissibly draw from a defendant's criminal history.  In contrast, the Court of Appeals had held, in a series of cases that preceded Bray, that "persistent involvement" entailed a further inference that defendant's criminal history reflected a "separate malevolent quality" in his character.(6)  In the wake of Bray, the Court of Appeals recognized that requiring a "separate malevolent quality" to be inferred from a defendant's criminal history placed a "gloss" on the operative departure standard that had no place in the analysis.  State v. Schenewerk, 217 Or App 243, 247, 174 P3d 1117 (2007), rev den, 344 Or 671, 189 P3d 26 (2008).  The Court of Appeals acknowledged, instead, that imposing a departure sentence on the ground of "persistent involvement" was more "straightforward."  Id. at 246.  In particular, the factfinder was entitled to determine, from the "number and frequency" of a defendant's prior convictions for similar offenses, whether the defendant's involvement in those offenses was so "continuous or recurring" as to be "persistent."  Id. at 247; see also State v. Agee, 223 Or App 729, 196 P3d 1060 (2008) (same). We agree with the Court of Appeals' reconsideration of its former "separate malevolent quality" analysis in the context of the "persistent involvement in similar offenses" ground for a departure sentence.  A similar analysis applies here.  To find a failure to deter, the factfinder must infer that a defendant's prior criminal sanctions should have deterred the defendant from committing the current offense.  Whether that inference follows from the defendant's prior criminal sanctions will depend on such factors as the number of past convictions or sanctions, when they occurred, and the kind of crimes that the defendant committed.  A finding that those past criminal sanctions have not deterred a defendant from committing further crimes thus requires something beyond a conclusion that a defendant has one or more criminal convictions in his past.(7)  But a finding of a "separate malevolent quality" is not necessary.  If the record supports the factual inference that a defendant's prior criminal convictions or sanctions should have, but did not, deter the defendant from committing his new offense or offenses, that factual finding can, in a proper case, support a departure sentence.  It is then for the sentencing court to decide, based on that predicate factual determination, whether there is a "substantial and compelling" reason to impose an upward departure sentence in a particular defendant's case.  See State v. Upton, 339 Or 673, 681, 125 P3d 713 (2005) (defendant has right under Blakely to have jury decide existence of facts that sentencing court then may consider to determine whether substantial and compelling reasons exist to impose sentence that exceeds presumptive range).(8) In this case, the record of defendant's criminal history provides "no legitimate debate" that prior criminal sanctions have failed to deter defendant from engaging in criminal activity.  The presentence report, on which the sentencing court relied, shows that defendant's criminal history spans two decades, without a significant lapse of time between his criminal activities.  He has been convicted of 37 criminal offenses; has received supervision terms in 22 cases, and has violated supervision at least 34 times.  His parole and probation record includes over 1,500 entries that detail repeated instances of arrest and incarceration, illegal drug use, restraining order violations, failing to report or keep contact with parole and probation officers, and failing to undergo or complete court-ordered drug treatment.  What is more, defendant committed the drug offense in this case while awaiting sentencing on a drug-related conviction for which he had been tried only about two weeks earlier.  Based on those facts, we conclude that there is no legitimate debate that past criminal sanctions have failed to deter defendant from engaging in criminal conduct.  The Court of Appeals erred in reaching a contrary conclusion, based on the erroneous legal premise that the record must also establish that defendant possessed a separate malevolent quality.  The Court of Appeals should not have exercised its discretion to correct any error in the imposition of defendant's departure sentence. The decision of the Court of Appeals is reversed.  The judgment of the circuit court is affirmed. 1. In remanding, we also cited State v. Fults, 343 Or 515, 173 P3d 822 (2007), which was a related case decided on the same date as Ramirez.  For purposes of this case, Ramirez is the more important precedent and we cite and discuss it without considering Fults further. 2. That issue in Ramirez arose aftermath this court's decision in State v. Gornick, 340 Or 160, 130 P3d 780 (2006).  In Gornick, this court held that it was not plain error for the sentencing court to make the findings that supported a departure sentence.  This court concluded that defendant's failure to object to the sentence permitted competing inferences as to whether the defendant waived his right to have a jury decide the facts necessary to support the departure, and that those competing inferences precluded treating the error as "plain."  In Gornick, the defendant, in advance of trial, had executed a valid written waiver of his right to a jury trial to decide guilt.  The "plain error" question in Ramirez was whether the conclusion that this court reached in Gornick -- viz., that competing inferences could be drawn from defendant's failure to claim at sentencing that he was entitled to a jury trial on the departure findings -- should follow in a case in which the defendant, rather than having waived a jury at the outset of the trial, had instead invoked his right to a trial by jury. 3. The Court of Appeals decision may reflect some misunderstanding of our holding in Ramirez.  The Court of Appeals appears to have used the "no legitimate debate" standard in Ramirez as the test for whether to exercise its discretion to reach the error.  That is an incorrect understanding of the holding in Ramirez.  The "no legitimate debate" criterion, if satisfied, places the error outside the universe of what the Court of Appeals may consider as a discretionary matter.  An opposite conclusion -- i.e., that there is a legitimate debate about what factual conclusion a jury might reach -- means only that the error is one that the Court of Appeals may consider; it does not mean that the court must do so.  In other words, in the latter circumstance, the Court of Appeals may, in the exercise of its sound discretion, make either choice -- i.e., not to reach and correct the error or, alternatively, to reach and correct the error. 4. The state also presents, as a second question for this court's review, whether the sentencing court committed plain error at all.  Specifically, the state asserts that, as this court concluded in Gornick, 340 Or 160 and State v. Perez, 340 Or 310, 131 P3d 168 (2006), unpreserved Apprendi/Blakely claims are susceptible to competing inferences as to whether a defendant may have deliberately failed to raise the claim, and they therefore do not qualify as error apparent on the record.  We decline to reach that issue, for two reasons.  First, as we have already noted, in remanding this case for reconsideration, we expressly did so citing Ramirez, a case in which we declined to resolve the plain error issue and instead considered only whether the Court of Appeals properly exercised its discretion to correct that "assumed" error.  In light of the terms of our remand, the Court of Appeals understandably did not revisit its plain error conclusion in this case.  Second, and in all events, our reasons for approaching the problem as we did in Ramirez remain valid.  Statutory changes have diminished the extent to which the issue will arise in future cases, and it remains more expeditious to resolve this case based on whether this is a circumstance in which the Court of Appeals had discretion to correct the perceived error.  See Ramirez, 343 Or at 512 (discussing those considerations).  5. Defendant raises several other issues in his brief on the merits, some of which present constitutional challenges to aspects of Oregon's sentencing guidelines.  Those additional issues were not raised at sentencing, were not presented to the Court of Appeals, and therefore are not properly before this court.  See ORAP 9.20(2) (reviewable questions before Supreme Court include all questions properly before the Court of Appeals that the petition or the response claims were erroneously decided by that court). 6. See State v. Kennedy, 113 Or App 134, 137-38, 831 P2d 712 (1992) ("persistent involvement in similar offenses," as ground for departure sentence, was intended to capture "a separate malevolent quality in the offender" represented by repetitive nature of offender's criminal history); see also State v. Perez, 196 Or App 364, 372-73, 102 P3d 705 (2004) ("persistent involvement" ground for departure sentence requires factfinder to infer separate malevolent quality, over and above counting the number of offenses in a criminal offender's history). 7. For example, a defendant might have a 15-year-old conviction for an assault that he committed as a young man during an argument over a girlfriend.  Years later, he may have become involved with drugs and have a current conviction for a drug offense.  The single 15-year-old assault conviction would be a weak basis for a "failure to deter" inference in such a circumstance. 8. Defendant's argument appears in certain respects to take issue with whether the "failure to deter" ground for a departure sentence can, without more, legally constitute "substantial and compelling" grounds for a departure sentence.  However, defendant raised no objection to the sentencing court's decision to depart on a "failure to deter" ground.  If defendant believed that "failure to deter," once a factual basis for it is found, is nevertheless not a ground that legally supports a departure sentence, he needed to preserve that argument by objecting on that theory at the time of sentencing.  Defendant did not do so in this case.

dcbaa89a13dc4c68128bcd63902988fc881f822bc2649769524483dfeb14af9b

2010-04-08T00:00:00Z

2be4d0d4-4906-487b-a10b-3176d9a31392

State v. Lupoli

S056477

oregon

Oregon Supreme Court

FILED: June 4, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. TYLER JAMES LUPOLI, Petitioner on Review. (CC C052106CR, C053594CR; CA A132083, A132084; SC S056477) En Banc On review from the Court of Appeals.* Argued and submitted September 14, 2009. Robert Rosenthal, New York, argued the cause and filed the brief for petitioner on review.  With him on the brief were Edward H. Talmadge and Tracy M. McGovern of Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C., Medford. Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review.  With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. GILLETTE, J. The decision of the Court of Appeals and the judgments of the circuit court are reversed as follows:  The judgment of conviction against defendant for attempted first-degree sexual abuse of victim T is reversed, and the case is remanded to the circuit court for entry of a judgment of acquittal on that charge.  The judgments of conviction against defendant for first-degree sexual abuse of victims SM and SO, and the judgment of conviction against defendant for attempted first-degree sexual abuse of victim W are reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from Washington County Circuit Court, Paula Brownhill, Judge. 219 Or App 665, 185 P3d 571 (2008). GILLETTE, J. This criminal case presents two issues.  The first is whether certain expert witnesses at trial improperly "vouched" for the veracity of children who allegedly had been victims of sexual abuse.  The alleged vouching occurred when the experts testified generally about characteristics of truthful and untruthful children and then testified that statements of the children in question displayed the characteristics of truthful children and lacked characteristics indicative of suggestion, influence, or fantasy.  The second issue is whether the trial court erred in denying defendant's motion for judgment of acquittal on the charge involving one of the alleged victims.  The Court of Appeals affirmed defendant's convictions without opinion.  State v. Lupoli, 219 Or App 665, 185 P3d 571 (2008).  For the reasons that follow, we reverse the decision of the Court of Appeals and the judgment of the circuit court, and we remand the case to the circuit court. The following facts are undisputed.  At the time of the events that led to the charges against him, defendant was 19 years old and had been working at a fitness club in Hillsboro, Oregon, for about two months, selling club memberships.  By his own admission, defendant did not enjoy sales and was not a very good salesman.  He took frequent breaks from his sales calls to wander around the club, doing things that were not part of his job, including, among other things, chatting with other employees.  One of the people defendant often visited was a woman who worked in the club's daycare facility, which was called the Kids Club.(1) The Kids Club was a room with an open entryway, windows from the interior of the club through which parents could see their children, and a surveillance video camera that recorded what went on in the room.  The fitness club maintained certain employee-child ratios in the Kids Club at all times.  For children over 18 months old, the required ratio was one trained employee per ten children.  For children under 18 months of age, the ratio was one to three.  Other club personnel who were merely visiting the Kids Club, as defendant often did, did not count toward those ratios.  As a result, there were always several club employees in the room whose job it was to watch over the children, and other club employees frequently were present as well.  Based on accusations of misconduct in the Kids Club alleged to have occurred over a several-week period, defendant was charged with sexually abusing, or attempting to sexually abuse, six children.  This case involves charges respecting four of the victims.(2)  The first victim, SM, an eight-year-old, had told her mother in July 2005 that she did not want to go to the daycare facilities at the fitness club.  Nonetheless, her mother dropped her off and went to work out.  The mother checked in on her about a half an hour later, and SM was watching television.  The mother continued to work out for another 20 minutes and then picked the child up.  SM did not immediately tell her mother about anything that had happened during her time in the Kids Club, nor had she complained to anyone working there.  As they were leaving, however, SM told her mother that she did not want to come back to the Kids Club because she did not like it there.  According to the mother, SM pointed at defendant and stated that he had said "weird stuff" to her.  When questioned, SM elaborated that defendant had asked her what her underwear looked like.  SM and her mother then reported the incident to the club's management.  In those initial conversations, SM did not state that defendant had touched her.  However, while in the car on the way home and in response to further questioning by her mother, SM told her mother that defendant had touched her underpants.  The mother called the police.  A police officer, Mastrisciano, came to the child's home later that evening.  On questioning, SM recounted her conversation with defendant and, eventually, told the officer that defendant had pulled at her underwear and touched her.  As a result, SM was sent for an examination at CARES Northwest, a clinic that evaluates children who may have been sexually abused.  A nurse, Avila, conducted a physical examination, which did not reveal physical evidence of sexual abuse.  Avila then diagnosed SM with "sexual abuse" based on SM's allegations, and referred SM to a CARES social worker, Findlay, for further questioning.  SM told Findlay that defendant had asked to see her underwear and had touched her twice. Thereafter, Mastrisciano obtained copies of the Kids Club surveillance videotapes for the month and a half before the incident that SM described.  In all of the videotapes, other adults were in the room when defendant was there.  None of the surveillance videotapes, including the one from the day on which SM claimed that defendant had touched her, showed defendant touching a child or looking at a child's underwear.(3)  Nonetheless, Mastrisciano identified as potential victims all girls with whom defendant had had direct, one-to-one personal interaction.  Mastrisciano then began contacting the parents of those children.  As relevant here, about two weeks after SM's initial complaint, Mastrisciano contacted the parents of three-year-old W.  Mastrisciano informed them of his investigation and told them that their daughter could possibly have been the victim of some inappropriate conduct by defendant at the Kids Club.  W's mother reported to Mastrisciano that, some time previously, W had told her that a "boy" at the Kids Club had tried to lift up her skirt, but W's mother had believed that the "boy" was another child at the daycare facility.  When the accusations against defendant came to light, both Mastrisciano and W's mother assumed that, in fact, W had been referring to defendant.  Mastrisciano, on being told about W's story, assumed Lupoli was the "boy."  He conducted no investigation into whether W could have been talking about another child; he neither asked W about it nor viewed any of the surveillance tapes to confirm her report.  W was taken to a social worker and "play therapist," Moussa, for evaluation.  W eventually confirmed to Moussa, in response to Moussa's direct question, that defendant had lifted her skirt and touched her in the vaginal area.  Mastrisciano next contacted the parents of a five-year-old victim, SO, and told them what SM claimed had happened to her at the Kids Club.(4)  In response, SO's father told Mastrisciano that, about a month earlier, he had taken SO to the Kids Club and, when he later picked her up, she complained that a "big boy" had wanted to "play, play, play," and that she did not want to play with him.  Later that evening, when SO's mother came home from work, SO told her the same thing.  In response to her mother's questioning, SO told her mother that the boy had asked to see her underwear and had asked to see her vagina, and that she had lifted her dress and pulled her underpants aside to expose her vaginal area.(5)  SO then went through the same CARES process that SM had been through:  She underwent a physical examination, which did not reveal physical evidence of sexual abuse.  The examining physician, Heskett, diagnosed SO with "sexual abuse."  Social worker Findlay then questioned SO further.  When talking to Findlay, SO stated that defendant had touched her near her vagina.  Finally, as relevant here, Mastrisciano contacted the parents of three-year-old T.  T's mother met Mastrisciano at the police station.  Mastrisciano explained the allegations that, by then, had been made against defendant and showed T's mother a surveillance videotape of her daughter with defendant.  Subsequently, T also was interviewed by Findlay at CARES.  T never indicated to the police, her parents, Findlay, or anyone else that defendant had ever touched her or tried to look at her underwear.  A videotape from Kids Club showed defendant in close physical proximity to T on one occasion. Defendant was charged with two counts each of first-degree sexual abuse with respect to SM and SO, one count of first-degree sexual abuse with respect to W, and one count of attempted first-degree sexual abuse with respect to T. At defendant's trial, the state presented, among other things, the testimony of the health care professionals who evaluated SM, SO, and W.(6)  Those health care professionals testified that, in their respective opinions, the children whom they evaluated had been sexually abused.  Avila, for example, testified that she diagnosed eight-year-old SM as having been sexually abused because: º "Her disclosures * * * were very clear and spontaneous.  They were appropriate for the age that she was.  They didn't sound rehearsed, they sounded like things she just said." º "She was consistent.  She had said the same type of thing before to her parents, I guess." º "[H]er physical exam was consistent with what she said happened.  There weren't any signs, but you wouldn't expect there to be.  * * * [S]he was touched and -- with a hand, and touching doesn't leave any marks." º "[T]he manner in which [SM] told her story was pretty compelling.  She just had a real clear change in her demeanor." º "[J]ust the way she told her story was very compelling, and that just makes it -- it just was -- it had an effect."  Avila also testified that she saw multiple instances of "idiosyncratic detail" in SM's statements, which Avila described as "spontaneous detail that you wouldn't otherwise get, * * * things that if you were making up a story, you might not put that kind of detail in it."  Avila stated that, in SM's story, "there was a lot of little details that were involved in the way the story was told.  * * * I mean it was really quite descriptive."  Finally, Avila testified that she and social worker Findlay "were in agreement.  * * * We both felt quite certain that when you look at the things that you look at that make you think that a kid is telling it like it is, they were all there.  They were all there, and we both agreed[.]"(7) Heskett testified that she diagnosed five-year-old SO as having been sexually abused because "the child made consistent statements in a developmentally appropriate way, she's only five years old, consistent with abuse.  Her examination was -- did not show signs of abuse.  * * * [B]ased on those things, I came to the diagnosis." Heskett also described the things she looked for in SO's statements to arrive at her diagnosis: º "We look to make sure that the child's statements are developmentally appropriate.  It would be very worrisome or concerning * * * if I had a child who at five was using terminology or expressing things with phrases that would not be expected to come from a five-year-old.  * * * [SO] seemed developmentally appropriate to me[.]" º "In general, [peripheral details are] one of the things that's important in the sense that the child can give as much detail about the entire reported or alleged incident as possible.  * * * [SO] was very clear-cut in telling us [details]."  When asked whether anything about SO's affect would raise concerns of whether to rely on what she had said, Heskett testified, "For a five-year-old child, she actually seemed to be very appropriate.  She did not seem to be overly anxious, overly timid, overly afraid."  Heskett also testified that nothing about SO's emotional state gave rise to concerns about her reliability.  Heskett listed specifically what led her to diagnose SO with sexual abuse:  "The combination of her statements, as well as the fact that her physical findings fit with her statements.  She did not have any signs of abuse, but I would not have expected any based on her statements.  * * * It was the comments that she made[.]  * * * It was the fact that she had options or opportunities to perhaps change her history or say that she had been touched in other places, and she remained fairly consistent -- not fairly, she remained consistent in where she was touched."  Finally, Heskett testified that, in concluding that SO had been sexually abused, she relied on the absence of "risk factors," i.e., ways in which a child would gain "inappropriate sexual knowledge," such as exposure to adult pornography. Findlay also testified about how he had reached his conclusions respecting SO.  He testified that, when interviewing children for CARES, he looks for certain characteristics in children's statements to determine, for one thing, whether they are suggestible:  "[S]uggestibility refers to sometimes a child's statements where [they] can be impacted by the way in which a question is asked.  * * * Kids that are highly suggestible tend to want to please an adult.  They'll answer 'yes' to almost all of your questions.  * * * They often also kind of parrot your words.  They may use words that are not -- sound like words that are from kids."  Specifically with respect to SO, Findlay testified, "I did not find her, you know, very suggestible.  She answered 'no' to a lot of questions.  She kind of corrected herself at one point.  She didn't appear that suggestible to me."  Moussa, the social worker and play therapist, testified about how she had reached her conclusions with respect to three-year-old W.  Moussa testified that, after she explained to W who she was, Moussa "described that the inappropriate situation that [W] had been in is that she had had her skirt lifted up at the 24-Hour Fitness, and [W] nodded, yes."  At that point, according to Moussa, W became anxious and avoided eye contact.  Moussa then testified that, before having been asked the question about the lifting of the skirt, "My assessment was that [W] was presenting as developmentally appropriate in her demeanor, in her verbal language presentation, her general fund of knowledge, doing a basic mental status, meaning that she would interact with me, she could speak clearly, she could have some play interactions that let me know developmentally she was on track. "Also that there was a significant affect change when I did make statements about the nightmares and the lifting of her skirt at the gym."     Defendant objected to all the foregoing testimony concerning SM, SO, and W, both through specific and also through continuing objections, on the ground that it amounted to improper vouching by one witness for the credibility of another.  He argued that the various statements informed the jury that there are particular indicia of truthful statements by children and that the children's statements as reported in this case exhibited those indicia.  The trial court overruled those objections, except the objection to Avila's statement that she and Findlay "both felt quite certain that when you look at the things that you look at that make you think that a kid is telling it like it is, they were all there.  They were all there, and we both agreed."  On that occasion, the court sustained the objection and instructed the jury to disregard the statement.  Defendant also moved for a judgment of acquittal on the charge against him involving T.(8)  He argued that the only evidence against him concerning T was the surveillance videotape, that that tape did not in any way establish defendant's intent to commit the crime of attempted sexual abuse, and, therefore, that the evidence was insufficient to convict him of attempted sexual abuse of T.  The trial court denied the motion.  Ultimately, defendant was convicted on all counts involving SM, SO, and T.  With respect to W, defendant was convicted of the lesser-included offense of attempted first-degree sexual abuse.  Defendant appealed his convictions to the Court of Appeals, which, as noted, affirmed without opinion.  We allowed defendant's petition for review. After this case was briefed in this court, this court held in a separate case that a statement from an expert that, in the expert's opinion, a child had been sexually abused was inadmissible in the absence of physical evidence of abuse, because it does not tell the jury anything that the jury could not have determined on its own, and, therefore, the probative value of any such testimony is outweighed by the danger of unfair prejudicial effect under OEC 403.  State v. Southard, 347 Or 127, 142, 218 P3d 104 (2009).  Defendant in this case objected at trial to the admission of the health care professionals' diagnoses of sexual abuse; the trial court overruled those objections.  However, defendant did not assign error to those rulings in the Court of Appeals, and he does not now argue that this court should apply Southard to reverse the decision of the trial court.  Accordingly, we do not consider whether the trial court erred in permitting Avila, Heskett, or Findlay to testify about their sexual abuse diagnoses.  That does not end this case, however, because defendant did make other, timely objections to the various expert witnesses' opinion testimony, which he preserved for review.  And, as we shall explain later, we find a number of those objections to be well taken. Defendant first argues that the testimony of the health care workers quoted above amounted to impermissible comments by one witness on the credibility of another, that the trial court erred in failing to sustain his objections on that ground, and that the error was not harmless.  He therefore asks this court to reverse his convictions on the charges involving SM, SO, and W. The law applicable to this issue is well understood.  This court has long held that one witness may not give an opinion on whether he or she believes another witness is telling the truth.  See State v. Middleton, 294 Or 427, 438, 657 P2d 1215 (1983) ("We expressly hold that in Oregon a witness, expert or otherwise, may not give an opinion on whether [the witness] believes a[nother] witness is telling the truth.").  Applying that principle is a straightforward matter when one witness states directly that he or she believes another witness, or that the other witness is honest or truthful.  However, statements that fall short of such overt vouching also may be impermissible. For example, in State v. Milbradt, 305 Or 621, 756 P2d 620 (1988), the defendant was charged with sexual misconduct involving two severely mentally challenged women.  Both were deemed competent to testify at the defendant's subsequent trial, and both did testify against the defendant.  During the trial, it was clear that both women had difficulty recalling and relating any specific details about the alleged crimes.  Their complaints were uncorroborated by any witness or physical evidence.  The defendant denied any involvement in the alleged crimes.  The state offered the testimony of a psychologist who had examined one of the women.  Among other things, the prosecutor asked the psychologist if, in his experience, he had found that there were certain indicators of deception.  The psychologist stated that there were.  The prosecutor then asked if, in talking to the victim, the psychologist had seen evidence or indicators of deception.  The psychologist answered, "I did not.  She seemed to take every question and answer it as she was, answer spontaneously on the moment with no indication of hesitation, or figuring out what the best answer might be.  You know, she would just blurt things out, which is unpremeditated response.  So, kind of a very fresh and spontaneous approach to me. "* * * * * "I did not see any evidence of [purposefully deceiving or changing things].  * * * But it seemed to me to be no attempt on her part to change things around, say things differently than the way she felt.  And she said things with an exuberance, and emphasis, like, you know, she wanted to do well, and say the answer, and do the right thing, and here it is, you know.  None of the mannerisms of someone who is cagey and guarded and careful. "* * * * * "Again, I find her condition of her mental defect as directly related to rendering her unsophisticated to either plan a systematic or motivated deception, or carry it through.  She was so spontaneous if she, this is my opinion, if she lied, that she would trip herself up five minutes later, you know. "* * * * * "I would not think she would have the motivation to betray somebody.  * * *." 305 Or at 626-27.  The defendant unsuccessfully objected to the foregoing testimony on the ground that witness credibility is an impermissible area of comment by a psychotherapist.  This court held that that objection should have been sustained:  "We have said before, and we will say it again, but this time with emphasis -- we really mean it -- no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state.  * * * An opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend (to wit: the defendant) is tantamount to the same thing." Id. at 629-30 (emphasis in original).  Moreover, even though the trial court had given a limiting instruction, this court held that the instruction was insufficient to mitigate the harm, and it reversed the defendant's convictions.  The court stated that "[t]he proffered evidence directly reflected upon the credibility of the testimony of the state's key witnesses, a matter to be assessed by the jury.  * * * [T]he inadmissible testimony was received and the jury heard it.  The trial judge did not tell the jury to disregard the expert's opinion.  Its admission and the trial judge's failure to instruct the jury to disregard the testimony concerning [the psychotherapist's] credibility evaluation of one of the state's key witnesses were reversible errors."  Id. at 632.  State v. Keller, 315 Or 273, 844 P2d 195 (1993), also is instructive.  There, the defendant had been convicted of sexually abusing a five-year-old child to whom the defendant's wife provided in-home daycare.  The child had told her mother that the defendant, who had been left alone with the children for about five minutes before the child's mother had arrived to pick her up, had, in those five minutes, touched her genital area.  The child was examined by a doctor, who found no physical evidence of abuse, and then received a CARES evaluation. A CARES doctor who had watched the interview with the child was called as a witness for the prosecution at the defendant's ensuing trial.  The doctor testified about the materials that she had reviewed and the process that she had used to arrive at her conclusions about the child.  Among other things, the doctor testified that the interviewer's job, in interviewing the child, "was to talk to the child about the alleged incident of possible sexual abuse, and to try to gather as much information so we can reach a conclusion about whether this child has been coached, been led, is fantasizing, or is indeed describing something that happened to her own body." Id. at 277.  The doctor agreed that those were things that she herself looked for when formulating a diagnosis of child sexual abuse. Eventually, the doctor testified about her diagnosis that the child had been sexually abused: "I felt that [the child] had given a clear history of an episode of sexual touching which had happened to her own body.  There was no evidence of leading or coaching or fantasizing." Id. at 278.  The prosecutor then asked the doctor what she looked for to determine that the child had not been led or coached.  This court described the doctor's response as follows:  "In reply, the witness described to the court the types of behavioral evidence on which she normally relied to determine whether a child had been coached:  a 'rote' style of recitation by a child, a child's ability to supply 'peripheral' details of the alleged incident, a child's tendency to correct the interviewer about the facts, and various emotional responses by the child.  She then stated that, during the interview of the child in this case, the child 'was obviously telling you about what happened to her body' and was 'remembering what happened.'" Id. at 278-79.  The defendant unsuccessfully objected to the foregoing testimony on the ground, among others, that the doctor's testimony amounted to offering her opinion on the truthfulness of the child's statements in the interview.  On review, this court repeated the rule that, in Oregon, one witness may not give an opinion on whether that witness believes another witness is telling the truth.  The court continued: "Furthermore, this rule applies whether the witness is testifying about the credibility of the other witness in relation to the latter's testimony at trial or is testifying about the credibility of the other witness in relation to statements made by the latter on some other occasion or for some reason unrelated to the current litigation."  Id. at 284-85.  The court concluded that the doctor's testimony that "there was no evidence of leading or coaching or fantasizing" during the child's CARES interview, and that the "child was obviously telling you about what happened to her body" both amounted to testimony that the child was credible.  Id. at 285.  The court held that the trial court erred in failing to strike that testimony.  Id. With the foregoing discussion of law in mind, we turn to a review of the witnesses' testimony about each of the victims, beginning with SM. Each of Avila's statements about SM that we have set out above was offered to explain Avila's diagnosis of SM as having been the victim of child sexual abuse.  Ordinarily, an expert witness may explain the basis for the expert's diagnosis, as long as the diagnosis itself is also admissible.  As we already have noted, in this court, defendant has not argued that Avila's diagnosis of child sexual abuse was inadmissible.  Defendant, however, always has maintained that the testimony that Avila offered in explaining how she arrived at that diagnosis was inadmissible.  Avila's statements must be analyzed with due regard for the context in which they were made, even though defendant does not now complain that the diagnosis itself is inadmissible.  Said another way, defendant's failure to raise the same objection that prevailed in Southard does not prevent us from considering the import of Avila's explanatory statements, given their context.  Here, that context was a child sexual abuse diagnosis based ultimately and only (given the lack of physical evidence of abuse) on whether Avila believed what SM told her. So viewed, we conclude that, on the whole, Avila's testimony was inadmissible because it constituted vouching.  To be sure, discrete portions of what Avila said might be admissible in many circumstances, and perhaps even in this case.  For example, Avila's testimony that what SM said was developmentally appropriate for her age is the kind of expert opinion that can assist a jury and ordinarily would be admissible.  So, too, might be testimony describing SM's demeanor and changes in demeanor, and the description of SM as having included spontaneous and descriptive details in her statements.  The problem here, however, is that those otherwise permissible or potentially permissible portions of Avila's testimony were inextricably bound up with portions that constituted clear "vouching."  Avila's diagnosis, given the lack of physical evidence of abuse, necessarily was based on her assessment of the child's believability.  When Avila then was asked the basis for her diagnosis, she was implicitly declaring, with each statement and description, why she had found SM to be credible.  She did so explicitly as well, as when she explained that "the manner in which [SM] told her story was pretty compelling" and that "it had an effect" on her forming her diagnosis.  Even if there were parts of Avila's testimony that might be admissible if offered in support of some other kind of diagnosis, or if offered to otherwise assist the jury, instead of to explain the expert's credibility-based opinion, here, none of Avila's testimony can be meaningfully separated from the context of which it was a part.  We therefore conclude that the trial court erred in admitting the challenged testimony. The same is true of Heskett's and Findlay's testimony about their conclusions that SO had been sexually abused, which we also quoted earlier.  Again, in the abstract or in some other context, Heskett's testimony as to whether SO's statements were developmentally appropriate or her observations of SO's physical characteristics and demeanor ordinarily would not be, in and of themselves, impermissible vouching.  The same is true of Findlay's general description of the circumstances that can point to a child's suggestibility or the possibility that the child has been coached.  But, also again, the context differentiates that testimony in this case from cases in which it might otherwise be admissible.  That context is their ultimate individual expert opinions, which we held in Southard were not admissible.  As with Avila's testimony, we conclude that Heskett's and Findlay's testimony constituted impermissible vouching, and defendant's objections to the testimony should have been sustained. We turn to the challenged testimony concerning victim W.  Moussa's testimony concerning W suffered from the same defect.  It is true that Moussa's testimony concerning W being developmentally appropriate, and her description of W's affect change, could be admissible in many circumstances.  But that was not true here, because Moussa's testimony was inextricably bound up with her conclusion that W was sexually abused.  Defendant's objections to her testimony as impermissible vouching were well taken. The state also contends that, even if Avila, Heskett, and Findlay improperly commented on the credibility of SM and SO, the similar objection to Moussa's testimony about W was not well taken for another reason.  The state argues that "the prohibition against one witness testifying about whether another witness's testimony or out-of-court statements are true or deceptive is limited to the testimonial evaluation of another trial witness's statement.  * * * A comment that purports to evaluate the deceptiveness or truthfulness of a non-witness's out-of-court remarks is not subject to exclusion under this principle."  (Emphasis in original.)  Therefore, the state argues, because W did not testify at the trial, defendant's improper vouching argument fails as it applies to W's statements.  In support of its position, the state relies on State v. Odoms, 313 Or 76, 829 P2d 690 (1992).  In that case, a woman told the police that the defendant had kidnapped her and then raped and sodomized her.  Two police officers questioned the defendant.  The defendant initially denied knowing the woman, and then eventually admitted that he knew her but maintained that his sexual encounters with her were entirely consensual.  At the defendant's subsequent trial, only one of the police officers testified.  That officer recounted the conversation that he and the other officer had had with the defendant, including reporting that the other officer had told the defendant that he, the other officer, did not think that a person would simply make up allegations against another person if there were not something to them.  The defendant unsuccessfully objected to that testimony as improper opinion evidence about the complaining witness's credibility.  During the trial, the complaining witness testified for the state; the defendant and the officer who made the challenged statement did not testify.  The defendant ultimately was convicted of the charged offenses. On review, in considering the issue, this court in Odoms first discussed its earlier opinion in Middleton, in which the court held that one witness, expert or otherwise, may not give an opinion on whether he believes another witness is telling the truth.  Odoms, 313 Or at 82.  The court in Odoms distinguished Middleton, stating, "[T]he point of Middleton was only to preclude the testimony by one trial witness about whether another trial witness is telling the truth."  Id. (emphasis in original).  On the other hand, the court held, "a relevant out-of-court statement, recounted at trial, generally may not be excluded merely because it is phrased in the form of an opinion."  Id. at 83.   Explaining that holding, the court stated that the rule against opinion evidence fosters concrete answers by witnesses, but has no sensible application to statements made out of court.  Id. Notwithstanding the court's emphasis on "trial witnesses," it is evident from the foregoing that neither Odoms nor Middleton is apposite.(9)  Neither case even suggests, much less compels, the conclusion that a trial witness should be permitted to give an opinion that a nonwitness complainant was telling the truth.  In fact, all of the reasons for preventing one witness from vouching for another witness's credibility at trial apply with equal or greater force when the nonwitness is an unavailable complainant.  In that circumstance, the defendant does not have the ability to confront the complainant or to impeach the accusations against him or her.  Permitting a trial witness to vouch for the credibility of the complainant in such a situation would interfere with the ability of the trier of fact to determine the truth of the allegations, and would be highly unfair to the defendant.(10) In this case, the complainant, W, did not testify against defendant because she was too young; defendant, therefore, had no opportunity to confront her.  Defendant denied the accusations that she had made, and the surveillance videotape was inconclusive.  That meant that the only information presented to the jury in support of W's allegations came through the testimony of the adults who had talked to her.  Moussa testified that W was "developmentally appropriate in her demeanor, in her verbal language presentation, her general fund of knowledge," that she interacted with Moussa, that she spoke clearly, and that "developmentally she was on track," but that "there was a significant change of affect when I did make statements about the nightmares and with the lifting of her skirt in the gym."  That expert testimony, like Avila's, Heskett's, and Findlay's, may have been admissible in the abstract, or in some other context, but in this context it was not.  The trial court erred in failing to sustain defendant's objection to Moussa's vouching testimony.  Based on the foregoing analysis, we hold that the trial court erred in admitting the specified expert opinions concerning victims SM, SO, and W.(11)  Defendant's convictions concerning those victims must be reversed, and the case remanded to the trial court for a new trial.  We turn at last to the somewhat different issues surrounding defendant's conviction for attempted sexual abuse of T. Defendant argues that the trial court erred in denying his motion for judgment of acquittal on the charge concerning T.  In reviewing a trial court's denial of a motion for judgment of acquittal, the court considers whether any rational trier of fact, accepting reasonable inferences and making reasonable credibility choices, could have found the essential elements of the crime beyond a reasonable doubt.  State v. King, 307 Or 332, 339, 768 P2d 391 (1989).  In so doing, the court reviews the facts in the light most favorable to the state and draws all reasonable inferences in the state's favor.  State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998).  For purposes of analyzing the sufficiency of the evidence, no distinction exists between direct and circumstantial evidence.  Id.  However, "circumstantial evidence, like direct evidence, must indicate guilt to the extent that there is no reasonable doubt of that conclusion.  In deciding whether a jury issue exists, * * * inferences of innocence [must] be considered that may be drawn from the facts in evidence (as found in the State's favor) or from the paucity of such facts, and if they are sufficient to create a reasonable doubt, the case may not be submitted to the jury."  State v. Krummacher, 269 Or 125, 139, 523 P2d 1009 (1974).  Defendant was charged with attempted first-degree sexual abuse of T.  First-degree sexual abuse is defined in ORS 163.427 as follows: "(1) A person commits the crime of sexual abuse in the first degree when that person: "(a) Subjects another person to sexual contact[(12)] and: "(A) The victim is less than 14 years of age[.]" Under ORS 161.405(1), a person is guilty of an attempt to commit a crime "when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime."  Defendant argues that, viewing the evidence in the light most favorable to the state and drawing all reasonable inferences in the state's favor, there was no evidence from which the jury reasonably could infer that defendant intentionally engaged in conduct that constituted a substantial step toward sexual abuse of T. We begin by summarizing the evidence pertaining to the charge involving T.  T did not testify at the trial, and, as discussed above, she never indicated to anyone that defendant had tried to touch her or had done anything to her that could be interpreted as constituting a substantial step toward sexually abusing her.  Although T received a CARES evaluation, no health care professional testified about that evaluation and no documentary evidence relating to that evaluation was admitted at the trial.  The state's case consisted of the testimony of T's mother and Mastrisciano, the surveillance videotape, and defendant's statements on cross-examination. T's mother stated that T was three years old and she identified T on the videotape.  She testified that she and her husband had been contacted by Mastrisciano about the allegations concerning defendant, that they met Mastrisciano at the police station, that they watched the videotape, and that she subsequently took T to CARES for an evaluation.  Mastrisciano testified that he contacted T's parents.  He identified T and defendant in a still photo taken from the videotape, and he testified that T was wearing a dress and was sitting directly across from defendant in that picture. The surveillance videotape was played for the jury.(13)  The tape shows T entering the Kids Club, where defendant is sitting on a plastic semicircular couch with his back toward the camera.  T walks up to defendant and sits down beside him.  When T is sitting on the couch, only the back of her head and shoulders can be seen.  Defendant's back is flat against the couch, but his face is turned toward T.  Defendant leans forward, and T gets up, walks in front of him, and sits on a short wall directly across from him.  Defendant picks up a ball and begins to throw it back and forth with her.  T comes back and sits down beside defendant again.  Defendant then gets off the couch, picks up the ball, and goes to his knees on the floor in front of her.  A few seconds later, defendant lowers his upper body so that his head is at the level with the seat of the couch.  The frame at that moment does not show what direction defendant is looking, and it only shows the back of T's head and shoulders.  A few seconds after that, defendant sits back on the couch next to T.  A few seconds later, defendant again picks up the ball and turns his upper body toward T.  He then moves to T's other side on the couch and lowers his head in front of hers, while she lowers her head at the same time.  The camera's view of defendant's head at that point is blocked by the back of T's head.  When they raise their heads two or three seconds later, defendant is holding the ball.  Defendant and T lower and raise their heads once more.  T again goes to the small wall across from defendant and sits down, and they begin throwing the ball back and forth again.  A few seconds later, T comes back to the couch and sits down beside defendant.  Then, less than nine minutes after T walked into the Kids Club, another adult comes and leads T away and defendant leaves the Kids Club. During the state's cross-examination of defendant, defendant vigorously denied having touched any child or trying to look at her underwear, but he did admit that he was sitting next to T, that they both looked down at two points, that he was sitting close enough to T to touch her genital area, and that, when he and she were looking down, he could have been looking at her lap, among many other things.  To prove that defendant committed the crime of attempted first-degree sexual abuse of T, the state had to prove beyond a reasonable doubt that defendant intended to engage in conduct that constitutes a substantial step toward subjecting T to sexual contact.  ORS 163.427; ORS 161.405.  If the state failed to do so, the trial court was required to grant defendant's motion for judgment of acquittal.  As discussed above, T never personally stated to anyone that defendant had done anything that could be construed as a substantial step toward subjecting her to sexual contact.  Viewed in the light most favorable to the state, the surveillance videotape and defendant's testimony on cross-examination demonstrate only that defendant had the opportunity to commit the crime of first-degree sexual abuse.  The tape and defendant's testimony prove that defendant sat near enough to touch T and that he looked in the direction of her lap.  Proximity alone, however, is not a substantial step; instead, it is a circumstance that makes a substantial step (if one is taken) meaningful.  A rational trier of fact was not entitled on this record to find beyond a reasonable doubt facts that constituted not only opportunity, but also a substantial step toward subjecting T to sexual contact.  The state argues in the alternative that defendant's conduct toward the other children constituted a pattern or practice of abuse, and therefore was admissible under OEC 404(3)(14) to establish his propensity or intent to commit the crime.  In our view, however, the state's argument misses the point.  To prove an attempted crime, the state must present evidence that a defendant engaged in conduct constituting a "substantial step" toward committing that crime.  Even when viewed in the light most favorable to the state, however, the videotape of defendant's conduct with respect to SM, SO, and W does not show that, with respect to T, defendant had proceeded beyond having the opportunity to commit a crime to actually taking a "substantial step" toward the commission of that crime. We hold that a rational jury could not have found beyond a reasonable doubt that defendant intended to engage in conduct that constituted a substantial step toward the commission of the crime of first-degree sexual abuse of T.  We therefore hold that the trial court erred in failing to grant defendant's motion for judgment of acquittal on that count and that the Court of Appeals erred in affirming that conviction.  Defendant's conviction for attempted first-degree sexual abuse of T therefore must be, and it is, reversed. The decision of the Court of Appeals and the judgments of the circuit court are reversed as follows:  The judgment of conviction against defendant for attempted first-degree sexual abuse of victim T is reversed, and the case is remanded to the circuit court for entry of a judgment of acquittal on that charge.  The judgments of conviction against defendant for first-degree sexual abuse of victims SM and SO, and the judgment of conviction against defendant for attempted first-degree sexual abuse of victim W are reversed, and the case is remanded to the circuit court for further proceedings. 1. Employees other than those hired to work in the Kids Club were not supposed to be in that facility, but that rule was not enforced.  2. Defendant was acquitted of the charges respecting two other alleged victims; therefore, we do not describe the facts surrounding those counts.  3. The videotapes had no audio portion.  The tapes actually consisted of a series of still photographs taken at close intervals -- about one photo every second.  The videos were taken from an upper corner of the room.  Defendant's back was to the camera most of the time and, even when it was not, defendant's eyes were not visible. 4. The case had received considerable media attention by that point.  5. SO's mother had told her to tell the "teacher" if anything like that happened, but neither she nor SO's father called the police or contacted the fitness club management or Kids Club about SO's story.  In fact, SO's father took her back to the Kids Club about 20 times in the month between SO's first mention of the boy who wanted to "play, play, play" and Mastrisciano's communication to him about the charges against defendant. 6. As we discuss in detail below in addressing defendant's contention that the evidence was insufficient to support his conviction for attempted first-degree sexual abuse of T, the only evidence in the record that concerned the allegations respecting T was Mastrisciano's and her mother's testimony, a surveillance videotape showing defendant sitting close to T, and defendant's acknowledgement on cross-examination that the videotape showed that, at certain points, he had been sitting close enough to T to look at her underwear and to touch her.  No health care professional mentioned T's name at the trial.  7. The trial court sustained defendant's objection to that last statement and instructed the jury to disregard it.  8. Defendant also moved for judgments of acquittal on other charges, concerning other victims.  The trial court's ruling denying the motion with respect to the other charges is not at issue in this court.  9. In fact, in Odoms, the purportedly vouching witness did not testify, but the complainant did.  And in Middleton, the main issue before the court was whether an expert could testify that typical child sexual abuse victims deny or recant abuse allegations when a family member is the alleged abuser.  The court held that that testimony, which did not directly express an opinion on the truth of the victim's testimony, explained to the jury the emotional underpinnings of the witness's "superficially bizarre behavior," Middleton, 294 Or at 436, and was admissible because it would help the jury "make a more informed decision in evaluating the credibility of a testifying child."  Id. at 437. 10. The use of expert testimony respecting the specific question whether some other person is telling the truth raises questions concerning a witness' qualifications, the helpfulness of the opinion, and the likelihood of undue confusion of issues or prejudice to the other party.  See generally David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore:  Expert Evidence § 1.5, 23-25 (2004) (examining rule and its rationale). 11. We also conclude that the error was not harmless.  We have held that a harmless error is one that has "little likelihood" of affecting the verdict.  Keller, 315 Or at 285 (so defining harmlessness).  In this case, there was no physical evidence of abuse; the children's credibility, therefore, was paramount.  In that circumstance, we cannot conclude that there was "little likelihood" that the experts' testimony affected the verdict. 12. "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party."  ORS 163.305(6). 13. As noted, the tape consists of a series of still photographs.  It includes a clock that permits time intervals to be identified.  There is no audio portion. 14. OEC 404(3) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

2f80e0997191d78b964965aae3be4f81c6a290334e7793917d69cd7fa41dd982

2010-06-04T00:00:00Z

8b13d87d-3dd0-427b-bd4d-517853bf7e6b

State Ex Rel. Michelin v. Wells

294 Or. 296, 657 P.2d 207

oregon

Oregon Supreme Court

657 P.2d 207 (1982) 294 Or. 296 STATE of Oregon ex rel. La Manufacture Francaise Des Pneumatiques Michelin, Plaintiff-Relator, v. William W. WELLS, Judge of Circuit Court of the State of Oregon, Defendant. No. SC 28638. Supreme Court of Oregon, In Banc. Argued and Submitted September 7, 1982. Decided December 30, 1982. *208 Denny Z. Zikes, Portland, argued the cause for defendant. With him on the brief were Eric R. Friedman and Fellows, McCarthy, Zikes & Kayser, P.C., Portland. Alex Byler, Pendleton, argued the cause for plaintiff-relator. On the brief were Douglas E. Hojem and Corey, Byler & Rew, Pendleton. TANZER, Justice. This mandamus proceeding is brought by La Manufacture Francaise Des Pneumatiques Michelin (Michelin France), a French corporation, to compel a judge to dismiss a complaint filed against it in the Circuit Court for Umatilla County by Lamb-Weston, Inc., an Oregon corporation. In this case and in State ex rel Hydraulic Servocontrols Corp. v. Dale, 294 Or. 211, 657 P.2d 211 (decided this date), we consider for the first time the reach of Oregon's long-arm statute, ORCP 4, and the implication of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). The underlying action began with a complaint in products liability filed by Lamb-Weston, an Oregon corporation, against Michelin Tire Corporation (Michelin USA), a New York corporation, an American distributor of Michelin products. Lamb-Weston amended its complaint to add the manufacturer, Michelin France, as a defendant. The amended complaint alleged generally that Michelin France engaged in substantial activities within this state and the United States and that it manufactured and introduced a radial tire into the chain of commerce for use in the United States of America. It further alleged that Lamb-Weston installed the tire on a truck used in its business, that the tire was defective and unreasonably dangerous at the time of manufacture and that it caused damage to the truck in the amount of $13,578.53 and lost profits of $15,742.08 when it exploded on a highway. The places of purchase, installation and explosion of the tire which allegedly caused the accident were not specified in the complaint. Michelin France moved to dismiss on several grounds, including that the Circuit Court of the State of Oregon for Umatilla County lacked jurisdiction over it. The accompanying affidavits state that Michelin France manufactures no products in the United States and maintains no facilities or offices here. It sells products to only two United States purchasers, Michelin USA and Sears, Roebuck & Co., and has no corporate connections with either of them. The products are sold to Michelin USA and Sears, Roebuck & Co. f.o.b. France. It maintains no registered agent authorized to accept service of process in any state.[1] In short, Michelin France has attempted to structure its business dealings to avoid corporate contacts in the United States. Michelin France also showed by affidavit that the accident for which claim is made occurred in the state of Washington. *209 We have previously held that an out-of-state manufacturer may be called to account in the courts of this state when an Oregon resident is damaged in Oregon by its products. State ex rel. Western Seed v. Campbell, 250 Or. 262, 442 P.2d 215 (1968). Since that time, Oregon jurisdictional statutes have undergone revision so that it is necessary to consider anew the liability of distant manufacturers to suit in this state. Now, under the new rule, ORCP 4, the issue in this case is whether Michelin France, which seeks through others to serve a nationwide market, can be called to account in an Oregon court on the sole basis that one of its products injures an Oregon resident. The first step in a jurisdictional inquiry is to determine whether any of the specific provisions of ORCP 4 apply. The burden was on Lamb-Weston to allege and prove facts sufficient to establish jurisdiction. State ex rel. Sweere v. Crookham, 289 Or. 3, 6, 609 P.2d 361 (1980). We find that it has failed to establish facts which would bring this case within any of the specific provisions of ORCP 4.[2] In the absence of an applicable specific jurisdictional provision, we turn to the general provision, ORCP 4 L, which extends jurisdiction By the terms of this provision, we must determine whether or not exercise of jurisdiction over this defendant comports with the requirements of due process. As in Hydraulic Servocontrols, the due process requirement of "minimum contacts" as established in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), is the starting point for analysis. That requirement has been most recently refined in World-Wide Volkswagen Corp. v. Woodson, supra, a case which is factually different from this one but nonetheless instructive. There, a foreign made automobile allegedly injured its purchaser. Plaintiffs bought it in New York and travelled with it to Oklahoma where the accident occurred. The United States Supreme Court refused to allow jurisdiction in Oklahoma over the Northeastern regional distributor and the New York retailer because neither had "purposefully avail[ed] itself of the privilege of conducting activities within the forum state." 444 U.S. at 297, 100 S. Ct. at 567, quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d 1283 (1958). It was only the "unilateral action" of the plaintiffs which took the automobile from New York to Oklahoma rather than any activity of the defendants. To illustrate what it meant by "purposefully avails" the court contrasted the activities of the distributor with those of the manufacturer which presumably would be subject to jurisdiction. From these principles we conclude that Lamb-Weston has not established facts sufficient to establish that Michelin France is subject to the jurisdiction of the Oregon courts in this case. The complaint allegation that Michelin France is engaged in substantial activities within Oregon and the United States is conclusory. There is nothing to tell us of the scope of Michelin USA's or Sears, Roebuck & Company's distribution of Michelin products in the United States and that is not a matter of which we can take judicial notice. Nevertheless, construing the pleadings and affidavits liberally in favor of jurisdiction for purposes of this case, it appears that Michelin France has sought indirectly to serve the Oregon market through a system of distribution by others which covers the United States. Although it has attempted to structure its business dealings so as to be immune to suit in the United States, it obtains an economic benefit from sale of its products in Oregon and it is therefore foreseeable, depending upon the current interpretation of the due process clause by the United States Supreme Court, that it could be called to account in Oregon courts. It might therefore be fair to Michelin France for an Oregon court to exercise jurisdiction, assuming other criteria are met. The mere existence of general sales or use of Michelin France's products in Oregon is not enough for Oregon jurisdiction. There must be some fact of the case itself other than the mere residence of the plaintiff which makes Oregon an appropriate forum. The United States Supreme Court emphasized in World-Wide Volkswagen that neither the minimum contact test nor the ease of modern transportation makes state lines immaterial in the allocation of litigation within the federal system. Rather, a function of the minimum contacts concept is "to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." 444 U.S. at 292, 100 S. Ct. at 564. The court "stressed that the Due Process Clause ensures not only fairness, but also the `orderly administration of the laws.'" 444 U.S. at 294, 100 S. Ct. at 565. The concerns of federalism are so strong that "Minimum" is a relative term and respect for federalism is more an aspiration than a criterion, so it is desirable to state a more objective test to determine which contacts satisfy the minimum need and which do not. One commentator, upon reviewing the precedents, posits that there must be at least one contact with the forum state which is substantively relevant to the cause of action: By a substantively relevant contact, the writer means a fact which is alleged as part of the claim for relief. This appears to be an apt test of constitutionality. It is consistent with the United States Supreme Court's later description of the rationale of the minimum contacts test being "the relationship among the defendant, the forum, and the litigation." Rush v. Savchuk, 444 U.S. 320, 327, 100 S. Ct. 571, 576, 62 L. Ed. 2d 516, 524 (1980), quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2579, 53 L. Ed. 2d 683, 698 (1977). It is also generally consistent with the specific provisions of ORCP 4. Applying it to this case, the general distribution of Michelin France's products nationally and in Oregon has no relevance to the substance of this claim for relief. Here, unlike Hydraulic Servocontrols, no fact of substantive relevance, such as sale, use, accident or injury has been shown to have occurred in Oregon. Although it may be as fair to Michelin France to require it to answer in the courts of Oregon as elsewhere, the claim for relief has no substantive connection with Oregon which, as a matter of federal due process, would allow Oregon courts to exercise jurisdiction over Michelin France in this case. The peremptory writ is granted. [1] It does, however, maintain an agent for the limited purpose of accepting service under the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. § 1381 et seq. (1966). [2] The parties addressed their argument and briefs to three specific provisions of ORCP 4: "A court of this state having jurisdiction of the subject matter has jurisdiction over a party served in an action pursuant to Rule 7 under any of the following circumstances: A. In any action whether arising within or without this state, against a defendant who when the action is commenced: * * * * * * A.(4) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise * * *. * * * * * * C. In any action claiming injury to person or property within or without this state arising out of an act or omission within this state by the defendant. * * * * * * D. In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of the injury, either: * * * * * * D.(2) Products, materials, or things distributed, processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade." This record does not make out jurisdiction under the terms of any of them. Michelin France is not shown to conduct business here, and the plaintiff's unilateral action in making repairs and losing profits in Oregon does not affect plaintiff's liability to suit in Oregon. Even were we to construe these terms extremely broadly, we would still have to examine for conformity to due process.

1c367e4b4d3898ced5957d9618dcde641ee3ba348db31ae247970a9a629e8846

1982-12-30T00:00:00Z

7a9b9be8-66db-471f-a57a-ebc7c45a8b04

Northwest Natural Gas Co. v. Dept. of Rev.

S056384

oregon

Oregon Supreme Court

FILED: January 28, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON NORTHWEST NATURAL GAS COMPANY, Respondent. v. DEPARTMENT OF REVENUE, Appellant. (TC 4751; SC S056384) En Banc On review from the Oregon Tax Court.* Argued and submitted November 2, 2009. Marilyn J. Harbur, Senior Assistant Attorney General, Salem, argued the cause for appellant.  With her on the opening brief were Hardy Myers, Attorney General, and Melisse S. Cunningham, Assistant Attorney General.  With her on the reply brief were John R. Kroger, Attorney General, and Melisse S. Cunningham, Assistant Attorney General. Robert T. Manicke, Stoel Rives LLP, Portland, argued the cause for respondent.  With him on the brief were James N. Westwood and Eric J. Kodesch. LINDER, J. The judgment of the Tax Court is affirmed. *Appeal from the Oregon Tax Court, Henry C. Breithaupt, Judge. 19 OTR 367, 2007 WL 4127669 (2007). LINDER, J. The issue in this appeal from a judgment of the Oregon Tax Court is whether the business inventory of taxpayers subject to central assessment pursuant to ORS 308.505 to 308.665 is exempt from ad valorem property taxation under ORS 307.400.  The Tax Court concluded that the Department of Revenue (department) had incorrectly determined that, because Northwest Natural Gas Company (taxpayer) is subject to central assessment, its inventory is not exempt under the business inventory exemption.  Northwest Natural Gas Co. v. Dept. of Rev., 19 OTR 367, 2007 WL 4127669 (2007) (Northwest Natural I).  For the reasons discussed below, we hold that the business inventory exemption applies generally to exempt the "inventory" of all taxpayers -- including centrally assessed companies.  Accordingly, we affirm the decision of the Tax Court. I.  RELEVANT STATUTES An understanding of the central assessment statutes and the business inventory exemption statute will provide helpful context for our discussion of the factual and procedural background below.  Accordingly, we discuss those statutes at this point. Certain property in Oregon is centrally assessed by the department, rather than locally assessed by individual counties.  The central assessment statutes, ORS 308.505 to 308.665,(1) are a subset of the chapter of the tax code pertaining to assessment of property for taxation, ORS chapter 308.  Some provisions of that chapter outline the general assessment scheme.  See ORS 308.005 - 308.343 (containing provisions relating to assessment generally).  The bulk of ORS chapter 308, however, consists of sections devoted to the assessment of particular types of properties, such as, inter alia, homes for the elderly, industrial plants, various types of residences, and designated utilities and companies subject to central assessment.  ORS 308.408 - 308.905; see also D. R. Johnson Lumber Co. v. Dept. of Rev., 318 Or 330, 335-36, 866 P2d 1227 (1994) (describing the particular and general provisions of ORS chapter 308).  ORS 308.515(1) designates the utilities and companies subject to central assessment: "The Department of Revenue shall make an annual assessment of any property that has a situs in this state and * * * is used or held for future use by any company in performing or maintaining any of the following businesses or services or in selling any of [certain] commodities * * *." The particular commodities listed in the statute include, among others, "[r]ailroad transportation," "[a]ir transportation," "[c]ommunication," "[h]eating" and, most pertinent here, "[g]as."  ORS 308.515(1)(a) - (n). ORS 308.510(1) defines the scope of "property" subject to central assessment for companies identified in ORS 308.515(1).  That statute provides, in part: "'Property,' as used in ORS 308.505 to 308.665, includes all property, real and personal, tangible and intangible, used or held by a company as owner, occupant, lessee or otherwise, for or in use in the performance or maintenance of a business or service or in a sale of any commodity, as set forth in ORS 308.515, * * * and includes but is not limited to * * * appliances, * * * merchandise, inventories, * * * and all other goods or chattels." Any property that is not "centrally assessed" is "locally assessed" by the county where the property is located.  ORS 308.517(5). Finally, we turn to the business inventory exemption statute at issue in this case, ORS 307.400.  That exemption is not part of the general assessment provisions or the central assessment statutory scheme in ORS chapter 308.  Rather, it is found in the statutes outlining more generally property that is subject to taxation and exemption, ORS chapter 307.  ORS 307.400 provides: "Items of tangible personal property consisting of inventory, including but not limited to materials, supplies, containers, goods in process, finished goods and other personal property owned by or in possession of the taxpayer, that are or will become part of the stock in trade of the taxpayer held for sale in the ordinary course of business, are exempt from ad valorem property taxation." Again, the parties dispute whether taxpayer, as a centrally assessed company, is entitled to the benefit of that exemption.  Cast against the backdrop of the statutory scheme, the issue, more precisely, is whether the business inventory exemption found in ORS chapter 307 applies to the centrally assessed property provisions contained in ORS chapter 308.  II.  FACTUAL AND PROCEDURAL BACKGROUND With those statutory provisions in mind, we turn to the factual and procedural background that gave rise to this appeal.  Our summary is taken from the stipulated facts submitted to the Regular Division of the Oregon Tax Court and from the record.  Taxpayer is an Oregon corporation "engaged primarily in the distribution and sale of natural gas to customers" in the Pacific Northwest.  Taxpayer is centrally assessed by the department pursuant to ORS 308.515(1).  The tax years subject to this appeal are 2002-03 to 2005-06.  During those tax years, taxpayer stored natural gas in two liquefied natural gas storage facilities in Portland and Newport, and in four to six underground natural gas storage facilities near Mist (gas reserves).(2)  Taxpayer also owned and operated a retail store in Portland.(3)  The store offered an array of appliances -- both gas and electric -- for sale to the general public (retail appliances).  The parties have stipulated that taxpayer's gas reserves and retail appliances are "tangible personal property" and "inventory" or "inventories" within the common, ordinary meaning of those terms.  The parties further agree that taxpayer's gas reserves are property subject to central assessment under ORS 308.510(1).  The parties dispute, however, whether taxpayer's retail appliances are also subject to central assessment. The department issued taxpayer notices of proposed assessment for taxpayer's centrally assessable property for the subject years.  The proposed assessment included values for both taxpayer's gas reserves and retail appliances.(4) In 2004, taxpayer petitioned the department for the 2002-03, 2003-04, and 2004-05 tax years to exercise its supervisory authority to correct the tax rolls pursuant to ORS 306.115.(5)  Taxpayer sought a reduction in its assessed value, arguing that its gas reserves were exempt from ad valorem property taxation pursuant to the business inventory exemption, ORS 307.400.  The petition did not include taxpayer's retail appliances.  The department denied supervisory relief, reasoning that taxpayer's gas reserves were not exempt from taxation under the business inventory exemption, because taxpayer is subject to the central assessment provisions, ORS 308.505 - 308.665, which expressly include "inventories" as part of the definition of "property" that is assessable. In 2005, taxpayer also appealed to the department for the 2005-06 tax year.  Taxpayer sought a reduction in its assessed value, again arguing that its inventory was exempt from taxation.  Taxpayer's appeal included both its gas reserves and retail appliances for the 2005-06 tax year.(6)  The department denied the appeal on the same grounds. Taxpayer appealed both cases to the Magistrate Division of the Tax Court.  The Magistrate Division consolidated the two cases, which were then specially designated to the Regular Division of the Tax Court on petition of both parties.  Before the Regular Division of the Tax Court, the parties filed cross-motions for summary judgment on the legal issue of whether the subject properties (taxpayer's gas reserves and retail appliances) are tax exempt under the business inventory exemption, ORS 307.400.  Taxpayer argued, based on the text and context of the business inventory exemption, that the legislature intended the exemption to apply to centrally assessed and locally assessed property alike.  Alternatively, taxpayer contended that, if the business inventory exemption statute did not apply to centrally assessed property, taxpayer's retail appliances were not subject to central assessment and, thus, were exempt nonetheless. The department responded that taxpayer's "inventories" were taxable, because all property subject to central assessment is taxable, except as specifically provided by the central assessment statutes.  The department further asserted that taxpayer's retail appliances were subject to central assessment, and thus not exempt for the same reason. The Tax Court granted taxpayer's motion in part and granted the department's cross-motion in part.  Northwest Natural I, 19 OTR at 380-81.  The court agreed with taxpayer that the business inventory exemption applied to centrally assessed property and, thus, to taxpayer's inventory.  Accordingly, the court held that taxpayer's gas reserves were exempt from taxation.  As to the retail appliances, the court held that, because taxpayer's retail appliances were not included in its petition for the 2002-03 to 2004-05 tax years, the department did not exercise discretion that could be reviewed by the Tax Court for those tax years.  Id. at 380.  The court ordered supplemental briefing as to whether the 2005-06 appeal to the department included the retail appliances.  Id. at 381. The department moved for reconsideration and stipulated that taxpayer's  retail appliances were included in taxpayer's appeal for the 2005-06 tax year.  The Tax Court denied reconsideration and determined that, based on the department's stipulation, taxpayer's retail appliances for the 2005-06 tax year were subject to the court's original decision and, thus, exempt from taxation.  Northwest Natural Gas Co. v. Dept. of Rev., 19 OTR 481, 482, 487, 2008 WL 2727238 (2008) (Northwest Natural II).  The department appealed.  ORS 305.445. III.  ANALYSIS On appeal to this court, the department challenges the Tax Court's determination that taxpayer's gas reserves and retail appliances are exempt from ad valorem property taxation pursuant to the business inventory exemption statute, ORS 307.400.  We review decisions of the Tax Court for "errors or questions of law or lack of substantial evidence in the record to support the tax court's decision or order."  ORS 305.445. As we have described, this dispute involves two types of property owned by taxpayer:  gas reserves and retail appliances.  The parties agree that each property is "inventory" under the plain, natural, and ordinary meaning of that term.  The parties also agree that taxpayer's gas reserves are "property" subject to central assessment pursuant to ORS 308.510(1).  Thus, the sole issues on appeal are whether ORS 307.400, the business inventory exemption statute, applies to the property of centrally assessed taxpayers, and if not, whether taxpayer's retail appliances are subject to local, not central assessment, and therefore exempt nonetheless. We begin with the pivotal issue on which the Tax Court's decision turned -- whether the business inventory exemption applies to the property of centrally assessed taxpayers.  To analyze that issue, we must interpret the business inventory statute -- a task that involves examining the text and context of the statute and any pertinent legislative history that the parties have proffered, giving that history such weight, if any, as it appears to merit.  State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).  We turn to the text of the tax exemption statute at issue in this case -- the business inventory exemption statute, ORS 307.400.  As noted, that statute provides an exemption from ad valorem property tax for "[i]tems of tangible personal property consisting of inventory, including but not limited to materials, supplies, containers, goods in process, finished goods and other personal property owned by or in possession of the taxpayer, that are or will become part of the stock in trade of the taxpayer held for sale in the ordinary course of business * * *."  ORS 307.400 (emphases added).  On its face, the statute's text contains no limiting terms that operate to remove centrally assessed taxpayers or their centrally assessed property from the benefits of the exemption.  Rather, the statute exempts inventory that is or will become part of the "stock in trade of the taxpayer held for sale in the ordinary course of business."  (Emphasis added.)  That generic reference to "the taxpayer" does not differentiate between taxpayers whose property is locally or centrally assessed.  Thus, the plain text of the statute supports taxpayer's contention that the business inventory exemption applies equally to locally and centrally assessed taxpayers. The department, for its part, does not contend otherwise.  Rather than rely on the text of the statute, the department's arguments are twofold.  First, the department asserts that, for purposes of the business inventory exemption, the definitions in ORS 307.020 control, and those definitions remove centrally assessed taxpayers from their scope.  Second, the department urges, based on the taxation scheme more generally, that the legislature never intended the business inventory exemption to apply to taxpayers or property subject to central assessment. A.  The relationship between ORS 307.020 and ORS 307.400. We begin with the department's reliance on the definitions contained in ORS 307.020.  The business inventory exemption statute exempts "[i]tems of tangible personal property consisting of inventory[.]"  (Emphasis added.)  The term "tangible personal property" is defined in ORS 307.020(1)(c) as follows: "As used in the property tax laws of this state, unless otherwise specifically provided: "* * * * * "(c) 'Tangible personal property' includes but is not limited to all chattels and movables, such as boats and vessels, merchandise and stock in trade, furniture and personal effects, goods, livestock, vehicles, farming implements, movable machinery, movable tools and movable equipment." As that statute provides, the definitions provided in ORS 307.020(1) apply to the entirety of the Oregon tax code, unless the legislature expressly provides otherwise.  ORS 307.020(2) embodies just such an express exception, and specifically provides that the definitions contained in ORS 307.020(1), including the definition of "tangible personal property," do not apply to "any person, company, corporation or association covered by [the central assessment statutes,] ORS 308.505 to 308.665."(7) The department essentially urges this court to conclude that, because the statutory definition of "tangible personal property" does not apply to centrally assessed taxpayers, their property is not within the scope of property subject to the business inventory exemption statute, ORS 307.400.  That argument is predicated on the department's view that ORS 307.400 exempts only "tangible personal property" as it is defined in ORS 307.020. The department's argument has two flaws in its logic.  First, ORS 307.020 is a definitional provision only.  It merely defines what is encompassed in various types of personal property, including "tangible personal property," for one class of taxpayer  -- i.e., locally assessed taxpayers.  The fact that the definitions in that statute do not apply to centrally assessed taxpayers does not mean that no other definition applies.  Neither does it mean that centrally assessed taxpayers do not own the types of property that ORS 307.020 defines, including tangible personal property, for tax purposes.(8)  Rather, it means only that what qualifies as "tangible personal property" for centrally assessed taxpayers is determined by some other source of law.  That source of law is ORS 308.510(1), which, as earlier quoted, provides that the "property" of centrally assessed taxpayers, for tax purposes, includes "all property, real and personal, tangible or intangible * * *."  See also ORS 307.030 (intangible personal property held by centrally assessed taxpayers is subject to assessment and taxation).  Although the legislature did not set forth an express definition of "tangible personal property" in ORS 308.510(1) as it applies to centrally assessed taxpayers, that fact means only that we look to the common, ordinary meaning of the term to determine what property, when held by a centrally assessed taxpayer, qualifies as "tangible personal property."  See Friends of Parrett Mountain v. Northwest Natural Gas Co., 336 Or 93, 114, 79 P3d 869 (2003) (we give terms that do not have special statutory definitions or any well-understood legal meaning their plain, natural, and ordinary meanings).  The second flaw in the department's argument is its assumption that the business inventory exemption, as set forth in ORS 307.400, extends only to "tangible personal property" as defined in ORS 307.020.  By its terms, the business inventory exemption is not so limited.  As we have described, it does not distinguish between types of taxpayers or otherwise differentiate between locally assessed and centrally assessed taxpayers.  Neither does it incorporate only a single definition of "tangible personal property."  Nothing precludes the legislature from defining that term differently for different taxpayers, while still providing those different taxpayers with a common exemption for their tangible personal property, however defined, if it otherwise qualifies as business inventory.  As a matter of plain text, that is what the legislature appears to have done. In arguing to the contrary, the department places significant reliance on this court's decision in Saunders v. Dept. of Rev., 300 Or 384, 711 P2d 961 (1985).  In Saunders, a locally assessed taxpayer sought a determination that certain farm structures qualified for the business inventory exemption under ORS 307.400.  Id. at 386.  This court explained that, to qualify for that exemption, the property must meet two requirements:  (1) the "movable" requirement contained in ORS 307.020 ("tangible personal property" includes all chattels and "movables"); and (2) the "use" requirement contained in ORS 307.400 (property that is or will become part of the stock in trade of the taxpayer held for sale in the ordinary course of business).  The parties in Saunders agreed that the subject property satisfied the "use" requirement, but disputed whether it was "movable" for purposes of ORS 307.020.  Id. at 387. This court held that the subject property was not "movable" as ORS 307.020 requires, because it was real property, not tangible personal property.  Id. at 387, 391.  In reaching that conclusion, this court relied on 1977 legislative amendments to the predecessor business inventory exemption statute, former ORS 310.608 (1975), renumbered as ORS 307.400 (1981).  Id. at 388-89.  Those amendments had come after the Tax Court's decision in Eastern Ore. Farming Co. et al v. Dept. of Rev., 7 OTR 74, 79, 1977 WL 1599 (1977), in which the Tax Court had held that "[t]he distinction between real and personal property is irrelevant" in determining whether property is "inventory" subject to exemption under former ORS 310.608.  Rather, the Tax Court determined, it was sufficient if the subject property came within the "special definition" of "inventory" contained in the business inventory exemption itself (former ORS 310.608).  7 OTR at 79-80. Following the decision in Eastern Ore. Farming Co. et al, the legislature retroactively amended the business inventory exemption statute to effectively overrule that case by limiting the exemption to tangible personal property.  See Or Laws 1977, ch 819, § 1(3).(9)  Based on that amendment, this court concluded: "It is clear from the statute and the legislative history that the legislature intended that the exemption from ad valorem taxes now codified in ORS 307.400 apply only to a category of tangible personal property defined in ORS 307.020(3).  Because only tangible personal property qualifies for the exemption under ORS 307.400, we must determine if [the subject property is] real or personal property under ORS chapter 307.  For purposes of taxation the definitions in ORS 307.010(1) and ORS 307.020(3) control." Saunders, 300 Or at 389.  The court determined that the subject property did not qualify as "tangible personal property" under ORS 307.020 and, accordingly, held that it was not subject to the business inventory exemption under ORS 307.400.  Id. at 391. The department asserts that taxpayer's property is not subject to the business inventory exemption because, under Saunders, that exemption applies only to the "tangible personal property" defined in ORS 307.020 -- a term that does not apply to taxpayer as a centrally assessed company.  We do not read Saunders so broadly.  Certainly, Saunders stands for the proposition that property must be "tangible personal property" held for sale to qualify as "inventory" under ORS 307.400.  But the holding in Saunders has to be understood in the context of the particular issue that the case presented.  Because the taxpayer in Saunders was a locally assessed taxpayer, this court appropriately required the subject property in that case to satisfy the definition of "tangible personal property" under ORS 307.020 -- the definition that applies to locally assessed taxpayers.  This court was not presented with an issue entailing how the provisions of ORS 307.020, ORS 307.400, and the central assessment statutes are to be read together, and its holding properly cannot be understood to resolve that question.  Accordingly, Saunders does not affect our understanding of the plain text of ORS 307.400 and its interrelationship with ORS 307.020. We have, however, examined the legislative history of ORS 307.020 to determine whether it reveals a contrary intent -- that is, whether the legislature, in excluding centrally assessed taxpayers from the definitions in ORS 307.020(1), intended to remove centrally assessed property from the scope of property subject to the business inventory exemption statute.  See Gaines, 346 Or at 172 (court will consult legislative history even if the court does not perceive an ambiguity in the statute's text).  We find nothing in the pertinent history to support that conclusion. What is now subsection (2) of ORS 307.020 was added to the statute in 1977 as part of Senate Bill (SB) 113.  Or Laws 1977, ch 602, § 1(4).  SB 113 made three distinct amendments to the tax code:  (1) it expanded the definition of "intangible personal property" in ORS 307.020(1) to include information-storage media; (2) it excluded certain "intangible property" from the definition of "property" subject to central assessment under ORS 308.510(1); and (3) it clarified that the property of centrally assessed companies was not subject to the definitions contained in ORS 307.020 -- at that time, "intangible personal property," and "tangible personal property."  Or Laws 1977, ch 602, §§ 1, 2.  The main purpose of SB 113 was the first that we identified, to expand the definition of "intangible personal property" to include certain information-storage media.  Tape Recording, Senate Revenue and School Finance Committee, SB 113, Jan 24, 1977, Tape 3, Side 1 (statement of Richard A. Munn, Legislative Revenue Officer).  The primary concern behind the bill was that counties were treating the property of title companies inconsistently -- some counties were assessing and taxing information-storage media; others were not.  Id. (statement of Don Fisher, Department of Revenue). In hearings on the bill, the department clarified that the bill amended only the definition of "intangible personal property" and did not alter what property was taxable or exempt.  See Tape Recording, Senate Revenue and School Finance Committee, SB 113, Mar 21, 1977, Tape 17, Side 1 (statement of Ted De Looze, Department of Revenue) ("This only defines this type of property.  It does not say what is taxable or what is not taxable.  You have to go to the other provisions of the law. * * * [W]e did not intend this as the rule as to whether it is taxable or not.").  However, the 1977 amendments indirectly exempted more personal property for locally assessed taxpayers, because those amendments broadened the definition of "intangible personal property"; locally assessed taxpayers are exempt from being taxed on such property.  See ORS 307.030(2) ("Except as provided in [the central assessment statutes,] ORS 308.505 to 308.665, intangible personal property is not subject to assessment and taxation."); Tape Recording, Senate Revenue and School Finance Committee, SB 113, Mar 21, 1977, Tape 17, Side 1 (statement of Ted De Looze) (admitting that SB 113 "maybe indirectly" affects the personal property subject to exemption).  Consequently, the department recommended expanding the definition of "intangible personal property" to include information-storage media, because that property was difficult for assessors to value and, thus, should come within the exemption for intangible personal property for locally assessed taxpayers.  Tape Recording, Senate Revenue and School Finance Committee, SB 113, Jan 24, 1977, Tape 3, Side 1 (statement of Don Fisher).      Unlike that of locally assessed taxpayers, the "intangible property" of centrally assessed taxpayers is taxed.  ORS 307.030(2); ORS 308.510(1).  Utilities requested that the amended definition of "intangible personal property" not apply to them, because they did not want to be burdened with the difficulty of identifying the values of information-storage media on their annual statements to the department.  See Tape Recording, Senate Revenue and School Finance Committee, SB 113, May 6, 1977, Tape 24, Side 1 (statement of Sen Victor Atiyeh) (opining that separating intangible property in central assessment appraisal process would create more problems for centrally assessed companies in recordkeeping than it would change in value for the utility).  The utilities also did not want to disturb prior court cases classifying their property as either tangible or intangible property.  See Tape Recording, House Revenue and School Finance Committee, SB 113, June 28, 1977, Tape 37, Side 1 (statement of Assistant Attorney General Ira Jones).  The legislature responded to the requests of the utilities and added what is now subsection (2) of ORS 307.020 to exclude centrally assessed taxpayers from the amended and expanded definition of "intangible personal property" so that the "intangible personal property" defined under that statute was not included in the "property" of centrally assessed corporations.  Or Laws 1977, ch 602, § 1(4); Southern Pacific Trans. Co. v. Dept. of Rev., 295 Or 47, 62 n 17, 664 P2d 401 (1983) (SB 113 excluded centrally assessed taxpayers from the expanded definition of intangible personal property). Also as part of SB 113, the legislature simultaneously amended ORS 308.510(1) to exclude certain "intangible property" from the definition of "property" subject to central assessment.  Or Laws 1977, ch 602, § 2.  In doing so, the legislature was codifying the department's practice of not taxing specific intangible property for centrally assessed companies.  See Tape Recording, House Revenue and School Finance Committee, SB 113, Jun 28, 1977, Tape 37, Side 1 (statement of Ira Jones) (explaining that bill codified department's policy of not valuing certain types of intangible property of centrally assessed companies, such as money at interest, bonds, notes, etc.).  If we glean anything from the legislative history, it is that the legislature did not consider the effect of SB 113 on the exemption for tangible personal property consisting of inventory.  Rather, the legislature's purpose in enacting SB 113 was to define the intangible personal property of locally assessed and centrally assessed taxpayers differently -- in effect, to expand the scope of exempted intangible personal property for locally assessed taxpayers and to narrow the scope of taxed intangible property for centrally assessed taxpayers.  True, the 1977 amendments to ORS 307.020 removed centrally assessed taxpayers not only from the statutory definition of intangible personal property, but also from the statutory definition of tangible personal property.  See Or Laws 1977, ch 602, § 1(4).  However, considering the bill's focus on intangible personal property, we decline to conclude that the legislature, in doing so, intended that provisions in the tax code applying to "tangible personal property" -- including ORS 307.400 -- would no longer apply to centrally assessed taxpayers. Accordingly, we agree with the Tax Court that, although the definition of "tangible personal property" in ORS 307.020 does not apply to centrally assessed companies, it does not follow that the business inventory exemption statute, ORS 307.400, does not apply to those taxpayers.  Rather, it means only that, for centrally assessed taxpayers, the term "tangible personal property" in ORS 307.400 is not statutorily defined.  That, in turn, means that we will look to the plain, natural, and ordinary meaning of the term to determine its meaning.  If the property is "tangible personal property" under the plain and ordinary meaning of that term (and also meets the use requirement under ORS 307.400, viz., that the property is or will be stock in trade held for sale in the ordinary course of business), then the property is entitled to the business inventory exemption. B.  The department's alternative contentions. We next address the department's alternative arguments that, even if ORS 307.020 does not render the business inventory exemption inapplicable to centrally assessed taxpayers, the statutory scheme as a whole demonstrates that the legislature did not intend the business inventory exemption to apply to centrally assessed taxpayers.  The department relies on the following in support of that contention:  (1) contextual provisions in ORS chapter 307 and the central assessment statutory scheme; (2) the legislative history of ORS 307.400; and (3) the method of valuation for centrally assessed property.  We consider each in turn.         1.  ORS chapter 307's relationship to the central assessment scheme The department's first theory is that certain contextual clues in the statutory scheme reveal that the legislature did not intend the business inventory exemption to apply to centrally assessed property:  (1) "inventories" of centrally assessed taxpayers are expressly assessable; and (2) the business inventory exemption statute neither expressly references the central assessment statutes, nor is it part of the central assessment scheme.  As we explain below, none of the department's propositions is convincing. According to the department, the fact that the legislature expressly included "inventories" as "property" that is assessable under ORS 308.510(1) demonstrates that the legislature did not intend to exempt that property from taxation.  The department's contention on that point is necessarily premised on its view that "assessment" is synonymous with "taxation."  That is, the department urges that "[a]ll property listed in ORS 308.510(1) is taxable under the central assessment statutes, if used or held by a company in a business designated as centrally assessed under ORS 308.515."  Because the term "inventories" is included in the scope of centrally assessed "property," the department contends inventories are, in turn, taxable.  Taxpayer, on the other hand, argues that it is irrelevant whether "inventories" [are] included in the scope of property that is centrally assessed, because that merely determines how the property is to be assessed (i.e., centrally or locally), not whether it is taxed. We decline to engage in the complicated and nuanced analysis of whether and when "assessment" is "taxation."  That is so, because, even if we were to agree with the department that, as a general rule, property that is assessed is ultimately taxed, the legislature has clearly demonstrated that there are express exceptions.  That is, some "property" expressly assessable under ORS 308.510(1) ("all property" used or held by a company under ORS 308.515(1) required to be centrally assessed) is exempt from taxation.  See, e.g., ORS 308.558(5) (exempting aircraft of foreign-owned carriers); ORS 308.559(2)(a) (exempting aircraft undergoing major work); ORS 308.665(1) (exempting private railroad cars undergoing major work).  Accordingly, the department's contention is refuted by the statutory scheme itself.(10) The department next asserts that when the legislature provides a tax exemption for centrally assessed property, it does so only by either codifying the exemption within the central assessment scheme (i.e., ORS 308.505 to 308.665) or by expressly referencing the central assessment statutes.  According to the department, because the business exemption statute meets neither criterion, it does not apply to centrally assessed taxpayers. We disagree with the department's premises and, therefore, with its conclusions.  We first disagree with the department's contention that, when the legislature has provided a tax exemption for centrally assessed taxpayers, it has done so only within the central assessment statutory scheme.  True, the central assessment statutes do contain provisions that exempt centrally assessed property from taxation, as well as provisions that designate certain property as not centrally assessable.  See, e.g., ORS 308.558(5) (exempting aircraft of foreign-owned carriers); ORS 308.559(2)(a) (exempting aircraft undergoing major work); ORS 308.665(1) (exempting private railroad cars undergoing major work); ORS 308.510(1) (excluding certain intangible property from central assessment); ORS 308.515(3) (excluding specific property from central assessment -- e.g., property of interstate ferries).  However, those provisions, by their terms, apply only to centrally assessed property, and not to locally assessed property.  See ORS 308.510(1) ("intangible personal property" subject to central assessment); ORS 308.515(1) (property of air transportation, water transportation, and private railcar transportation companies subject to central assessment).  It makes particular sense for the legislature to include them in the central assessment scheme because, as a practical matter, they apply to nothing else.  The fact that the legislature has included tax exemptions for centrally assessed property in the central assessment scheme thus does not foreclose the possibility that it has and also would do so through the exemption and taxation provisions in ORS chapter 307.  Rather, an exemption that applies more generally to both locally and centrally assessed property would more appropriately be located in ORS chapter 307 -- a chapter of general applicability.  To the extent that the department suggests that ORS chapter 307 and the central assessment statutes are two separate schemes of taxation -- in addition to separate schemes for assessment -- we further disagree.  The legislature has expressly differentiated the assessment processes for centrally assessed and locally assessed property.  See ORS 308.005 - 308.343 (general assessment scheme); ORS 308.505 - 308.665 (central assessment scheme); D. R. Johnson Lumber Co., 318 Or at 335-36 (explaining the provisions of general applicability and the particular assessment schemes in ORS chapter 308).  ORS chapter 307, on the other hand, is not about assessment at all.  It is a chapter pertaining to taxation and exemption, and contains no provision limiting its application to locally assessed taxpayers.  Thus, ORS chapter 307 is a chapter of general applicability.  At the very least, if the legislature intended to create a separate system of taxation and exemption for centrally and locally assessed taxpayers, it has neither declared as much nor structured the statutes in that way. We acknowledge that, in certain circumstances, the legislature has expressly treated the taxation and exemption of the two categories of taxpayers differently.  See, e.g., ORS 307.030(2) (taxing intangible personal property of centrally assessed taxpayers and exempting it for all others).(11)  But that fact is further evidence that the taxation and exemption provisions in ORS chapter 307 generally encompass centrally assessed taxpayers, because the legislature has demonstrated that it knows how to expressly exclude centrally assessed taxpayers from those provisions when it opts to do so.  Because ORS 307.400 does not expressly remove centrally assessed property from its reach, the most natural conclusion to draw is, as we have described, that the legislature intended that the exemption apply to centrally assessed and locally assessed taxpayers alike. The department disagrees and asserts that any provisions that expressly remove centrally assessed property from the scope of a statute's exemption are merely "redundant."  Citing Thomas Creek Lumber and Log Co. v. Dept. of Rev., 344 Or 131, 138, 178 P3d 217 (2008), the department argues that the legislature is not prohibited from "saying the same thing twice."  According to the department, the fact that ORS 307.400 does not contain such a "redundant reference" does not mean that its exemption must be applied to centrally assessed property.  Again, we disagree.  In Thomas Creek Lumber and Log Co., this court adopted the department's proposed interpretation of a tax code statute over the taxpayer's:   "although the department's interpretation * * * does lead to a redundancy in [one subsection of the statute], taxpayer's interpretation [was] more problematic," because it impermissibly omitted words from and rendered entirely without effect a subsection of another statute.  Id. at 137.  The court reasoned that, although the department's interpretation made some words in another statute redundant, "nothing prohibits the legislature from saying the same thing twice."  Id. at 138.  The court further reasoned that the department's interpretation was preferable, because it would "'give effect to' more of the 'provisions or particulars' of both statutes than [the] taxpayer's proposed interpretation."  Id. (citing ORS 174.010). Contrary to the department's position, Thomas Creek Lumber and Log Co. does not stand for the broad principle that an interpretation rendering provisions of a statute redundant is generally permissible.  The general rule is that this court interprets statutes to give effect to all provisions.  See ORS 174.010 ("where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all"); Union Pac. R. R. Co. v. Bean, 167 Or 535, 549, 119 P2d 575 (1941) (a construction of a statute that renders certain provisions unnecessary will not be adopted by the court, and "it should not be presumed that any provision is redundant or useless").  Thomas Creek Lumber and Log Co. does not conflict with that general rule.  Rather, it stands for the more modest proposition that an interpretation rendering a provision redundant is preferable when it gives effect to more provisions or particulars of the applicable statutes than would some other interpretation.  The department suggests that that would be the case here, arguing that taxpayer's proposed interpretation "omits and renders ineffective the substantive definition of assessable property in the form of 'inventories,' 'appliances,' 'merchandise,' and 'all other goods' in ORS 308.510(1)."  As already noted, however, ___ Or at ___ (slip op at 20-21), property may be both centrally assessed and exempt from taxation.  Thus, taxpayer's proposed construction would not render those provisions inoperable.  Moreover, even were we to assume, arguendo, that taxpayer's proposed interpretation would render ineffective the provision in ORS 308.510(1) requiring assessment of "inventories," the department's proposed interpretation would render several more provisions -- the multiple provisions in ORS chapter 307 removing centrally assessed taxpayers from the statutes' effect -- useless.  Accordingly, the department's proposed construction is not preferable under the circumstances. We also disagree with the department that, when the legislature provides a tax exemption for centrally assessed property outside the central assessment scheme, the legislature uniformly does so by expressly cross-referencing the central assessment statutes.  That contention is foreclosed by the existence of exemption statutes in ORS chapter 307 that are silent as to central assessment, but that necessarily apply to centrally assessed property.  For example, as the department concedes, ORS 307.126 (exempting Federal Communications Commission licenses) applies to the property of centrally assessed taxpayers, even though the statute does not refer expressly to those taxpayers or otherwise reference the central assessment statutes.  See ORS 308.515(1)(n) ("[c]ommunication" companies subject to central assessment).  See also ORS 307.205 (exempting real property owned by a railroad that is temporarily being put to a public alternate transportation use).(12) Based on the foregoing analysis of the text and context, we conclude that the legislature did not intend to limit the business inventory exemption statute, ORS 307.400, to locally assessed taxpayers. 2.  The legislative history of ORS 307.400 The department next asserts that the historical context and legislative history of ORS 307.400 reveal that the legislature intended to provide relief from the personal property tax only as to locally assessed, not centrally assessed, business inventory.  The legislature first provided a partial tax exemption for business inventory in 1965, under the Inventory Tax Relief Act, codified at former ORS 310.605 to 310.625 (1965), repealed by Or Laws 1969, ch 612, § 5.  See Or Laws 1965, ch 604, §§ 1-12 (HB 1498).  The Inventory Relief Act reduced the personal property tax on inventory based on a percentage calculation.  Former ORS 310.605.  The major purposes of phasing out the taxation of inventory were to create new businesses in Oregon, prevent employee cutbacks, and reduce the seasonal aspect of Oregon's economy.(13)  Tape Recording, House Committee on Taxation, HB 1498, Mar 16, 1965, Tape 16, Side 1 (statement of Sen Victor Atiyeh).  The legislature was also concerned with how the personal property tax on inventory affected Oregon businesses' ability to compete in the market, because other states had a relatively small tax on inventory.  See Minutes, Senate Committee on Taxation, Apr 26, 1965, 3, 7.  In 1969, the legislature repealed the 1965 Inventory Tax Relief Act, Or Laws 1969, ch 612, § 5, and enacted a permanent tax reduction program for the personal property tax imposed on inventory, codified at former ORS 310.608 (1969), renumbered as ORS 307.400 (1981).  Or Laws 1969, ch 612, § 1, 2 (HB 1214).  Former ORS 310.608(1) provided an exemption for the taxpayer's inventory, one that increased at a rate of five percent per year for four years, and ten percent per year thereafter.  A complete exemption was enacted in 1979.  Or Laws 1979, ch 692, § 5.  The statute was renumbered as ORS 307.400 in 1981.  During hearings on the 1969 bill, the legislature again heard concerns from industry regarding Oregon's seasonal economy.  Minutes, Senate Taxation Committee, May 13, 1969, 2 (statement of Douglas Heider, Retail Council Director of Associated Oregon Industries).  The legislature expressed concern that Oregon was falling behind other western states in inventory tax relief and was continuing to lack competitiveness in the market.  Id. (statement of  Rep Jason Boe).        The department cites portions of the 1965 Inventory Tax Relief Act, as well as several statutes that predated that act, in support of its contention that the legislature never intended for the business inventory exemption to benefit centrally assessed taxpayers.(14)  The department's basic theory is that centrally assessed property "was not subject to the locally assessed ad valorem tax on inventory" (emphasis in original) and, thus, was not intended to benefit from the exemption. We find nothing in either the 1965 Inventory Tax Relief Act or the statutes predating that act that leads us to conclude either that a separate "tax on inventory" existed or that it applied only to locally assessed taxpayers.  The property tax imposed on inventory was the property tax on "tangible personal property" -- and that tax applied generally.  See ORS 307.030(1) (1965) ("[a]ll * * * tangible personal property * * * shall be subject to assessment and taxation"). Further, the main purpose behind the 1965 Inventory Tax Relief Act convinces us that the legislature wanted to reduce -- and ultimately exempt -- the personal property tax on inventory for all Oregon businesses that held inventory for sale.  As noted, the legislature was concerned with the seasonal aspect of Oregon businesses holding inventory for sale, which affected their ability to compete in the market because other states were not taxing inventory.  Considering the purpose behind the legislation, we see no reason why a centrally assessed company holding inventory for sale -- and thus, suffering from similar seasonal hardships -- would not have been an equal target of the 1965 and 1969 legislation.(15)  Accordingly, the legislative history provides no basis to conclude that the legislature intended to exclude centrally assessed taxpayers either from the phasing out of personal property tax imposed on inventory, or from its ultimate exemption.(16) 3.  Method of valuation for centrally assessed property Under its third theory, the department asserts that the method of valuation prescribed by the legislature for centrally assessed property is not conducive to identifying, valuing, or exempting inventory.  In assessing property subject to central assessment, the department's assessors engage in "unit valuation" based on information provided by the company in its annual statement.  ORS 308.520; ORS 308.555.  The unit valuation includes property both within and without the State of Oregon.  ORS 308.555.  Once the department ascertains the assessable property in Oregon, it apportions the assessed values to each of the counties.  Id.; ORS 308.565. As the department explains, unit valuation, as a method of assessment, does not separate "real" from "personal" property, or "tangible" from "intangible" property.  Neither does unit valuation identify a separate value for "inventory."  The department thus urges that unit valuation does not provide a means by which business inventory can be separately valued and exempted from the value of the unit.  The department, however, again ignores the fact that several statutes exempt from taxation certain property that is subject to central assessment -- and, thus, unit valuation.  See, e.g., ORS 308.665 (exempting railroad cars owned by private car companies undergoing major work).  Those statutes foreclose the department's contention that unit valuation precludes, or is otherwise impossible to reconcile with, the valuation and exemption of individual types of centrally assessed property.  Furthermore, Oregon has adopted the Western States Association of Tax Administrators, Appraisal Handbook:  Valuation of Utility & Railroad Property (1989) (WSATA Handbook) as the official valuation guide for centrally assessed property in this state.  OAR 150-308.205-(B).  Included in the WSATA Handbook is a prescribed uniform procedure for separating tax exempt property from the unit valuation.  The WSATA Handbook explains that, although generally "no attempt is made to assign values in a unit appraisal to individual items of property," such value must be assigned if "it is a legal requirement."  WSATA Handbook at 8.  The WSATA handbook thus aims to provide "consistent application of allocation techniques for removing nontaxable property from the unit valuation."  Id. at 10.  The WSATA Handbook further specifies that, under any of several methods of unit valuation, the appraiser must specifically identify and account for exempt property to be excluded from the valuation.  See, e.g., id. at 22-23, 38 (appraisers engaged in "cost method" are required to exclude property exempt from property taxation; common exclusions include "inventory"); id. at 70, 76 (adjustments to "income approach" are required to account for assets not taxable); id. at 98 (value contribution of nontaxable assets must be removed from the stock and debt indicator under the "stock and debt approach"). The department has also acknowledged, via promulgation of its own administrative rule, that assessors are required to value, and remove from the unit, exempt property.  The department mandates that the unit value for gas distribution companies be adjusted to exclude "nontaxable" property included in the unit.  OAR 150-308.205-(B)(2)(b).  That rule forecloses the department's contention that identifying exempt property and removing it from the unit valuation is impossible or unreasonable.  Finally, we observe that, in this case, the department had before it the information necessary to exempt the disputed property.  Specifically, taxpayer's annual report expressly identified the property at issue in such a way that the assessed value of that property could be removed from the unit valuation of taxpayer's property.  See also ORS 308.525(9) (annual statement must contain a detailed statement of personal property located in Oregon owned by the centrally assessed company); WSATA Handbook at 13 ("[m]andatory reporting usually requires a detailed listing of all items of taxable property with descriptions and original cost").  Thus, the practicality argument that the department makes finds no support in the statutory scheme or in the record in this case. Accordingly, the method of valuation prescribed by the legislature for centrally assessed property does not convince us that it is impossible to value and exempt inventory subject to central assessment.  We therefore decline to read into ORS 307.400 a limitation -- i.e., an exemption for locally assessed property only -- that the statute does not contain and that the broader statutory scheme does not compel. IV.  CONCLUSION In sum, an analysis of the text and context of the business inventory exemption statute, ORS 307.400, as well as its legislative history, leads us to conclude that the exemption is not limited to locally assessed taxpayers.  We therefore hold that the business inventory exemption prescribed in ORS 307.400 applies generally to exempt the "inventory" of all "taxpayers," including taxpayers whose property is subject to central assessment pursuant to ORS 308.505 to 308.665.(17)  Accordingly, in determining whether centrally assessed property qualifies as "inventory," we look not to the definition of "tangible personal property" in ORS 307.020; rather, we must determine:  (1) whether the property is "tangible personal property" under the plain and ordinary meaning of that term; and (2) whether the property meets the use requirement under ORS 307.400, viz., whether the property is or will be stock in trade held for sale in the ordinary course of business.  It follows that, because the parties stipulated that taxpayer's gas reserves and retail appliances are "tangible personal property," and the parties do not otherwise dispute that the property meets the "use" requirement under ORS 307.400, taxpayer is entitled to a property tax exemption under ORS 307.400 for the subject property.  The judgment of the Tax Court is affirmed. 1. The tax years at issue in this case are 2002-03 to 2005-06.  The applicable tax code statutes during those years did not substantively change.  Thus, all references to the Oregon Revised Statutes are to the 2005 version.  We also note that the parties relied on the 2005 version of the statutes in their briefs before this court.  Certain legislative amendments to the central assessment statutes went into effect January 2, 2009.  Those amendments are intended to "modernize and clarify the central assessment statutory law, while continuing the central assessment system as it currently operates."  Or Laws 2009, ch 128, § 1(3).  The changes "do not constitute a change in the policies of the State of Oregon with respect to the central assessment system[.]" Id. § 1(4).  Those most recent amendments, whatever their effects, do not apply to this case. 2. Two of the underground natural gas storage facilities became available during the 2005-06 tax year and are not under appeal for the remainder of the tax years at issue. 3. In addition to the Portland store, taxpayer owned and operated stores in Salem, Albany, and Eugene.  The Salem store was in operation during the 2002-03 and 2003-04 tax years, the Albany and Eugene stores were in operation during the 2002-03 to 2004-05 tax years, and the Portland store was in operation during all the subject tax years.  As explained below,  ___ Or at ___ n 6 (slip op at 6 n 6), only the appliances assessed during the 2005-06 tax year -- those sold at the Portland retail store -- are at issue on appeal.  4. The proposed assessment values for taxpayer's gas reserves for each tax year were $38,204,470, $46,233,603, $38,883,344, and $50,190,503, respectively.  The respective values of taxpayer's retail appliances were $809,018, $595,480, $604,359, and $441,066. 5. ORS 306.115 provides, in part, that under its supervisory powers, "the department may order the correction of clerical errors, errors in valuation or the correction of any other kind of error or omission in an assessment or tax roll" as provided under the statute. 6. Because taxpayer included its retail appliances only in its 2005-06 appeal, only the 2005-06 assessment of taxpayer's retail appliances at issue in this appeal. 7. ORS 307.020(1) contains definitions for "intangible personal property" and "personal property," as well as "tangible personal property."  Pursuant to ORS 307.020(2), none of those definitions applies to centrally assessed companies. 8. To some degree, the department's argument proves too much.  That is, a literal application of the department's proposed interpretation of ORS 307.020(2) would result in removing centrally assessed taxpayers not only from the business inventory exemption statute, but also from any other statutes in the tax code that apply to "tangible personal property," "intangible personal property" and "personal property" -- including the provisions that subject such taxpayer's property to assessment and taxation.  See, e.g., ORS 307.030(1) ("All real property within this state and all tangible personal property situated within this state, except as otherwise provided by law, shall be subject to assessment and taxation in equal and ratable proportion." (Emphasis added.)). 9. The legislature amended subsection (3) of the statute to read: "As used in subsection (1) of this section, 'inventory' means the following tangible personal property: * * *." Or Laws 1977, ch 819, § 1(3) (emphasis added). 10. Neither does the legislative history of ORS 308.510(1) provide support for the department's contention. The legislature added the term "inventories" to ORS 308.510(1) in 1957, years before the personal property tax imposed on "inventory" was phased out under the predecessor statutes to ORS 307.400 in 1965.  See Or Laws 1957, ch 711, § 2.  Accordingly, the legislature did not consider how adding "inventories" to centrally assessed property would be affected by the later-enacted business inventory exemption.  Rather, the legislature added the term "inventories," as well as other terms, to clarify that certain utility property was to be assessed by the department (then the State Tax Commission), rather than county assessors.  Minutes, Senate Taxation Committee, Apr 30, 1957, 4.  11. See also ORS 307.220 (exemption for certain property of nonprofit mutuals or cooperative telephone associations "shall not apply to any parcel of land or building owned by any such association, which land or building shall be assessed and apportioned by the [department] in accordance with existing law"); ORS 307.330(1) ("[e]xcept for property centrally assessed by the [department]," certain commercial facilities under construction are exempt from taxation); ORS 307.090(1) ("[e]xcept as provided by law," certain public property is exempt from taxation); Pacificorp Power Marketing v. Dept. of Rev., 340 Or 204, 211, 131 P3d 725 (2006) (central assessment statutes provide for  taxation of property otherwise exempt under ORS 307.090(1), the public property tax exemption, because that exemption statute contains an "except as provided by law" clause).  12. We acknowledge that the legislature, in at least one provision in ORS chapter 307, has used express language to bring centrally assessed taxpayers or properties within the statute's exemption.  See ORS 307.090(3)(a) ("[n]otwithstanding ORS 308.505 to 308.665," certain out-of-state publicly owned property is exempt from taxation).  That "notwithstanding" clause operates to override any provisions in the central assessment statutes that conflict with ORS 307.090(3)(a).  The clause comes after an "except as provided by law" clause in ORS 307.090(1) that operates to remove centrally assessed property from the exemption.  See Pacificorp Power Marketing, 340 Or at 211 ("except as provided by law" clause means that the exemption does not apply to centrally assessed property).  Thus, the "notwithstanding" clause is necessary to clarify that the exemption under subsection (3) of that statute applies to centrally assessed taxpayers, even though the exemption in subsection (1) does not.  Accordingly, that "notwithstanding" clause does not support the contention that exemption statutes in ORS chapter 307 do not apply to centrally assessed taxpayers unless the statutes expressly reference the central assessment statutes. 13. Near the end of the calendar year, due to the personal property tax on inventory, it was common for Oregon businesses to "bottom out" their inventory by ceasing to buy additional inventory, cutting down on their fabricating crews, laying off employees, discontinuing purchases of tools or equipment, and curtailing certain production.  Minutes, Senate Committee on Taxation, Apr 26, 1965, 7 (statement of Charles Wright, Mercer Steel).  The seasonal aspect of Oregon's economy, which caused a "major force" in "temporary unemployment," made up a significant portion of the testimony before the legislature both in 1965 and again in 1969.  See, e.g., id. at 2-6; Tape Recording, House Committee on Taxation, HB 1498, Mar 16, 1965, Tape 16, Side 1 (statement of Sen. Victor Atiyeh); Minutes, Senate Committee on Taxation, Apr 26, 1965, 4 (statement of James Sommers, Container Corporation); Minutes, Senate Committee on Taxation, May 13, 1969, 2. 14. See, e.g., former ORS 317.074 (1955), repealed by Or Laws 1969, ch 520, § 49 (providing centrally assessed companies a corporate excise tax offset for personal property taxes paid); former ORS 317.085 (1955), repealed by Or Laws 1957, ch 607, § 10 (general corporate excise tax offset for personal property taxes paid); Or Laws 1965, ch 604, § 5 (1965 Inventory Tax Relief Act required counties to calculate and report to  State Tax Commission the "dollar amount of locally assessed inventory taxes levied" (emphasis added) for the fiscal year).  15. Certainly, the legislature recognized that the "small merchant" would especially benefit from the permanent inventory reduction program.  Minutes, House Committee on Taxation, Mar 24, 1969, 1.  However, legislative recognition that a sector of Oregon businesses (small merchants) would especially benefit from the legislation more than others (large merchants and utilities) does not foreclose legislative intent that those large entities -- if also holding inventory for sale and, thus, coming within the target of the legislation -- also receive some benefit from the legislation, even if that benefit would be less obvious or common.  See Minutes, Joint Ways and Means Committee, May 5, 1965, 275 (statement of Sen Victor Atiyeh) (stating that helping merchants is one thing, but the most important approach is to help the economy of Oregon).  At the very least, there is simply nothing in the legislative history to suggest that the legislature considered large utilities and other centrally assessed companies and, in turn, intended to exclude them from the ambit of the statute. 16. One version of the 1965 Inventory Tax Relief Act -- a version that the legislature ultimately rejected -- provided for a "net business tax" to replace revenue lost from the phase-out of property tax on inventory.  See Minutes, Senate Committee on Taxation, Apr 26, 1965, 1, 2 (statement of Sen Victor Atiyeh) (explaining net business tax proposed by the House).  The department relies on testimony from Douglas Heider, Retail Council Director of Associated Oregon Industries, at an August 8, 1964, meeting of the Interim Committee on Taxation, in which Heider proposed that centrally assessed companies should be exempt from the "net business tax."  See Minutes, Interim Committee on Taxation, Aug 8, 1964, 6 (explaining that, because there is no effective way of segregating inventory to give relief from the tax, centrally assessed companies gain no benefit and pay no additional tax).  His comments were made to a 1964 interim committee in support of a potential tax that was ultimately rejected by the legislature.  Or Laws 1965, ch 604, §§ 8, 8a.  Moreover, as explained post, ___ Or at ___ (slip op at 31-34), Heider's reasoning was incorrect -- that is, he based his conclusion on the incorrect premise that there was no effective way of segregating assessed inventory from the unit value.  We therefore decline to place any weight on Heider's comments in determining the legislature's ultimate intent.  17. Because we hold that the business inventory exemption applies to the "inventory" of centrally assessed taxpayers, we do not reach taxpayer's alternative argument, viz., that its retail appliances were not subject to central assessment and, thus, exempt nonetheless.

e0bb9d9bdd3619d2a9c507137b4d0c5f4b76c01e2c5453a4bb7297ac4937bf77

2010-01-28T00:00:00Z

c731ba47-b6eb-42be-b4f6-32bae81a5179

Martin v. CITY OF ASHLAND

233 Or. 512, 378 P.2d 711

oregon

Oregon Supreme Court

Appeal dismissed February 14, 1963. Petition for rehearing denied March 12, 1963. Bernard P. Kelly and Robert H. Grant, Medford, argued the cause for appellant. On the briefs were Kelly & Grant, Medford. Philip B. Lowry, Medford, argued the cause for respondents. On the brief were Frohnmayer, Lowry, Hogan & Deatherage, Medford. *513 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices. APPEAL DISMISSED. PER CURIAM. This is an action for damages for injuries alleged to have been inflicted by a city police officer upon the person of the plaintiff. The plaintiff appeals from a judgment entered in favor of all the named defendants except the police officer whose alleged misconduct is described in the complaint. The action continues as to him. The other named defendants were removed from the case after the trial court sustained their demurrers to the complaint. These are the City of Ashland, a municipal corporation, the mayor, six members of the city council, and the chief of police. In sustaining the demurrers, the trial court held that the City of Ashland was immune from liability for injuries resulting from the exercise of its police functions. The court further held that the mayor, councilmen, and police chief were likewise immune, not only from vicarious liability, Antin v. Union High School Dist. No. 2., 130 Or 461, 472, 280 P 664, 66 ALR 1271 (1929), but from liability for their own negligence, if any, as well. Cf. Colby v. City of Portland, 85 Or 359, 166 P 537 (1917). The plaintiff challenges the correctness of each of the foregoing rulings, and asks us to reexamine in light of Vendrell v. School District No. 26C et al, 226 Or 263, 360 P2d 282 (1961), certain earlier decisions affirming the immunity of municipal corporations. 1. We do not reach the several questions presented in the plaintiff's briefs and argument, because the *514 judgment entered in the case at bar in favor of the named defendants is not an appealable judgment within the meaning of ORS 19.010. Abrahamson v. Northwestern P. & P. Co., 141 Or 339, 348, 15 P2d 472, 17 P2d 1117 (1933). 2. No motion was filed in this court to dismiss this appeal. However, as it appears that the judgment in the trial court was interlocutory, and affected some of the parties but not all of them, it was not a final judgment. This court is without jurisdiction to review the assignments of error. Under such circumstances, it is the duty of this court on its own motion to dismiss the appeal. State v. Jairl, 229 Or 533, 539, 368 P2d 323 (1962); McEwen et ux v. McEwen et al, 203 Or 460, 471, 280 P2d 402 (1955). Appeal dismissed.

0150ec9dd169dac642ab6a641823491213ddcd589bf6c9f26ab497d5e85324e8

1963-02-14T00:00:00Z

5b667d83-7a3d-41b4-b277-2b376ddb4792

Caruthers v. Kroger (Ballot Title Certified)

S057946

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED January 21, 2010 Caruthers et al v. Kroger (S057946). Petitioners' request for oral argument is denied. Petitioners' argument that the Attorney General's certified ballot title for Initiative Petition No. 60 (2010) does not comply substantially with ORS 250.035(2) to (7) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure.

23b1b325d0a5d2db36d556ecf52a0f2baf9341f388fb7c50368b18ce45b2a621

2010-01-21T00:00:00Z

38bdecb7-b6b1-4374-9c08-d082f2afd7f9

Benton County v. Friends of Benton County

294 Or. 79, 653 P.2d 1249

oregon

Oregon Supreme Court

653 P.2d 1249 (1982) 294 Or. 79 BENTON COUNTY, a Political Subdivision of the State of Oregon, Petitioner for Review, v. FRIENDS OF BENTON COUNTY, Respondent On Review. LUBA Case No. 81-024; CA A21709 and SC 28628. Supreme Court of Oregon. Argued and Submitted June 7, 1982. Decided November 23, 1982. *1250 Richard T. Ligon, Benton County Counsel, Corvallis, argued the cause and filed a brief for petitioner on review. Richard C. Stein, Salem, argued the cause and filed a brief for respondent on review. With him on the brief was Ramsay, Stein, Feibleman & Myers, Salem. Before DENECKE,[*] C.J., and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. LINDE, Justice. Benton County granted a conditional use permit to Morse Bros., Inc., to expand a gravel extraction operation on the east bank of the Willamette River on land designated for exclusive farm use in the county's comprehensive plan. Upon a petition by Friends of Benton County, a private association organized as a nonprofit corporation, the Land Use Board of Appeals (LUBA) found certain errors in the county's action and remanded the matter to the county for further proceedings. The county appealed LUBA's order on the grounds that LUBA had employed an erroneous test in allowing Friends of Benton County to challenge the conditional use permit and that the organization did not have standing to do so under the correct test. The Court of Appeals affirmed LUBA's order, 56 Or. App. 567, 642 P.2d 358 (1982), and we allowed review because of doubts about the court's premises. We affirm for reasons stated below. We begin by noting what is and what is not presented by the appeal. Friends of Benton County petitioned and LUBA allowed it to appear in a "representational" capacity on the basis that one of its members, Clif Kenagy, is a landowner who had appeared in the county's proceeding and who would be aggrieved or adversely affected by the county's decision. The county resisted the petition on the ground that Mr. Kenagy did not have a sufficient interest to qualify as a petitioner before LUBA. It did not question that the organization would qualify if he did. The county made the same concession in the Court of Appeals and in this court. The Court of Appeals accepted this assumption on the strength of its decision in 1000 Friends of Oregon v. Multnomah County, 39 Or. App. 917, 593 P.2d 1171 (1979). This court has not examined or approved the concept of "representational standing." If we were to do so, a number of questions *1251 would have to be briefed and considered.[1] They were not made an issue in this case, and we do not decide them. We mention only that this issue and the issue of the individual rights of the member from which Friends of Benton County derives its standing before LUBA both illustrate a common problem in judicial review of governmental action. The problem arises from the inveterate practice of seeking and citing statements of rules in judicial opinions, even when the rules have their sources not in common law but in statutes that differ from one agency to another, from one form of judicial review to another, and often from one legislative session to the next. This is notably true of "standing." "Standing" is not common law. Some statutes expressly provide who may seek review of specific governmental actions. Other statutes prescribe more generally who may invoke one or another form of relief against various governmental actions. The statutory criteria are by no means uniform or consistent. Nevertheless, a decision accepting or declining review to a party in a certain position often is said to hold that such a party has "standing," and this proposition thereafter is cited for or against such "standing" to obtain relief under different statutes. Also, because the literature of administrative law deals largely with federal law, much "standing" doctrine is argued and "adopted" from federal decisions, although these often focus on the "case or controversy" requirement of federal jurisdiction under Article III of the United States Constitution. The fragmentation and perhaps needless complexity of Oregon's statutes on judicial review appear in recent decisions in which we have had to examine standing to seek review under the administrative procedure act, under the declaratory judgment act, by writ of review, by writ of mandamus, and under other statutes. Marbet v. Portland General Electric, supra n. 1, held that a person who had been admitted as a party to a contested case under the administrative procedure act was entitled by the terms of that act to pursue judicial review without further proof of injury. We noted that "[n]either the issue of standing under the administrative procedure act nor the issue of intervention under the energy facility siting act depends on generalizations of administrative law. Both issues have been resolved by the legislature." 277 Or. at 453, 561 P.2d 154. In Gruber v. Lincoln Hospital District, 285 Or. 3, 588 P.2d 1281 (1979), a person seeking to invalidate acts of the district as a "resident and taxpayer" was barred because his complaint failed to show the impact of the challenged acts on his *1252 "rights, status, or other legal relations" required by the declaratory judgment act, ORS 28.020. Such a showing, however, sometimes has not been required when a writ of mandamus is sought to enforce a "public right"[2] on the relation of a party "beneficially interested." ORS 34.130. In Strawberry Hill 4-Wheelers v. Board of Comm'rs for County of Benton, 287 Or. 591, 601 P.2d 769 (1979), we reviewed the century-old conundrum of challenges to the conduct of "county business" by a writ of review expressly limited to "judicial or quasi-judicial functions" exercised "to the injury of some substantial right of the plaintiff, and not otherwise." Former ORS 203.200; former ORS 34.040. There we wrote: 287 Or. at 609 n. 8, 601 P.2d 769. And we repeated an observation made in Gruber, supra, that courts can do little to formulate coherent rules of standing or other aspects of judicial review in the absence of a systematic statutory framework. Id. at 608 n. 7, 601 P.2d 769. In this case, the Court of Appeals rested respondents' "representational standing" on its earlier decision in 1000 Friends of Oregon v. Multnomah County, 39 Or. App. 917, 593 P.2d 1171 (1979). That decision, in turn, cited cases in the Supreme Court of the United States without explaining how those cases, or the laws under which they were decided, related to the jurisdictional basis of the case before the Court of Appeals. Moreover, the present case comes to court under different statutory provisions for review from those in 1000 Friends of Oregon v. Multnomah County or in two other cases also cited by the Court of Appeals.[3] These provisions were extensively considered and revised when the Land Use Board of Appeals was created in 1979. Therefore, insofar as Friends of Benton County made no effort to claim standing before LUBA except as a "representative" of its member Kenagy, the latter's qualification as a petitioner before LUBA must be examined under the 1979 law. Unlike prior land use cases initiated in circuit courts by writ of review, the present case involves two distinct provisions for review, the first governing review by the Land Use Board of Appeals and the second judicial review by the Court of Appeals. Oregon Law 1979, ch. 772, prescribed procedure before the board in section 4 and judicial review in section 6a. Section 4, provided: A further relevant provision states that the petition for review shall state "[t]he facts that establish that the petitioner has standing." Or. Laws 1979, ch. 772, § 4(6)(a). Review by LUBA thus is not limited to persons who can show "injury of some substantial right," as it was under the writ of review, or "whose interests are substantially affected," as ORS 197.300 prescribed at the time of 1000 Friends of Oregon v. Multnomah County, supra n. 3. Instead, the 1979 statute allowed a petition to the board by any person who fits within the foregoing provisions.[4] The provisions differ depending on whether the land use decision qualifies as "quasi-judicial." Subsection (2) allows a petition to LUBA, after a notice of intent to appeal, by any person "whose interests are adversely affected" or, in the alternative, "who is aggrieved by the decision," except when the decision is quasijudicial. In such a case, the petitioner must have appeared orally or in writing before the body making the decision to be reviewed but need not be either affected or aggrieved if the petitioner was entitled to notice and to be heard before the decision was made. An examination of the legislative history of the 1979 law, helpfully collected in the county's supplemental brief, does not disclose any extensive explanation of the two phrases "whose interests are adversely affected" and "who is aggrieved." They do, however, represent a deliberate change from the prior formula for review of land use decisions and from the bill as originally introduced, which proposed to allow review to persons who appeared in the land use proceeding and either were entitled to notice and hearing or had "a substantial interest in the decision."[5] The different phrasing for petitions to the new Land Use Board of Appeals was proposed by the governor's executive assistant, Lee Johnson. A staff memorandum to the Senate committee studying SB 435 set out the difference between the provisions drawn from the statutory writ of review and from the administrative procedure act and presented the choice as the first major "policy issue" to be decided by the committee. Eventually the substitute was chosen. Also the committee deleted a proposed amendment that a "substantial interest" be required for petitions by persons whose standing to seek review rested on their entitlement to notice and hearing before the decision. The requirement of a "substantial interest" survived in section 13 of the bill, which amended the law governing writs of review in the courts, ORS 34.040. On this record of deliberate change, we cannot accept the county's position that the phrases actually enacted meant only to retain the existing interpretation of the rejected term "substantial interest" under the prior writ of review procedure. The phrases proposed by Mr. Johnson and adopted by the legislature differ slightly from those of Oregon's administrative procedure act.[6] There, in turn, they have antecedents in the federal administrative procedure *1254 act and prior statutes at least as far back as the federal Communications Act.[7] It does not follow from this characteristic resort to familiar legal phraseology that they import into Oregon law all the preexisting federal case law.[8] Nor should these phrases be ascribed simply to the legal penchant for saying the same thing in two different ways. In a case under the Oregon APA before 1979, this court distinguished between "adversely affected" and "aggrieved," stating that "`aggrieved' means something more than being dissatisfied with the agency's order, yet distinct from being `adversely affected' by it." Marbet v. Portland General Electric, supra n. 1, 277 Or. at 457, 561 P.2d 154. This interpretation of "aggrieved" in ORS 183.480 was known before Mr. Johnson and the legislature drew upon that source to define standing before LUBA under section 4(3)(b). Two illustrations show how the test of being "aggrieved" can avoid argument over the meaning of "adversely affected." A person who wishes to appeal a ruling in his favor, but one less favorable than requested, is aggrieved without having to argue whether his interests are "adversely affected" by the partial victory. Such an argument otherwise might have at least surface plausibility where the statutory test had been changed from "substantially affected" to "adversely affected," but the separate term "aggrieved" makes this immaterial. Also, the "persons" who may seek review of land use decisions include governmental subdivisions or agencies and other "public organizations." Or. Laws 1979, ch. 772, § 3(2), supra n. 4. It might plausibly be argued that public agencies are assigned responsibility for various aspects of public policy but have no "interests" of their own to be "adversely affected" by an adverse decision. Again, however, a public agency may claim to be "aggrieved" by a decision against some public interest for which it has responsibility without debating whether the agency's own interest is "adversely affected." Who is "aggrieved" also may vary with the land use goal or other governing criteria that is said to be violated by the challenged decision.[9] The statute does not *1255 limit either adverse effect or aggrievement to property interests which must be in physical "proximity" to the disputed land use. As in Marbet, therefore, we understand "aggrieved" to mean something distinct from an adverse effect on some personal self-interest. In this case, as in Marbet, the challenged action is a quasijudicial decision, that is to say, a decision limited in time and space to specific facts and named addressees rather than one promulgating a general rule addressed to an open class of persons and future events, and it has been adopted in a quasijudicial proceeding. In general rulemaking there ordinarily are no "parties" to the proceeding who can assert that they "lost" the decision, but persons who were not parties to the proceeding may be adversely affected by the rule and be allowed by an applicable law to challenge its legality. A quasijudicial proceeding, on the other hand, implies that the decision involves application of preexisting criteria or the determination of particular facts or both, and that some persons are entitled to be heard before a decision is reached. Cf. Neuberger v. City of Portland, 288 Or. 155, 603 P.2d 771 (1979), reh. den. 288 Or. 585, 607 P.2d 722 (1980); Strawberry Hill 4-Wheelers, supra. A person whose interest in the decision has been recognized by the body making a quasijudicial decision and who has appeared and asserted a position on the merits as an interested person, rather than only as a source of information or expertise, can be "aggrieved" by an adverse decision within the meaning of section 4(3). As in Marbet, to be "aggrieved" a person must be more than abstractly dissatisfied with the outcome after the fact. The decision must be contrary to the request or other position that the person espoused during the proceeding. Because interested participants in a local government land use proceeding may be "aggrieved" by an adverse decision while mere witnesses are not, the record of a local proceeding ought to identify in which capacity persons are heard if the local government wishes to challenge a later petition to LUBA. We have recognized before that this has not been customary in local proceedings. As we noted in Strawberry Hill 4-Wheelers: 287 Or. at 611, 601 P.2d 769. The same is true of the test of being "aggrieved" under the 1979 replacement of that writ by the petition for review to LUBA. The question who may be admitted, excluded, or limited to the status of a disinterested witness in the local proceeding will be governed by local as well as state procedural standards applicable to the particular proceeding. Even when the record is less than clear, we doubt that LUBA will find it a problem to distinguish whether a planner, engineer, lawyer, economist, or any other person appeared in the proceeding to assert a position on the merits in his or her own behalf or merely as a witness or as an advocate for a client. It should be remembered that section 4(3) states who may petition LUBA for review of a quasijudicial land use decision, not who may seek review of a decision by LUBA. Under section 6a of the 1979 act, any party to a proceeding before LUBA may seek judicial review simply by virtue of being a party; nothing is said of being affected or *1256 aggrieved. LUBA itself is an agency, not a court, and the question on judicial review is whether LUBA's order was "unlawful in substance or procedure."[10] The quoted words provide less direction for judicial review than the amended version of the Oregon APA that was enacted at the same 1979 legislative session. Or. Laws 1979, ch. 593, now ORS 183.482(7), (8); cf. Megdal v. Board of Dental Examiners, 288 Or. 293, 317-320, 605 P.2d 273 (1980). Although Benton County did not refer to the judicial review section, we assume that it charges LUBA with an "unlawful procedure" and claims that its "substantial rights" were prejudiced, see note 10, by LUBA's acceptance of the petition. The interpretation to be given the statutory words "adversely affected" or "aggrieved" in section 4(3) doubtless is a question of law to be decided by the court. See McPherson v. Employment Division, 285 Or. 541, 545-550, 591 P.2d 1381 (1979). It appears from the foregoing that respondent may have had standing and that LUBA therefore reached the right conclusion on legal grounds other than those upon which it rested that conclusion. This is not meant to imply, however, that the grounds on which LUBA decided the issue were wrong. If an agency correctly understands the terms of the governing statute, the determination that a particular factual situation satisfies the criteria for invoking the agency's procedure is primarily for the agency to make. If LUBA applies the correct test, section 6a does not require a reviewing court to decide in each instance whether the person invoking LUBA's review did or did not have standing. Section 4(6)(a) requires the facts on which a petitioner claims standing to be stated in the petition. These include the facts concerning petitioner's appearance before the body that made the challenged decision and those that show whether the petitioner was entitled to prior notice and hearing as well as any facts claimed to show adverse effect. If any of these facts are disputed before LUBA, LUBA's decision will be upheld if it is supported by substantial evidence, even if the court would have reached the opposite decision. As the parties and the agency considered it unnecessary to specify whether a petitioner claims as one "whose interests are adversely affected" or "who is aggrieved," they did not consider in this case whether petitioner might be "aggrieved" in any respect separate from Mr. Kenagy. The petition to LUBA claimed standing on the basis that Mr. Kenagy owns a house and property near the river bank two miles downstream from the challenged gravel operation and that the river channel might eventually relocate through the proposed gravel pit and expose downstream banks to erosion. The county's response objected that "Kenagy's alleged aggrievement is at best speculative in nature" because actual gravel extraction under the conditional use permit would be subject to approval by the Corps of Engineers and planning officials so as to assure flood protection. LUBA's order recites these opposing contentions. It then concludes with respect to the issue of standing: On appeal, the county criticizes the statement in LUBA's order that a petitioner has standing whenever there is a "likelihood of injury should the facts [which petitioner pleads] be true." By that test, says the county, anyone could claim standing to challenge a land use decision by the most farfetched allegations, such as that approval of a nonfarm dwelling on farm land fifty miles away might cause an earthquake that will destroy his residence. On its face, the wording of the order seems to justify the criticism. If and to the extent that standing is claimed upon assertions of a chain of adverse effects in the natural or social environment, it is LUBA's responsibility to consider and decide the likelihood of the alleged effects, if disputed, as an issue of fact, not to accept every pleaded assertion at face value. We do not suggest that the alleged effects must be more likely than not or meet any specified degree of probability. This might well vary with the gravity of the adverse effect if it should occur. We mean only that when a specific adverse effect on a petitioner's individual interest is the claimed basis of standing, as it was here, LUBA cannot leave standing simply to the pro forma sufficiency of the pleading, as the literal terms of this order seem to do. Of course, a requirement that the agency examine the alleged potential effects upon a petitioner invoking or wishing to enter its proceedings invites, first, a separate factual dispute over these alleged effects that often is irrelevant to the merits of the main proceeding, followed by litigation over the decision to admit the petitioner long after the agency has decided the merits, as in this case. That is the price of defining a person's legal standing in a proceeding in terms of disputable factual causes and effects. It appears, however, that the quoted portion of LUBA's order does not mean to confer standing on anyone who pleads some hypothetical course of events that would constitute an adverse effect if true. LUBA cited two of its former orders which suggest that a petitioner's allegations will be treated as true only if they are not challenged by respondent.[11] The Court of Appeals noted that Kenagy's affidavit of a potential adverse effect on his property was uncontroverted and that LUBA found it to be corroborated by a letter from the Army Corps of Engineers. If LUBA concluded from the uncontroverted allegation and the corroborating letter that the possible "likelihood of damage" though "remote," was not "too remote to be considered," the Court of Appeals was not obliged to estimate the probability of its occurrence for itself. The court did not err in this respect. The decision of the Court of Appeals is affirmed. [*] Denecke, C.J., retired June 30, 1982. [1] For example: Does it matter whether the organization claiming "representational standing" is incorporated or otherwise had legal personality capable of independent legal action in its own name? Must the organization have existed before the controversy in which it wishes to appear, or may it be formed for the purpose of contesting the specific governmental action? Must the organization show membership support for its position on the disputed issue? If the organization claims standing only by virtue of the interest of a member, must the member personally join in the request for review? Alternatively, must the member agree with the views asserted by his "representative" organization, and is this a disputable issue? If not, why is the member's personal standing relevant to the organization's standing to pursue review? In McCall v. Legislative Assembly, 291 Or. 663, 672, 634 P.2d 223 (1981), a special proceeding which may be initiated by petition of "any qualified elector," Or. Const. art. IV, § 6, this court took care to refer only to the individual public and organizational officials who appeared as petitioners rather than to the entities on whose behalf they appeared, such as the League of Women Voters and neighborhood associations. In Marbet v. Portland Gen. Elec. Co., 277 Or. 447, 454, 561 P.2d 154 (1977), in which petitioner purported to represent a minuscule organization, we noted: "Inquiry into how and how far these groups authorized his testimony proved unenlightening. But nothing of legal importance hinges on the widespread practice of presenting viewpoints on public policy under some banner embroidered for the occasion." This does not imply a negative answer to the question of organizational standing before agencies or courts. But the answer, as for individual standing, must be sought in applicable statutes and agency rules. [2] See Putnam v. Norblad, 134 Or. 433, 436-438, 293 P. 940 (1930). [3] At the time of 1000 Friends of Or. v. Multnomah Co., supra, ORS 197.300(1)(d) provided that any person or group "whose interests are substantially affected" could challenge a land use decision before the Land Conservation and Development Commission. Clark v. Dagg, 38 Or. App. 71, 588 P.2d 1298, rev. den. 286 Or. 637 (1979), and Duddles v. City Council of W. Linn, 21 Or. App. 310, 535 P.2d 583 (1975), cited by the Court of Appeals in this case, did not involve review of local decisions by a state land use agency but writs of review in circuit courts under ORS 34.010 to 34.100, specifically the requirement of "injury of some substantial right" under former ORS 34.040. In Clark, the plaintiff also had to be "aggrieved" under former ORS 215.422, and the court equated the two terms. 38 Or. App. at 77, 588 P.2d 1298. The Duddles court expressly did not deal with review by an "aggrieved" person. 21 Or. App. at 323 n. 7, 535 P.2d 583. [4] "`Person' means any individual, partnership, corporation, association, governmental subdivision or agency or public or private organization of any kind." Or. Laws 1979, ch. 772, § 3(2). [5] SB 435, § 2(2)(b) (1979). This language was deleted by the amendments establishing LUBA. A good summary of the 1979 legislation on standing before LUBA appears in Hickam, Review of Oregon Legislation, 1979: The Land Use Board of Appeals, 16 Will.L.Rev. 323, 328-332 (1979). [6] ORS 183.480: "(1) Any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order, whether such order is affirmative or negative in form...." The parties have offered no explanation for the addition in chapter 772 of "whose interests are" before "adversely affected." Arguably the phrase broadens the test insofar as a person may have "interests" beyond those that affect the person's property or wellbeing in the narrower sense. [7] Administrative Procedure Act, § 10(a), 60 Stat. 237, 243 (1946), formerly 5 U.S.C. § 1009(a), see now 5 U.S.C. § 702 (1976); Communications Act, § 402(b)(2), 48 Stat. 1064, 1093 (1934), 47 U.S.C. § 402(b)(6) (1976). Many New Deal statutes provide for review of administrative proceedings at the instance of a person or party who is "aggrieved," without the "adversely affected" test. See Investment Advisers Act, § 213(a), 54 Stat. 855 (1940), 15 U.S.C. § 80b-13(a) (1976); Investment Company Act, § 43(a), 54 Stat. 844 (1940), 15 U.S.C. § 80a-42(a) (1976); Hatch Political Activity Act Amendments, § 12(c), 54 Stat. 768 (1940), now 5 U.S.C. § 1508 (1980 Supp.); Natural Gas Act, § 19(b), 52 Stat. 831 (1938), 15 U.S.C. § 717r(b) (1976); Federal Power Act, 49 Stat. 860 (1935), 16 U.S.C. § 825l(b) (1976); Public Utility Holding Company Act, § 24(a), 49 Stat. 834 (1935), 15 U.S.C. § 79x(a) (1976); National Labor Relations Act, § 10(f), 49 Stat. 455 (1935), 29 U.S.C. § 160(f) (1976); Securities Exchange Act, § 25(a), 48 Stat. 901 (1934), 15 U.S.C. § 78y(a)(1) (1976); Securities Act, § 9(a), 48 Stat. 80 (1933), 15 U.S.C. § 77i(a) (1976). Recent amendments to the Securities Exchange Act distinguish the two tests. Compare Securities Acts Amendments, § 20, 89 Stat. 158 (1975), 15 U.S.C. § 78y(a)(1) (1976) ("person aggrieved by a final order"), with id., 89 Stat. 159 (1975), 15 U.S.C. § 78y(b)(1) (1976) ("person adversely affected by a rule"). [8] The federal APA and Communications Acts were thought to codify the existing federal law of standing. S.R. No. 752, 79th Cong., 1st Sess. 44 (1945) (statement of Atty. Gen. Tom C. Clark regarding APA); Comm'n on Admin. Proc., Administrative Procedure in Government Agencies, S.Doc. No. 8, 77th Cong., 1st Sess. 85 (1941); H.R. No. 1850, 73rd Cong. 2d Sess. (1934) (Communications Act). [9] See Hickam, supra, 16 Will.L.Rev. at 331, n. 5. We have no occasion here to consider whether a "public or private organization" similarly might claim to be "aggrieved" by virtue of its special function and relationship to the matter at issue without being "adversely affected" as an organization, because the present case was pleaded and decided on other grounds. [10] The full section provides: "Section 6a(8) The court may affirm, reverse or remand the order. The court shall reverse or remand the order only if it finds: "(a) The order to be unlawful in substance or procedure, but error in procedure shall not be cause for reversal or remand unless the court shall find that substantial rights of the petitioner were prejudiced thereby; "(b) The order to be unconstitutional; or "(c) The order is not supported by substantial evidence in the whole record." Or. Laws 1979, ch. 772, § 6a(8). [11] 1000 Friends of Oregon v. Benton Co., 2 Or. LUBA 324 (1981); Parsons v. Josephine Co., 2 Or. LUBA 343 (1981). LUBA's Rule 8(C)(2) requires a respondent who challenges a petitioner's standing on the basis that the facts alleged for standing are not true to state what respondent claims to be the true facts. Or. Laws 1979, ch. 772, § 4(7) authorizes LUBA to take evidence and make findings on such disputed allegations.

076f1cc8f732d56ab0dfccd8e28279d13d55905a2d6c2890607a9bd29f3f2945

1982-11-23T00:00:00Z

096e4ca2-261e-4531-916c-c8654e6dc07f

State v. Rodgers/Kirkeby

S056239

oregon

Oregon Supreme Court

FILED: February 11, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. MICHAEL K. RODGERS, Respondent on Review. (CC CM0420629; CA A128857; SC S056239 (Control)) STATE OF OREGON, Petitioner on Review, v. ANTHONY DOUGLAS KIRKEBY, Respondent on Review. (CC CR030112; CA A128263; SC S056237) (Cases Consolidated for Opinion) En Banc On review from the Court of Appeals.* Argued and submitted February 9, 2009, at Central Catholic High School, Portland, Oregon. Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause for petitioner on review.  With her on the petitions for review and briefs on the merits were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General.  With her on the reply brief were John R. Kroger, Attorney General, and Rolf C. Moan, Acting Solicitor General. Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondents on review Michael K. Rodgers and Anthony Douglas Kirkeby. DE MUNIZ, C. J. In State v. Michael K. Rodgers, S056239, the decision of the Court of Appeals is affirmed.  The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.  In State v. Anthony Douglas  Kirkeby, S056237, the decision of the Court of Appeals and the judgment of the circuit court are affirmed. Gillette, J., concurred and filed an opinion. Durham J., dissented and filed an opinion, in which Linder, J., joined. *Appeal from Benton County Circuit Court, David B. Connell, Judge. 219 Or App 366, 182 P3d 209 (2008).  Appeal from Yamhill Circuit Court, Ronald W. Stone, Judge. 220 Or App 177, 185 P3d 510 (2008). DE MUNIZ, C. J. In these two criminal cases, consolidated for purposes of opinion, each defendant was charged with drug-related crimes based on evidence obtained during separate traffic stops.  In each case, the Court of Appeals concluded that the officer's conduct unreasonably extended the duration of the traffic stop, in violation of Article I, section 9.(1)  State v. Rodgers, 219 Or App 366, 373, 182 P3d 209 (2008); State v. Kirkeby, 220 Or App 177, 186, 185 P3d 510 (2008).  We allowed the state's petitions for review and now conclude that each defendant was unlawfully seized in violation of Article I, section 9, because in each case the police conduct was not justified by reasonable suspicion of criminal activity; was unrelated to the traffic violation investigation, identification, or issuance of a citation; and significantly restricted each defendant's freedom of movement.  Because there were no intervening circumstances or other circumstances mitigating the effect of the illegal seizures of each defendant, we conclude that each defendant's consent, even if voluntary, was the product of police conduct that violated Article I, section 9, of the Oregon Constitution.  Because the consent to search in each case was a product of the unlawful seizure, the evidence obtained during the search, in both cases, must be suppressed.  We therefore affirm the decisions of the Court of Appeals. I. FACTS, PROCEDURAL BACKGROUND, AND PARTIES' ARGUMENTS For purposes of the issue presented here, the relevant facts of each case are undisputed.  A.        State v. Rodgers Defendant Rodgers was stopped by Corvallis Police Officer Van Arsdall for driving a vehicle with a burned-out license plate light in violation of ORS 816.330.  Defendant provided Van Arsdall with a valid driver license and vehicle registration, but was unable to provide proof of insurance.  Defendant explained that the vehicle was borrowed and that he was driving it with the owner's permission.  While they were talking, Van Arsdall noticed a large container of blue liquid on the front passenger floorboard and a white sack with a smaller, square, metallic container inside it on the back seat.  Van Arsdall also noticed that defendant had sores on his face, which Van Arsdall believed to be consistent with methamphetamine use.  Van Arsdall returned to his patrol car and radioed a request for a records check.  In the meantime, a second officer, Kantola, arrived.  Van Arsdall explained his observations to Kantola and told him that he believed that defendant had items in his vehicle that likely were used to produce methamphetamine.  However, Van Arsdall testified at the suppression hearing that, at that point, he did not have enough information to arrest defendant -- defendant's records check had come back clear, and Van Arsdall therefore had a sufficient basis only to issue defendant a traffic citation.  Notwithstanding the clear records check, Van Arsdall approached the driver's side of the vehicle, while Kantola approached the passenger side.  Van Arsdall asked defendant about the blue liquid, and defendant explained that it was windshield washer fluid.  Van Arsdall then expressed concern about the metallic container in the white sack.  Defendant removed the container from the sack and explained that it contained denatured alcohol, which he used for his job at a company that manufactured fertilizer.  Van Arsdall then asked defendant for consent to search the vehicle.  Defendant agreed, and, during the search, the officers found acid, lithium batteries, foil, and cold medicine containing pseudoephedrine -- all precursor materials for manufacturing methamphetamine.  Defendant was charged with unlawful manufacture of a controlled substance.  Before trial, defendant moved to suppress the evidence found in the vehicle, on the ground that Van Arsdall unconstitutionally had extended the scope and duration of the traffic stop by questioning him without reasonable suspicion that a crime had been or was being committed.  The trial court concluded that Van Arsdall did not have reasonable suspicion to request to search the vehicle.  However, the trial court found that defendant's consent to search was voluntary and that Van Arsdall's request for consent did not extend the duration of the stop.  The trial court therefore denied defendant's motion to suppress, and defendant was convicted.  Defendant appealed, and the Court of Appeals reversed and remanded.  That court concluded that Van Arsdall had extended the traffic stop beyond a reasonable time when he asked defendant about the containers instead of issuing a traffic citation.  The Court of Appeals noted that Van Arsdall's questions had been unrelated to the traffic infraction.  Because Van Arsdall had lacked reasonable suspicion to extend the stop, the Court of Appeals concluded that defendant's consent was the product of an unlawful seizure under Article I, section 9, and that the evidence discovered in the search of the vehicle therefore should have been suppressed.  Rodgers, 219 Or App at 374. B.        State v. Kirkeby A deputy sheriff who knew defendant by sight and knew that his driver license had been suspended saw defendant driving with a passenger in downtown Willamina.  The deputy contacted his dispatcher, who confirmed that defendant had a suspended license but otherwise had no outstanding arrest warrants.  Based on that information, the deputy activated his overhead lights -- which remained on throughout the duration of the stop -- and stopped defendant.  Both defendant and the deputy got out of their respective vehicles and walked towards one another.  The passenger remained in defendant's vehicle.  The deputy was concerned for his safety, because defendant had left his vehicle.  When the deputy told defendant the reason for the stop, defendant seemed surprised and handed the deputy an Oregon driver license.  Defendant was cooperative and businesslike, and he did not act in a threatening or aggressive manner.  Also, throughout the deputy's extensive history of prior contacts with defendant, defendant never had acted in a threatening or violent manner and never had displayed a weapon.  At that point, the deputy had defendant's name, date of birth, and driver license number, which was all the information necessary to complete a traffic citation.  However, the deputy testified that he probably did not have all the information that he needed because he did not have the vehicle registration and proof of insurance. The deputy told defendant that the license was "no good" and asked him if he had any weapons on his person or in the vehicle.  Defendant stated that he did not have any weapons.  The deputy then asked for consent to conduct a patdown, and defendant agreed.  At some point, two additional officers arrived and observed the passenger while the deputy talked with defendant.  After the patdown of defendant, the deputy felt fairly confident that defendant did not have any firearms on his person, but nonetheless asked for consent to examine each of the items that he had felt in defendant's pockets, because he did not know what they were and wanted to investigate further.  Defendant consented.  The deputy testified that defendant was not free to leave at that time.  The deputy, with defendant's further consent, opened a small metal cylindrical container that he had found during the patdown and discovered two ziplock bags containing a residual amount of a clear crystalline substance that appeared to be methamphetamine.  By that time, four to five minutes had elapsed since the beginning of the stop.  Defendant was charged with possession of a controlled substance.  Before trial, defendant moved to suppress the evidence obtained during the patdown search.  He acknowledged that questions concerning the presence of weapons may be authorized under ORS 810.410(3)(d), set out post, ___ Or at ___ n 3 (slip op at 9 n 3).  However, defendant argued that, unless the officer has "a reasonable suspicion of an immediate threat of serious injury," such questioning -- including asking for permission to search for weapons -- constituted an unlawful seizure in violation of Article I, section 9, and the Fourth Amendment to the United States Constitution.  The trial court granted defendant's motion.  The court concluded that the deputy's request to conduct a patdown had not violated ORS 810.410; however, the trial court further concluded that that request had violated Article I, section 9, because the patdown had gone beyond "ordinary social intercourse" and therefore had amounted to a seizure of defendant without reasonable suspicion that defendant either posed a danger to the deputy or others, or had committed a crime.  The state appealed, and the Court of Appeals affirmed, determining that the outcome was controlled by its decision in Rodgers.  The Court of Appeals noted that, at the time that the deputy asked for consent to conduct a patdown, the deputy was not waiting for further information or otherwise prevented from completing the traffic stop; that is, instead of asking defendant for his vehicle registration and proof of insurance, the deputy had proceeded down an unrelated path.  The court further determined that, under State v. Hall, 339 Or 7, 115 P3d 908 (2005), the consensual search was the product of unlawful police conduct, because defendant had shown that, if not for the unlawful seizure, the deputy would not have been in a position to request consent, and the state for its part had not shown that intervening circumstances or factors had severed the connection between the unlawful stop and defendant's consent.  Therefore, the Court of Appeals concluded the trial court properly suppressed the evidence found in the container.  Kirkeby, 220 Or App at 187. C.        Petitions for Review -- Parties' Arguments The state petitioned for review in both cases.  On review, the state argues that the Court of Appeals "refused to engage in what is necessarily a fact-specific inquiry into the reasonableness of the totality of [each] encounter."  The state contends that, instead, the Court of Appeals adopted a bright-line rule that will require police officers to follow a predetermined list of investigative steps, thereby imposing an artificial and unnecessary restriction on officers that is "in no manner compelled" by the protection against unreasonable seizures set out in Article I, section 9.  The state concedes that the questioning here was unrelated to the traffic violations for which defendants were stopped and that the officers lacked reasonable suspicion to act on what they saw.  However, the state asserts that the questions that the officers asked were of the same variety that this court has held to be permissible in officer-citizen encounters, without amounting to seizures under Article I, section 9.  See State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991) ("[L]aw enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful.").  The state also asserts that this court already has rejected the premise that an officer may never ask questions unrelated to the stop itself, citing State v. Amaya, 336 Or 616, 626, 89 P3d 1163 (2004) ("To the extent that defendant argues that every question by an officer that is unrelated to the reason for a valid traffic stop violates Article I, section 9, unless the question is based on reasonable suspicion, we reject defendant's argument." (emphasis in original)). The state acknowledges that, in the context of a lawful traffic stop, the police will have "stopped" the motorist to question him or her about a traffic violation.  Therefore, the state argues, the question becomes whether an officer is entitled to ask questions, including seeking consent to search, without effecting an unreasonable seizure under Article I, section 9.  Focusing on the scope and length of the questioning at issue, the state proposes a rule that police questioning that is unrelated to a traffic stop, or a request for consent to search during a lawful traffic stop, will not constitute an unconstitutional seizure if that questioning creates only a de minimis delay during an otherwise lawful stop.  That determination, the state argues, involves a fact-specific inquiry into the totality of the circumstances that can "take into account the many factors that contribute to the determination[of] whether any given circumstance amounts to an unreasonable seizure."  Applying its proposed rule here, the state asserts that, in Rodgers, Van Arsdall's questions and request to search defendant's vehicle did not constitute an unreasonable seizure under Article I, section 9, because Van Arsdall posed the same kinds of questions to defendant during the course of the lawful traffic stop that he could have posed to defendant had he approached him on the street.  The two questions that Van Arsdall asked about the blue liquid and the white sack took only a few moments and caused only a de minimis delay.  Thus, the state argues, the questions did not render the traffic stop unreasonable in either its length or scope. Likewise, the state argues that, in Kirkeby, the officer's single question about whether defendant had any weapons, followed by a request for consent to conduct a patdown and then a search, did not constitute an unreasonable seizure, because the exchange took only about four to five minutes and the questions could have been asked of any person walking down the street.  In response, defendants assert that the traffic stop itself is a seizure for constitutional purposes.  Defendants contrast "mere conversation" between an officer and a person on the street -- who freely may end the interaction and walk away -- with a traffic stop, where the motorist is legally obligated to stop at an officer's direction, must interact with and respond to officer-initiated inquiries, is not free to end the encounter, and may not leave without the officer's consent.  Therefore, defendants argue, Article I, section 9, limits an officer to investigatory questions about the vehicle code violation for which a driver is stopped, unless the officer develops reasonable suspicion or probable cause to believe that the driver has committed, is attempting to commit, or is committing a crime.(2)  Defendants argue that the state's proposed rule, which focuses only on the temporal duration of a stop, is unworkable, because too many variables arise in the traffic stop context.  For example, defendants argue that traffic stops have no standard length:  an experienced officer would be more efficient than an inexperienced officer, while a stop for a more serious traffic infraction could take longer than a stop for a minor infraction.  II. ANALYSIS The authority of a police officer to stop a vehicle for a traffic violation is governed by ORS 810.410.(3)  The statute has a long history in this court.  Before 1997, this court, in a series of cases, held that the statute not only described what an officer could do respecting a traffic stop; it also indicated what the officer could not do.  See, e.g., State v. Porter, 312 Or 112, 120, 817 P2d 1306 (1991) ("* * *[B]y implication, the statute proscribes any further action by the police [beyond that specifically authorized] * * *, unless [that further action] has some basis other than the traffic infraction.")  See also State v. Farley, 308 Or 91, 94-95, 775 P2d 835 (1989); State v. Dominguez-Martinez, 321 Or 206, 212, 895 P2d 306 (1995) (both to same effect).  This court held that, because the statute was intended to limit police activity associated with a traffic stop, it was also the legislature's intention that evidence seized in violation of the statutory proscription be suppressed.  Porter, 312 Or at 121; Dominguez-Martinez, 321 Or at 214. The foregoing interpretations of legislative intent were superseded by the legislature in 1997.  In that year's legislative session, the legislature enacted ORS 136.432.  That statute provides, in part: "A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by: "(1) The United States Constitution or the Oregon Constitution[.]" ORS 136.432 prohibits the judicial branch from excluding evidence obtained by government conduct that exceeds statutory authority.  Thus, although the legislature has continued to circumscribe the authority of the police in ORS 810.410 -- requiring that, during a traffic stop, police investigatory conduct be reasonably related to the traffic violation, the identification (of persons), and the issuance of a citation -- any evidence that is obtained when the police exceed that authority is not suppressible unless it violates some constitutional rule.  We turn to a determination whether there is such a constitutional rule.  Article I, section 9, of the Oregon Constitution establishes a right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure."  Among the potentially "infinite variety of encounters between law enforcement officers and citizens," Holmes, 311 Or at 406, this court has identified three general categories of encounters and described whether or when those encounters implicate the protections afforded to individuals under Article I, section 9.  Id. at 406-07.  First, "mere conversation" or a "noncoercive encounter" between an officer and a citizen that involves no restraint of liberty requires no justification and does not implicate the liberty protections provided in Article I, section 9.  Second, a temporary restraint of a person's liberty for the purpose of criminal investigation -- i.e., a "stop" -- qualifies as a "seizure," under Article I, section 9, and must be justified by a reasonable suspicion of criminal activity.  Third, an arrest also is a "seizure," under Article I, section 9, and that degree of restraint must be justified by probable cause to believe that the person arrested has committed a crime.  Id. at 407.  A person is "seized" under Article I, section 9, when either (1) a police officer intentionally and significantly interferes with the person's freedom of movement; or (2) the person believes, in an objectively reasonable manner, that his or her liberty of movement has been so restricted.  Id. at 409-10.  That determination requires a "fact-specific inquiry into the totality of the circumstances of the particular case."  Id. at 408. As noted, the state acknowledges that, in the context of a lawful traffic stop, the police have "stopped" the driver and any passengers in a vehicle.  The state also concedes that the police inquiries at issue in these cases were unrelated to the reasons for which defendants were stopped (that is, for traffic violations) and that the officers lacked reasonable suspicion that crimes (as opposed to those traffic violations) had been or were being committed before the inquiries were made.  However, the state asserts that the essential question is whether, notwithstanding the fact of the traffic stop, an officer may make the kinds of inquiries that were made in these cases without violating the liberty interests protected by Article I, section 9.  That argument proceeds from the premise that the police inquiries in these cases were of the same variety that this court held in Holmes would be permissible in any police-citizen encounter.  That is, the state relies on this court's observation in Holmes that police officers may approach persons on the street or in public places, question them, and even accompany them to another location without the encounter necessarily resulting in a seizure under Article I, section 9.  And, as this court further explained, that principle may carry over to police-driver interactions.  Id. at 409-11.   In our view, the state's assertion -- that police may make unrelated inquiries (including requests to search a person or vehicle) during the course of a traffic stop without implicating Article I, section 9 -- is correct in the sense that verbal inquiries are not searches and seizures.  That is, we agree that police inquiries during the course of a traffic stop (including requests to search a person or vehicle) are not searches and seizures and thus by themselves ordinarily do not implicate Article I, section 9.  However, police conduct that involves physical restraint or a show of authority that restricts an individual's freedom of movement typically does implicate Article I, section 9.  Nevertheless, in contrast to a person on the street, who may unilaterally end an officer-citizen encounter at any time, the reality is that a motorist stopped for a traffic infraction is legally obligated to stop at an officer's direction, see ORS 811.535 (failing to obey a police officer) and ORS 811.540 (fleeing or attempting to elude a police officer), and to interact with the officer, see ORS 807.570 (failure to carry or present license) and ORS 807.620 (giving false information to a police officer), and therefore is not free unilaterally to end the encounter and leave whenever he or she chooses.  Moreover, an officer ordinarily cannot casually "approach" a moving vehicle on the road in the same way that an officer may approach a person on the street.  It follows that a traffic stop by its nature is not an ordinary police-citizen "encounter," as the court described such encounters in Holmes.  Moreover, if the purpose of a traffic stop is to investigate crime, evidence gained from the stop must be obtained in compliance with Article I, section 9.  See State v. Anderson, 304 Or 139, 141, 743 P2d 715 (1987) (criminal sanctions were intended consequence of sobriety roadblock; thus, where officers had neither warrant nor individualized suspicion that defendant was engaged in illegal activity, evidence gained from roadblock must be suppressed).  Seizures or searches for evidence to be used in a criminal prosecution, conducted without a warrant or without an exception to the warrant requirement, violate Article I, section 9, of the Oregon Constitution.  Nelson v. Lane County, 304 Or 97, 101, 743 P2d 692 (1987) (plurality opinion). In summary, Article I, section 9, and this court's case law establish the following principles that must guide the police in their contact with motorists stopped for routine noncriminal traffic violations.  Police authority to perform a traffic stop arises out of the facts that created probable cause to believe that there has been unlawful, noncriminal activity, viz., a traffic infraction.  Police authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed.  Other or further conduct by the police, beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation.    To put the matter another way, constitutionally, Article I, section 9, protects persons and effects from unreasonable searches and seizures by requiring a judicially authorized warrant supported by probable cause authorizing a search or seizure.  There are, however, certain limited exceptions to the warrant and probable cause requirements.  One such exception permits the police to stop and briefly detain motorists for investigation of noncriminal traffic violations.  Police conduct during a noncriminal traffic stop does not further implicate Article I, section 9, so long as the detention is limited and the police conduct is reasonably related to the investigation of the noncriminal traffic violation.  However, a police search of an individual or a vehicle during the investigation of a noncriminal traffic violation, without probable cause and either a warrant or an exception to the warrant requirement, violates Article I, section 9.  Because police inquiries during a traffic stop are neither searches nor seizures, police inquiries in and of themselves require no justification and do not necessarily implicate Article I, section 9.  However, police inquiries unrelated to a traffic violation, when combined with physical restraint or a police show of authority, may result in a restriction of personal freedom that violates Article I, section 9.  It is within that framework that this court now must decide whether the police conduct in these cases, conceded by the state to be unrelated to the investigation of a traffic violation, transgressed the limits of Article I, section 9, resulting in an unlawful seizure and, if so, whether the evidence seized by the police in each case should be suppressed because it is a product of an unlawful seizure.(4) In doing so, we consider the totality of the circumstances, and we are bound by the trial courts' findings of historical fact, to the extent that those findings are supported by evidence in the record.  State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993).  However, this court determines de novo whether the trial courts applied the legal principles involved here correctly to those facts.  Id.  In evaluating the totality of the circumstances, we believe that two cases should serve as guideposts.  The first is State v. Juarez-Godinez, 326 Or 1, 942 P2d 772 (1997).  In that case, this court observed that, for purposes of Article I, section 9, interference with a person's freedom of movement may take the form of either physical force or a show of authority.  Id. at 6. The second guidepost is State v. Toevs, 327 Or 525, 531, 964 P2d 1007 (1998).  In that case, police officers stopped the defendant for driving at night without the use of headlights.  After running a records check and instructing the defendant to turn on his lights, the officer advised the defendant that he was free to go.  Id. at 529.  After making that statement, however, the officer immediately asked the defendant for his consent to search the vehicle and questioned the defendant about whether he was carrying any illegal drugs.  Id.  The defendant initially withheld his consent to a search; however, after further questioning, he admitted to the officer that he was in possession of drugs.  In concluding that the traffic stop had ended and that the police officer's subsequent questioning and repeated requests for consent to search resulted in defendant's seizure, the court stated: "Under the totality of the circumstances, we conclude that a reasonable person in defendant's position could have believed that the officers significantly had restricted his liberty or freedom of movement.  Indeed, the officers' continuous show of police authority constituted conduct that was 'significantly beyond that accepted in ordinary social intercourse.'  Holmes, 311 Or at 410.  Therefore, through that conduct, they continued to detain defendant.  See State v. Painter, 296 Or 422, 425, 676 P2d 309 (1984) ('[A] show of authority may suffice to convert a police-citizen encounter into a "stop" of statutory proportion.'). "The state contends that, because Smith told defendant that he was free to go, the traffic stop ended before Smith began questioning defendant about possessing drugs.  It is true that, when an officer tells a driver that he or she is free to go, that factor certainly can weigh in favor of concluding that a traffic stop indeed had ended.  However, our case law demonstrates that, when viewing the totality of the circumstances, an officer's conduct after stating that a driver is free to go may negate such a statement." Toevs, 327 Or at 536-37 (bracket in original; emphases in original). As previously noted, in defendant Rodgers's case, when Van Arsdall returned to defendant's driver-side window, he had all the information necessary to issue defendant a citation and end defendant's limited detention.  Although Van Arsdall chose not to issue the citation at that time, his authority to detain defendant evaporated from that point, because Van Arsdall had completed the investigation reasonably related to the traffic infraction and issuance of the citation.  Van Arsdall did not advise defendant in any way that the traffic stop was at an end.  The inquiries regarding the items in the car and the request to search occurred after Van Arsdall had completed the traffic violation investigation, and were made by Van Arsdall from the driver-side window while Officer Kantola was stationed on the passenger side of the car.  Defendant was not informed that he was free to go, and thus he had no way of knowing that Van Arsdall's questions and request to search the car were not part of the traffic investigation and that his cooperation in Van Arsdall's investigation was not required to continue.  Under the totality of the circumstances, we conclude that Van Arsdall's position at the driver-side window and Kantola's presence on the passenger side of the car was a sufficient "show of authority" that, in combination with the unrelated questions concerning the items in the car and the request to search the car, resulted in a significant restriction of defendant's freedom of movement.  See Toevs, 327 Or at 536-37 ("[O]fficers' continuous show of police authority constituted conduct that 'was significantly beyond that accepted in ordinary social intercourse.'" (quoting Holmes, 311 Or at 410)).  See Dominguez-Martinez, 321 Or at 213 (officer who told defendant that he was free to go while leaning on open door of defendant's vehicle continued to detain defendant).  Because that conduct occurred after completion of the investigation of the traffic violation and because (as the state has conceded) Van Arsdall did not have a reasonable suspicion of criminal activity that justified defendant Rodgers's continued detention, we conclude that defendant Rodgers was unlawfully seized in violation of Article I, section 9.(5) In Kirkeby, the deputy lawfully stopped defendant for the traffic violation of driving with a suspended license.  Defendant was well-known to the deputy and was cooperative and "businesslike" during the encounter.  After defendant gave the deputy his driver license, the deputy had defendant's name, date of birth, and driver license number.  The deputy acknowledged that that was all the information that would be contained on a traffic citation; however, he testified that he "probably" did not have everything he needed to issue the citation, because he had not requested and received from defendant the vehicle registration and proof of insurance.  The deputy apparently did not ask any other questions of that kind, however.  Instead, because defendant had left his car and the deputy was concerned for his safety, he asked whether defendant had any weapons.  (Again, we emphasize that defendant does not assert on review that the deputy's initial question about the presence of weapons constituted a seizure under Article I, section 9.)  Defendant responded in the negative, and the state concedes that nothing else gave rise to a reasonable suspicion of criminal activity.  However, instead of then either issuing a traffic citation or asking for insurance information, the deputy asked defendant for consent to conduct a patdown and, following the patdown, asked for defendant's consent to examine each of the items that he had felt in defendant's pockets.  The deputy did so, even though he was confident defendant did not have any firearms on his person and had no reasonable suspicion that the items in defendant's pockets were contraband or evidence of a crime.  And, as the deputy acknowledged, at the time that he asked defendant for permission to conduct a patdown and to examine the contents of defendant's pockets, defendant was not free to leave.  Based on the totality of the circumstances, we conclude that the deputy's show of authority that accompanied his request that defendant consent to a patdown and subsequent request that defendant consent to an examination of the contents of defendant's pockets occurred after the point that defendant should have been issued a citation or sent on his way.  Because the deputy's further detention of defendant was a significant limitation on defendant's freedom of movement and was not justified by reasonable suspicion of criminal activity, defendant Kirkeby was unlawfully seized in violation of Article I, section 9. Having concluded that each defendant was unlawfully seized in violation of Article I, section 9, we now must determine the effect of that illegality on the admissibility of the evidence obtained from the consensual search that occurred in each case. In Hall, this court acknowledged that there are two related but distinct ways that a violation of a defendant's rights under Article I, section 9, may affect the validity of a defendant's subsequent consent to a search.  First, illegal police conduct may negate a defendant's consent to a search, on the ground that the police conduct rendered defendant's consent involuntary.  Second, Article I, section 9, may require the exclusion of evidence because a defendant's consent was derived from, or was the product of, the prior police illegality.  In each of these cases, defendants contend only that their consent to search was derived from, or was the product of, the illegal seizure.  The methodology for determining whether the state obtained evidence that should be suppressed because it had been obtained in violation of Article I, section 9, was first explained in State v. Johnson, 335 Or 511, 520-21, 73 P3d 282 (2003), and then summarized in Hall: "After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct.  Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant's consent.  A causal connection requiring suppression may exist because the police sought the defendant's consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct.  * * * Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant's consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances -- such as, for example, a police officer informing the defendant of the right to refuse consent -- that mitigated the effect of the unlawful police conduct." Hall, 339 Or at 34-35.(6) Here, both defendants have shown the required nexus.  In both cases the officers had completed the traffic violation investigation and should have either issued a citation or informed each defendant that they could leave.  As already explained, the officers in each case did neither and instead unlawfully detained each defendant.  It was during the period of unlawful detention that the officers requested that each defendant consent to a search.  Here, as in Hall, neither defendant spontaneously granted the officers consent to search; instead, each defendant gave their consent in response to the officers' requests.  The state does not advance any argument to this court to satisfy its burden under Hall that intervening circumstances or factors severed the connection between the unlawful seizures and defendants' consent.  Thus, as in Hall, given the temporal proximity between the illegal detention and each defendant's consent, and in the absence of any other intervening circumstances, or other circumstances mitigating the effect of the unlawful seizures of each defendant, we conclude that each defendant's consent, even if voluntary, was the product of police conduct that violated Article I, section 9.  Because the consent to search in each case was a product of the unlawful seizure, the evidence obtained during the search, in both cases, must be suppressed. In State v. Michael K. Rodgers, S056239, the decision of the Court of Appeals is affirmed.  The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.  In State v. Anthony Douglas  Kirkeby, S056237, the decision of the Court of Appeals and the judgment of the circuit court are affirmed. GILLETTE, J., concurring. I concur in the analysis and conclusions of the lead opinion, including its reliance on State v. Hall, 339 Or 7, 115 P3d 908 (2005).  I do so for a reason sufficiently important (at least to me) that I choose to state it separately. In Hall, a majority of this court announced the rule of law that we apply today.  Justice Durham offered a spirited and extensive dissent from that rule, id. at 37-52 (Durham, J., dissenting), which I found persuasive.  I therefore joined it.  In the present cases, the dissent makes the same analytical and interpretive points that were made in the Hall dissent.  Were we writing on a clean slate, I might still find that message persuasive.  But we are not writing on a clean slate.  The dissent's points, therefore, are-- for me -- an echo of an argument fairly waged, but lost.  The spirit -- the idea -- of stare decisis calls for us to accept Hall, get behind it, and make it work.  I understand that others feel differently (as they have every right to do) but I hear that call.  I therefore join the lead opinion.  See North Carolina v. Pearce, 395 US 711, 744-45, 89 S Ct 2072, 23 L Ed 2d 656 (1969) (Harlan, J., concurring in part and dissenting in part) (explaining a similar approach). DURHAM, J. The question that these cases pose is straightforward:  Did the police officers conduct unreasonable searches in violation of Article I, section 9, of the Oregon Constitution, when they (1) searched defendant Rodgers's car, (2) conducted a patdown search of defendant Kirkeby, and (3) opened a metal container discovered in Kirkeby's pocket during the patdown?  Each of those searches yielded drug-related evidence. In my view, those searches were not unreasonable and, thus, did not violate Article I, section 9.  My reason for that conclusion is equally straightforward, although it virtually disappears from the majority's analysis:  Before searching, the police requested and obtained each defendant's voluntary consent to the proposed search.  The record confirms that the officers scrupulously conducted each search within the scope of the voluntary consent that each defendant had granted to them.  Those facts are undisputed. The upshot of those facts is that defendants voluntarily gave up any privacy interest in the areas searched, and the police lawfully observed and seized the drug-related evidence that the searches brought to light.  Defendants simply defy logic in contending that the searches were unreasonable and unconstitutional, even though they voluntarily consented to each search before it occurred.(1) The majority, however, agrees with and adopts defendants' logic.  In doing so, the majority recites several broad -- and, for the most part, unhelpful -- principles of search and seizure law, which I discuss below, but fails to apply the correct legal principles that, in fact, govern the disposition of these cases. The majority's result undermines ORS 136.432, which prohibits Oregon courts from ordering the suppression of relevant evidence for reasons that do not rise to the level of an invasion of constitutional rights (aside from the law of privileges, hearsay, and the rights of the press).(2)  The majority's result also will confuse the members of the law enforcement community about the practical efficacy of a heretofore valuable tool in roadside encounters:  the consent search.  Finally, the majority's rationale creates needless confusion regarding the law that governs searches and seizures under the Oregon Constitution.  Those negative consequences are both unnecessary and avoidable, for reasons that I explain below. ORS 136.432 sets the stage for any discussion of defendants' motions to suppress evidence.  Under that provision, a criminal defendant cannot obtain suppression of evidence obtained through police conduct that exceeds the statutory authority of the police.  ORS 136.432 effectively supersedes this court's decision in State v. Valdez, 277 Or 621, 561 P2d 1006 (1977), in which this court upheld the trial court's sanction of exclusion of evidence where police had obtained the evidence in violation of their statutory authority.  The relevant inquiry here, therefore, is whether the police obtained the evidence that defendants seek to suppress by conducting searches that violated Article I, section 9. Article I, section 9, provides, in part: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *." Under that provision, warrantless searches are per se unreasonable, subject to a few well-recognized exceptions, such as searches conducted following a voluntary consent.  As explained in State v. Paulson, 313 Or 346, 351-52, 833 P2d 1278 (1992): "A warrantless search by the police is 'reasonable' under Article I, section 9, when the search falls into one or another of the recognized exceptions to the warrant requirement.  State v. Miller, 300 Or 203, 225, 709 P2d 225 (1985), cert den 475 US 1141 (1986).  One such exception is consent.  'When there is consent to a search, no warrant is necessary.'  State v. Pogue, 243 Or 163, 164, 412 P2d 28 (1966)." (Emphasis in original.) Courts regard a consent search or seizure as an "exception" to the prohibition on unreasonable search and seizure for good reason, even though the constitutional text does not refer to consent.  In Oregon, the people control the right to the security and privacy that Article I, section 9, protects.  If a state agent wishes to examine a person's pockets, automobile, briefcase, or other area that Article I, section 9, protects, the person is free to grant or withhold consent.  But if the person voluntarily grants consent to a search or seizure, courts recognize that it is virtually impossible, certainly from the standpoint of logic, to conclude that the resulting search or seizure is "unreasonable."  Our courts do not sit to stubbornly insist on maintaining the privacy of a person's property, and to suppress its admission as evidence in court, after the person himself or herself has voluntarily consented to its disclosure to the police. We must bear in mind the particular interests that Article I, section 9, protects and the particular actions by a state actor to which that provision pertains. "Article I, section 9, protects privacy and possessory interests.  A 'search' occurs when a person's privacy interests are invaded. "* * * * * "* * * A 'seizure' [of property] occurs when there is a significant interference with a person's possessory or ownership interests in property." State v. Owens, 302 Or 196, 206-07, 729 P2d 524 (1986).  Unquestionably, the police in this case "searched for" and "seized" property from defendants after obtaining their consent.  The dispute here is whether the searches and seizures of items of property in Rodgers's car and in Kirkeby's pocket unlawfully deprived defendants of their constitutional privacy and possessory interests in the seized property despite defendants' voluntary consent to the searches. The majority concludes that the police exceeded their statutory authority when they detained defendants by questioning them in a manner unrelated to any traffic violation.  Those unlawful detentions, according to the majority, also were unconstitutional "seizures" under Article I, section 9, because they deprived defendants of their freedom of movement without lawful justification. The police, however, did not obtain the evidence that is in dispute here simply by detaining defendants after the traffic stops should have ended.  In constitutional terms, defendants' right to personal freedom of movement and their right to the privacy of their property are distinct constitutional interests that merit independent examination when asserted against intrusive police conduct.  As this court has stated, "Not all governmental intrusions trigger the protections guaranteed by Article I, section 9, of the Oregon Constitution.  State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986).  Thus, in determining whether a particular governmental action violates Article I, section 9, of the Oregon Constitution, we first must decide whether the action is either a 'search' or a 'seizure' within the meaning of that section." State v. Juarez-Godinez, 326 Or 1, 5, 942 P2d 772 (1997) (footnote omitted). Juarez-Godinez illustrates this court's insistence on a separate examination of a driver's distinct interests in his personal liberty and the privacy of his property in the context of a traffic stop.  In that case, Trooper Burdick stopped a car driven by the defendant, who was accompanied by two passengers, for exceeding the maximum speed limit.  Fifteen minutes later, Burdick arrested the defendant for failure to display a valid driver's license, placed him in a patrol car, and asked if he could search the car.  The defendant refused.  The court summarized the legal effect of those actions as follows: "Indisputably, defendant had been placed under arrest.  As a consequence of that arrest, defendant was unable to drive the car away himself.  Still he retained a possessory interest in the car and, in normal circumstances, could have transferred possession of it to one of his passengers and directed that it be driven away.  Indeed, Burdick's request that defendant consent to the search at least arguably was a recognition of defendant's possessory interest, and defendant's refusal to allow Burdick to search was an effort to exercise that possessory interest." Id. at 7-8.  After detaining the defendant's car, the police searched it and discovered illegal drugs.  The court determined that the detention of the car constituted an unconstitutional seizure of the car.  The defendant argued that the drug evidence was subject to suppression because the search that brought it to light was the product of several observations of the car by Burdick during the unlawful detention of the car.  This court agreed and ordered suppression.  Id. at 9-10. Juarez-Godinez is helpful in analyzing the instant case.  The decision in that case demonstrates that a driver who has been subjected to a full-custody arrest during a traffic stop, and thus has been deprived of his personal liberty to move about, nevertheless retains a constitutionally protected possessory and privacy interest regarding his property, including his car, at the scene of the stop.  That signifies that, despite being under arrest, a driver can choose, in response to a request for consent to search the car or other property, either to insist on a search warrant or to voluntarily consent to the requested search. This court reached that very conclusion in State v. Bea, 318 Or 220, 864 P2d 854 (1993), in which this court upheld the admissibility of evidence seized from an arrestee who voluntarily consented to a search of his person.  The court's principal focus in Bea was on the voluntariness of the arrestee's consent to the search.  That was the correct focus.(3)  The court examined all the surrounding circumstances, including the fact that the defendant was under arrest, and determined that "[t]here is nothing in the record to indicate that the police 'intimidated or coerced [defendant] in any way' in obtaining his consent or that there were any circumstances present that might 'impair [defendant's] capacity to make a knowing, voluntary, and intelligent choice.'  Because defendant voluntarily consented to the search, that search did not violate defendant's rights under Article I, section 9." Id. at 230-31 (citations omitted; alterations in original). The analysis is more complicated, however, when the consent search follows a detention that is unconstitutional.  The unlawfulness of an initial detention may create additional pressure on the citizen to consent to a search and, thus, lead to the conclusion that the citizen's consent was not voluntary.  See State v. Kennedy, 290 Or 493, 502, 624 P2d 99 (1981) ("[T]he burden [of persuasion] on the police to show voluntariness when consent occurs after illegal police conduct is greater than when no illegality has occurred."); State v. Warner, 284 Or 147, 585 P2d 681 (1978) (defendant's consent to search, following illegal stop, was not voluntary, given that defendant had been confronted by six officers and three marked police cars). Apart from the voluntariness inquiry described above, this court will require suppression of evidence obtained following an initial unlawful detention if the evidence is the "fruit of the poisonous tree."  See Warner, 284 Or at 166, citing Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963) (discussing "fruit of the poisonous tree" doctrine); Quinn, 290 Or at 396-97 (applying Wong Sun "fruit of the poisonous tree" doctrine under Oregon Constitution).  This court observed in State v. Hall, 339 Or 7, 27, 115 P3d 908 (2005), that the Quinn decision had not applied the analysis in Wong Sun correctly to the facts of that case, and I agree with that conclusion.  Except for that misstep, however, this court has applied the "fruit of the poisonous tree" analysis to determine whether police have exploited an initial illegal detention to obtain a defendant's consent to a search.  See State v. Rodriguez, 317 Or 27, 38, 38 n 11, 854 P2d 399 (1993) (deciding, under Article I, section  9, whether evidence seized pursuant to consent search was "'fruit' of the unlawful arrest" of the defendant.). The facts in Wong Sun illustrate the significance of a defendant's voluntary cooperation with police in a court's subsequent application of the "fruit of the poisonous tree" doctrine.  In Wong Sun, federal narcotics officers illegally entered a dwelling without probable cause and arrested Toy.  Toy made incriminating statements and gave the officers information that led them to two other persons, Yee and Wong Sun.  The officers arrested Yee and seized drugs in his possession.  The officers also arrested Wong Sun.  The court arraigned Toy, Yee, and Wong Sun, and released them on their own recognizance.  Within a few days, an officer interrogated Toy and Wong Sun, after advising them of their right to remain silent.  They made incriminating statements. The Court applied the "fruit of the poisonous tree" doctrine to determine whether several distinct types of evidence were subject to suppression because the officers had obtained the evidence in violation of the Fourth Amendment to the United States Constitution.  The Court first decided that the officers' entry into Toy's dwelling and subsequent arrest had been unlawful.  The Court then concluded that Toy's oral statements to the officers in his home were the fruit of that initial illegality and were subject to suppression.  371 US at 487. Next, the Court turned to the admissibility of narcotics seized from Yee.  The seizure of those drugs was the immediate result of the oral statements by Toy in his home.  The Court first determined that the officers had not obtained the drug evidence through any source independent of Toy's declarations.  The Court continued: "'[N]or is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.'  Nardone v. United States, 308 US 338, 341[, 60 S Ct 266, 84 L Ed 307 (1939)].  We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police.  Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'  Maguire, Evidence of Guilt, 221 (1959).  We think it clear that the narcotics were 'come at by the exploitation of that illegality' and hence that they may not be used against Toy." Id. at 487-88. The Court then examined the admissibility of Wong Sun's incriminating statement to the police after his arraignment.  The Court agreed that the officers had arrested Wong Sun without probable cause, but decided that his incriminating statement to the officers was not the fruit of the unlawful arrest: "We turn now to the case of the other petitioner, Wong Sun.  We have no occasion to disagree with the finding of the Court of Appeals that his arrest, also, was without probable cause or reasonable grounds.  At all events no evidentiary consequences turn upon that question.  For Wong Sun's unsigned confession was not the fruit of that arrest, and was therefore properly admitted at trial.  On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had 'become so attenuated as to dissipate the taint.'  Nardone v. United States, 308 US [at 341]." Id. at 488. Several useful principles emerge from the analysis used in Wong Sun.  First, the Court focused specifically on how the police have "come at," or obtained, the challenged evidence.  Second, the Court also rejected reliance on a 'but for" causal relationship between the primary illegality and a subsequent seizure of evidence.  Finally, as the Court's discussion of its conclusion pertaining to defendant Wong Sun discloses, a defendant's voluntary cooperation in providing evidence to the police can dissipate the taint of an earlier police illegality (there, the prior unlawful arrest of Wong Sun), and justify admission of evidence despite the fact that the police would not have obtained it but for earlier illegal actions. We must apply those principles faithfully in the context of the present cases.  The majority posits, and I agree, that the police stops in these cases became unlawful seizures when the officers delayed each driver's release at the conclusion of any traffic-related business.  At that point, the officers had no probable cause to conduct any search or seizure of either defendants' property; they had only a suspicion that defendants might possess contraband. The officers sought each defendant's consent to a search and, in each case, defendants granted voluntary consent to a search.  Kirkeby repeatedly granted voluntary consent to the search of his pockets.  The resulting searches yielded contraband.  In Wong Sun terms, the police "came at" the disputed evidence because of the voluntary consent of each defendant to the requested searches.  It is true that the seized contraband in each case has a "but for" causal link to the police stops.  However, Wong Sun holds that a "but for" relationship between unlawful police conduct and evidence seized afterward is insufficient where later events have dissipated the taint of the earlier illegality. Under the circumstances shown here, the voluntary consent granted to the police was sufficient to purge the taint of the unlawfully extended police stops.  An officer's noncoercive request for consent to search does no more than give a defendant the choice of whether to permit the police to invade his or her privacy interest in the property in question.  If a defendant voluntarily consents to a search, any evidence that comes to light during the search owes its discovery to the defendant's decision to consent, not to unilateral search or seizing activity by the police. As noted, both the illegality of a defendant's detention and the factual circumstances surrounding a detention can bear on the voluntariness inquiry when police rely on evidence seized following a consent.  But voluntariness is not challenged here.  Rather, defendants contend that the court must suppress the seized evidence only because each request for consent expanded the scope of each stop, thus effecting an unconstitutional detention.  That argument fails because it focuses only on the "but for" relationship between the delayed stops and the evidence seized later, and fails to account for the attenuating effect of the consents to search that actually brought the disputed evidence to light. This case is unlike Quinn, where officers first conducted a search without a warrant or a justification for a warrantless search, discovered the disputed evidence, and later sought and obtained defendant's consent to again look for the same evidence.  At that point, the police already had breached defendant's privacy interest in the disputed evidence.  I agree that, under those circumstances, the taint of the initial police search was not dissipated by a later consent to search. The majority reasons that the conduct of the police in asking for consent to search was unlawful, because the requests changed the purpose of the detention from a traffic stop to a criminal investigation for which there was no reasonable suspicion of criminal activity.  ___ Or at ___ (slip op at 19-21).  From that premise, the majority concludes that defendants' consents to the requested searches were the product of unlawful police conduct -- the extended traffic stops -- that placed the officers in a position to request consent to search. An obvious flaw in that reasoning is that it relies on a "but for" causal connection between the delayed stop and the officer's request for consent and avoids any analysis of the correct issues:  (1) did defendants voluntarily consent to a search?; and (2) if the consents were voluntary, did that fact attenuate the taint of the delayed stop?  The majority errs in terminating its analysis based only on the fact that the requests for consent occurred after the stops became unlawful and, thus, were the "product" of the extended stops. The majority's focus on the requests for consent to search is erroneous for another reason.  Certain provisions of the Oregon Constitution do restrict the opportunity of police officers to ask questions of a suspect at certain times during a police investigation.  For example, the right against self-incrimination in Article I, section 12, of the Oregon Constitution restricts the police from subjecting a suspect to custodial interrogation unless the police first advise the suspect of his rights.  State v. Scott, 343 Or 195, 203, 166 P3d 525 (2007).  A suspect's constitutional right to counsel similarly requires the police to refrain from questioning a suspect once he or she asks for a lawyer.  State v. Charboneau, 323 Or 38, 54, 913 P2d 308 (1996). Article I, section 9, prohibits unreasonable "searches" and "seizures."  In the context of a consent search, a police request for consent to search is not itself a search and does not invade the privacy of the citizen.  Thus, a request for consent is distinguishable from, for example, custodial interrogation, in which the permissibility of police questioning itself is controlled by Article I, section 12.(4)  By contrast, courts examine a request for consent under Article I, section 9, to determine whether, based on the totality of the circumstances, the subsequent consent was voluntary.  By focusing exclusively on the causal link between the delayed stops and the officers' requests for consent to search, the majority is able to identify only a "but for" causal link between the traffic stops and defendants' consents to search, and avoid altogether any examination of the voluntariness of defendants' consent. The majority relies on State v. Hall for the conclusion that, in this context, the state must demonstrate that the causal link between an unlawful police detention and any later consent to a search is "severed."  Hall did not attempt to distinguish, let alone overrule, our cases invoking the correct analytical rule in this circumstance, i.e., the "fruit of the poisonous tree" doctrine. According to the majority, under Hall, a request for a consent to search effects an unlawful stop and is impermissible police conduct, apart from any consideration of the voluntariness of the resulting consent to a search.  That reading of Hall conflicts with State v. Amaya, 336 Or 616, 626, 89 P3d 1163 (2004), in which this court confirmed that a police question that does not relate to an ongoing traffic stop is not unlawful when the question is asked to ensure the safety of the police officer or others.  Hall does not purport to overrule Amaya or resolve that inconsistency. Finally, Hall sought to distinguish two cases, Kennedy and State v. Rodriguez, in which this court had denied suppression of evidence obtained pursuant to consent during assertedly unlawful police detentions.  According to Hall, the defendants in those cases consented to searches without police prompting and, in Rodriguez, after a reading of Miranda rights.  339 Or at 34.  But the facts in those cases showed only that the evidence on the record amply supported the conclusion of voluntariness, not that the court, as the majority sees it, could avoid the inquiry into voluntariness altogether by deciding that the detention of the citizen was unlawful. I dissented from the reasoning and result in Hall regarding the consent search in that case.  339 Or at 37 (Durham, J., concurring in part and dissenting in part).  The concern that I voiced there -- that the majority had created an analytical model for consent searches that our precedents did not support -- takes on additional weight because the majority has now extended its Hall analysis to the context of traffic stops, one of the most common police-citizen encounters.  The result will be a decline in the safety of traffic-related law enforcement activities and an increase in the suppression of evidence seized from automobiles even though the citizen has granted the police voluntary consent to conduct a search.  In my view, Hall requires reconsideration. A traffic stop by a police officer is a limited, but still significant, abridgment of a citizen's freedom to move about in an automobile.  A traffic stop may rise to the level of a constitutional seizure if the officer detains the driver, including through questioning, without reasonable grounds.  However, if an officer unlawfully detains a driver, and later develops suspicions about property in the car or on the driver's person, the officer commits no invasion of the driver's privacy interest in his or her property by requesting and receiving voluntary consent to search. The request for consent places the driver and the officer in the same positions that they would have occupied before the unlawful detention, because it affords the driver the choice to decide whether to voluntarily expose the property to police examination through a search.  Defendants in these cases made that voluntary choice in favor of allowing the police to search.  The unchallenged conclusion that defendants acted voluntarily in consenting confirms, as a matter of logic, that the surrounding circumstances, including the unlawfully extended stop, did not coerce defendants to cooperate with the police by allowing them to search.  Consequently, the searches here were not unreasonable under Article I, section 9, and, accordingly, ORS 136.432 prohibits suppression of the evidence in question. In State v. Rodgers, I would reverse the decision of the Court of Appeals and affirm the judgment of the trial court.  In State v. Kirkeby, I would reverse both the decision of the Court of Appeals and the judgment of the trial court.  I dissent from the contrary dispositions ordered by the majority. Linder, J., joins in this dissenting opinion. 1. Article I, section 9, of the Oregon Constitution provides, in part: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]" 2. Defendant Kirkeby no longer asserts, as he did to the trial court, that the officer's initial question about the presence of weapons constituted a seizure under Article I, section 9.  We express no opinion on that issue. 3. ORS 810.410 provides, in part: "(2) A police officer may issue a citation to a person for a traffic violation at any place within or outside the jurisdictional authority of the governmental unit by which the police officer is authorized to act: "(a) When the traffic violation is committed in the police officer's presence; or "(b) When the police officer has probable cause to believe an offense has occurred based on a description of the vehicle or other information received from a police officer who observed the traffic violation. "(3) A police officer: "(a) Shall not arrest a person for a traffic violation. "(b) May stop and detain a person for a traffic violation for the purposes of investigation reasonably related to the traffic violation, identification and issuance of citation. "(c) May make an inquiry into circumstances arising during the course of a detention and investigation under paragraph (b) of this subsection that give rise to a reasonable suspicion of criminal activity. "(d) May make an inquiry to ensure the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons. "(e) May request consent to search in relation to the circumstances referred to in paragraph (c) of this subsection or to search for items of evidence otherwise subject to search or seizure under ORS 133.535. "(f) May use the degree of force reasonably necessary to make the stop and ensure the safety of the peace officer, the person stopped or other persons present. "(g) May make an arrest of a person as authorized by ORS 133.310 (2) if the person is stopped and detained pursuant to the authority of this section. " Paragraphs (c), (d), (e), and (f) of subsection (3) were added in 1997.  Or Laws 1997, ch 866, §§ 4, 5. 4. We reject the state's argument that this court's decision in State v. Jackson, 296 Or 430, 677 P2d 21 (1984), stands for the rule that a de minimis delay during a traffic violation investigation does not, under any circumstances, violate an individual's right to be free from unreasonable searches and seizures under Article I, section 9.  In that case, during a valid traffic stop, the officer walked from the driver's side to the passenger side of the defendant's van, shined a flashlight through the window, and saw open beer containers.  This court stated that the delay caused by the officer in walking around the van was "de minimis" and did not constitute a violation of Oregon statute, nor violate any state or federal constitutional right.  However, the court continued, "Were the defendant to prevail here, an interpretation of the Court of Appeals standard would seem to dictate that once an officer returns an operator's license to the driver of a stopped vehicle, he or she must execute an abrupt about-face and march directly back to the police vehicle.  Such an interpretation would not be reasonable.  An officer who has lawfully stopped a vehicle does not violate any occupant's rights in walking around the vehicle and looking through the windows of the vehicle to observe that which can be plainly seen." Id. at 438 (emphasis added).  The key of that holding was not the duration of the stop and detention, but the fact that the officer observed evidence of a crime from a lawful vantage point outside the car before conducting further investigation.  Unlike the circumstances in these cases, the officer in Jackson did not question the defendant about anything unrelated to the reason for the stop until he observed evidence of criminal activity, as required under Article I, section 9.  5. We emphasize that the restriction of movement that implicates Article I, section 9, in both of these cases occurred after the police officers had completed their investigations reasonably related to the traffic infraction and issuance of the citation.  We express no opinion about the effect of unrelated police inquiries that occur during the course of the traffic violation investigation and that do not result in any further restriction of movement of the individual.  6. The dissent apparently agrees that the police conduct in each of these cases resulted in an unlawful seizure of each defendant in violation of Article I, section 9.  However, the dissent refuses to follow the exclusionary rule methodology approved just five years ago by the court in Hall.  Instead, the dissent retraces this court's cases involving the scope and application of the exclusionary rule that led up to this court's decision in Hall.  The competing theories and arguments regarding the application of the exclusionary rule had their origins in many of the cases that the dissent reexamines.  It is, however, undisputed that the cases to which the dissent refers were thoroughly considered and analyzed in Hall.  Thus, the matter is a settled one. 1. The majority, in reciting the pertinent facts, indicates that the searches in these cases occurred after each defendant gave "consent."  I assume that, in using that description, the majority is confirming that each defendant gave the voluntary consent that our case law requires.  See State v. Quinn, 290 Or 383, 394, 623 P2d 630 (1981) (stating standard and upholding trial court's findings that "consent to search was knowingly and voluntarily given"). My own review of the record indicates that defendants voluntarily consented to the searches that the police conducted in each case.  In Rodgers, the trial court expressly found that defendant's consent to the search of his car was voluntary. In Kirkeby, the deputy testified that defendant consented to the patdown search of defendant's clothing and also consented to the opening of the metal container discovered during the patdown.  The trial court in Kirkeby found the facts to be "as the officer testified today."  The officer's testimony generally indicated that defendant's consent to the requested searches was voluntary. The trial court in Kirkeby also determined that the deputy "did not have reasonable suspicion for his safety," and thus, he had no justification to request a pat down search of defendant's clothing.  That view of the deputy's authority to request a search does not undermine the court's implicit determination, consistent with the deputy's testimony, that defendant's consent to the requested search was voluntary. 2. ORS 136.432 provides: "A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by: "(1) The United States Constitution or the Oregon Constitution; "(2) The rules of evidence governing privileges and the admission of hearsay; or "(3) The rights of the press." 3. Bea also confirmed that the pertinent inquiry under the Fourth Amendment to the United States Constitution is identical to the inquiry under Article I, section 9:  Did the arrestee give a voluntary consent to the search that uncovered the disputed evidence?  This court, describing the federal rule, stated: "The mere fact that a defendant is in custody of police officers does not, in itself, demonstrate that a consent to search is coerced.  See United States v. Watson, 423 US 411, 424, 96 S Ct 820, 46 L Ed 2d 598 (1976) (citing Schneckloth [v. Bustamonte, 412 US 218, 219, 93 S Ct 2041, 36 L Ed 2d 854 (1973)] in concluding that 'the fact of custody alone has never been enough in itself to demonstrate a coerced * * * consent to search')." Bea, 318 Or at 331-32. 4. Neither defendant in these cases asserts that the conduct of the police in requesting consent violated any right protected by Article I, section 12.

d0dfe05ccc5f51b8b60efc15b4268bba361a160439db2b941b75b60cb12b3360

2010-02-11T00:00:00Z

06eccd1b-e9e4-4775-b80d-f5de828bf914

Oksenholt v. LEDERLE LABORATORIES, ETC.

294 Or. 213, 656 P.2d 293

75N-0066

oregon

Oregon Supreme Court

[*] Reargued September 7, 1982.[**] Decided December 21, 1982. *295 E. Richard Bodyfelt, Portland, argued the cause for petitioner on review. With him on the petition were Roger K. Stroup and Bodyfelt, Mount & Stroup, Portland. With him on the brief in the Court of Appeals were Peter R. Chamberlain and Bodyfelt, Mount & Stroup, Portland. Richard P. Noble, Portland, argued the cause and filed briefs for respondent on review. LENT, Chief Justice. The following issue is presented: Can a physician maintain an action for misrepresentation and negligence against a prescription drug manufacturer that misrepresents information about its drug to the doctor? If so, what damages are legally cognizable? We hold that a physician can maintain such an action and may recover certain foreseeable damages that are the result of the misconduct alleged. Plaintiff's amended complaint asserted that he was entitled to recover damages in negligence and in fraud. Defendant moved to strike the amended complaint on the ground that "the losses claimed by plaintiff are not legally recoverable under Oregon law." The trial court, "finding that the damages claimed by plaintiff are not recoverable under Oregon law," allowed the motion without leave to plead over and entered judgment for defendant for costs. The motion was filed, heard and decided prior to the effective date of the Oregon Rules of Civil Procedure. The motion was apparently based upon former ORS 16.100 although, in substance, it raised a contention that plaintiff had failed to state facts sufficient to constitute a cause of action. That claim should have been asserted by demurrer, former ORS 16.260(6). We shall treat it as though the motion to strike were a demurrer;[1] therefore, all well-pleaded facts alleged in the amended complaint are to be taken as true for purpose of resolution of the legal issue presented by the motion. See, for example, Reliable Credit Assn. v. Credithrift of Amer., 280 Or. 233, 570 P.2d 379 (1977). Plaintiff relied on information provided by defendant in prescribing defendant's drug, Myambutol, to his patient, Benton. Defendant failed to warn plaintiff of the risk of permanent loss of vision associated with the drug, although defendant knew, or should have known, the hazards and contraindications for use of the drug. Alternatively, plaintiff alleges that defendant deliberately withheld from plaintiff information about the drug's side effects and misled him as to the reversability of impairment of vision resulting from use of the drug. The drug blinded Benton and she sued plaintiff and defendant. Subsequently, Benton settled with plaintiff for $100,000. Plaintiff here seeks to recover the $100,000 paid in settlement and damages for his loss of business and harm to his reputation. Defendant, focusing on plaintiff's claim for settlement costs, characterizes plaintiff's action as either one or both of malicious prosecution and a request for indemnity. Pursuing the first characterization, defendant argues that O'Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977), bars recovery on a claim of malicious prosecution. O'Toole would bar plaintiff from suing the patient, Benton, or Benton's attorney even if Benton's action was totally without probable cause. Defendant argues that the logic behind our decision in O'Toole should bar this action as well. Further, defendant argues that plaintiff has not alleged facts sufficient to state a claim for relief under an indemnity or contribution theory. See ORCP 21, subd. A(8). *296 The trial court adopted defendant's characterization of the theory of plaintiff's case and dismissed plaintiff's action without the right to plead over. The Court of Appeals, 51 Or. App. 419, 625 P.2d 1357, reversed, adopting plaintiff's characterization of the case and holding that damages are to be determined in light of the tort alleged, not the reverse. We agree with the approach taken by the Court of Appeals, but not completely with the result. First, we find defendant's attempt to analyze this case as one of malicious prosecution to be without merit. As the Court of Appeals held, O'Toole v. Franklin, supra, is irrelevant to the case at bar. That case limited actions only against the parties who brought the original civil action. We see no reason to extend its holding here. Further, as discussed infra, the existence of Benton's suit against plaintiff is not necessary for plaintiff to state a cause of action against defendant. The patient's action against plaintiff does bear on the question of foreseeable legally cognizable damages, but it is an action by a third party. Plaintiff's action against defendant has no direct connection to the first action beyond the damages issue. Defendant's arguments involving indemnity and contribution suffer from the same defect. Defendant has focused on the damages claimed, rather than the tort alleged. There may be some overlap between damages claimable under indemnity or contribution and under a theory of negligence, but this overlap does not bar either cause of action. Plaintiff seeks monetary damages of three types, only one of which would be recoverable in indemnity. We now examine plaintiff's claims in light of the facts pleaded to support his theories of the case. In this case, plaintiff alleges that defendant was negligent, that defendant's negligence caused specified injuries to plaintiff's professional reputation and, consequently, to his earning capacity, and that it caused him to be exposed to a claim for damages for his patient's loss of vision which he settled for $100,000. These allegations, if supported by evidence, would be sufficient to present a question for the trier of fact upon a part of the alleged damages. Defendant characterizes the case as one where a physical injury to a third party causes the plaintiff economic loss. In other words, defendant argues, the patient's ingestion of the drug caused economic injury to the doctor. We characterize the case differently: The manufacturer improperly informed the doctor about the effects of the drug; the doctor relied on this misinformation and prescribed the drug to his patient; the doctor suffered what he characterizes as "economic" harm as a result of relying on the lack of accurate information.[2] The fact that the patient sued plaintiff was not an element of a cause of action in plaintiff's favor against this defendant. Even if the patient had not taken the medicine and gone blind, knowledge of the physician's misprescription among patients and other physicians could harm his reputation and cause economic loss. Where breach of an obligation owed by a defendant causes plaintiff economic loss, a cause of action exists. State ex rel. Western Seed v. Campbell, 250 Or. 262, 442 P.2d 215 (1968); see also Berg v. General Motors Corp., 87 Wash. 2d 584, 555 P.2d 818 (1976). We now examine whether defendant owed plaintiff any obligation to warn of the drug's side effects and the ramifications of any breach of that obligation. The parties do not disagree that, as a prescription drug manufacturer, defendant had an obligation to warn physicians, including plaintiff, of possible harmful effects of its prescription medicines. McEwen v. Ortho Pharmaceutical, *297 270 Or. 375, 528 P.2d 522 (1974); 21 C.F.R. § 200.5, § 201.56, § 201.57 (1982). The manufacturer is directly liable to the patient for any breach of this duty to the physician. McEwen, supra, 270 Or. at 386-87, 528 P.2d 522. Defendant argues that this liability to the patient is exclusive, that because the drug manufacturer is directly liable to the patient, no liability to the doctor arises from a breach of the duty to warn. Defendant cites McEwen in support. Plaintiff cites McEwen as well, but in support of the view that the manufacturer's duty to warn creates a cause of action in the doctor for failure to warn. McEwen did not address this issue. That case held only that a drug manufacturer must warn the doctor and that a patient may sue if the manufacturer does not warn properly. Thus, we adjudicate this question for the first time and we do so with very little guidance from other courts. Plaintiff cites an unreported lower court opinion from California where the plaintiff in that case also claimed physical injury (emotional distress) as well as the kind of damages sought here. Defendant's case, Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416 (Tex.Civ.App. 1977), is also distinguishable. That case merely held that a physician could not rely on strict products liability, the benefit of which Texas law limited to consumers and, therefore, would not sanction that theory of liability for recovery in indemnity. Our case is different. First, plaintiff asserts his own innocence and seeks direct recovery, not indemnity. Second, he alleges negligence on the part of the manufacturer. The limitations imposed by the Texas court on strict liability for that defective product do not apply. The Court of Appeals, in upholding plaintiff's cause of action, analyzed the problem solely in terms of foreseeability. In this approach, the Court of Appeals erred. We have held previously that violation of a safety regulation negates questions of foreseeability. For example, if a logging company fails to place a flagman at the road where timber is cut, in violation of a safety regulation promulgated pursuant to ORS 654.035, and this results in injury to a motorist hit by a falling tree, the question of foreseeability becomes irrelevant. Breach of the statutory obligation constitutes negligence per se. See Downey v. Traveler's Inn, 243 Or. 206, 412 P.2d 359 (1966); Snyder v. Prairie Logging Co., Inc., 207 Or. 572, 298 P.2d 180 (1956). McEwen, supra, and 21 C.F.R. § 200 et seq. prescribe obligations of care that drug manufacturers owe physicians. These regulations relating to warnings and contraindications serve purposes similar to the safety regulations adjudicated in Downey and Snyder. Therefore, we examine the scope and intent of the obligations created in the C.F.R. sections. First, are physicians within the class intended to be protected by the regulation; second, does the regulation provide an exclusive or an adequate civil remedy; and third, will a civil remedy for a physician as well as for an injured patient further the purpose of the regulation? In its final rule in Docket Number 75N-0066, the Food and Drug Administration adopted these requirements in order "* * * to provide physicians, in straightforward and concise terms, with the information they need to prescribe a drug under conditions that maximize the drug's effectiveness and minimize its risks." 44 Fed.Reg. 37436 (1979). The warnings required by the regulations are specifically "directed to health care professionals and not to the ultimate consumer of the drugs." Id at 37438-37439. While the consumer is the ultimate beneficiary of the regulations, they were designed for the physician and not the patient. In fact, the FDA examined drug labeling for patients in a different proceeding. See 40 Fed.Reg. 57705 (1975). It is important to understand the relationships among the prescription drug manufacturer, the health care professional and the patient. By law, a prescription drug manufacturer cannot sell its products to the consumer without the physician's approval. The patient must rely on the physician to sift through the relevant literature, to *298 match a medicine's indications and contraindications with the patient's ailment and to prescribe the appropriate drug. The regulations presume this three-way relationship and were designed to aid the physician. We hold that physicians are in the class protected by the regulations. It is equally clear that the regulation asserts no exclusive method of enforcement. A party, commenting to the FDA on its proposed rules, criticized the proposed regulations, arguing that they acted to insulate a manufacturer from liability. The agency responded: 44 Fed.Reg. 37437 (1979). Absent congressional authorization, the FDA could not, of course, create civil liability. The imposition of liability for the breach of the protective obligation to warn doctors exists under state, not federal law. Affording such a remedy for injury to a physician that results from a prescription drug manufacturer's failure to supply adequate information will encourage drug manufacturers to supply that information and thus further the regulatory objective. We now examine which types of plaintiff's pleaded damages may be recoverable. Plaintiff has asked for general damages of $150,000 and special damages of lost income up to the date of trial.[3] If proved, both impairment of earning capacity and lost income are legally cognizable damages that may have stemmed from the torts alleged. In examining the specifics of plaintiff's general damages request, we find a problem. Several factors comprise the $150,000 claim: loss of earning capacity that resulted from questioning of his competence, subjection to a law suit,[4] and injury to his reputation and the loss of $100,000 incurred in settlement of Benton's disputed claim. It is foreseeable that subjection to an action,[5] questioning of competence and harm to reputation would result from defendant's alleged breach and result in lost earning capacity and lost income. The $100,000 settlement requires closer scrutiny. With respect to the $100,000, we disagree with the Court of Appeals' analysis. Plaintiff claims he is innocent of any wrongdoing, yet he asks for reimbursement of $100,000 paid to settle his part of a negligence suit filed against himself and *299 defendant, Lederle. The Court of Appeals held that plaintiff could recover the settlement costs, "if reasonable." The request for the $100,000 can be characterized in two fashions: first, as a request for indemnity or contribution, and second, as a factor in determining harm to reputation. Recovery of the settlement costs, if treated as a request for indemnity, would be precluded by our decision in Ore-Ida Foods v. Indian Head, 290 Or. 909, 627 P.2d 469 (1981), which bars recovery for economic loss that results from physical harm to a third person. The $100,000 may be relevant, however, as a factor in determining harm to reputation. It is possible, though unlikely, that a rational jury may find that a completely innocent party settled a suit in order to avoid further harm to his reputation. That fact, however, does not make the request for payment of the $100,000 settlement cost proper in a damages pleading. We hold here that $100,000 of the $150,000 was improperly claimed as general damages. We defer the question of the settlement's admissibility as evidence to show damage to reputation to the trial court for an initial determination. In addition to his allegations of negligence, plaintiff alleges fraudulent misrepresentation by defendant. Misrepresentation requires a false representation[6] made with either knowledge of its falsity, or awareness of lack of knowledge as to its truth or falsity. Meader v. Francis Ford, Inc., 286 Or. 451, 456, 595 P.2d 480 (1979). Plaintiff alleges that defendant represented: Plaintiff also must have alleged that defendant made these representations for the purpose of misleading the other party, with the knowledge that defendant is misleading the other party or in reckless disregard of the fact that defendant is misleading the other party. Elizaga v. Kaiser Found. Hospitals, 259 Or. 542, 547-48, 487 P.2d 870 (1971). Here, plaintiff alleged that defendant published the information about the drug for the purpose of advising physicians like the plaintiff that the representations made by defendant were made with the intent that physicians, including plaintiff, rely on them, that plaintiff did rely on them and was harmed as a result. Damages properly recoverable in an action for intentional misrepresentation are those which are a direct and necessary result of defendant's acts or omissions. Cluck et ux. v. Fish et al, 230 Or. 63, 368 P.2d 626 (1962). Losses suffered through injury to reputation, lost business and impairment capacity are such that could flow naturally from an intentional misrepresentation. As a general matter, plaintiff may recover damages to his reputation due to another's intentional tort. Wampler v. Palmerton, 250 Or. 65, 439 P.2d 601 (1968). Similarly, loss of profits (or, as here, income) due to fraud has been held to be *300 recoverable. Bullock v. Hass, 280 Or. 501, 571 P.2d 902 (1977); cf. Cluck et ux. v. Fish et al., supra. Loss of future profits are also recoverable. Meader v. Francis Ford, Inc., supra. We hold, however, as we held in our discussion of damages in negligence, that plaintiff may not recover for the cost of the settlement because that would essentially be a recovery in indemnity. We uphold the Court of Appeals' decision with respect to punitive damages. Plaintiff alleges that defendant's breach of duty and misrepresentations were made in deliberate disregard of the rights and welfare of others. If plaintiff establishes these allegations at trial, punitive damages are appropriate. See Starkweather v. Shaffer, 262 Or. 198, 497 P.2d 358 (1972). Affirmed as modified and remanded for trial. [*] Before Denecke, C.J., and Tongue, Lent, Linde, Peterson and Tanzer, JJ. (Denecke, C.J., retired June 30, 1982. Tongue, J., retired February 7, 1982.) [**] Before Lent, C.J., and Linde, Peterson, Tanzer and Carson, JJ. [1] See Harris v. Northwest Natural Gas Company, 284 Or. 571, 573, 588 P.2d 18 (1978). [2] As will be seen, we hold that damages for injury to plaintiff's reputation are legally cognizable. Plaintiff seems to concede that such injury is "economic"; therefore, we shall assume that to be so for the purpose of this opinion. This case presents nothing that requires us to determine whether injury to reputation differs from injury to person or property as those terms appear in Oregon Constitution, Article I, Section 10. [3] Specifically, plaintiff alleged: "As a proximate result of defendant's breach of its duty to plaintiff, and due solely to that breach, plaintiff was exposed to a claim for damages for Mabel Benton's loss of vision, incurred the loss of $100,000 in settlement of Mabel Benton's disputed claim, his professional competency was questioned, and he suffered damage to his professional reputation in the community in which he practices, and consequent impairment of earning capacity, all to his general damage in the amount of $150,000, and plaintiff has lost income to the date of the trial in the amount of $ ____ special damages." [4] Since counsel for plaintiff specifically stated in oral argument in this court that plaintiff was not asking for attorney fees, we do not rule on the question of whether attorney fees are recoverable in a tort of this kind. Rather, in light of counsel's statements, we view this fact that plaintiff was subjected to a malpractice action as one that contributes to questioning of his competency and may add further harm to his reputation. [5] Defendant argues that Kamyr, Inc. v. Boise Cascade Corp., 268 Or. 130, 519 P.2d 1031 (1974), should control on this point. In Kamyr we held that before legal causation could exist, it would have to be reasonably foreseeable that the injured party would sue a completely innocent person who had no connection to that third party's injuries. Id. at 137, 519 P.2d 1031. The plaintiff in Kamyr did not allege that the suit was reasonably foreseeable. In this case, plaintiff has sufficiently alleged that fact. Furthermore, a jury could find that a suit against an innocent physician in this situation is foreseeable. The patient places his care in the doctor's trust. This physician, who has knowledge of the patient's problems, must sift through the medical literature to find the right medicine for the patient. It is foreseeable that if the physician is given misinformation about a drug and the physician relies on that misinformation, thus harming the patient, the patient will sue the physician, even if he is completely innocent. [6] Where a duty to disclose exists, nondisclosure will support a theory of fraud, as well. Millikin v. Green, 283 Or. 283, 583 P.2d 548 (1978).

a599fc0dd12d75cd9268588055b7ac4d2ffcf2bb459ac2a33d2485d67198edc2

1982-12-21T00:00:00Z

d00ace4e-57ac-415b-8357-4a1d5ad77fc8

Berman v. Kroger (Ballot Title Certified)

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED February 4, 2010 Berman v. Kroger (S057801)(347 Or 509). On January 15, 2010, petitioner Steven C. Berman filed objections to the Attorney General's modified ballot title. The court determines that petitioner's objections are not well taken and denies the same. The court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative No. 53 (2010). ORS 250.085(10)(a).

215e4a8b63024496660e6966bc9b3bcbf321c3807446663e3b09bd6046f99529

2010-02-04T00:00:00Z

76101a12-8a65-4ce6-9bf6-b5a3f01a71dd

In Re Conduct of Bell

294 Or. 202, 655 P.2d 569

oregon

Oregon Supreme Court

655 P.2d 569 (1982) 294 Or. 202 In re Complaint As to the CONDUCT OF Neal H. BELL, Accused. SC 28670. Supreme Court of Oregon, In Banc. Argued and Submitted September 8, 1982. Decided December 15, 1982. Richard W. Butler, Eugene, argued the cause for accused. With him on the brief was Atherly, Butler & Burgott, Eugene. John W. Hitchcock, McMinnville, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM. The issue is the appropriate sanction for a violation of DR 7-110(B), which forbids a lawyer to communicate as to the merits of a case with a judge before whom the case is pending except in circumstances not pertinent to the circumstances of this case. The following statement of facts is drawn from the accused's brief insofar as that statement has been accepted by the Oregon State Bar in its brief. Facts not drawn from the accused's brief are those which we find from our own review of the record. Raymond Silbernagel was the purchaser at sheriff's sale of certain real property. Margaret Scott was a judgment creditor of the debtor whose property had been sold to Silbernagel. Scott's lawyer, knowing that the accused owned nearby property, called the accused to inquire whether there might be some financial advantage to the exercise of Scott's redemption rights. The accused opined that the property had been "bid in" too cheaply. Scott and the accused entered into an agreement whereby the accused and his law partners would "put up" approximately $130,000 to permit Scott to exercise her rights of redemption. The accused and his partners took an option on the purchase of Scott's right of redemption. Scott was to be paid $750 for the option. The expectation of Scott, her lawyer, and the accused and his partners was that if Scott redeemed, the property would be re-redeemed, and the profits would be divided.[1] Scott's redemption right was exercised. Shortly thereafter, Scott's deed and her assignment of her certificate of redemption running to the accused and his partners were recorded. Silbernagel then filed suit to set aside the redemption sale and prevailed in the trial court. Upon appeal by Scott and the sheriff (Goin), the judgment was reversed on November 7, 1977, Silbernagel v. Goin, 31 Or. App. 545, 570 P.2d 1011 (1978), and review *570 was denied in this court on February 7, 1978. The cause was then remanded to the trial court for "further proceedings pursuant to law and this Court's [the Court of Appeals] decision." The accused and at least one of his partners were aware that Silbernagel's counsel contemplated filing an amended complaint and pursuing the cause further in the trial court. The accused and one of his partners discussed the matter and the partner told the accused that "they were getting no place with [Silbernagel's counsel] and maybe they should go ahead and submit the decree." This referred to a form of proposed decree which had been prepared and was so drawn as to terminate the suit in favor of defendants Scott and Goin. A copy of that form of proposed decree had not been submitted to Silbernagel's counsel. On the day of that conversation, February 17, 1978, the accused took the proposed decree to the county courthouse with the intention of leaving it with the trial judge's secretary. The accused had no intention of presenting the form directly to the trial judge. The accused was aware that Silbernagel's counsel did not agree with the accused's law firm as to the proper interpretation and effect of the Court of Appeals decision and opposed the submission of a decree. At the courthouse, the accused encountered the trial judge on an interior staircase. The judge inquired, more or less as a pleasantry, what brought the accused to the courthouse, and the accused responded that he had something to leave for signature. The judge put out his hand for it, and the accused surrendered it to the judge. The judge glanced through it and commented that he remembered that this was the case where there was a narrow issue as to whether a copy of the judgment or a copy of the docket of the judgment must be presented upon a proceeding to redeem. The accused testified as follows as to what then occurred: On cross examination, the accused further testified: Before the Trial Board the trial judge testified that he had no recollection of the conversation but that it was not his normal practice to sign a decree or order when advised that some portion of it was in dispute without first giving the opportunity for a hearing on the dispute. The accused promptly mailed to Silbernagel's counsel a conformed copy of the decree. Thereafter, Silbernagel's motion to set aside the decree was denied, and Silbernagel appealed. The Court of Appeals reversed and remanded, making it clear that the court did not consider its first decision as being a final determination of the merits of the cause. Silbernagel v. Goin, 41 Or. App. 269, 597 P.2d 1287 (1979).[2] The Trial Board found the accused guilty of the charge made in these proceedings and recommended that he be administered a public reprimand. The Trial Board wrote: The Disciplinary Review Board substantially agreed with the Trial Board as to the facts and concluded: The Disciplinary Review Board recommended that the accused receive a public reprimand, but three of the seven members of that board dissented from that recommendation, taking the position that a thirty-day suspension from practice was a more appropriate sanction. The accused petitioned this court to adopt the recommendation of the Disciplinary Review Board with respect to the imposition of a public reprimand. His brief concludes: In this court the Bar argues for some discipline greater than a public reprimand. The Bar takes the position that the accused had not been forthright with either the trial court or the Court of Appeals regarding his interest in the property. We agree that is so, and it is reasonable to infer that the trial judge might have been more cautious in inquiring into the matter of possible opposition to the decree had he been aware of the accused's interest. Moreover, the Bar notes the further consequence of the forbidden ex parte communication, which necessitated the appeal and "financial loss" in that respect to Silbernagel. In oral argument before this court, the accused's counsel summed up the accused's position upon final submission to this court as follows: A judge must be able to rely upon the candor, integrity and honesty of lawyers in handling ex parte matters. Experience teaches us that a large volume of judicial business is handled expeditiously and well upon an ex parte basis. A place for such business is regularly reserved upon court calendars. In order to process matters upon that basis, the judge must be able to rely upon the candor, honesty and integrity of the lawyer who presents a matter ex parte. Should the courts have to abandon the system of considering many matters ex parte upon the representation of the appearing counsel, the administration of justice would be seriously affected. See In re Greene, 290 Or. 291, 297, 620 P.2d 1379 (1980). The public must be protected from erosion of the administration of justice, and one of the primary purposes of disciplinary proceedings is to protect the public and to demonstrate that the violation of the obligation to act ethically is a serious matter. See In re English, 290 Or. 113, 125, 618 P.2d 1275 (1980). We find the appropriate sanction to be a short suspension from the privilege to practice law. We order that the accused be suspended from practicing law for a period of thirty days beginning with the effective date of this decision. See Oregon Rules of Appellate Procedure, 11.03(4). The Oregon State Bar is awarded its actual and necessary costs and disbursements. ORS 9.535(4). [1] As it turned out, there was no re-redemption, and the accused and his partners still owned the property at the time this matter was before the Trial Board. [2] The opinion expressly criticizes the conduct of the accused and his firm in failing to apprise any court concerned with this litigation of the interest of that firm in the outcome of the proceedings.

5aa7d25ab4209cda65134d90449d6301ac158880b9b6fefc9db22cc229985107

1982-12-15T00:00:00Z

bd6fee85-d93e-40e1-af23-70357a1316cf

Berman v. Kroger (Ballot Title Certified)

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED January 20, 2010 Berman v. Kroger (S057817). Having received no timely filed objections, the court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative Petition No. 55 (2010), ORS 250.085(9). Caruthers et al / Syrett et al v. Kroger (S057803)(S057815). Having received no timely filed objections, the court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative Petition No. 52 (2010), ORS 250.085(9).

829493ab901179fac12d0f8c79c7327749141e0a801a8c2bca579828cea1c8a8

2010-01-20T00:00:00Z

daf8d497-0ea7-4c69-85c2-815a8d5ba60d

Matter of Compensation of Bales

294 Or. 224, 656 P.2d 300

oregon

Oregon Supreme Court

656 P.2d 300 (1982) 294 Or. 224 In the matter of the Compensation of Orville A. Bales, Claimant. Orville A. Bales, Respondent On Review, v. STATE ACCIDENT INSURANCE FUND CORPORATION, Petitioner On Review. No. 80-03397, CA A23327; SC 28780. Supreme Court of Oregon, In Banc. Argued and Submitted November 1, 1982. Decided December 21, 1982. *301 Darrell E. Bewley, Salem, State Acc. Ins. Fund, argued the cause and filed briefs for petitioner on review. Benton Flaxel, North Bend, argued the cause and filed the petition for respondent on review. With him on the brief in the Court of Appeals was Flaxel, Todd & Nylander, North Bend. LENT, Chief Justice. The issue is whether the opinion evidence of an expert that a claimant's heart attack was not caused by his job activity should be given "less weight," as a matter of law, because the expert belongs to a school of medical thought that holds that stress does not cause heart attacks. In this case, the Court of Appeals, Bales v. SAIF, 57 Or. App. 621, 626, 646 P.2d 83 (1982), held that the opinion should be given less weight, relying upon what this court said in Clayton v. Compensation Department, 253 Or. 397, 454 P.2d 628 (1969). We quote from the Court of Appeals decision: 57 Or. App. at 625-26, 646 P.2d at 84-85. The Court of Appeals reversed the Workers' Compensation Board's decision, in which the claim was held not to be compensable. We allowed review under ORS 2.520 to clarify the effect of our decision in Clayton v. Compensation Department, supra. Under the rule of Weller v. Union Carbide, 288 Or. 27, 29, 602 P.2d 259 (1979), we take the following historical facts as found by the Court of Appeals: Bales v. SAIF, 57 Or. App. 621, 623, 646 P.2d 83 (1982). The "physician in North Bend," a general practitioner, opined by letter, which was received by SAIF on April 7, 1980, that This opinion was rendered by the treating physician after he had the benefit of consultation with the "cardiac specialist in Eugene" who performed the coronary angiogram. By letter dated April 8, 1980, SAIF denied the claim. By letter dated April 11, 1980, SAIF asked the Eugene specialist for an opinion whether the work activity caused the heart condition or if the condition was the result of "natural disease progress." The Eugene specialist wrote, in toto: Claimant's counsel wrote to a cardiologist who taught at the University of Oregon Health Sciences Center, requesting his opinion on causation. The teaching cardiologist had the entire medical file to examine and was made aware of the conflicting opinions of the North Bend and Eugene doctors as to causation. The teaching cardiologist did not physically examine the claimant but expressed his conclusion as follows: At the hearing before the referee, the medical and hospital files and the reports of the three doctors were received in evidence. The testimony of the Eugene specialist upon deposition was also received. To get the full flavor of that witness' testimony, we shall quote liberally from the deposition. Upon examination by claimant's counsel, the witness was asked the reason for his letter opinion in full, supra. The doctor went on to distinguish between a heart attack and "sudden death syndrome." Claimant's counsel sought to ascertain what the doctor meant by a heart attack: Claimant's counsel returned to the issue of causation: On examination by SAIF's counsel, the witness elaborated: We turn to an examination of the precise question presented to us in Clayton v. Compensation Department, supra. The claim was for an accident which occurred in 1965 and was, therefore, tried by jury under the then-existing law in workers' compensation cases. The claimant had suffered a fatal heart attack while he was on the job. This court stated the crucial question as being whether the stress and fatigue suffered by claimant on the job was a causal factor in producing his heart attack. The only medical witness was the same cardiologist, Dr. Griswold, who rendered an opinion favorable to the claimant in the case at bar. In Clayton, the witness testified that the medical profession does not "understand how stress may or may not contribute to such an episode." He indicated that the question in Clayton's case on causation was close but that: 253 Or. at 401, 454 P.2d 628. The defendant moved for a directed verdict on the ground that this was insufficient to carry the case to the jury on the issue of causation. The trial judge allowed the motion but submitted the case to the jury under then ORS 18.140(2).[3] The jury found, in answer to an interrogatory, "that the work activity of the plaintiff * * * [was] a material, contributing, precipitating or causal factor in producing or hastening the death of" plaintiff. The trial court thereafter entered judgment notwithstanding the verdict for defendant on the trial court's perception of Dr. Griswold's testimony as not being sufficient to establish a medical probability of causation. The question on appeal in Clayton, therefore, was whether the court could say there was no evidence to support the verdict. Oregon Constitution, Article VII (Amended), Section 3. The question was not whether this, or any, court should subscribe to any particular school of medical thought. Where a verdict is directed against a party, or where judgment notwithstanding the verdict is entered after verdict, the losing party is entitled to have all evidence in his favor considered as being true. This court made the statement that: *306 253 Or. at 402, 454 P.2d 628. It is a strange statement, considering our role under the constitution. We were not required to enter upon factfinding in Clayton; we did not cite any other case in which we had made such a finding. The statement is not, and clearly should not have been, a rule of law. We concluded that the evidence in Clayton was sufficient to present a case for the jury's resolution as a matter of fact. Our result was correct, but the case does not stand for the proposition that any given witness' testimony is to be disregarded as a matter of law because of the school of medical thought to which he belongs. On the other hand, the testimony of a medical witness should not necessarily be given less weight, as a matter of law, simply because he espouses the thoughts of a minority of the medical profession.[4] Because the Court of Appeals believed that this court required that the Eugene specialist's opinion was to be given less weight because of his faction's school of thought that stress never causes heart attacks, the cause must be remanded for the Court of Appeals to exercise its factfinding function upon the basis of what weight that court finds should be accorded to the testimony. Reversed and remanded to the Court of Appeals. [1] In arriving at his opinion, the cardiologist assumed correctly that the claimant was engaged in work on the morning in question that was more strenuous than the work he had previously performed. He also assumed that the claimant, at the relevant time, had been involved in pulling "heavy timbers" off the green chain. The words "heavy timbers" were not used by any witness at the later hearing before the referee to describe the kind of lumber claimant was pulling from the green chain. It appears to be uncontradicted that the green lumber he was pulling was sometimes one inch, and sometimes two inches thick, that it was from three to six inches wide, and some of it was up to twenty-four feet long. It seems fair to say that the heaviest lumber he pulled, therefore, would be a green 2 X 6, twenty-four feet long. There is no direct evidence as to what such a piece of "dimension" lumber would weigh. [2] Dr. Griswold is the cardiologist from the University of Oregon Health Sciences Center mentioned earlier in the text. [3] ORS 18.140(2) provided: "In any case where, in the opinion of the court, a motion for a directed verdict ought to be granted, it may nevertheless, at the request of the adverse party, submit the case to the jury with leave to the moving party to move for judgment in his favor if the verdict is otherwise than as would have been directed." Compare, ORCP 63 B. [4] The medical truth of yesterday may well be the laughing stock of today; today's medical truth may be likewise treated tomorrow. History teaches us that the vast majority of doctors 100 years ago, both in practice and in the universities and hospitals, believed Dr. Ignaz Phillipp Semmelweis not only to be wrong, but probably not completely sane, simply because he insisted that a doctor ought to wash his hands with a watery solution of chloride of lime before delivering a baby if the doctor had just been dissecting a cadaver or engaged in some other activity that had caused the doctor's hands to become unclean. Semmelweis' observations of the high incidence of puerperal fever in mothers whose babies were delivered with the assistance of doctors whose hands and clothing were unclean led him to believe there was a causal connection between the lack of cleanliness and the ensuing fever. See, e.g., "Immortal Magyar" by Frank G. Slaughter, M.D., 1950. The work of Joseph Lister was eventually to explain why Semmelweis was right, but he was right even when he was a minority of little more than one. In any field of science, today's truth may tomorrow be shown to be false. Consider the history of the views of planetary revolution. Were Johannes Keppler and Galileo, on the one hand, or those who believed the sun revolved around the earth, on the other hand, correct? Who were in the majority, and who in the minority, in that time? It is to be remembered that the witness who testifies to an expert opinion is subject to cross examination concerning how he arrived at that opinion, and the cross examiner is to be given great latitude in eliciting testimony to vitiate the opinion. Wulff v. Sprouse-Reitz Co., Inc., 262 Or. 293, 309, 498 P.2d 766 (1972). The factfinder must discharge his task on the record made in the particular case. The facts found upon the record and evidence in one case do not become a rule of law to be applied to the determination of the facts upon another record and other evidence. Bend Millwork v. Dept. of Revenue, 285 Or. 577, 585-587, 592 P.2d 986 (1979).

a56e443a766fbd9eab2eac8e087d70bdf39aabf54003e8bfdf15eb56922e7680

1982-12-21T00:00:00Z

62e8cdbc-ea2d-43e6-9bf9-706e86aa2dfa

Hanson v. Oregon Dept. of Revenue

294 Or. 23, 653 P.2d 964

oregon

Oregon Supreme Court

653 P.2d 964 (1982) 294 Or. 23 J.D. HANSON and Bernetta Hanson, Appellants, v. OREGON DEPARTMENT OF REVENUE, State of Oregon, Respondent. SC 28507; TC 1456. Supreme Court of Oregon, In Banc. Argued and Submitted October 5, 1982. Decided November 16, 1982. *965 Robert C. Jacobini, Portland, argued the cause for appellants. Barbara J. Rose, Portland, filed the briefs for appellants. Ted E. Barbera, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen. CAMPBELL, Justice. Taxpayers, founders of a family trust, appeal from an order of summary judgment issued by the Oregon Tax Court, which held that their family trust was ineffective to transfer income to the trust and that taxpayers owed additional individual income tax. Taxpayers contend that the Oregon Tax Court judge had a duty to disqualify himself following their motion for disqualification, and they further contend that a previous determination by the United States Tax Court was an inappropriate basis for the use of the doctrine of collateral estoppel. We affirm. Taxpayers, then husband and wife, formed a family trust in 1977. This trust was an attempt to cause their income from personal services and income-producing property to be income of the trust, rather than individual income. In May 1980 a hearings officer for the Department of Revenue of the State of Oregon found that the income earned in 1977 was individual income rather than trust income. Taxpayers then filed this complaint in the Oregon Tax Court. In August 1981 taxpayers' trial counsel appeared before the Oregon Tax Court on another matter. At that time the judge made remarks that counsel interpreted as evidence of prejudice toward herself and her clients. She then filed a motion to disqualify the judge, supported by an affidavit containing conclusory statements. The judge denied the motion, stating that ORS 305.455(2) did not allow such a motion and the motion was not timely under ORS 14.260. The taxpayers also filed suit to reverse a determination of the United States Tax Commission concerning the same trust for the same year. The United States Tax Court, in November 1981, issued an order that taxpayers were individually taxable on the income from 1977 attributable to their services and their income-producing property, even though they purportedly conveyed their lifetime services and all their income-producing property to the trust. *966 In January 1982, Department of Revenue moved for summary judgment in this case on the basis of collateral estoppel, bringing the United States Tax Court decision to the attention of the court. On that basis, the court granted summary judgment for the Department. Taxpayers claim error in the denial of their motion to disqualify the judge and in the use of collateral estoppel in the present case.[1] Taxpayers argue that the judge of the tax court had a duty to disqualify himself after they made a motion for such disqualification. The judge denied the motion on two grounds: (1) the motion was not timely made under ORS 14.260;[2] (2) ORS 305.455(2)[3] does not allow such a motion. Although the taxpayers' arguments are not easy to understand, taxpayers apparently argue that ORS 305.455(2) is unconstitutional, that their motion should be considered under ORS 14.250[4] and was timely, and that their constitutional due process rights were violated by the prejudice of the judge. They also argue that ORS 305.455(2) is contrary to the public policy of maintaining confidence in the judiciary. We consider only those arguments raised by taxpayers. We do not reach the question of whether a tax court judge must disqualify himself or herself for actual prejudice. See Judicial Canon 3 C(1)(a). It is important to note that there are two separate statutory schemes for disqualifying judges in Oregon. ORS 14.210 describes disqualification for cause. ORS 14.250 describes disqualification for prejudice, which is at issue in the present case. This statute on its face refers only to circuit court judges. ORS 305.455(2) clearly states that ORS 14.250 does not apply to the tax court. Taxpayers argue that because the tax court is a court of general rather than limited jurisdiction, it should come under this section. They also argue that ORS 305.455(2), denying use of ORS 14.250 to those litigants in the tax court, is unconstitutional in that it denies Due Process and violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution *967 and Article 1, Section 20 of the Oregon Constitution. This argument does not help taxpayers. Assuming their argument is correct, without so deciding, taxpayers would then need to abide by the time limitations of ORS 14.260, referred to in the tax court order. This statute, in plain and unambiguous language, requires that a motion for disqualification in a contested case must be filed before or within five days from the time the matter is at issue on a question of fact. In the present case the matter was at issue when Department answered on December 8, 1980. Taxpayers made their motion for disqualification on August 14, 1981. Taxpayers argue they made their motion as soon as they became aware of the possible prejudice or bias. However, the legislature set this five day limit, and we uphold it. Because taxpayers did not timely file their motion, they may not take advantage of ORS 14.250, even if ORS 305.455(2) were unconstitutional.[5] Because ORS 14.250 is not available to taxpayers, they rely on constitutional protections to support their argument. A fair trial in a fair tribunal is a basic requirement of due process, Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975). In approving the denial of a motion to disqualify a judge for prejudice and bias, the Court stated in United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966), that to be disqualifying the alleged bias and prejudice must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case, citing Berger v. United States, 255 U.S. 22, 31, 41 S. Ct. 230, 235-236, 65 L. Ed. 481 (1921). Because taxpayers are contending that they were deprived of constitutionally protected procedural due process, they must make allegations of fact that would support a finding of prejudice or bias that arguably fit this standard as opposed to the conclusory statements that are allowed under the statutory scheme. They have not done so. Taxpayers finally argue that the failure to allow tax court judges to be disqualified for prejudice is against the policy announced repeatedly by this court to prevent even an appearance of impropriety in the court system, quoting U'ren v. Bagley, 118 Or. 77, 82-83, 245 P. 1074 (1926). It is true that the appearance of propriety of the courts is an important consideration, but we are bound by the legislative determination of policy matters. The tax court judge's refusal to disqualify himself was proper in this instance. Taxpayers argue that the tax court erred in holding that the same issues had been decided in the United States Tax Court and in applying the doctrine of collateral estoppel. They contend the doctrine does not apply because: the United States Tax Court made rulings on questions that are only determinable by state law; the United States Tax Court made irrelevant findings of fact; and there was no mutuality. At oral argument taxpayers conceded that mutuality is no longer required for collateral estoppel in Oregon. In this they are correct. Bahler v. Fletcher, 257 Or. 1, 19, 474 P.2d 329 (1970). In Bahler we examined the rationale for collateral estoppel: Although not raised by taxpayers, the above quotation refers to "private" litigants, and we must consider whether the situation is any different when a branch of the government is attempting to assert collateral estoppel. Tait v. Maryland, 289 U.S. 620, 624, 53 S. Ct. 706, 707, 77 L. Ed. 1405, 1408 (1933) states that the public policy upon which the doctrine of res judicata is founded applies with equal force to the sovereign's demands and the claims of the citizens. Commissioner v. Sunnen, 333 U.S. 591, 598-599, 63 S. Ct. 715, 720, 92 L. Ed. 898, 906 (1948), also says that collateral estoppel operates to relieve both the government and the taxpayer of redundant litigation of the identical question. Thus the fact that it is the government attempting to assert collateral estoppel makes no difference. See Annot., Res Judicata in Income Tax Cases, 130 ALR 374, 376.[6] An initial inquiry in deciding if collateral estoppel is applicable is whether the issues are identical and whether a particular matter was actually decided. State Farm v. Century Home, 275 Or. 97, 104, 550 P.2d 1185 (1976). In the present case, the tax court correctly stated that both courts considered the issue: The United States Tax Court judge made extensive findings of fact. Hanson v. Commissioner, supra at 1732-1736. Taxpayers contend the issues were not identical, because the United States Tax Court referred to the divorce that occurred in 1978 and the Oregon Tax Court said the divorce was irrelevant. It is true that the United States Tax Court referred to the divorce in a footnote, stating: However, this was not included in the findings of fact, and was evidently not relied on by the judge. We conclude the identical issues were litigated. Taxpayers no longer contend they did not have an opportunity to fully and fairly litigate this question in the United States Tax Court. However, they argue that because the United States Tax Court is a court of limited jurisdiction and the Oregon Tax Court is a court of general jurisdiction, the Oregon Tax Court should not be bound by the decision of the United States Tax Court. In Dolven v. First National Bank, 238 Or. 306, 393 P.2d 196 (1964), we held that an order from a probate court, which is a court of limited jurisdiction, is res judicata in a circuit court. See 50 CJS Judgments § 689. The same principle applies here. Taxpayers' final contention is that the United States Tax Court made rulings on matters which can only be determined by the state court, relying on Blair v. Commissioner, 300 U.S. 5, 57 S. Ct. 330, 81 L. Ed. 465 (1937). Blair held that the Commissioner of Internal Revenue could not ignore intervening decisions of state courts interpreting local law. There is no question that the United States Tax Court does not have jurisdiction to finally determine questions of state law, and in the present case, there was no such determination by the United States Tax Court. As the United States Tax Court said in footnote 17: One final concern is whether collateral estoppel should apply when there are two different governments involved. Because this issue was not raised by taxpayers, neither they nor the Department have cited us to any cases involving such a question. Older caselaw would not support such a use of collateral estoppel because of the requirement of mutuality, and the two governments would not have been in privity.[7] Our own examination of the caselaw reveals no precedent for this. However, because taxpayers do not contest the fact that they had a fair and full hearing in the United States Tax Court, and have offered no convincing rationale why collateral estoppel should not apply in the present case, we hold that the fact two different governments were involved should not bar the use of collateral estoppel. We hold after balancing the interest of the plaintiffs against the interest of the administration of justice, as State Farm v. Century Home, supra, 275 Or. at 105, 550 P.2d 1185, requires us to do, the tax court was correct in allowing summary judgment on the basis of collateral estoppel. Affirmed. [1] In their reply brief, taxpayers contend for the first time that the tax court abused its discretion by awarding costs and disbursements to defendant. See Oregon Tax Court Rule 69. No objections were filed in the time prescribed, so we will not consider this contention. [2] ORS 14.260: "Any party to or any attorney appearing in any cause, matter or proceeding in a circuit court may establish the prejudice described in ORS 14.250 by motion supported by affidavit that the judge before whom the cause, matter or proceeding is pending is prejudiced against such party or attorney, or the interest of such party or attorney, so that such party or attorney cannot or believes that such party or attorney cannot have a fair and impartial trial or hearing before such judge, and that it is made in good faith and not for the purpose of delay. The affidavit shall be filed with such motion at any time prior to final determination of such cause, matter or proceedings in uncontested cases, and in contested cases before or within five days after such cause, matter or proceeding is at issue upon a question of fact * * *." [3] ORS 305.455(2): "(2) Notwithstanding the provision of any other law, the provisions of ORS 14.250 relating to the disqualification of a judge for prejudice shall not be applicable to any judge serving regularly or temporarily as a judge of the tax court." [4] ORS 14.250: "No judge of a circuit court shall sit to hear or try any suit, action, matter or proceeding when it is established, as provided in ORS 14.250 to 14.270, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause, matter or proceeding. In such case the presiding judge shall forthwith transfer the cause, matter or proceeding to another judge of the court, or apply to the Chief Justice of the Supreme Court to send a judge to try it; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action or suit is of such a character that a change of venue thereof may be ordered, the presiding judge may send the case for trial to the most convenient court; except that the issues in such cause may, upon the written stipulation of the attorneys in the cause agreeing thereto, be made up in the district of the judge to whom the cause has been assigned." [5] At oral argument, taxpayers' counsel argued for the first time that ORS 14.270, which does not contain the five day limitation, should control. It applies to judicial districts having a population of 100,000 or more. Taxpayers now attempt to argue the Oregon Tax Court fits this definition. Because this contention was not properly raised we do not address it. American Village v. Stringfield Lbr., 269 Or. 41, 43, 522 P.2d 891 (1974). [6] There are even cases allowing the government to use collateral estoppel against a criminal defendant. United States v. Bejar-Matrecios, 618 F.2d 81 (9th Cir.1980); United States v. Colacurcio, 514 F.2d 1 (9th Cir.1975). [7] Many jurisdictions retain the mutuality requirement. See Annot., 31 A.L.R.3d, Mutuality of Estoppel as Prerequisite of availability of Doctrine of Collateral Estoppel to a Stranger to the Judgment, 1044, 1059.

9b4916ab7fc7c7d3320c353e57977c24e09adfee34e08094f937cae48f7c6746

1982-11-16T00:00:00Z

19ae5a36-052a-4108-bb50-df791c471c90

Rennie v. Pozzi

294 Or. 334, 656 P.2d 934

oregon

Oregon Supreme Court

656 P.2d 934 (1982) 294 Or. 334 Richard RENNIE, As Administrator of the Estate of Eugene David Rennie, Petitioner On Review, v. Frank H. POZZI, Donald P. Wilson, Donald N. Atchison, Garry L. Kahn and Daniel O'Leary, a Partnership; and David Hytowitz, Stephen Winfree and William L. Dickson, Respondents On Review. TC A7803-03703; CA 19044; SC 28521. Supreme Court of Oregon, In banc[*]. Argued and Submitted June 8, 1982. Decided December 30, 1982. *935 Magar E. Magar, Portland, argued the cause and filed the briefs for petitioner on review. Elizabeth K. Reeve, Portland, argued the cause for respondents on review. With her on the petition was Schwabe, Williamson, Wyatt, Moore & Roberts, Ridgway K. Foley, Jr. and Kenneth E. Roberts, Portland. ROBERTS, Justice. We accepted review of these companion cases (see Rennie v. Freeway Transport, *936 294 Or. 334, 656 P.2d 919 (1982)) to address an issue common to both: Where an action on behalf of a decedent's estate was timely commenced by one who had been appointed personal representative, but whose appointment was set aside and "held for naught" after the statute of limitations had run on the underlying cause of action, will a subsequent proper appointment relate back in time so as to preserve the estate's cause of action? Resolution of this issue necessitates a reexamination of our decision in Richard v. Slate, 239 Or. 164, 396 P.2d 900 (1964), in which we held on similar facts that there was no relation back. In early 1976 Eugene Rennie died and his son Richard, the plaintiff herein, was appointed personal representative of the estate. The principal asset of the estate was ten shares of stock in Freeway Transport, a closely-held corporation. On the advice and with the assistance of his lawyers, the law firm named as defendant herein Richard Rennie as administrator of the estate sold the shares in March of 1976 to the defendants in the Rennie v. Freeway Transport case. Subsequently, Richard Rennie and his sister executed disclaimers of any and all interest they had in the estate and the entire assets were distributed to Ramona Rennie, the decedent's wife and the only other heir. In January, 1977, the estate was closed and Richard Rennie was discharged as personal representative. Richard Rennie alleges that in December, 1977, he became aware that the Freeway Transport stock had been grossly undervalued and that the estate had been induced to sell the stock for only a fraction of its true value. For purposes of seeking redress for this alleged injury, Richard Rennie in January, 1978 petitioned to have his father's estate reopened and to have himself reappointed as personal representative. ORS 116.233. An ex parte order granting this petition was issued and soon thereafter Richard Rennie, as administrator of the estate, commenced these actions. The complaint against the Freeway Transport defendants stated causes of action in fraud and violations of Oregon securities law; the complaint against the defendants here stated a cause of action in legal malpractice. Various motions and pleadings were interposed until, in mid-1979, the defendants in both cases filed their respective answers. Neither group of defendants challenged plaintiff's capacity or standing to bring the suits; in fact, the defendants here specifically admitted in their answer that "the plaintiff was appointed personal representative of the estate of Eugene David Rennie, deceased * * *." Both, however, through their answers set up general statute of limitations defenses. In March, 1980, the defendants here filed a motion to set aside the January, 1978, order reopening the estate and appointing Richard Rennie personal representative. The motion was based on defendants' contention that Richard Rennie, having disclaimed all his interest in the estate prior to its original closing, was not an "interested person" empowered under the applicable statutes to petition for reopening. See ORS 116.233 and ORS 111.005(19). The court granted the motion and ordered that the reopening order be "set aside and held for naught." Plaintiff did not appeal this order;[1] instead Ramona Rennie immediately repetitioned for reopening. This petition was granted, the estate was ordered reopened, and Richard Rennie was again reappointed personal representative. Defendants in both actions then moved for summary judgment on their statute of limitations defense,[2] contending that, *937 since the original reopening order had been set aside and the subsequent proper one was issued after the statute of limitations had run on the underlying causes of action, the present actions were commenced after the running of the statute and were thus barred. These motions were granted and judgment was entered for defendants in both actions. Plaintiff has advanced a number of alternative arguments in support of his contention that the trial court erred in dismissing these actions as time-barred. Because we find his argument based on relation back dispositive, it is unnecessary for us to address his other arguments. Plaintiff's "relation back" argument is that even if due to technical defects and honest mistake he was without capacity to sue at the time these actions were commenced,[3] the second order reopening the estate and reappointing him personal representative should relate back in time, for purposes of the statute of limitations, to the commencement of these actions. Defendants argue that such a "relation back" is precluded by the rule pronounced by this court in Richard v. Slate, supra. In Richard, a nonresident of Oregon had been killed in an automobile accident in Yamhill county. Richard applied for and was appointed administrator of the decedent's estate by Multnomah county probate court. He then, as administrator, filed a wrongful death action against the defendants. The defendants challenged Richard's appointment and, after the time limitation had run on the wrongful death action, the probate court set aside the appointment on the ground that it was without jurisdiction over the estate since the decedent was a nonresident with no assets in Multnomah county. Richard immediately applied for and was properly appointed administrator of the estate in Yamhill county. He then filed an amended complaint setting forth his new appointment. The trial court dismissed the case on the ground that it was time-barred and this court affirmed: *938 Plaintiff, to avoid the Richard result, argues that Richard is distinguishable, or that it has since been legislatively overruled. The Court of Appeals, based on its conclusion that Richard is distinguishable, held that the subsequent reopening order here did relate back and that plaintiff's actions were thus not time barred. In distinguishing Richard the court relied on two factors: that Richard was a wrongful death case and that the original appointment order there was void for being issued by a court without subject matter jurisdiction over the estate. Rennie v. Freeway Transport, 55 Or. App. 1008, 1011-1013, 640 P.2d 704 (1982). We need not decide whether Richard is distinguishable since we conclude that, even if it is on point, it has been legislatively limited or overruled. In particular, we find ORS 114.255, which was enacted subsequent to the Richard decision, dispositive: This statute was enacted as part of a major revision of Oregon's probate code and not specifically in reaction to Richard. The source of the provision was Uniform Probate Code § 3-701 (formerly U.P.C. § 3-401). We have not had occasion to apply or interpret ORS 114.255 and the legislative history is not helpful here. The evident purpose of the statute, however, is to facilitate and legitimate beneficial acts done on behalf of the estate which by their nature are necessary or expedient to do in the interim between the decedent's death and the appointment of a personal representative. See official comment to U.P.C. § 3-701. The few reported cases involving such a provision deal with acts of this nature. See, e.g., Brown v. Brown, 43 Colo. App. 535, 608 P.2d 840, cert. den. (1980). To the extent the statute was intended to have this effect, it appears to be largely a codification of the common law. See Murray's Estate, 56 Or. 132, 136-137, 107 P. 19 (1910); Casto v. Murray, 47 Or. 57, 65-66, 81 P. 388, 81 P. 883 (1905); Annot., 3 A.L.R.3d 1234 (1965) and 26 A.L.R. 1359 (1923); 31 Am.Jur.2d, Executors and Administrators § 162 (1967). It is not at once clear whether the statute was meant by the legislature to have a broader reach than this. Here, the problem is not that it was necessary or expedient to commence these actions before a proper appointment could be effected; rather, it is that the reopening and reappointment were improperly accomplished and thereafter set aside. Moreover, these actions were commenced by one who was determined to have had neither authority to act on behalf of the estate absent appointment nor standing to petition for its reopening. The statute's operative term "relate back" has a specific legal connotation. In the absence of legislative history to the contrary, the employment of such a term appears to have been, we believe, deliberate with the intent that the statute be interpreted in light of the principles generally associated with it. See Crooks v. Payless Drug Stores, 285 Or. 481, 490, 592 P.2d 196 (1979). In the context of decedents' estates, the usual rationale for the relation back of a personal representative's powers is to enable someone to act on behalf of the estate pending appointment. The subsequent appointment "relates back" in the sense that for all legal purposes the prior act done by the personal representative-to-be on behalf of the estate is deemed to have done by him or her at that time as personal representative with all the normally attendant powers. Typically, relation back is desired so that those things "necessary or expedient" can be taken care of without the relevant parties having to wait for final appointment. It also has importance, however, where an action is commenced on behalf of an estate and the relevant statute of limitations runs prior to the time when the plaintiff finally *939 accedes to the office of personal representative. On the issue of whether, in the absence of a statute such as ORS 114.255, the doctrine of "relation back" applies in situations such as this, there is a pronounced split in authority from other jurisdictions. This split antedated the Richard decision and is exemplified by Judge Rossman's vigorous dissent in that case. Richard v. Slate, supra, 239 Or. at 175-189, 396 P.2d 900. Without undertaking a thorough review of the recent caselaw, we recognize that, in the absence of a specific statutory provision, a substantial split of authority remains.[4] The relation back doctrine is intended to be ameliorative in the sense that the bar of the applicable statute of limitations is avoided where the policies behind the statute would not be furthered by its strict application. Those policies are generally stated to be to prevent the presentation of stale and vexious claims, to discourage the assertion of fraudulent ones, and to end the possibility of litigation after a reasonable time. Wilder v. Haworth, 187 Or. 688, 695, 213 P.2d 797 (1950). Here the defendants were made aware of the nature of Rennies' complaint against them well before the running of the statutes; indeed, through responsive pleadings and motions they had joined the dispute on the merits. Moreover, several additional factors present here militate in favor of relation back and against holding these actions time-barred: plaintiff had in good faith obtained a facially valid court order reopening the estate and appointing him personal representative; he instituted these actions in reasonable reliance upon the order and with the consent of the estate's beneficiary (i.e., not as an officious intermeddler); the actions are potentially beneficial to the estate; the defect invalidating the original order was technical and procedural rather than substantive; there has been no change in the substantive causes of action alleged; and the new personal representative ratified the acts done on behalf of the estate by the former (viz., the commencement of these actions). Thus, *940 the policies behind the statutes of limitations would not necessarily be served by mandating dismissal here. This court's decision in Richard v. Slate, although recognizing the "relation back" doctrine, adopted a position that restricted its application vis-a-vis statutes of limitations. This limited approach to relation back was consistent with caselaw at the time and, as noted, remains so to a certain extent. Nonetheless, we believe the legislature, through its enactment of ORS 114.255, intended that the law in this area be liberalized. Accordingly, we hold that where an action potentially beneficial to an estate was commenced by a person who has good reason to believe that he or she may maintain that action as a duly appointed personal representative, but whose appointment was in fact invalid, then the plaintiff's subsequent accession to the office of personal representative after the statute of limitations has run on the underlying cause of action will relate back in time to the original filing of the action, at least where the defendants have not been prejudiced by the error and there has been no significant change in the claim for relief alleged since the running of the statute. To the extent Richard is inconsistent with this interpretation of ORS 114.255, we hold that it has been statutorily overruled. Applying this rule to the facts of this case, it is clear that plaintiff's actions should not have been held time-barred. Plaintiff's appointment as personal representative, albeit after the running of the statute of limitations, related back in time to the commencement of these actions making them valid and timely.[5] Therefore, the summary judgment for defendants must be reversed and this case remanded for further proceedings.[6] Affirmed. [*] DENECKE, C.J., retired June 30, 1982. [1] Plaintiff did petition this court for an alternative writ of mandamus, which we denied. As the Court of Appeals noted, there is a question whether the trial court's order setting aside the reopening and appointment and holding it "for naught" was correct. See Rennie v. Freeway Transport, 55 Or. App. 1008, 1010 n. 2, 640 P.2d 704 (1982). Since there was no appeal from this aspect of the case, however, we do not review the order. [2] The defense that an action has not been commenced within the time limited by statute is waived if it is neither included in a responsive pleading nor made in a prior motion under ORCP 21 A.(9). See ORCP 21 G.(2). Here, as noted, defendants in both cases included in their answers the general defense that the actions had not been commenced before the running of the statutes of limitation. It is evident in both cases, however, that this was not the statute of limitations defense the defendants intended when their answers were filed. Nevertheless, their raising of the defense was in sufficiently general language to cover this situation and plaintiff has not argued waiver. [3] Where the probate court has jurisdiction over the estate and the only defect is that error was committed in appointing the personal representative (i.e., one not entitled to the position was erroneously appointed), the appointment is merely voidable and the subsequent revocation of the appointment does not operate to retroactively invalidate all prior acts done by the personal representative on behalf of the estate. In re Workman's Estate, 156 Or. 333, 354-363, 65 P.2d 1395, 68 P.2d 479 (1937); In re Estate of MacMullen, 117 Or. 505, 508-509, 243 P. 89, 244 P. 664 (1926). Where, however, the court is without jurisdiction over the estate when the appointment is made, the appointment is void ab initio and the personal representative's acts on behalf of the estate are generally without effect. Wink v. Marshall, 237 Or. 589, 392 P.2d 768 (1964); Richard v. Slate, supra. The present case falls between these two extremes. Although the court was capable of exercising jurisdiction over the estate, more than erroneous appointment is involved here; the statutory predicate for reopening the estate (i.e., for bringing it back into legal existence) was lacking until Ramona Rennie's petition was filed. [4] Many cases have allowed relation back in the situation where the suit was commenced by a person who had properly applied for appointment as personal representative, but whose appointment was not effected until after the applicable statute of limitations had run. See, e.g., Occidental Life Ins. Co. of California v. Row, 271 F. Supp. 920, 925 (S.D.W.V. 1967); Carter v. Southern Ry. Co., 502 S.W.2d 658 (Ky. 1973); Castle v. Lockwood-MacDonald Hosp., 40 Mich. App. 597, 199 N.W.2d 252, 255-257 (1972); D'Orazio v. Locust Lake Village, Inc., 267 Pa.Super. 124, 406 A.2d 550, 552, pet. den. (1979). There are, however, cases in which relation back was denied even though the plaintiff had subsequently been appointed personal representative. See, e.g., Ricard v. Birch, 529 F.2d 214, 216 (4th Cir.1975); Kiley v. Lubelsky, 315 F. Supp. 1025, 1028-1029 (D.S.C. 1970); Strickland v. Mobile Towing & Wrecking Co., Inc., 293 Ala. 348, 303 So. 2d 98, 101-102 (1974); State ex rel. Jewish Hosp. of St. Louis v. Buder, 540 S.W.2d 100, 107 (Mo. App. 1976); Scott v. Skokie Valley Community Hosp., 54 Ill. App.3d 766, 12 Ill.Dec. 484, 370 N.E.2d 107 (1977); Burcl v. North Carolina Baptist Hosp., Inc., 47 N.C. App. 127, 266 S.E.2d 726 (1980); Estate of Carrick, 103 Misc.2d 645, 426 N.Y.S.2d 939, 941 (1980); Glenn v. E.I. DuPont de Nemours & Co., 254 S.C. 128, 174 S.E.2d 155, 159 (1970); Cockcroft v. Airco Alloys, Inc., 276 S.C. 184, 277 S.E.2d 587, 589 (1981). See generally, Annots., 3 A.L.R.3d 1234 (1965), 8 A.L.R.2d 6, 51 [§§ 25-27] (1949), and 26 A.L.R. 1359 (1923) and the cases cited and discussed therein. We could find no recent cases presenting the same factual situation as the case at bar. In Glenn and Cockcroft the initial administration of the estates had been completed and the administrators discharged when the actions were commenced. The plaintiffs were the ex-administrators suing on behalf of the estate; actual reopening and reappointment in both, however, were not applied for nor accomplished until after the statutes of limitation had run. The courts held the actions barred on the ground that the plaintiffs had been without standing when the suits were commenced and did not acquire standing until after the statutes had run. Outside the narrow situation where the action was commenced by an administrator-to-be pending appointment on a proper application or where the plaintiff erroneously instituted the action in the wrong capacity, relation back of an appointment for statute of limitation purposes has not generally been allowed. But see Deupree v. Levinson, 186 F.2d 297 (6th Cir.), U.S. cert. den. (1950); Wilkes-Barre General Hosp. v. Lesho, 62 Pa.Cmwlth. 222, 435 A.2d 1340 (1981). Those cases in which relation back was denied based upon facts similar to those presented here did not, however, involve a statute such as ORS 114.255, at least insofar as we can determine. [5] Defendants claim that plaintiff's failure to amend the complaint after the valid appointment prevents the appointment from relating back to the original complaint. Defendants were aware of the second, valid appointment and under the theory of relation back the filing date of the original complaint is the crucial point in time for the purpose of the statute of limitations. Under these facts the lack of an amended complaint does not defeat the relation back. [6] In the companion case of Rennie v. Freeway Transport, 294 Or. 334, 656 P.2d 919 (1982), we affirmed the judgment for those defendants based upon their alternative theory that plaintiff's action against them was barred due to res judicata. In this action, defendants as an affirmative defense in their amended answer alleged "[t]hat plaintiff is estopped by [the federal court judgment] from now claiming that the amount for [the Freeway Transport] shares of stock was inadequate and did not represent the true value of said stock." Defendants did not, however, include this defense in their motion for summary judgment and there has been no determination as to any preclusive effect the federal court judgment may have here. It may be that our decision in Freeway Transport renders this malpractice action moot or that the judgment in the federal court action has the preclusive effect alleged by defendants, but neither of these issues are properly before this court and we decline to express any opinion as to them.

0c0710ac02827896fc7e7bc97303d92a54262d1e6da7795cbf4870c01c4f3aed

1982-12-30T00:00:00Z

f2cb3408-03d6-4b79-9a55-56b40d29758c

Patton v. Target Corp.

S057752

oregon

Oregon Supreme Court

FILED: November 12, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON JAMES PATTON, Plaintiff, v. TARGET CORPORATION, Defendant, v. STATE OF OREGON, Plaintiff-Intervenor. (USCA 08-35177; SC S057752) En Banc On certified question from the United States Court of Appeals for the Ninth Circuit; certification order dated September 2, 2009; certification accepted October 7, 2009; argued and submitted June 8, 2010. Rolf C. Moan, Supreme Court Coordinator, Office of the Attorney General, Salem, argued the cause and filed the brief for plaintiff-intervenor.  With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Michael A. Griffin, of Jackson Lewis LLP, Seattle, argued the cause and filed the brief for defendant.  With him on the brief was John M. Cowden.  Lori Irish Bauman, of Ater Wynne LLP, Portland, for plaintiff James Patton, adopted the brief of Michael A. Griffin. Jennifer J. Middleton, of Chanti & Middleton, PC, Eugene, filed the brief for amicus curiae Oregon Trial Lawyers Association. GILLETTE, J. The certified question is answered. GILLETTE, J. This case is before the court on a certified question of Oregon law from the United States Court of Appeals for the Ninth Circuit.  See Patton v. Target Corp, 580 F3d 942 (9th Cir 2009) (certifying question); ORS 28.200 - 28.255 (granting authority to answer certified questions and describing procedure).  Plaintiff Patton sued his employer, defendant Target, in the United States District Court for the District of Oregon for wrongful discharge, alleging that Target demoted and later fired him because of his service in the National Guard.  Patton alleged that Target's acts violated both federal and state law.  A jury found in Target's favor on Patton's federal claim, but in Patton's favor on his state law claim.  The jury awarded Patton approximately $85,000 in compensatory damages and $900,000 in punitive damages.  Under ORS 31.735, set out post, the state would be entitled to 60 percent of any eventual punitive damages payment.  After the verdict was rendered, but before judgment was entered in the case, Patton and Target reached a settlement and jointly moved the court to approve a stipulated judgment dismissing the case.  The terms of the settlement have not been disclosed, but it is undisputed that the settlement does not include any payment for punitive damages and, hence, there is no provision in the settlement for any payment to the state.  The state moved to intervene in the case in order to object to the stipulated final judgment.  The state argued that the settlement was reached without regard to the state's interest in a share of the punitive damages award under ORS 31.735(1), which provides that, "[u]pon the entry of a verdict including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award."  The court granted that motion, concluding that the state had a significant protectable statutory interest, but did not make a ruling as to the nature and scope of that interest under ORS 31.735.  The state then filed a complaint in intervention.  There, the state argued that it had a vested interest in 60 percent of the jury's punitive damages award, that the parties therefore were precluded from settling the case without its consent, and that the court should reject the settlement.  The district court ultimately held that the state did not have a vested or enforceable property right in any punitive damages award until a final judgment was entered awarding such damages, and, therefore, the state's consent to a settlement was not required.  Patton v. Target Corp., No 03-CV-1722-BR, WL 361201 (D Or, February 8, 2008).  For that reason, the court granted the original parties' motion to approve the stipulated judgment and it dismissed the complaint with prejudice.  Id.  The state sought reconsideration, and the district court affirmed its earlier decision.  The state appealed the district court's ruling to the Ninth Circuit, arguing that, under ORS 31.735(1), the state became a judgment creditor upon the entry of a verdict -- before the entry of a judgment -- and, therefore, the state's consent was required for any settlement that would reduce or eliminate the state's share of punitive damages awarded by the verdict.  The Ninth Circuit concluded that ORS 31.735 did not clearly indicate what powers the legislature intended the state to possess as a prejudgment "judgment creditor," and that the correct interpretation of ORS 31.735 was an important and unanswered question of Oregon law that would be dispositive in the case.  Patton, 580 F3d at 947-48.  Accordingly, the Ninth Circuit certified to this court the following question:  "When a jury has returned a verdict that includes an award of punitive damages under Oregon law, is the State of Oregon's consent necessary before a court may enter a judgment giving effect to any settlement between the parties that would result in a reduction or elimination of the punitive damages to which the State would otherwise be entitled under Oregon Revised Statutes § 31.735?" 580 F3d at 948-49.  This court accepted the certified question. We begin, as usual, by considering the text and context of the statute at issue.  Since 1987, Oregon has had a "split recovery" statute that requires that a part of any punitive damages award be paid into the state's crime victim compensation account.  In its current iteration, that statute is codified at ORS 31.735 and provides: "(1) Upon the entry of a verdict including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award to which the Criminal Injuries Compensation Account is entitled pursuant to paragraph (b) of this subsection, and the punitive damage portion of an award shall be allocated as follows: "(a) Forty percent shall be paid to the prevailing party.  The attorney for the prevailing party shall be paid out of the amount allocated under this paragraph, in the amount agreed upon between the attorney and the prevailing party.  However, in no event may more than 20 percent of the amount awarded as punitive damages be paid to the attorney for the prevailing party. "(b) Sixty percent shall be paid to the Criminal Injuries Compensation Account of the Department of Justice Crime Victims' Assistance Section to be used for the purposes set forth in ORS chapter 147.  However, if the prevailing party is a public entity, the amount otherwise payable to the Criminal Injuries Compensation Account shall be paid to the general fund of the public entity. "(2) The party preparing the proposed judgment shall assure that the judgment identifies the judgment creditors specified in subsection (1) of this section. "(3) Upon the entry of a verdict including an award of punitive damages, the prevailing party shall provide notice of the verdict to the Department of Justice.  In addition, upon entry of a judgment based on a verdict that includes an award of punitive damages, the prevailing party shall provide notice of the judgment to the Department of Justice.  The notices required under this subsection must be in writing and must be delivered to the Department of Justice Crime Victims' Assistance Section in Salem, Oregon within five days after the entry of the verdict or judgment. "(4) Whenever a judgment includes both compensatory and punitive damages, any payment on the judgment by or on behalf of any defendant, whether voluntary or by execution or otherwise, shall be applied first to compensatory damages, costs and court-awarded attorney fees awarded against that defendant and then to punitive damages awarded against that defendant unless all affected parties, including the Department of Justice, expressly agree otherwise, or unless that application is contrary to the express terms of the judgment. "(5) Whenever any judgment creditor of a judgment which includes punitive damages governed by this section receives any payment on the judgment by or on behalf of any defendant, the judgment creditor receiving the payment shall notify the attorney for the other judgment creditors and all sums collected shall be applied as required by subsections (1) and (4) of this section, unless all affected parties, including the Department of Justice, expressly agree otherwise, or unless that application is contrary to the express terms of the judgment." The state argues that subsection (1) of ORS 31.735, which makes the Department of Justice a "judgment creditor" at the time that a verdict is entered, clearly demonstrates that the legislature intended to give the state a protected interest in its share of the punitive damages award.  The state acknowledges that the text of subsection (1) creates some ambiguity about the extent of the rights that the state possesses at that point, but argues that the legislative history makes it plain that the legislature intended to prevent parties from entering into post-verdict settlements that reduce or eliminate the state's share of a punitive damages award without its consent.  Patton and Target, for their part, contend that, in common understanding and under applicable statutory definitions of the key terms in ORS 31.735, the notion of a "judgment creditor" is meaningless before a judgment has been entered and, even if the legislature intended to give the state the rights of a judgment creditor before a judgment has been entered, going so far as to include a right to block a settlement that did not protect its rights, the legislature failed to express that intent in the words of ORS 31.735.  It is helpful to begin our analysis of ORS 31.735 by examining the historical development of that statute.  As noted, the legislature created the split recovery scheme in 1987, making it part of chapter 18, dealing with judgments.(1)  Or Laws 1987, ch 774, § 3.  At that time, former ORS 18.540 (the original split recovery statute) provided, simply, that half of any part of a punitive damages award remaining after the plaintiff's attorney was paid was to be paid to a state crime victim compensation fund.(2)   Subsequently, in 1990, the Court of Appeals held, in Eulrich v. Snap-On Tools Corp., 103 Or App 610, 613, 798 P2d 715 (1990), that, under that statute, the state had no right to any part of a punitive damages award until a fund that was capable of distribution was created.  In 1991, and apparently in response to that holding, the legislature amended former ORS 18.540 to add the following, among other provisions:  "Upon the entry of a judgment including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award * * *."(3) Or Laws 1991, ch 862, § 1. The phrase "judgment creditor" was not defined in the statute in 1991, nor is it today.(4)  However, there is no indication that, at the time of the 1991 amendments, the legislature intended that phrase to be understood other than according to its common and usual meaning -- that is, as a term that was intrinsically dependent on the existence of a judgment.  At that time, Black's Law Dictionary defined "judgment" as the "final decision of the court resolving the dispute and determining the rights and obligations of the parties.  The law's last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceeding." Black's Law Dictionary 841-42 (6th ed 1990).  "Judgment creditor" was defined as "[a] person in whose favor a money judgment is entered or a person who becomes entitled to enforce it."  Id. at 844-45.  Those concepts are consistent with the common understanding of the phrase "judgment creditor" today.  See Black's Law Dictionary 921 (9th ed 2009) ("judgment creditor" is a person with "a legal right to enforce execution of a judgment for a specific sum of money"); see also Webster's Third New Int'l Dictionary 1223 (unabridged ed 2002) ("judgment creditor" is "creditor having a legal right to enforce execution of a judgment for a sum of money").  It also is consistent with later-enacted definitions of key words and phrases set out in ORS chapter 18.  For example, chapter 18 defines the term "judgment" as follows:  "'Judgment' means the concluding decision of a court on one or more requests for relief in one or more actions, as reflected in a judgment document." ORS 18.005(8).  "Judgment document," in turn, is defined as "a writing in the form provided by ORS 18.038 that incorporates a court's judgment."  ORS 18.005(9).  In addition, "judgment remedy" is defined to include the "ability of a judgment creditor to enforce a judgment through execution."  ORS 18.005(11)(a). In 1995, the legislature again amended former ORS 18.540, changing the word "judgment" in the first sentence of subsection (1) to "verdict," so that that subsection provided that, "upon entry of a verdict including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award."  Former ORS 18.540(1) (1995) (emphasis added); Or Laws 1995, ch 688, § 1.(5)  At that time, the legislature did nothing to signal that it intended to alter the common understanding of any term used in the statute.  That is, without changing the definition of the word "judgment" or the phrase "judgment creditor," or otherwise clarifying through definitions or in some other way what it intended to accomplish, the legislature purported to make the state a judgment creditor upon entry of a verdict, before there is any judgment in a case.  The state suggests that, although chapter 18 "generally declares that 'judgment creditor' status is created by a judgment," the more "particular intent" to give the state rights at the time of a verdict reflected in chapter 31 renders "the more general provisions in chapter 18 * * * essentially irrelevant."  (Emphasis in original.)  That is, according to the state, "although chapter 18 * * * suggests that a 'judgment creditor' generally is a creditor whose entitlement to a debt is documented by a 'concluding' judgment, chapter 18 makes no effort to apply any such definition to ORS 31.735 or to any other provision outside of chapter 18.  Similarly, nothing in ORS 31.735, and nothing in any other portion of chapter 31, purports to incorporate definitions from chapter 18.  In short, nothing in chapter 18 suggests that the legislature was without authority to declare, via ORS 31.735, that the state becomes a 'judgment creditor' -- as a matter of law -- upon entry of a punitive-damages verdict." That argument does not advance the state's position.  As our description of the historical development of ORS 31.735 makes clear, at the time that the legislature made the state a "judgment creditor" upon entry of a judgment that included a punitive damages award in 1991, the split recovery statute was a part of chapter 18.  As we explained above, although the definitions set out in ORS 18.005 were not part of chapter 18 in 1991 or 1995, those definitions are consistent with the common understanding of the relevant terms at that time.  It is true that, when former ORS 18.540 was renumbered as ORS 31.735 in 2003, the legislature did not expressly make applicable the newly enacted definitions set out in ORS 18.005.  However, it goes without saying that the mere fact that the split recovery statute was renumbered in 2003 and now is found in chapter 31 has no bearing on the intent of the legislature in 1991 or 1995, when it enacted the amendments at issue in this case.  Of course, the legislature is free to define words to mean anything that it intends them to mean, including defining words "in a manner that varies from a dictionary definition or common understanding."  Cook v. Workers' Compensation Department, 306 Or 134, 143 n 5, 758 P2d 854 (1988) (for purposes of workers' compensation reimbursement, a nurse practitioner is a "doctor or physician" under applicable statute, which defined "doctor or physician" as person licensed to practice in the "healing arts").  The problem, however, is that the legislature never purported to expand or otherwise redefine the phrase "judgment creditor" when, in 1995, it changed the word "judgment" to "verdict" in former ORS 18.540(1), or in 2003, when former ORS 18.540 was renumbered. The question before the court thus comes down to what it means for the state to be a "judgment creditor" before there is a judgment.  The state concedes that it does not mean that the state has the right to execute on the verdict alone to collect its share of the punitive damages awarded by the jury -- a right ordinarily associated with the status of judgment creditor.  Indeed, collection at the time of the verdict would seem to be precluded by the fact that, under ORS 31.730, any award of punitive damages is subject to court review and reduction if the court determines, inter alia, that the amount is not within the range that a rational jury would be entitled to award, or that the defendant has taken reasonable remedial measures to prevent recurrence of the conduct that gave rise to the punitive damages award.  See ORS 31.730(2) and (3) (so providing).  It follows that, upon entry of a verdict, the state has, at most, an economic expectancy of 60 percent of whatever portion of punitive damages, if any, eventually is memorialized in a judgment.  However, the statute is silent as to what rights a "judgment creditor" with such an expectancy interest deriving from a verdict would have before entry of judgment.  The state further concedes that ORS 31.735 does not expressly define the extent of the state's rights as a prejudgment "judgment creditor," but it argues that the plain text of the statute does give the state a "protected interest" in 60 percent of a punitive damages award upon entry of a verdict.(6)  And that "protected interest," the state asserts, means that the parties may not agree to settle a case in such a way as to reduce or eliminate the state's share of any punitive damages award.  The problem with the state's position is that nothing in ORS 31.735(1) -- where the "judgment creditor" status at issue in this case is created -- speaks to, much less expressly requires the state's consent to, a settlement.  By contrast, subsections (4) and (5) each provide that certain actions may not be taken "unless all affected parties, including the Department of Justice, expressly agree otherwise."(7)  In our view, that contrast prevents us from reading the wording in subsection (1) as making the state's consent a prerequisite to any post-verdict settlement between the parties.  As noted above, however, the state contends that, to the extent that its rights as a prejudgment "judgment creditor" under ORS 31.735 remain undefined after an examination of the text of that statute, the legislative history fleshes out the nature of its protected interest.(8)  The legislative history that the state asserts to be compelling was quoted at length in a recent Court of Appeals opinion, MAN Aktiengesellschaft v. DaimlerChrysler AG, 218 Or App 117, 179 P3d 675 (2008), rev dismissed, 346 Or 214 (2009).  In particular, the state points to certain statements made to a committee of the 1995 legislature.  First, with respect to the proposed amendment to change, among other things, the word "judgment" to "verdict" in former ORS 18.540(1), Senator Miller commented, "'I heard Attorney General Kulongoski describe that in some situations after a verdict is reached that maybe the parties go back and rework the settlement * * *.  The State's interest in these awards sometimes is defeated by some maneuvering that seems to enrich and maybe even more than -- windfall might be a kind of a gentle phrase to describe the activity but it seems like maybe the plaintiff and their lawyer come out a lot better than perhaps they should.'" MAN Aktiengesellschaft, 218 Or App at 128, quoting Tape Recording, Senate Judiciary Subcommittee on Civil Process, SB 482, Feb 27, 1995, Tape 28, Side A (statement of Randy Miller).  In addition, John DiLorenzo, a spokesperson for the sponsor of the amendment, testified the same day as follows:  "'The Attorney General's right does not vest until after the judgment is entered.  And so if the parties are smart and if there is a large punitive damages award entered, the parties will sit down and construct a * * * settlement which will provide that no final judgment will be awarded or that they will stipulate to a final judgment that will provide an award of general damages of a certain amount.  And parties do that quite often, by the way, because they like to avoid the expense of appeal potentially.  But they can under the present statute essentially cut out the Attorney General from that portion of the award because again, the Attorney General does not have the right to intervene until the judgment is entered.'"  Id. (statement of John DiLorenzo).  Finally, DiLorenzo also made the following statement:  "I don't think you can discount too much * * * what happens to parties when the verdict comes in and before judgment is rendered.  There is a real incentive for both parties to settle the case and to change the judgment around a little bit so that the Attorney General does not take half of whatever is available." Tape Recording, Senate Judiciary Subcommittee on Civil Process, SB 482, Feb 27, 1995, Tape 27, Side B. Although the comment of a single legislator at one committee hearing generally is of dubious utility in determining the intent of the legislature in enacting a statute (and the comment of a nonlegislator witness even less helpful),(9) we can agree that those passages clearly describe a problem that the legislature appears to have been attempting to address:  Under the 1991 version of the statute, the parties to litigation sometimes eliminated the state's potential interest in a punitive damages award by settling the case before a judgment was entered.  The passages quoted above do speak directly about the state's interest in a punitive damages award being "defeated" and the parties sometimes achieving a "windfall."  However, that legislative history does not disclose how the legislature intended to solve that problem.  The state's argument, essentially, is that the legislature clearly intended to give the state some right that it did not have before the amendment, and because, in the state's view, the best way to address the legislature's clear concern over collusive settlements was to give the state the right to block all settlements, then that right must be what the legislature intended to confer.  The problem, however, is that there is an unbridged gap between what the legislature is said to have intended and what the words that the legislature chose to use actually do:  The statute simply does not create any right or rights in the state as a prejudgment "judgment creditor" to accomplish that possible objective.  Moreover, even assuming, arguendo, that the legislative history showed that the legislature did intend to enable the state to block parties from settling without its consent by bestowing "judgment creditor" status on the state upon entry of a verdict that includes punitive damages, the method that the legislature chose -- changing the word "judgment" to "verdict" in subsection (1) -- failed to "translate [that] intent into operational language" to accomplish that goal.  Monaco v. US Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976).  The court is "not at liberty to give effect to any supposed intention or meaning in the legislature, unless the words to be imported into the statute are, in substance at least, contained in it."  Whipple v. Howser, 291 Or 475, 480, 632 P2d 782 (1981) (internal quotation marks and citations omitted).  As we have discussed, the statute does not provide that the state's consent to a settlement is required, although it does plainly require the state's consent to the application of payments made by or on behalf of a defendant after judgment.  ORS 31.735 (4) and (5).  Thus, even if the legislative history clearly suggested that the 1995 amendment was intended to require the state's consent to settlement, "the words to be imported into the statute" are not, in substance, contained in it.  In this case, it simply is not possible for us to conclude that ORS 31.735 as presently worded makes the state's consent necessary before a court may enter a judgment giving effect to a settlement between the parties that would reduce or eliminate punitive damages to which the state otherwise would be entitled, even if that is what the legislature intended.  The answer to the certified question is "no." The certified question is answered. 1. In 2003, former ORS 18.540 was moved to a newly created chapter -- chapter 31 -- and renumbered as ORS 31.735.  2. Former ORS 18.540 (1987) provided: "The punitive damage portion of an award shall be distributed as follows: "(1) The attorney for the prevailing party shall be paid the amount agreed upon between the attorney and the prevailing party. "(2)  One-half of the remainder shall be paid to the prevailing party. "(3) One-half of the remainder shall be paid to the Criminal Injuries Compensation Account to be used for the purposes set forth in ORS chapter 147." 3. Former ORS 18.540 (1991) also included provisions, among others, requiring the party preparing the proposed judgment to ensure that the judgment identified all judgment creditors, and requiring the prevailing party to provide notice of any judgment that included punitive damages to the Department of Justice.  Or Laws 1991, ch 862, § 1.  4. In fact, chapter 18 included no definitions whatsoever until 2003.  Or Laws 2003, ch 576, § 1 (adding ORS 18.005, which sets out definitions). 5. In addition to that change, the 1995 amendment increased the state's share of the punitive damages award from 50 to 60 percent, former ORS 18.540(b) (1995); limited the amount of the punitive damages award that the prevailing party's attorney was entitled to receive, former ORS 18.540(a) (1995); and required the prevailing party to notify the Department of Justice of the entry of a verdict awarding punitive damages, former ORS 18.540(3) (1995).  Or Laws 1995, ch 688, § 1.  The 1995 amendment to subsection (3) actually erroneously required the prevailing party, on "entry of a verdict including an award of punitive damages," to "provide notice of the judgment to the Department of Justice."  Former ORS 18.540(3) (1995) (emphasis added).  That error was corrected in 1997.  Or Laws 1997, ch 73, § 1.  The 1997 version provided (and continues to provide): "Upon the entry of a verdict including an award of punitive damages, the prevailing party shall provide notice of the verdict to the Department of Justice.  In addition, upon entry of a judgment based on a verdict that includes an award of punitive damages, the prevailing party shall provide notice of the judgment to the Department of Justice."  Former ORS 18.540(3) (1997).  6. The state has abandoned the argument, which it made in the federal district court, that it has a "vested" interest in its share of a punitive damages award.  It was correct to do so.  As this court explained in DeMendoza v. Huffman, 334 Or 425, 449, 51 P3d 1232 (2002), in the context of a discussion of the constitutionality of former ORS 18.540, "The question is whether a vested property right in a punitive damages award can accrue before entry of a final judgment for the purposes of Article I, section 18.  The answer is that it cannot." (Emphasis in original.)  As the court further stated, "'A vested right must be something more than a mere expectation based upon the anticipated continuance of existing laws;  it must have become a title legal or equitable to the present or future enjoyment of property.'"  Id., quoting Coshun v. Hurlburt et al., 102 Or 240, 243, 201 P 870 (1921). 7. Subsection (4) provides: "Whenever a judgment includes both compensatory and punitive damages, any payment on the judgment by or on behalf of any defendant * * * shall be applied first to compensatory damages, costs and court-awarded attorney fees awarded against that defendant and then to punitive damages awarded against that defendant unless all affected parties, including the Department of Justice, expressly agree otherwise * * *." (Emphasis added.)  Similarly, subsection (5) provides: "Whenever any judgment creditor of a judgment which includes punitive damages governed by this section receives any payment on the judgment by or on behalf of any defendant, the judgment creditor receiving the payment shall notify the attorney for the other judgment creditors and all sums collected shall be applied as required by subsections (1) and (4) of this section, unless all affected parties, including the Department of Justice, expressly agree otherwise * * *." (Emphasis added.) It is also noteworthy that, as the emphasized wording above highlights, the state's express consent only is required when there is a judgment in the case -- that is, a time when a "judgment creditor" ordinarily has rights. 8. Under ORS 174.020(3), the court may consider legislative history to the extent it deems appropriate to assist in its construction of a statute.  See State v. Gaines, 346 Or 160, 166, 206 P3d 1042 (2009) (construing ORS 174.020 to that effect).  Accordingly, we consider the legislative history that the state has presented to us in this case.  Id. (court may limit its consideration of legislative history to the information provided by the parties; court need not independently research legislative history).  9. See Thompson v. IDS Life Ins. Co.,  274 Or 649, 652-53, 549 P2d 510 (1976) (whether or not comment before legislative committee could be construed as favoring one interpretation of statute, "it is only the comment of one individual and of little or no help in determining legislative intent"); State v. Guzek, 322 Or 245, 260, 906 P2d 272 (1995) (nonlegislator's statements say little about the intent of the Oregon Legislative Assembly as a whole).

8c5871fa22e8d0d29476993c9152938df74c8bbfd8ac4952a0d8be0221d6f2b3

2010-11-12T00:00:00Z

b4ab4627-1457-4ffa-b0b6-0311fde7d9b8

State v. Mai

294 Or. 269, 656 P.2d 315

oregon

Oregon Supreme Court

Reargued July 23, 1982. Decided December 29, 1982. *316 Merrill Schneider, Sandy, argued and reargued the cause and filed the brief for petitioner on review. Stephen F. Peifer, Asst. Atty. Gen., Salem, argued and reargued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen. and William F. Gary, Deputy Sol. Gen., Salem. Before LENT, C.J., and LINDE, PETERSON, TANZER, CAMPBELL, and CARSON, JJ. PETERSON, Justice. This case involves the question whether a law which permits a trial judge to prohibit a witness from testifying because the defense failed to disclose the name of the witness prior to trial violates the defendant's right to compulsory process under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the federal constitution. We hold that it does not. ORS 135.805-.873 are comprehensive statutes which provide for reciprocal discovery by the prosecution and the defense. The statutes require, inter alia, the disclosure of the names and addresses of witnesses the party intends to call at trial. ORS 135.865 provides that the trial court, "[u]pon being apprised of any breach of the duty [of disclosure] * * * may * * * refuse to permit the witness to testify * * *." The defendant was arrested, charged and convicted of driving under the influence of intoxicants (ORS 487.540) and evading a police officer (ORS 487.555). The defendant's attorney refused to comply with the statutes, claiming that his client had an absolute right to call witnesses, a right guaranteed by the compulsory process clause of the state and federal constitutions. The trial court imposed a sanction permitted by ORS 135.865[1] and refused to permit the witness to testify. After conviction, the defendant appealed to the Court of Appeals, which affirmed. 54 Or. App. 334, 634 P.2d 1367 (1981). We affirm. The Oregon compulsory process clause is found in Article I, section 11, of the Oregon Constitution and provides in part: "In all criminal prosecutions, the accused shall have the right * * * to have compulsory process for obtaining witnesses in his favor * * *." In State ex rel. Gladden v. Lonergan, 201 Or. 163, 269 P.2d 491 (1954), we noted the literal meaning of the compulsory process clause and held that the provision *317 secures to the defendant the right to process to obtain the attendance of witnesses, saying: See Clinton, The Right To Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 711 (1976), and Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71 (1973), for a detailed summary of the history of the compulsory process clause. Compare the concurring opinion of Lent, J., in State v. Douglas, 292 Or. 516, 520-538, 641 P.2d 561 (1982). The right to subpoena a witness into the courtroom is an empty right absent the related right to obtain the testimony of the witness. We have no hesitation in concluding that the clause protects both the right to the attendance of the witness and the testimony of the witness. In this respect, we construe the state compulsory process clause in the same way as the Supreme Court construed the virtually identical federal counterpart in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).[2] In that case, after first holding that the federal compulsory process clause "is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment," 388 U.S. at 17-18, 87 S. Ct. at 1922, the court stated the issue as follows: Observing that the compulsory process clause was enacted to overcome the early common law rule prohibiting a defendant from calling witnesses on his behalf, the court held that the clause guaranteed the right to obtain the testimony of witnesses as well as the right to secure their attendance. "* * * The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use." 388 U.S. at 23, 87 S. Ct. at 1925. The specific question involved in this case is whether the preclusion sanction of ORS 135.865 is an unconstitutional limitation upon the right to obtain the testimony of a witness. We now turn to that question.[3] Reciprocal discovery statutes similar to ORS 135.835-135.865 have been enacted in *318 most states.[4] Their purposes include these: "To assure to both the state and the defendant the opportunity, in advance of trial, to be provided with the information required by these statutes so as to enable each party to prepare adequately for trial and to prevent `surprise' at the time of trial * * *"; "* * * to avoid unnecessary trials, to expedite trials and to prevent the expense and delay of continuances when either party claims to be unprepared to go to trial because of failure by the other party to comply with these discovery statutes. * * *," State v. Dyson, 292 Or. 26, 35-36, 636 P.2d 961 (1981); and to promote pretrial resolution of criminal cases. See Westen, The Compulsory Process Clause, 73 Mich.L. Rev. 71, 138 (1974); Comment, The Preclusion Sanction A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342, 1356 (1972). Reciprocal discovery is a fairly recent development in the field of criminal law. Following the decisions in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957), most states enacted reciprocal discovery statutes. Oregon's reciprocal discovery statutes were enacted in 1973. Or. Laws 1973, ch. 836, §§ 213-220. Discovery tends to equalize the investigative power of the parties. As a result, defendants are better able to defend, for to some extent they have the benefit of the vast power of the state in investigating crimes. Such statutes benefit the defendant in particular by tending to take away the edge the state enjoys by virtue of its powerful investigational resources. However, the legislature, in requiring the prosecution to make discovery under ORS 135.845, exacted a quid pro quo discovery from the defendant under ORS 135.835 in default of which the trial judge could impose the sanction and "refuse to permit the witness to testify." ORS 135.865. As stated, the fundamental right that the compulsory process clause aims to protect is "the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." Washington v. Texas, supra, 388 U.S. at 19, 87 S. Ct. at 1923. The ultimate aim of the reciprocal discovery statutes is largely congruent with that goal in the sense that such statutes insure that both sides have access to all the facts so that the jury can best determine where the truth lies. As an abstract principle, it is doubtless permissible to establish reasonable procedures which must be followed in order to exercise a right guaranteed by the constitution. Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S. Ct. 760, 766, 97 L. Ed. 1105 (1953); Carlile v. Continental Oil Company, 81 N.M. 484, 468 P.2d 885, 887 (1970); Annot., 64 A.L.R.2d 506, § 3, at 513 (1959). The procedures must not, however, result in unfairness. In Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973), the Supreme Court set aside the defendant's conviction because the Oregon notice-of-alibi statute then in effect (which required the defendant to notify the prosecution of the place the defendant claimed to be at the time in question, and of the names and addresses the defendant intended to call to prove the alibi) did not make provision for reciprocal discovery to the defendant, and this impaired the defendant's rights to a fair trial under the Due Process Clause of the Fourteenth Amendment. 412 U.S. at 472, 476, 93 S. Ct. at 2211, 2213. Compare Washington v. Texas, supra, in which the Supreme Court invalidated a Texas procedural statute providing that persons charged as principals, accomplices or accessories in the same crime could not be witnesses for each other because the statute interfered with a defendant's compulsory process rights "to present his own witnesses to establish a defense." 388 U.S. at 19, 23, 87 S. Ct. at 1923, 1925. *319 Oregon's reciprocal discovery statutes, ORS 135.805-.873, do not deny the right to call witnesses. They merely set forth a procedure which must be followed in the trial process, in ways similar to other statutes or court rules. For example, in order to secure the attendance of a witness, it may be necessary to subpoena the witness and pay the witness a witness fee. Absent service of a subpoena and payment of the witness fee, in a practical way, the defendant is precluded from calling that witness. A criminal defendant has a right to attend the trial. Or. Const. Art. I, § 10; U.S. Const.amend. VI. But that right is subject to reasonable limitations upon the defendant's conduct in the courtroom. See Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (defendant who continually attempts to disrupt trial proceedings can forfeit the right to be present at one's trial). In appropriate cases, constitutional rights must accommodate other legitimate interests in the criminal trial process. See Chambers v. Mississippi, 410 U.S. 284, 295, 302, 93 S. Ct. 1038, 1045, 1049, 35 L. Ed. 2d 297 (1973) ("In the exercise of [the right of an accused to present witnesses in his own defense] the accused, as is required of the State, must comply with established rules of procedure and evidence designed to establish both fairness and reliability in the ascertainment of guilt and innocence."). Compulsory process constitutional clauses arose because of inequality between the prosecution's unrestricted right to call witnesses and the defendant's limited or nonexistent right to call witnesses. The framers perceived a need for the defendant to have the right to present evidence on an equal basis with the prosecution. See Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 73, 95, 99 (1974). Reciprocal discovery statutes, to the extent that they restrict the defendant's right to obtain testimony, do so on the same basis that they restrict the state. Similarly, to the extent that the statutes extend discovery rights beyond those existing before the enactment of the statutes, they do so reciprocally. The discovery statutes were passed to give the accused a fairer trial, and to eliminate recesses, postponements and mistrials occurring incident to discovery during trial. It is doubtful whether the system will work unless sanctions can be imposed to enforce the statute. ORS 135.865 is evenhanded in the sense that it provides for reciprocal discovery and for sanctions against both the state and the defense. Many courts, indeed, most courts, have upheld preclusion as a legitimate sanction for the failure to make discovery on the theory that such statutes do not deny the right to compulsory process, but merely impose a reasonable condition to the exercise of that right. State v. Roberts, 226 Kan. 740, 602 P.2d 1355, 1358 (1979); State v. Smith, 88 N.M. 541, 543 P.2d 834, 836 (1975);[5]State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177, 181-82 (1968). *320 Contra: United States v. Davis, 639 F.2d 239, 243 (5th Cir.1981). We uphold the preclusion sanction of ORS 135.865 as applied by the trial court in this case. In so doing, however, we further hold that the intrusion upon the defendant's right to call witnesses should be no more than is necessary to achieve the purpose of the statutes. There can be no denying that the imposition of the preclusion sanction may result in the defendant's being unable to call witnesses whose testimony might be relevant, material and exculpatory. Therefore, the sanction should be imposed only when no lesser sanction would accomplish the aim of the statute, and then only if the state would be prejudiced if the witness or witnesses were permitted to testify even though the statute had not been complied with. In short, although we hold that the sanction procedures under the discovery statutes are permissible under Article I, section 11, we also hold that the statute must be applied in a reasonable manner by imposing the sanction which will infringe least upon the defendant's rights and which will achieve the goal of the statute. At trial, after defense counsel's opening statement, the prosecution objected to defense counsel's statement that he would present witnesses, noting that counsel had not responded to a letter requesting discovery or otherwise complied with ORS 135.835. Upon finding that defense counsel had failed to comply with ORS 135.835, the trial court directed him to make his witnesses available for interviews during the noon recess. The prosecutor attempted to interview the witnesses then, but was unable to do so because defense counsel interposed himself, insisting that his witnesses answer no questions. When court reconvened, the prosecuting attorney reported this development. The trial court allowed one of the two witnesses to testify, but ruled that as a sanction for counsel's ongoing obstruction of the discovery process, the defense would be precluded from calling the defendant's girlfriend as a witness. The trial court properly ordered that the witness be made available for interview, a remedy short of preclusion. Conceivably, this remedy would have avoided any prejudice to the prosecution. However, the defendant's attorney thwarted the court's efforts to avoid prejudice to the defendant and to the state, with the result that the state, in its cross-examination of the witness, was prejudiced by its inability to talk to the witness in advance. Although the witnesses need not have talked to the state, compare State v. York, 291 Or. 535, 541, 632 P.2d 1261 (1981), the conduct of the defendant's lawyer in preventing access to the witnesses, in and of itself, created prejudice to the prosecutor in thwarting its efforts to investigate the case and prepare for cross-examination of the witnesses. We find support for this conclusion in United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). There, the critical issue was the identification of the accused by two prosecution witnesses. The defense, attempting to impeach the credibility of these witnesses, repeatedly asked them about statements they had made, which were allegedly recorded in the written report of a defense investigator. The questions implied that the investigator's report showed that the witnesses had been unsure of their identification of defendant before trial. The trial court ruled that if the investigator testified about these statements, the defense would have to make relevant portions of his report available to the prosecution. When the defense announced that it would not comply with this condition, the trial court ruled that the investigator could not testify as to the interviews. Upholding this condition on the investigator's testimony, the Supreme Court held that under the circumstances, this was an appropriate means of enforcing the "legitimate demands of the adversarial system," saying: Although the absence of a previous opportunity to talk to a witness may have no effect upon the cross-examination of the witness, we have no hesitation in saying that the opportunity to talk to a witness prior to the witness's testimony is, in many cases, of inestimable benefit to the examiner and cross-examiner. The conduct of defendant's attorney resulted in prejudice to the prosecution in its legitimate efforts to prepare for trial because the state was unable to contact the witnesses before trial to talk or attempt to talk to the witnesses, was unable to investigate the background of the witnesses, and was unable to investigate other sources of evidence which might be uncovered by reason of knowing of the existence of the witnesses. The court had no alternative but to either countenance the violation of the discovery statutes or impose the sanction.[6] Preclusion was appropriately ordered in this case. We hold that the preclusion sanction of ORS 135.865 is not inconsistent with Article I, section 11, of the Oregon Constitution, provided that the court finds that the prosecution is prejudiced by the defendant's failure to comply with the reciprocal discovery statutes, and provided further, that it appears that no sanction short of preclusion effectively will avoid the prejudice which the defendant's lack of compliance created.[7] We believe that the Supreme Court would reach the same result under the Sixth Amendment, for the reasons expressed above, and see no need further to discuss the federal constitutional question. Affirmed. LENT, Chief Justice, dissenting. I agree with the majority that Section 11 of Article I of the Oregon State Constitution[1] guarantees to a defendant not only the right to have process to compel witnesses to attend his trial but the right to have them testify. I must dissent, however, from the majority's holding that the legislature can preclude a defendant's witness *322 from testifying because defendant's counsel did not allow discovery. The majority holds, in effect, that as a sanction for noncompliance with a rule of procedure, a defendant may be wrongly convicted of an entirely different crime. Such a sanction cannot be consistent with our most basic constitutional principles. Under the statutory law of Oregon, one charged with the commission of a crime is assumed to be innocent until his guilt is established beyond a reasonable doubt. See former ORS 17.250(5) and 41.360(1), and present ORS 10.095(6) and Rule 309, Oregon Evidence Code. See also State v. Burrow, 293 Or. 691, 693-94, 653 P.2d 226, 234-239 (1982) (dissenting opinion). If our state law did not so provide, the Due Process Clause of the Fourteenth Amendment to the United States Constitution would do so. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1969), and Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Accordingly, the trial upon a criminal charge is for the purpose of establishing whether the defendant has committed the crime charged. As the majority acknowledges, the defendant is constitutionally entitled to have his witnesses testify in order to establish a reasonable doubt that he is guilty. Nevertheless, the majority here decides that the legislature and the courts may vitiate that constitutional right. The majority has adopted an exclusionary rule, not to further the purposes of the Constitution, not to protect the citizenry from the sometimes lawless acts of the government, not to remove the courts from participation in such lawless acts. This exclusionary rule does no more than to further the prosecution's statutory right to discovery at the expense of preventing the trier of fact from considering evidence from which the true facts might be found. If the defendant's right to present his evidence arose only from statute, what the majority does here would be permissible, but it is not permissible to enervate the defendant's constitutional right. The sanction authorized by the legislature, and now sustained by this court, for failure of defendant's counsel to permit discovery prevents the factfinder from having relevant evidence. This sanction may well result in the conviction of one who did not commit the charged crime. Surely the legislature is not so lacking in imagination as to prevent it from fashioning a sanction for failure to allow discovery that does not silence witnesses who have evidence favorable to an accused. The majority turns to examples of how the defendant's right to compulsory process may be conditioned by the legislature. For instance, the majority notes that if a defendant does not jump through certain hoops, he may not be able to subpoena a witness into court. That the witness in such circumstances is not present is not a sanction imposed by the state. The example is helpful, however, in drawing attention to a more aptly comparable situation. Suppose that defendant desires the presence of a witness but fails to request and serve a subpoena. In the course of the trial and during the defendant's case in chief, the witness is discovered to be in the courtroom and comes forward, willing to testify when called by the defendant. Would the majority hold that the witness would not be permitted to testify because the defendant failed properly to subpoena the witness? Likewise, the example of excluding the unruly defendant from the courtroom does not prevent the presentation of relevant evidence to the factfinder; the exclusion simply permits the trial to continue. Other matters mentioned by the majority have no more relevance to the issue. No one argues that the defendant is not bound by certain rules of procedure, such as the time at which his evidence is to be presented, the order of opening statements and argument, etc. Nor does anyone argue that the defendant is not bound by the rules of evidence, which keep certain matters such as hearsay from the factfinder because hearsay injures the search for truth. There is little to be gained by proceeding through the majority's opinion paragraph by paragraph. An attentive reading will show that it is almost entirely devoted to explaining that it is permissible to require a *323 defendant to disclose his witnesses in advance of calling them. But that is not challenged, and it is not the issue. To belabor the point that this requirement is reciprocal merely draws attention away from the real issue. The real issue is not the requirement but the sanction of trying the case without the testimony of a witness, although that testimony may be entirely truthful, persuasive, and decisive of the defendant's innocence of the substantive charges. The majority opinion simply ducks this issue of the mismatch between the violation of the disclosure requirement and the sanction of a possibly wrongful conviction of a serious crime.[2] One more premise should be mentioned, however, and that is the admonition to the trial judge to use the sanction of preclusion only as a last resort. That would not make it permissible as against the Constitution. Suppose that the statute merely said that the defendant could not call a witness unless his name were given to the state 72 hours in advance of trial. What the majority is saying is that the state, acting through the court, could prevent the defendant from having his unannounced witness testify. It does not become any more constitutionally palatable to have the judge go through some sort of checklist of lesser sanctions before proceeding to the ultimate sanction. If he can exercise the ultimate sanction at all, he can do it without considering whether there are lesser sanctions that might be applied. I do not argue that reciprocal discovery is not a worthy object. If the state fails to allow discovery, it does not lose any right guaranteed to the state under the Constitution, but if the defendant disobeys the statute, the rule of this case is that he loses for failure to abide by a statute, a constitutional right; moreover, it is the loss of a constitutional right, the exercise of which is an aid to the factfinder in deciding whether an accused is guilty. As acknowledged by the majority, the constitutional guarantee with which we are here concerned is the right to present a defense so that the factfinder may decide where the truth lies. The majority's decision is not in accord with its acknowledged premise. Today's decision is no way to deal with one of the most basic guarantees in criminal procedure. It is an aberration in the name of "reasonable" departures from constitutional guarantees. We must look forward to another day when the court will once again treat the Constitution as binding law, not as mere weights to be balanced in the majority's own scale of values. LINDE, J., joins in this opinion. [1] ORS 135.865 provides: "Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate." [2] The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor * * *." [3] In cases decided after Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), the Supreme Court has noted the issue and expressed no opinion on the question. Wardius v. Oregon, 412 U.S. 470, 472 n. 4, 93 S. Ct. 2208, 2211 n. 4, 37 L. Ed. 2d 82 (1973); Williams v. Florida, 399 U.S. 78, 83 n. 14, 90 S. Ct. 1893, 1897 n. 14, 26 L. Ed. 2d 446 (1970). In State v. Wolfe, 273 Or. 518, 525, 542 P.2d 482 (1975), and State v. Dyson, 292 Or. 26, 36 n. 9, 636 P.2d 961 (1981), this court observed the existence of the question, but did not decide it. See also State v. Douglas, 292 Or. 516, 524, 641 P.2d 561 (1982) (concurring opinion). [4] Related statutes include ORS 135.455, the notice of alibi statute, and ORS 161.309, which requires a defendant raising a defense of lack of criminal responsibility to "file a written notice of his purpose at the time he pleads not guilty." [5] This statement from State v. Smith, 88 N.M. 541, 543 P.2d 834, 836 (1975) is typical: "* * * Cases deciding this issue have found no violation of the right to compulsory process. The reasoning is that the alibi rule does not prevent defendant from compelling the attendance of witnesses; rather, the rule provides reasonable conditions for the presentation of alibi evidence. Rider v. Crouse, 357 F.2d 317 (10th Cir.1966); State v. Dodd, 101 Ariz. 234, 418 P.2d 571 (1966); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966); State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968). * *" [6] It has been suggested that holding the lawyer in contempt is a workable sanction short of preclusion. See Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 138 (1974); Comment, The Preclusion Sanction A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342, 1359-60 (1972). See also United States ex rel. Veal v. Wolff, 529 F. Supp. 713, 722 (D.N.D.Ill., E.D. 1981); ABA Standards for Criminal Justice §§ 11.65, 11.68 (1980). Contempt may be an appropriate remedy in some circumstances. That case is not before us. Cf. Illinois v. Allen, 397 U.S. 337, 344-46, 90 S. Ct. 1057, 1061-62, 25 L. Ed. 2d 353, 359-60 (1970). In Allen, the Supreme Court discussed the efficacy of the contempt remedy against a disruptive defendant as an alternative sanction to removing the defendant from his own trial, thereby working a forfeiture of his Sixth Amendment right to be confronted with witnesses against him. [7] This holding limits language in State v. Wolfe, 273 Or. 518, 524-25, 542 P.2d 482 (1975), and State v. Dyson, 292 Or. 26, 36, 636 P.2d 961 (1981), insofar as the rights of a defendant are concerned. 292 Or. 26, 36, 636 P.2d 961. Because of the compulsory process clause, prejudice to the state must be shown before preclusion is appropriate. We do not suggest that prejudice to the defendant need be shown in order to preclude prosecution witnesses. See Dyson, 292 Or. at 36, 636 P.2d 961. See also Margolin, The Oregon Court of Appeals and Statutory Pretrial Discovery, 18 Willamette L.Rev. 279, 295 (1982). [1] Oregon Constitution, Article I, Section 11 provides: "In all criminal prosecutions, the accused shall have the right * * * to have compulsory process for obtaining witnesses in his favor; * * *." [2] Moreover, when the nondisclosure is the fault of defendant's counsel, as in this case, excluding the witness may merely set the stage for a post-conviction claim of inadequate representation.

95bcdd2870ecafbce41750ae21628507487c35cd58f7d3e34904b7fa1b6d2ca5

1982-12-29T00:00:00Z

121a4512-ecc9-4d81-b4bb-7c76afae8884

State Ex Rel. Douglas County v. Sanders

294 Or. 195, 655 P.2d 175

oregon

Oregon Supreme Court

655 P.2d 175 (1982) 294 Or. 195 STATE ex rel. Douglas County, an Oregon County, and John Hebard, Plaintiffs-Relators, CRS Group Engineers, Inc., Dba Straam Engineers, Plaintiff-Intervenor, v. The Honorable Don H. SANDERS, Circuit Court Judge of the State of Oregon for the County of Douglas, Defendant. SC 28329. Supreme Court of Oregon, In Banc.[*] Argued and Submitted April 7, 1982. Decided December 15, 1982. F. Gordon Allen, Portland, argued the cause for plaintiffs-relators. With him on the briefs was Joseph A. Yazbeck, Jr., Portland. Michael J. Caro, Portland, argued the cause for defendant. With him on the brief were Daniel J. Seifer, and Kobin & Meyer, P.C., Portland. Charles F. Adams of Stoel, Rives, Boley, Fraser & Wyse, Portland, filed briefs for plaintiff-intervenor. PETERSON, Justice. In 1865, this court held that taxpayers of a public body are absolutely disqualified from sitting as jurors in any lawsuit in which the public body has a pecuniary interest. Garrison v. City of Portland, 2 Or. 123, 124 (1865). The most recent restatement of the rule was in 1927, in Wheeler v. Cobbs & Mitchell Co., 121 Or. 422, 424, 253 P. 5 (1927).[1] We issued an alternative writ of mandamus in the case at bar to consider whether residents of a county are necessarily disqualified from sitting as jurors in any case in which the county has a pecuniary interest in the outcome. We hold that county residents are not disqualified from serving as jurors solely because the county has a pecuniary interest in the outcome. This mandamus proceeding arises from an action pending in Douglas County Circuit Court in which Valley Inland Pacific Constructors, Inc. (VIPCO), seeks damages exceeding $525,000 from Douglas County for breach of contract in connection with the construction of a water treatment plant in Douglas County.[2] The case was first filed in Multnomah County. For reasons not relevant to this opinion, venue was transferred to Douglas County. Thereafter, VIPCO filed a motion for a change of venue to Lane County or Linn County, citing ORS 14.110(1)(c) and (d)[3] and ORCP 57 *176 D.[4] In support of its motion, VIPCO submitted an affidavit from its counsel which stated: The motion was granted and the trial court ordered: "Venue is changed to Coos County." Douglas County promptly filed a petition for an alternative writ of mandamus in this court claiming that the trial judge's order was "erroneous as a matter of law." Although the parties have referred to other issues in their briefs,[5] the sole basis for the order changing venue appears to have been the trial court's belief that all Douglas County jurors were disqualified as a matter of law.[6] Although that conclusion is consistent with our early decisions, we no longer hold that residents are disqualified to sit as jurors solely because the public body in which they reside has a pecuniary interest in the litigation. Between 1865 (Garrison v. City of Portland, supra) and 1927 (Wheeler v. Cobbs & Mitchell Co., supra), this court repeatedly held that every taxpayer living within the borders of a public body has an interest in the outcome of any action involving the public body and is impliedly biased, and therefore disqualified from sitting as a juror in the action.[7]Wheeler v. Cobbs & Mitchell Co., supra, is illustrative. In that case, Lincoln County brought a damage action against the defendant to recover $75,000 "by reason of the washing out of its bridges." 121 Or. at 423, 253 P. 5. The statute, Lord's Oregon Laws § 122, was similar to ORCP 57 D(1)(f) and provided: In reversing an order refusing the defendant's motion for change of venue, the court stated: A more detailed justification for the per se disqualification rule is found in this quotation from Elliott v. Wallowa County, 57 Or. 236, 241-42, 109 P. 130 (1910) (quoting Wilson v. Wapello County, 129 Iowa 77, 105 N.W. 363, 364 (1905)): Between 1862 and 1921, jurors were drawn from the "last preceding assessment roll of the county." General Laws of Oregon § 921 (M. Deady 1865); The Codes and General Laws of Oregon § 952 (W. Hill ed. 1887); The Codes and Statutes of Oregon § 970 (C. Bellinger & W. Cotton eds. 1902); Lord's Oregon Laws § 995 (W. Lord & R. Montague eds. 1910); Or. Laws § 995 (1920). Beginning in 1921, jurors were chosen "from the latest tax roll and registration books of the county, or from any other official source of information." Or. Laws 1921, ch. 273, § 7. Currently, the jury list is prepared "by selecting names by lot from the latest voter registration lists or any other source which will furnish a fair cross section of the county * * *." ORS 10.110.[8] Whatever validity the per se disqualification rule may have had in earlier times, we are convinced that the need for the rule no longer exists. Our reasons are: The interest that jurors have in the outcome of a case in which a county has a pecuniary interest is not substantial enough to require automatic disqualification. The financial interest of a juror arising solely from status as a taxpayer or resident alone normally is too remote and minute to affect his innate sense of justice and fairness to all parties concerned. There are many instances in which jurors could be said to have some interest. Jurors might be said to have an interest in every civil or criminal case involving a fine or forfeiture. See City of Portland v. Kamm, 5 Or. 362, 369 (1874). In most cases, voir dire examination will be sufficient to disclose actual bias. If a case arises that is so important, so substantial, that it is likely that jurors would be "so *178 prejudiced against the party * * * that he cannot expect an impartial trial * * * in [that] county," a motion for a change of venue under ORS 14.110(1)(d) could be made and should be granted upon a proper showing. Claims against public bodies are not uncommon, particularly with the advent of the Tort Claims Act, ORS 30.260-.300, and recent experience indicates that claimants against public bodies can receive fair trials in the county where the public body is located. Although the absence of appellate cases involving claims of per se prejudice is not conclusive, we have seen few such claims since the Tort Claims Act was passed in 1967. Or. Laws 1967, ch. 627. Likewise, in the condemnation area we have seen few instances of claims that a landowner could not obtain a fair trial if inhabitants or taxpayers of the public body were permitted to sit on the jury.[9] Finally, looking to the experience of other states, no state has adopted the per se disqualification rule in the last 20 years, and some states have abandoned the rule, as we do. See Ridglea, Inc. v. Unified School Dist. No. 305, 206 Kan. 111, 476 P.2d 601 (1970); Annot., 81 A.L.R.2d 708 (1962 & Later Case Service 1980 & Pocket Part 1982). See also 10 A.L.R. 4th 1046 (1981). A peremptory writ of mandamus will issue directing the trial judge to set aside the order of November 23, 1981.[10] [*] Denecke, C.J., retired June 30, 1982. [1] Neither Davis v. Miller, 246 Or. 102, 424 P.2d 250 (1967), nor City of Portland v. Holmes, 232 Or. 505, 376 P.2d 120 (1962), are in point on the question involved in this case. [2] Other defendants against whom separate claims are made are John Hebard, a county employee described in an affidavit as "project manager of the [VIPCO-County] contract," and CRS Group Engineers, Inc., dba STRAAM Engineers. [3] ORS 14.110(1)(c), (d): "(1) The court or judge thereof may change the place of trial, on the motion of either party to an action or suit, when it appears from the affidavit of such party that the motion is not made for the purpose of delay and, either: "* * *. "(c) That the convenience of witnesses and the parties would be promoted by such change; or, "(d) In an action, that the judge or the inhabitants of the county are so prejudiced against the party making the motion that he cannot expect an impartial trial before said judge or in said county, as the case may be." [4] ORCP 57 D(1)(f): "Challenges for cause may be taken on any one or more of the following grounds: "* * *. "(D)(1)(f) Interest on the part of the juror in the outcome of the action, or the principal question involved therein." [5] Douglas County also asserts (1) that because a venue provision in its contract with VIPCO states that any disputes "shall be tried in the County of the State in which the work was or is to be performed," venue must be in Douglas County; and (2) that because John Hebard is a "public officer" and ORS 14.050(2) requires that actions against a "public officer," be "commenced and tried in the county where the cause * * * arose," venue must be in Douglas County. We reach neither question in this case. [6] Although VIPCO's motion invoked the "convenience of witnesses and the parties" provision of ORS 14.110(1)(c), there is nothing in the record to support the conclusion that the trial court ordered the change of venue under ORS 14.110(1)(c). Mandamus is not available to review the exercise of trial court discretion. State ex rel. Ware v. Hieber, 267 Or. 124, 128, 515 P.2d 721 (1973); ORS 34.110. See Hurley, Venue in Civil Proceedings in Oregon, 36 Or.L. Rev. 47, 66 (1956). [7] Other cases reaching the same result include City of Portland v. Kamm, 5 Or. 362, 367-69 (1874); Ford v. Umatilla County, 15 Or. 313, 16 P. 33 (1887); Multnomah Co. v. Willamette T. Co., 49 Or. 204, 219, 89 P. 389 (1907); West v. Hedges, 88 Or. 158, 171 P. 766 (1918). [8] To be a juror, one must be a citizen of the United States and a county inhabitant over 18 of a sound mind. ORS 10.030. [9] Before 1971, ORS 223.125 provided that in condemnation cases involving cities "[t]he fact that a juror may be a taxpayer upon property within the city shall not be ground for challenge unless he is owner of property to be appropriated." See City of Portland v. Holmes, 232 Or. 505, 376 P.2d 120 (1962). Although ORS 223.125 was repealed in 1971, 1971 Or. Laws ch. 741, § 38, ORS 34.245 now requires that all condemnation cases be filed in the circuit court of the county where the property is located. [10] We do not suggest that the plaintiff is precluded from renewing its motion for a change of venue under ORS 14.110(1)(d). If such a motion is filed, the plaintiff will have to make a showing that it cannot expect an impartial trial in Douglas County because the inhabitants are prejudiced against it.

e8128d8e6000635c3993a3226d3781770baabbccfe9a467f2e0efdee3dca5e04

1982-12-15T00:00:00Z

6d47e837-ed88-434e-80ac-1b5c82728bf9

State v. Langan

293 Or. 654, 652 P.2d 800

oregon

Oregon Supreme Court

652 P.2d 800 (1982) 293 Or. 654 STATE of Oregon, Respondent On Review, v. John LANGAN, Petitioner On Review. SC 28236; CA 19567; TC 10-80-00383. Supreme Court of Oregon, In Banc.[*] Argued and Submitted April 6, 1982. Decided October 26, 1982. Reconsideration Denied November 23, 1982. *801 Gary K. Jensen, Eugene, argued the cause and filed brief for petitioner on review. James E. Mountain, Jr., Salem, argued the cause for respondent on review. On the brief were Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen. and Rudolph S. Westerband, Asst. Atty. Gen., Salem. LENT, Chief Justice. Defendant was convicted of two misdemeanors: Count I, promoting gambling, and Count II, possession of a gambling device, because he gave patrons cash in lieu of "free play" won on electric game machines installed in his tavern. His main contentions on appeal were that the machines were not "gambling devices" within the meaning of the governing statutes and that the court misconstrued the element of knowledge required for guilt of promoting gambling. The Court of Appeals rejected these contentions, relying on its prior decision in State v. Wright, 21 Or. App. 659, 537 P.2d 130 (1975), but remanded the case for resentencing on other grounds not in issue here. We allowed review to determine the elements of these offenses, 54 Or. App. 202, 634 P.2d 794. *802 The question is not whether persons who put coins into the "free play" machines were gambling as that term is commonly used or would be used by this court. The question is what the legislature chose to include or to exclude in defining the crimes with which defendant was charged. We hold that the legislature meant to exclude "free play" machines from the definition of "gambling device," and that it made a person guilty of knowingly promoting unlawful gambling if he knows the facts that make the gambling which he promotes unlawful. Under ORS 167.147, the basis of one of the two offenses of which defendant was convicted, one commits a crime if, with the requisite knowledge and belief, one possesses or enters into various transactions concerning a "slot machine" or "any other gambling device."[1] As defendant was not charged with possession of a slot machine, the charge depends on the definition of a "gambling device." This is found in ORS 167.117(5): Defendant relies on the final sentence to show that the machines in his tavern were excluded from the definition of "gambling device," because the machines themselves returned nothing but free additional games or plays to the players. Therefore, he argues he could not be guilty of possession of a "gambling device" under ORS 167.147. A majority of the Court of Appeals reached a different interpretation in State v. Wright, supra, which that court reaffirmed in the present case. It read the definition of "gambling device," above, to mean that "free-play amusement devices are not per se gambling devices," but that the statute nevertheless covers "those machines which are mechanically free-play `amusement devices' but used as gambling devices." 21 Or. App. at 667, 537 P.2d 130. Chief Judge Schwab dissented on the ground that this interpretation read the last sentence of the definition out of the statute. 21 Or. App. at 669, 537 P.2d 130. There is no question that a mechanical amusement device, like cards or dice, could fall within the definition of "gambling device" in the first sentence of ORS 167.117(5) whenever it is used or usable in the "playing phases of unlawful gambling." The majority in Wright read the exclusion in the last sentence as if it said that "amusement devices shall not be considered to be gambling devices merely by virtue of the fact that they return free additional games or plays." But that is not what the text says. Literally, it states that amusement devices which "return" no more than additional free games or plays "shall not be considered to be" within subsection (5)'s definition of a "gambling device," regardless whether they are "used or usable" as such.[2] The Wright court believed, however, that its reading was compelled by the legislative *803 history. We do not reach the same conclusion. The legislative history is reviewed in the majority and dissenting opinions in Wright and need only be summarized here. The Criminal Law Revision Commission in 1970 proposed to include free-play machines in the prohibition of gambling. When the proposed Criminal Code came before the 1971 Legislative Assembly, lobbyists for the amusement industry and localities which taxed pinball machines first persuaded the senate committee to eliminate a provision that would bring free games within the term "something of value" in defining "gambling." Once this provision had been rejected, the free-play feature no longer would suffice to make an amusement device a "gambling device." There was no need thereafter to add the final sentence to the definition of "gambling device" in order to avoid including free-play machines "per se," as the Wright majority thought, unless the proponents of the amendment sought mere redundancy from an excess of caution.[3] There is no reason to believe that this is all the proponents sought. If a machine is a "gambling device" it is subject to summary seizure and eventual forfeiture. ORS 167.162. It seems more probable that the sellers, lessors, or owners of free-play machines wished to exempt the machines entirely from this risk than that the fate of the machine would depend on whether it was "usable" or even used as a gambling device by others. The Wright court's construction of the statute may allow more effective control of gambling devices than a law that differentiates whether a machine itself pays the successful player or a bartender does so. It may or may not represent a better policy. That is a matter for the legislature, not for the court. To the owners of free-play machines, the difference would be important, and we think that the legislature acceded to their wish when it adopted the final sentence of ORS 167.117(5).[4] Because the state excludes "free-play" machines from the definition of "gambling device," defendant's conviction for possession of gambling devices must be reversed. The other offense of which defendant was convicted is defined as follows in ORS 167.122: By moving for acquittal, by excepting to instructions given and to failure to give a requested instruction, defendant asserted that in order to convict him of promoting or profiting from unlawful gambling, the state must show that he knew whatever gambling occurred to be unlawful. This contention, too, was rejected by the Court of Appeals in State v. Wright, supra, and not reexamined in this case. The state relies on ORS 161.115(4), on the strength of which the Wright opinion summarily *804 rejected a defense based on the statutory requirement of a culpable mental state.[5] The court wrote: 21 Or. App. at 663, 537 P.2d 130. No doubt it was not necessary that defendant knew that his own conduct was illegal. It does not follow that he need not know that unlawful gambling was going on. ORS 167.122 might have been written so as to make one guilty of a crime "if he knowingly promotes or profits from gambling." It was not so written. The statute forbids only the promotion of unlawful gambling; the statute does not address whether one may promote and profit from gambling that is not unlawful. The unlawfulness of the gambling is an essential element in the guilt of the promoter. We see no reason why this statute should be read to impose strict liability on anyone who "materially aids any form of gambling," ORS 167.117(10), including one who has no financial interest in or profit from the activity, if without his knowledge the gambling takes an unlawful form. That might reach persons who conduct bridge tournaments or make available the paraphernalia for other games played with cards or dice if the players choose to stake something of value on the outcome of their games. ORS 167.117(3) and (4). The state's view would impose that liability. But certainly ORS 167.122 does not say in so many words that knowledge of a key element, the unlawfulness of the gambling, is immaterial. The statute on which the state relies, ORS 161.115, provides to the contrary in its first subsection: This carries out the policy of the criminal code to "limit the condemnation of conduct as criminal when it is without fault." ORS 161.025(1)(d). We conclude that ORS 167.122 requires more than knowledge that one is promoting gambling even when, unknown to the promoter, the gambling satisfies the conditions that make it "unlawful gambling." The state and the Court of Appeals are right that guilt does not depend on defendant's knowledge of the law. ORS 161.115(4). It does, however, require knowledge of those facts and conditions that, under the law, make the gambling unlawful, rather than merely knowledge of the gambling itself. As noted, supra, defendant moved for judgment of acquittal on the ground that there was not "sufficient proof of the knowledge of the illegality of the act" for conviction. In his motion, he urged that there has to be proof of the illegality of the unlawful gambling. Denial of that motion was not error, for there was ample evidence from which a jury could find that defendant knew that he and his employees were unlawfully paying patrons who won free plays on the machines. That there was evidence to take the case to the jury does not dispose of the issues as to the correctness of the court's charge to the jury. It was up to the jury to decide what the evidence proved beyond a reasonable doubt and to do so under proper instructions as to the law. *805 From the outset of the trial, the defendant consistently informed the court that his theory was that he could not be guilty of this crime unless it be proven that he knew his conduct was illegal. Just before the presentation of evidence was to commence, a colloquy occurred as to the admissibility of certain evidence, and defendant there advanced that theory: At the close of the state's case, defendant, in arguing his motion for judgment of acquittal, returned to that same theme: We believe it to be fair that the defendant throughout was arguing that he could not be convicted unless he were shown to know the law as well as the facts. We have rejected that theory as set forth earlier in this opinion, but defendant's theory must be kept in mind in considering his claim of error with respect to the charge to the jury. The trial court instructed the jury on this issue as follows: Defendant took the following exception: Other than the matter discussed in footnote 6, supra, the trial court correctly told the jury that the state did not have to prove that the defendant knew or appreciated that his conduct was illegal. The defendant's exception did no more than to refer to his iterative contention that the state did have to prove that knowledge or appreciation. There was no error in this respect. Finally, the defendant has assigned as error the trial court's failure to give a requested instruction: Defendant, in his brief, has summarized his position with respect to the failure to give the instruction as follows: This is the same point which defendant has raised with respect to his motion for judgment of acquittal and the exception to the charge given to the jury. We have held to the contrary. Defendant must be shown to have knowledge of the facts which make the conduct illegal; it need not be shown that he knows or appreciates the law.[8] In dissent from our conclusion concerning the adequacy of the defendant's exception to a portion of the trial court's charge to the jury, Justice Linde correctly asserts the proposition that the exception is capable of a construction that defendant objected to the instruction on the ground that it did not tell the jury that defendant must be shown to have knowledge that gambling either by himself or by others was of a character that made it illegal. That is certainly not the issue defendant intended to raise by his exception. In his brief in the Court of Appeals, he summarized his objection to the instruction given, as well as his exception for failure to give his requested instruction, as quoted above; in other words, he meant to convey to the trial judge his repeated contention that he must realize or appreciate the legal conclusion that the gambling was illegal. The purpose of exceptions to the charge is to give the trial judge the chance to correct error before the cause is submitted and decided. The dissent would turn the matter into an intellectual game in which the trial judge would have to detect a hidden contention from the language of the exception where the defendant never intended to convey that contention and, in fact, did not even advance it later on appeal. We believe this asks too much of the *807 trial judge. The trial judge, in these circumstances, justifiably must have thought that the defendant was protecting his record for appeal on the same legal issue which defendant had joined throughout the cause. We can find no reversible error in these circumstances. Defendant's conviction on Count I is affirmed. Defendant's conviction on Count II is reversed. The case is remanded for further proceedings with respect to sentencing in accord herewith and in accord with the Court of Appeals remand. LINDE, Justice, dissenting. I join in the Court's statement of the law applicable to this case. I disagree only with the conclusion that defendant did not adequately bring to the trial court's attention that the instruction on the knowledge required for guilt of the first count, promoting gambling, was erroneous. The trial court told the jury: After the jury retired, the defense counsel stated his exceptions. With respect to the quoted instruction, he said: The instruction was erroneous insofar as it uses the words "was illegal" without discriminating between knowledge of the facts that make the gambling illegal and knowledge of the law. As given, the instruction says that a defendant need not know that gambling by others in fact is of a character that brings it within the prohibition. That is wrong. It is true that defendant argued for more than this, as the Court notes. He sought an instruction that a defendant's knowledge of the law is an element of the offense, not only his knowledge of the facts that make the gambling in question unlawful. He was not entitled to that instruction. But the fact that defendant asked too much does not mean that his exception did not raise the error in the faulty instruction that was given. He excepted to "the Court's giving the instruction ... that knowledge on the part of the defendant in the promotion charge is not an element of the offense, and we feel that it is." The instruction indeed was faulty in this respect. When the correctness of an instruction under which a jury is told to convict or acquit an accused is called into issue, both trial and reviewing courts should focus on the merits of the instruction, not on the quality of lawyers' arguments. If the instruction cannot withstand scrutiny, no useful purpose is served by shifting an issue of proper instructions to a potential later argument over the adequacy of the defense. The exception drew the court's attention to *808 defendant's claim that the state's requested instruction, based on State v. Wright, supra n. 1, was improper. It was improper. For this reason, I dissent from the affirmance of the conviction on Count I. CAMPBELL, J., joins in this dissenting opinion. PETERSON, Justice, dissenting. I dissent. An amusement machine which, though designed to pay off in free games, is used by its possessor to pay cash to the player for games won is a "gambling device," as defined in ORS 167.117(5). The term "gambling device" is defined as "* * * any * * * machine that is used or usable in the playing phases of unlawful gambling, whether it consists of gambling between persons or gambling by a person involving the playing of a machine. * * *. Amusement devices which do not return to the operator or player thereof anything but free additional games or plays shall not be considered to be gambling devices." I read the statute to mean that an amusement device that returns to the operator or player something other than free additional games is a gambling device. The mere fact that the machine does not itself cough up nickles, dimes, quarters or dollars to a winning player does not mean that the machine is not a gambling device. If the machine's possessor coughs up the money to the winner, the machine is a gambling device for the same reasons that cards, dice or some slot machines which, although they do not themselves discharge winnings in cash, are gambling devices. Here, there is ample evidence that the device, with the assistance of the defendant, returned something more than free additional games. If there is any doubt, it is erased by examining the legislative history. In 1959, this court held that, under the then existing gambling law, free play pinball machines were not gambling devices. McKee v. Foster, 219 Or. 322, 347 P.2d 585 (1959). In 1970, the Criminal Law Revision Commission proposed the enactment of a Criminal Code, provisions of which would overrule McKee v. Foster, supra. Section 263 of the proposed Criminal Code defined the term "something of value" as follows: "Gambling device" was defined as follows: Donald Paillette, Project Director of the Commission, at a meeting of Subcommittee No. 2 on February 9, 1970, advised the subcommittee that the definition of "something of value" was intended to overrule McKee v. Foster. Minutes of a meeting of the Commission on April 3, 1970, contain this statement: When the matter came before the Senate Criminal Law & Procedure Committee on March 30, 1971, it was apparent that the amusement machine industry was concerned that all free play pinball machines would be forbidden, and amendments were proposed which were thought to obviate the problem and allow free play pinball machines to exist if no cash payoffs were made. The amendment was to delete that portion of the definition of "something of value" following the word "therein." Senator Fadeley was unsure whether this single amendment would achieve the desired result to permit free play pinball machines if no cash payoffs were received and suggested adding to the bill a clause which is now the last sentence of the definition of "gambling device," ORS 167.117(5). Richard Barton, Multnomah County Deputy District Attorney, expressed the opinion that no change was necessary, that with the changed definition of "something of value," free play machines would lawfully exist. Minutes, Senate Criminal Laws & Procedure Committee, March 30, 1971, at 1-2. Apparently Senator Fadeley and others were unconvinced, for three days later, on April 2, 1971, he proposed an amendment to the definition of "gambling device" to add what is now the last sentence of ORS 167.117(5), to make it clear "that the operation of `free play' games or plays is not considered to be a gambling offense" (emphasis added). Senator Yturri stated that he thought that the amendments to the "something of value" definition adopted three days earlier had "taken care of" the problem. There being some doubt whether the previous amendments to the "something of value" definition accomplished the desired goal, it was unanimously agreed to make the changes proposed by Senator Fadeley. Minutes, Senate Criminal Law and Procedure Committee, April 2, 1971, at 2-3. In order to make it permissible to operate free play machines for amusement, amendments were made to both the definition of "gambling device" and the definition of "something of value." No one expressed any disagreement with one of the overall goals of the legislation to make unlawful the operation of pinball machine payoffs, and no one suggested that this goal could still not be achieved under the statute as amended. The majority's construction of the last clause of ORS 167.117(5) is over literal and is contradicted by the legislative history. Contrary to the conclusion of the majority that the amendment to the definition of "gambling device" was intended to exclude all free play machines from the definition of "gambling device," the perceived need to make the amendment was because of uncertainty whether the amendment to "something of value" would achieve the desired goal to permit free play pinball machines to be lawfully operated if there were no payoffs but to nonetheless permit the prosecution of persons who operated machines which returned to the player anything other than "free additional games or plays." [*] Denecke, C.J., retired June 30, 1982. [1] ORS 167.147(1): "(1) A person commits the crime of possession of a gambling device if, with knowledge of the character thereof, he manufactures, sells, transports, places or possesses, or conducts or negotiates a transaction affecting or designed to affect ownership, custody or use of; "(a) A slot machine; or "(b) Any other gambling device, believing that the device is to be used in promoting unlawful gambling activity...." [2] In another respect, the words "do not return * * * anything but free additional games or plays" are ambiguous: Do they exclude "amusement devices" which return nothing at all but are used or usable for gambling? The ambiguity need not be resolved in the present case. [3] The majority in State v. Wright, 21 Or. App. 659, 537 P.2d 130 (1975), thought that the "purpose of the exclusion was to re-enforce, in affirmative form, a previous amendment adopted by the Committee March 30, 1971 [that] removed free-game machines from the definition of `something of value.'" The majority, however, interpreted the second amendment to leave free-play machines within the definition of "gambling device" only when the machines were in fact "used" as such, although the definition says "used or usable." 21 Or. App. at 666-67, 537 P.2d 130. If such machines remained gambling devices as long as they were "usable" for gambling, the effect of their express exclusion in the last sentence would shrink to the vanishing point. But an interpretation that includes machines "used" but not those "usable" for gambling has no warrant in ORS 167.117(5). [4] In dissent, Justice Peterson draws essentially the same conclusion from the legislative history as did the majority of the Court of Appeals in State v. Wright, supra. The dissent, 293 Or. at 669, 652 P.2d at 809, concludes that the legislature intended that one who makes payoffs for the free games accumulated by a player of an amusement device would be guilty of the crime of possession of a gambling device. We believe otherwise, of course, but we do not believe that one making such payoffs is beyond the reach of the criminal law. If all elements are established, the one making such payoffs may be found guilty of promoting unlawful gambling. [5] ORS 161.095(2) provides: "(2) Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." [6] It is immediately apparent that the court made a misstatement in the last paragraph in omitting the adjective "unlawful" or "illegal" preceding the final word of the first sentence of the paragraph. The defendant did not except to that misstatement, however, and we do not choose to address it on our own motion in light of the fact that the trial court at least four times, including the very next sentence, had told the jury that the gambling must be unlawful for conviction. [7] Actually, the trial court did not give State's # 8 as requested. The trial court added the words, "if you find he promoted gambling." That is the clause which we discussed in footnote 6, supra. [8] The indictment charged that the defendant did "knowingly promote and profit from unlawful gambling." The trial court instructed the jury: "I have used the word `knowingly', in these instructions, and I instruct you that `knowingly' or `with knowledge', when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that his conduct is of a nature so described or that a circumstance so described exists." See ORS 161.085(8). [1] The State's requested instruction no. 8 was: "I instruct you that it is not necessary for the State to prove that the defendant knew that the gambling he promoted was illegal. Knowledge or an appreciation that the conduct in question was illegal is not an element of the offense of Promoting Unlawful Gambling," for which the prosecution cited State v. Wright, 21 Or. App. 659, 537 P.2d 130 (1975), ORS 161.115(4).

e70a589fda40e47c59888b506a650937a3d680d7c5b270e4ed4bf0b3175a1f2b

1982-10-26T00:00:00Z

ef6af691-e50c-4fc6-ab74-b37ae19cc418

In Re Conduct of Robeson

293 Or. 610, 652 P.2d 336

oregon

Oregon Supreme Court

652 P.2d 336 (1982) 293 Or. 610 In re Complaint As to the CONDUCT OF Vincent G. ROBESON, Accused. OSB 79-22; SC 28197. Supreme Court of Oregon, In Banc.[*] Argued and Submitted May 5, 1982. Decided October 5, 1982. Jack H. Cairns, Portland, argued the cause for the Accused. Vincent G. Robeson, Lake Oswego, filed the brief. Margaret H. Leek Leiberan, Portland, argued the cause for the Oregon State Bar. With her on the brief was Ron D. Bailey, Portland. *337 PER CURIAM. The Oregon State Bar filed an amended complaint against Vincent G. Robeson accusing him of unethical conduct in nine separate causes. All causes of action allege that Robeson was guilty of unethical conduct in that he violated the Disciplinary Rules of the Oregon State Bar and the Oregon Revised Statutes in his dealings with his client, Ruth Merwin, during 1976. Robeson has been a member of the Oregon State Bar since 1964. An interoffice memo of a bank listed Merwin's age in 1976 as 60. Merwin was the beneficiary of a revocable trust which she had created naming a bank as trustee. Immediately prior to Merwin's business transactions with Robeson the principal balance in the trust was $1,300,000.[1] This case is unique in that Merwin did not make the complaint to the Oregon State Bar, refused to take part in the proceedings, and would not release Robeson from the attorney-client privilege. The Trial Board found Robeson guilty of five of the causes and not guilty of the remaining four causes. It recommended that Robeson be indefinitely suspended from the practice of law.[2] The Disciplinary Review Board found Robeson guilty of eight of the nine causes of complaint and recommended that he be permanently disbarred. We conclude that Robeson should be permanently disbarred. Around 1970 Harold E. Davis, James R. McKie, and Robeson formed a corporation under the name of Davis, McKie & Robeson, Inc. The sole asset of the corporation was a tract of land with a potential for development in Clackamas County.[3] Davis, McKie and Robeson owned the stock of the corporation in equal shares. The corporation borrowed a sum of money which was used to buy additional land and to pay for the engineering fees necessary for a zone change. The debt and property were refinanced with Rainier Credit Company. The promissory note became in default. A foreclosure suit was settled on September 8, 1975 by Davis, McKie & Robeson, Inc. deeding the land to Rainier Credit who in turn gave back to the grantor an option to repurchase the property within one year for the sum of $100,000 plus interest, costs, attorney fees, title report fees and escrow fees. Robeson began representing Merwin as her attorney in late 1974 or early 1975. On January 20, 1976 Merwin gave Robeson a cashier's check payable to him in the amount of $150,000. According to Merwin this money was to be used to purchase stock for her in the National Automatic Sprinkler Co., an Oregon corporation.[4] Robeson had *338 been the company's lawyer. An employee of a bank testified that Robeson used the $150,000 cashier's check to purchase four other cashier's checks payable to himself and that none of the funds were deposited in his client's trust account. Sometime between January 20, 1976 and February 3, 1976 Robeson contacted National Automatic Sprinkler to buy stock on behalf of Merwin. The offer was refused. On February 3, 1976, Robeson wrote a letter to National Automatic Sprinkler Co. tendering on behalf of himself and his wife a cashier's check in the sum of $135,000 for the purchase of 55% of the corporation's stock. The letter in part said: No mention was made of Merwin in the letter. The offer was refused. At the hearing before the Trial Board Robeson claimed that he borrowed $150,000 from Merwin. There are no documents in the record to show that it was a loan. There is no evidence of security, terms of repayment or interest rate. When Robeson was specifically asked if there were any written agreements defining his relationship with Merwin in connection with the $150,000 he claimed the attorney-client privilege. On February 17, 1976, Robeson and his wife used $120,618.03 of the funds received from Merwin to purchase in their own names the 17 acres of development land in Clackamas County from the Rainier Credit Company. As the land was subject to the option given to Davis, McKie & Robeson, Inc. to repurchase until September 8, 1976, it was necessary for Robeson to deal with Davis and McKie who owned two-thirds of the corporation. On March 19, 1976 by written contract, Robeson agreed to buy all the corporate stock of Davis and McKie for the sum of $100,000. The sum of $10,000 was paid down upon the execution of the agreement with the balance of $90,000 to be paid on terms. Although the deed is not a part of the record, it is apparent from other documents that Robeson had caused the title of the 17 acres to be transferred to NOR-AM-CO, an Oregon corporation that had been incorporated on February 23, 1976. Robeson, his wife, and A.R. Kauffman (another business associate) were the sole stockholders of the corporation. The $90,000 balance due Davis and McKie became an obligation of the corporation. On March 22, 1976, Robeson prepared a contract whereby NOR-AM-CO sold to Merwin and one Jerry W. Nicholson 240,000 square feet (5.5 acres) of the 17 acre tract of land for the sum of $336,000. Ten percent or the sum of $33,600 was the down payment. The contract provided: The balance of the purchase price ($152,400) was to be paid when the plat was approved by the City of Lake Oswego. *339 On April 25, 1976, while Robeson and his wife were on vacation in Hawaii with Merwin, he obtained a $50,000 loan from Merwin. The check for the loan was made payable to NOR-AM-CO, which in turn, on April 28, 1976, issued its check in the same amount to Pacific International Forest Products, Inc., a corporation in which Robeson had an interest. Robeson's reasons for the loan are vague.[5] At the hearing before the Trial Board he testified: Under date of May 1, 1976, Robeson executed his personal promissory note to repay the loan in ten equal annual installments. Interest was to be paid at the rate of 10% per annum. On July 20, 1976, Robeson, his wife, and Kauffman traded all of the outstanding stock of NOR-AM-CO to Merwin for 1,250 shares of U.S. Bancorp, 1,200 shares of Crown Zellerbach Corporation, and 722 2/3 (pre-split) shares of Caterpillar Tractor Company. The shares traded by Merwin had a fair market value of $146,408. Robeson prepared the agreement for the exchange of stock and by it Merwin acknowledged that NOR-AM-CO had an outstanding obligation to Davis and McKie in the amount of $90,000. Kauffman had been the owner of 25% of NOR-AM-CO's stock.[6] Also on July 20, 1976, as a supplement to the stock exchange agreement, Robeson, his wife and Kauffman promised Merwin that they would use the stock received from her as collateral to obtain a loan to pay Robeson's note to her of May 1, 1976 in the amount of $50,000. This was in fact done. The note is in the record marked paid in full as of July 27, 1976. No interest was paid. On October 12, 1976, Merwin signed a guarantee and pledge agreement whereby she pledged 1,246 shares of Standard Oil of California as collateral for a loan from General Electric Credit Corporation to Pacific International Forest Products. Subsequently the stock was liquidated for the sum of $54,955 when Pacific International defaulted on the loan. Robeson claimed that the consideration to Merwin for making the pledge was an undocumented promise by Pacific International to make her a loan. Robeson explained as follows: James McKie testified, without objection, before the Trial Board that the 17 acres were later sold by Merwin to American Guaranty for the sum of $800,000. However, everybody did not live happily thereafter.[7] On November 20, 1979, the Oregon State Bar filed a complaint in this court against Robeson. An amended complaint was filed on September 3, 1980. This matter was called to the attention of the Oregon State Bar by a letter from a securities examiner of the Corporation Commissioner's office. The amended complaint alleged generally that at all material times Robeson was the attorney for Merwin and then set out nine separate causes. The charging part of each clause may be summarized as follows: All of the first six causes of complaint contain additional allegations: (1) That Merwin was relying upon Robeson for legal and investment advice. Merwin was not a sophisticated investor and was dependent upon the professional judgment of Robeson for protection of her interests; (2) Robeson entered into a business relationship with Merwin without requiring or urging his client to procure independent legal advice; and, (3) Merwin did not knowingly or meaningfully consent to the transaction, nor did she receive a full disclosure of the material facts. All of the first eight causes of complaint alleged that the conduct of Robeson was unethical and in violation of Disciplinary Rules (DR) 1-102(A)(1), (4), and (6), 5-101(A), 5-104(A) and ORS 9.480(4). The following causes alleged that Robeson had violated additional Disciplinary Rules: First and third causes 9-102(A) and (B); fourth cause 9-102(B); sixth cause 7-101(A); and, seventh cause 1-102(A)(3).[8] *342 Robeson filed an answer which admitted that an attorney-client relationship existed between himself and Ruth C. Merwin and answered each of the nine causes of complaint in the following form: Robeson also included four affirmative defenses in his answer: (1) that the Oregon State Bar was charged with the responsibility of protecting the client's rights and was estopped from investigating and pursuing the attorney-client relationship; (2) the Oregon State Bar should not be allowed to pursue the matter where the client objects; (3) the Oregon State Bar has no standing to pursue a complaint where the client has refused and continues to refuse to make a complaint or waive the privilege, and, (4) the accused believes that because of the attorney-client privilege he cannot answer allegations of the complaint and therefore requests that any matter not admitted be denied. The trial committee found Robeson guilty of the first, second, fourth, sixth, and eighth causes of complaint and not guilty of the remaining four causes. The disciplinary review committee found Robeson guilty of all causes of complaint except the seventh. Robeson's pro se brief in this court sets out 22 assignments of error. The assignments of error which warrant discussion fall into three general categories: (1) an alleged conflict of interest of two of the attorneys representing the Bar, (2) attorney-client privilege, and (3) sufficiency of the evidence. The oral argument in this court on behalf of Robeson concentrated on these categories. The hearing before the Trial Board was held October 16 through October 18, 1980. At that hearing the Oregon State Bar was represented by three Portland lawyers.[9] From the testimony of Robert Magee, trust officer for a bank, it appeared that probably the Portland law firm with which two of the Bar's attorneys were associated had represented Merwin in connection with some business concerning a mortuary in LaGrande. This raised a potential conflict of interest problem. On December 18, 1980, the Trial Board held a hearing to determine what should be done about the conflict of interest matter. From the record of that hearing it appears that the two Bar attorneys did in fact find one or more files that indicated their law firm had represented Merwin in 1976. The third attorney for the Bar took the position that the other two Bar attorneys should not resign. He represented to the Trial Board: Robeson took the position that there was an appearance of impropriety: On March 20, 1981 the Trial Board entered an order by which it "reluctantly" accepted the tendered resignation of the Bar attorney in question. On the same date the Trial Board denied Robeson's motion requesting the production of documents formerly in the law firm's files as to which Merwin had asserted an attorney-client privilege. The motion was denied on the ground that the Trial Board lacked power to command production of materials which were protected by the privilege. Both parties cite the case of In re J. Kelly Farris, 229 Or. 209, 367 P.2d 387 (1961). Farris claimed error because one of the attorneys assigned by the Bar to prosecute the case represented Travelers Insurance Company who insured the automobile of one of the victims. This court answered by saying it had read all of the testimony given before the trial committee and had found no indication of conduct upon the part of the lawyer representing the Bar "which invaded or could have prejudiced the rights of the accused." It added: "No attorney should be appointed as prosecutor who is counsel for a client interested in the disbarment case." 229 Or. at 216-217, 367 P.2d 387. Robeson has not cited us to any authority on the question of the appearance of impropriety. Canon 9 provides: "A lawyer should avoid even the appearance of impropriety."[10] Although the two attorneys were embarrassed there is no evidence that the "awkward situation" or "the appearance of impropriety" was caused by their intentional or negligent acts. When they were first appointed to represent the Bar the attorneys ran a "conflicts check" and the result was negative. The only possible explanation was that their law firm was in the process of a merger and the files may have been misplaced. As soon as the attorneys found out that their firm had represented Merwin they tendered their resignation. Even if we were to find that there was an appearance of impropriety we would be at a loss to know what Robeson expects us to do. In response to questions by a member of the Trial Board Robeson's attorney answered: We have read all the testimony and examined all the exhibits in this case and find no conduct on the part of the attorneys for the Bar which invaded or prejudiced the rights of Robeson. In re J. Kelly Farris, supra. Robeson filed a preliminary motion with the Trial Board requesting that the Bar's complaint be dismissed on the ground that he could not defend himself because the attorney-client privilege required him to remain silent. His position was that he had a "Hobson's choice" of remaining silent and allowing a finding of unethical conduct for past acts or testifying in his defense and thereby committing a new act of unethical conduct. The Trial Board denied the motion and held that Robeson was free to testify as to attorney-client communications to the extent that the same were relevant to his defense of unethical conduct. The Trial Board at least in part based its ruling on ORS 9.750.[11] DR 4-101(C)(4) in part provides: When the complaint to the Oregon State Bar has been made by the client as to the conduct of the lawyer then there is a waiver of the privilege and it is simple to apply DR 4-101(C)(4). Here there is a different problem because a third party made the complaint. There are at least two federal cases which hold that DR 4-101(C)(4) applies to third party complaints. In Meyerhofer v. Empire Fire and Marine Insurance Co., 497 F.2d 1190 (2 Cir.) cert. den. 419 U.S. 998, 95 S. Ct. 314, 42 L. Ed. 2d 272 (1974), the plaintiff who had purchased Empire stock claimed a securities law violation, based on the failure to disclose a finder's fee arrangement with Empire's law firm. Goldberg who had been an attorney with the law firm was named a party defendant. Goldberg attempted to exonerate himself by use of a pretrial affidavit. Empire claimed attorney-client privilege. The Circuit Court of Appeals held in favor of Goldberg: In Application of Friend, 411 F. Supp. 776 (S.D.N.Y. 1975) an attorney, Solomon H. Friend, applied to the court to turn over to the United States grand jury certain documents. The grand jury was investigating Friend and his client, Amrep Corporation. The client objected and claimed the attorney-client privilege. The District Judge held: See also McMonigle and Mallen, The Attorney's Dilemma in Defending Third Party Lawsuits: Disclosure of the Client's Confidences or Personal Liability? 14 Will.L.J. 355 (1978). We hold the Trial Board's order in the context of this case was correct in allowing Robeson to testify as to the attorney-client communications to defend himself. Robeson did not take a consistent position in his testimony before the Trial Board. He darted in and out of the privilege. When it was to his advantage to claim the privilege, he did so. When it was to his advantage to ignore the privilege, he did that.[12] In October 1980 when Robeson's hearing was held before the Trial Board, ORS 44.040(1)(b) was in effect: ORS 44.040 has been replaced by Rule 503 of the Evidence Code, effective the first day of January, 1982. Rule 503(2)(a) and 4(c) provide: In a brief filed with the Trial Board Robeson quoted DR 4-101 in full and discussed it generally, but he did not raise or argue the question of whether the specific provisions of DR 4-101(C)(4) were invalid in *346 the face of the general provisions of ORS 44.040(1)(b). The brief filed with the Trial Board is incorporated into and made a part of Robeson's opening brief in this court. In his reply brief in this court Robeson discusses the rule in question as follows: We have no argument with the proposition that the Oregon State Bar cannot require the attorney to reveal privileged information. The point is Robeson cannot complain about the attorney-client privilege when he did not take advantage of DR 4-101(C)(4) to defend himself against the alleged wrongdoing. Although on oral argument members of this court raised the question of whether the specific provisions of DR 4-101 were controlling because of the general provisions of ORS 44.040(1)(b), the question was not raised, briefed or argued by Robeson. Therefore, we find it unnecessary to decide the question. Robeson's attorney on oral argument in this court said in effect that they had been "unable to get to the bottom of this case" because of the attorney-client privilege and that it was like being "engaged in a fist fight with one hand tied behind you."[13] It is pure speculation to presume that Merwin's testimony would have corroborated Robeson's testimony. It is just one of the facts of life that a party to litigation does not always have available all of the witnesses he or she would like. If there had been no attorney-client privilege it would not necessarily follow that Merwin would have been available to testify or that her testimony would have been favorable to Robeson. She could have been out of the state or unavailable for medical reasons. She might have completely contradicted Robeson's testimony. The Trial Board did not make specific findings of fact. The Disciplinary Review Board issued a comprehensive opinion which included many findings of fact. Robeson's challenge to specific parts of those findings or the interpretation to be placed upon certain parts of the evidence is really a "jury argument" to this court. We make our own independent review of the evidence. In re Chambers, 292 Or. 670, 642 P.2d 286 (1982); In re Galton, 289 Or. 565, 578, 615 P.2d 317 (1980). The facts previously recited in this opinion differ only slightly from the facts as found by the Disciplinary Review Board. We agree with many of the conclusions of the Review Board.[14] Merwin was not sophisticated or adept in the management of her money. When Robeson first received the $150,000 cashier's check he treated it as Merwin's money as he tried to buy stock in National Automatic Sprinkler Co. on her behalf. Later Robeson treated it as his own money when he tendered $135,000 to the sprinkler company to buy stock for himself and his wife and then used approximately $130,000 of it to purchase the 17 acres. *347 Finally, Robeson, when he set up NOR-AM-CO considered the $150,000 as a loan from Merwin. Robeson prepared all of the documents in connection with the transaction between himself and Merwin. Merwin testified at the Kauffman trial that Robeson never advised her to seek independent legal advice. We believe her. Merwin relied upon Robeson for legal and investment advice and was dependent upon his professional judgment for the protection of her interests. If a full disclosure had been made by Robeson to Merwin we infer she would not have consented to the various transactions. The various transactions between Robeson and Merwin leading up to and including Merwin's purchase of the 17 acres could be called "Operation Bootstrap." Merwin gave Robeson a cashier's check in the sum of $150,000. Robeson used approximately $120,000 of the funds to buy out Rainier Credit's interest in the 17 acres and $10,000 as a down payment on Davis and McKie's interest in the same land. Robeson then incorporated NOR-AM-CO and transferred the title to the 17 acres to it subject to the $150,000 owed to Merwin and the $90,000 balance due Davis and McKie. Robeson then caused NOR-AM-CO to sell Merwin 5.5 acres for $336,000 10% down and a cancellation of the $150,000 debt due Merwin (leaving a balance due of $152,400). Finally, Robeson and his associates traded all of the stock of NOR-AM-CO to Merwin and received in exchange stock listed on the New York Exchange worth $146,408. In six months Robeson, by the use of Merwin's money, had bootstrapped his contingent one third interest in 17 acres of land into $199,389.97.[15] On January 20, 1976 when Robeson accepted the cashier's check from Merwin in the amount of $150,000 the only "chips that he put into the game" was his one-third interest in Davis, McKie & Robeson, Inc. which in turn had an option to repurchase the 17 acres until September 8, 1976 for the sum of $100,000 plus. In other words, in a period of six months Robeson by the exclusive use of Merwin's money had parlayed his contingent interest in the land into the sum of $199,389.97 for the benefit of himself, his wife and Kauffman.[16] We hold, as did the Trial Board and the Disciplinary Review Board, that Robeson is not guilty of the seventh cause of complaint. From our independent review we find by clear and convincing evidence that Robeson is guilty of the first, second, third, fourth, fifth, sixth and eighth causes of complaint. Because of the result we reach in this case it is not necessary to consider the ninth cause of complaint. In each of the seven causes of complaint on which we have found Robeson guilty he *348 violated DR 5-101 because he accepted employment when the exercise of his professional judgment on behalf of Merwin was affected by his own financial interests. In the same seven causes Robeson violated DR 5-104 because he entered into business transactions with Merwin when they had different interests and Merwin expected Robeson to exercise his professional judgment for her protection. Robeson did not make a full disclosure to Merwin as to his business and financial interests. The first cause is the only cause of complaint which charges Robeson with the misappropriation of funds. On that cause Robeson violated DR 9-102(A) and (B) because he did not repay the funds on demand to Merwin. There is no direct evidence that Merwin demanded the repayment of the funds, but there is sufficient evidence in the record from which we infer an implied demand. On the sixth cause Robeson violated DR 7-101(A)(3) because the pledge of stock by Merwin was without consideration and she was injured when the stock was sold. The violations of the disciplinary rules by Robeson were willful misconduct in the legal profession and therefor grounds for disbarment under ORS 9.480(4). We agree with the Disciplinary Review Board that the evidence before the Trial Board "demonstrated a persistent pattern of conduct" by Robeson in which he employed the attorney-client relationship to use Merwin's "assets for his own personal advantage." The finding of guilt on the first cause alone would warrant permanent disbarment. In In re Pierson, 280 Or. 513, 518, 571 P.2d 907 (1977), we stated: The large majority of lawyers in Oregon who are permanently disbarred have been found guilty of conversion or misappropriation of their client's funds.[17] However, In re Otto W. Heider, 217 Or. 134, 341 P.2d 1107 (1959) an attorney was permanently disbarred for a course of conduct that included entering into a business relationship with a client. Heider represented the executrix of the an estate for a period of 28 years and during that period of time he sold mortgages to the estate. He personally guaranteed the balance of principal and interest due except for one to three percent. He then collected the debt and paid the funds to the executrix except for the interest differential. The executrix understood that the difference kept by Heider was in payment for his personal guarantee. Part of what we said in that case is appropriate here: *349 We order that Vincent G. Robeson be permanently disbarred. The Oregon State Bar is awarded costs. [*] Denecke, C.J., retired June 30, 1982. [1] Merwin retained the full power to dispose of the trust assets. In January 1976 Merwin, through the influence of Robeson, transferred the trust from one bank to another. On June 28, 1976 the second bank resigned as trustee and cited as one of its reasons "due to the almost $900,000 in withdrawals this year, * *." [2] The Trial Board recommended that Robeson be suspended: "* * * until he has made application for reinstatement and an affirmative showing, by evidence satisfactory to the Board of Governors and the Supreme Court, that he is, in all respects, again able and qualified, by good moral character and otherwise, to accept the obligations and faithfully perform the duties of an attorney in the State of Oregon, that he has the moral qualifications and general fitness required for admission to practice law in the State of Oregon, and that his resumption of the practice of law in the State of Oregon will be neither detrimental to the integrity and standing of the Bar or the administration of justice nor subversive to the public interest." [3] Davis and McKie were from the same small town in the Midwest. When Davis had a stroke in 1964 or 1965, he owned the original tract of land in question. Davis was declared incompetent and McKie was appointed the guardian. In 1968 McKie sought out Robeson to untangle Davis' affairs. Robeson advised (1) to have Davis declared competent, (2) to form a corporation, and (3) to apply for a zone change. Davis was declared competent on a doctor's affidavit and deeded the land to the corporation. Robeson's conduct in connection with Davis and McKie is not in question in these proceedings. [4] Merwin testified to this effect in the Clackamas County Circuit Court in November of 1977 in a trial wherein A.R. Kauffman was plaintiff and Robeson and his wife were defendants. At that trial Merwin's lawyer explained that she was willing to waive the attorney-client privilege only to matters subject to that lawsuit and that she was not "waiving any privilege with respect to personal matters or involvements of Mr. Robeson outside the boundaries" of that particular lawsuit. There are five separate letters or affidavits in the record signed or executed by Merwin or her lawyers after 1977 stating that she would not waive the attorney-client privilege. One of these documents is a letter in December 1979, from Merwin's lawyer to the lawyer representing the Oregon State Bar, and in part it said: "Therefore, I must ask that you investigate or pursue nothing regarding my client's business or personal affairs as they may relate to Vincent Robeson, * * *, or any other attorney over which you have jurisdiction. "My client has instructed me not to waive her attorney-client privileges; therefore, any prior waiver, if any, is rescinded, and you are specifically instructed not to discuss any matter with Ms. Merwin without first contacting me." [5] A.R. Kauffman testified before the Trial Board to the effect that both he and Robeson had an interest in Pacific International Forest Products, Inc. (Kauffman had a 35% interest). A & M Hardwood, which was in the wholesale lumber business, had become a subsidiary of Pacific International and the $50,000 was needed as additional capital. [6] Kauffman testified that Robeson and he decided to divest themselves of NOR-AM-CO and the 17 acres because they were busy with the affairs of Pacific International Forest Products, Inc. and did not have the time to devote to the development of the property. Also, it would have been necessary to obtain additional finances. [7] In addition to the previously mentioned lawsuit by Kauffman against Robeson, a suit in equity based on unjust enrichment was filed in June, 1978, by Davis, McKie & Robeson, Inc. against NOR-AM-CO and Ruth C. Merwin. [8] "DR 1-102 Misconduct. "(A) A lawyer shall not: "(1) Violate a Disciplinary Rule. "* * * "(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. "* * * "(6) Engage in any other conduct that adversely reflects on his fitness to practice law." "DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment. "(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests." "DR 5-104 Limiting Business Relations with a Client. "(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." "ORS 9.480. * * * The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose it appears to the court that: "* * * "(4) The member is guilty of wilful deceit or misconduct in the legal profession; * * *" "DR 9-102 Preserving Identity of Funds and Property of a Client. "(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: "(1) Funds reasonably sufficient to pay bank charges may be deposited therein. "(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved." "(B) A lawyer shall: "(1) Promptly notify a client of the receipt of his funds, securities or other properties. "(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable. "(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them. "(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive." "DR 7-101 Representing a Client Zealously. "(A) A lawyer shall not intentionally: "(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B)." "DR 1-102 Misconduct: "(A) A lawyer shall not: "(3) Engage in illegal conduct involving moral turpitude." [9] There were two lawyers from the same law firm representing the Oregon State Bar at the hearing before the Trial board on October 16-18, 1980 however, in some places the record speaks only of the senior lawyer and ignores the junior lawyer. It may be that the junior lawyer was not officially appointed and was merely helping the senior partner. [10] "DR 9-101 Avoiding Even the Appearance of Impropriety. "(A) A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity. "(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee. "(C) A lawyer shall not state or imply that he is able to influence, improperly or upon irrelevant grounds any tribunal, legislative body, or public official." In re Ainsworth, 289 Or. 479, 614 P.2d 1127 (1980), limits the general terms of Canon 9 to the three specific situations set out in DR 9-101(A), (B) and (C). [11] ORS 9.750 provides: "Persons examining the files and records of the law practice of the affected attorney pursuant to ORS 9.005, 9.040, 9.050, 9.090, 9.180, 9.200, 9.210, 9.260, 9.270, 9.550, 9.560 and 9.705 to 9.755 shall observe the lawyer-client privilege and shall make disclosure only to the extent necessary to carry out the purposes of ORS 9.005, 9.040, 9.050, 9.090, 9.180, 9.200, 9.210, 9.260, 9.270, 9.550 and 9.705 to 9.755. Such disclosure is a disclosure which is reasonably necessary for the accomplishment of the purpose for which the affected attorney was consulted. The appointment of such custodian shall not affect the lawyer-client privilege which privilege shall apply to communications by or to the custodian to the same extent as it would have applied to communications by or to the affected attorney." [12] Examples of Robeson claiming the privilege are shown in the previous quotes of his testimony in this opinion. An example of his ignoring the privilege is the following quote from his pro se brief in this court: "During the same period of time, handled here separately so as not to detract from each transactione, [sic] between the time the Contract had been executed for the lots and the termination of Mr. ROBESON, Mrs. MERWIN who had been desirous of transferring her assets out of a revocable trust which she controlled through the Bank into other business interests had requested Mr. ROBESON to look for other good investments which she desired to keep secret from Mr. NICHOLSON her General Manager whom she was planning to marry. Mr. ROBESON suggested she may consider a wholesale lumber company and she decided she would put $50,000.00 into the Company and make available a pledge of additional securities to secure the buying and selling transactions conducted by the Company. The business was set up and the Lumber Traders went to work and the Company commenced business. At this time the ROBESONS went on vacation to Hawaii and Mrs. MERWIN and Mr. NICHOLSON were to accompany them on the way over and were to be married in Hawaii, however, Mr. NICHOLSON stated he was unable to leave at the time and would follow in a few days. While in Hawaii word came that Mr. NICHOLSON had gone to Mexico with his Ex-Wife, this upset Mr. [sic] MERWIN considerably and she was concerd [sic] about Mr. NICHOLSON having found out about the lumber Company or that he would find out about it, and she wanted out of the business. In order to avoid the financial consequences and problems she had already incurred in starting the business she offered at that point of time to loan Mr. ROBESON the sum of $50,000.00 the amount it would need to operate if he would in fact take over the Lumber Company. Wherein a loan was made to Mr. ROBESON with a ten year pay back. When Mrs. MERWIN terminated his services and purchased the real property as stated above she insisted on repayment of the $50,000.00 as part of that transaction, which was done and the Note paid and cancelled." [13] Both parties stipulated that Merwin was unavailable to testify and her testimony from the previous trial of Kauffman v. Robeson was received in evidence. [14] For the most part these conclusions are determinations of mixed questions of law and fact. [15] This figure is computed as follows: $146,408.00 value of stock received from Merwin 33,600.00 downpayment of 10% 19,381.97 unused portion of $150,000 $199,389.97 Robeson states in his brief in this court that the $33,600 was paid to NOR-AM-CO on March 22, 1976 and infers that when Merwin purchased that corporation on July 20, 1976 the money was still there or that the money had been used to improve the 17 acres. There is no documentary evidence to support this argument. [16] Throughout this case Robeson has argued that Merwin sold the 17 acres for the sum of $800,000 and therefor made a large profit. There is no documentary evidence to show that Merwin made a profit. We know that by purchasing all the stock of NOR-AM-CO she assumed the $90,000 debt owed to David and McKie. We do not know what other debts NOR-AM-CO may have owed there was no save harmless clause in the stock exchange contract. We do know that Merwin sold the 17 acres on credit. If she sold the property with a small down payment by this time she might have repossessed it and resold it for a loss. Assuming for the sake of argument Merwin did sell the property for a profit that does not excuse Robeson's conduct. The fact that no one was injured by the attorney's conduct is of no significance when the rules of professional ethics are violated. In re Albright, 274 Or. 815, 549 P.2d 527 (1976); In re Otto W. Heider, 217 Or. 134, 341 P.2d 1107 (1959). We held in In re Burrows, 291 Or. 135, 629 P.2d 820 (1981), that the fact that a district attorney's ex parte contact with the judge appeared, by hindsight, to be favorable to the defendant was immaterial. [17] See cases collected in In re O.H. Bengtson, 230 Or. 369, 370 P.2d 239 (1962). Also see the following additional cases where attorneys have been permanently disbarred for the misappropriation or conversion of funds: In re Bach, 273 Or. 24, 539 P.2d 1075 (1975); In re Dugan, 272 Or. 708, 538 P.2d 938 (1975); In re Gordon W. Smith, 241 Or. 542, 407 P.2d 643 (1965); In re Orin B. Collier, 240 Or. 617, 403 P.2d 380 (1965); In re Harry W. Matthews, 233 Or. 172, 377 P.2d 160 (1962).

15b5e7c4e335ce0355fb70a5360ea7ce4e35a6497bfce7f27ae9d4b1f06f08c6

1982-10-05T00:00:00Z

deebca1e-e9f1-4831-a590-36cab26f5357

Doyle v. City of Medford

oregon

Oregon Supreme Court

FILED: February 4, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON RONALD DOYLE; ROBERT DEUEL; BENEDICT MILLER; and CHARLES STEINBERG, Plaintiffs, v. CITY OF MEDFORD, an Oregon municipal corporation; and MICHAEL DYAL, City Manager, City of Medford, in his official capacity and as an individual, Defendants. (USDC CV-06-03058-PA; USCA 07-35753; SC S057330) En Banc On certified question from the United States Court of Appeals for the Ninth Circuit; certification order dated May 4, 2009; certification accepted June 4, 2009; argued and submitted on September 30, 2009. Stephen L Brischetto, Portland, argued the cause and filed the brief for plaintiffs.  With him on the brief was George P. Fisher. Robert E. Franz, Jr., Springfield, argued the cause and filed the brief for defendants.  Anil S. Karia and Michael J. Tedesco, Lake Oswego, filed a brief for amicus curiae International Brotherhood of Teamsters Local 223. BALMER, J. The certified question is answered. BALMER, J. This case is before the court on a certified question of Oregon law from the United States Court of Appeals for the Ninth Circuit.  See Doyle v. City of Medford, 565 F3d 536 (9th Cir 2009) (certifying question); ORS 28.200-28.255 (granting authority to answer certified questions and describing procedure).  Plaintiffs are retired employees of the City of Medford (the city) who brought an action against the city in federal district court, seeking damages and other relief for the city's actions with respect to making health care insurance coverage available to them.  Plaintiffs argued that ORS 243.303(2), which provides that local governments "shall, insofar as and to the extent possible," make the same health care insurance coverage available to retired employees as they make available to current employees, creates a property interest.  They claimed that the city deprived them of that property interest without due process of law when it failed to make available to them the same health insurance coverage that it makes available to current employees. The district court granted summary judgment for the city, concluding that ORS 243.303(2) did not create a property interest.  Plaintiffs appealed, and, in the process of considering that appeal, the Ninth Circuit certified to this court, and we accepted, the following question: "What amount of discretion does [ORS] 243.303 confer on local governments to determine whether or not to provide health insurance coverage to their employees after retirement?" For the reasons that follow, we conclude that ORS 243.303(2) creates an obligation for local governments to make health insurance coverage available for retirees; however, we also conclude that the obligation is limited to making coverage available "insofar as and to the extent possible," and that, depending on the circumstances, the local government may be excused entirely from its obligation if it can demonstrate that it was not possible, under the statutory standard, to make coverage available. We take the facts from the Ninth Circuit's order certifying the question to this court and from the record.  Before 1990, the city permitted all employees to elect to continue their health insurance coverage upon retirement.  In 1990, the city negotiated with the police officers' union for a health insurance program administered by the Oregon Teamsters Employers Trust (OTET).  The contract between the city and OTET provides that retired city employees are not allowed to participate in the Trust's Retiree Plan.  OTET was nonetheless "willing" to provide health insurance coverage to retired Teamsters members if the active members of the Teamsters voted for such coverage.  The members of the Teamsters have not voted to provide health insurance coverage to retirees.  In 2001, the city placed all existing management-level employees under the OTET health insurance program.  Because the retired management-level employees were not and could not be members of the Teamsters, OTET would not provide coverage to them.(1) As noted, plaintiffs are retired city employees -- two plaintiffs are retired police officers; two plaintiffs are retired management employees -- all of whom were denied the opportunity to purchase OTET health insurance coverage at some point after retirement.  Plaintiffs were, however, eligible for certain other insurance coverage after retirement.  Specifically, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), they were eligible to maintain their OTET coverage for 18 months after retirement, and, after that 18-month period expired, they were permitted to enroll in Oregon's Public Employees Retirement System Health Insurance Program, which is paid for in part by contributions from employers (including the city) and in part by premiums and other costs paid by participants (such as plaintiffs, were they to participate). In 2006, plaintiffs filed an action against the city in federal district court, alleging that the city, in failing to make health insurance coverage available to them, had violated the Age Discrimination in Employment Act of 1967 (ADEA); Oregon's age discrimination statute, ORS 659 A. 030; ORS 243.303, which we describe below; a 1986 city ordinance implementing ORS 243.303; and the Due Process Clause of the Fourteenth Amendment.  The district court granted summary judgment for the city on all federal claims, denied a discovery motion that plaintiffs had filed, and declined to exercise supplemental jurisdiction over the remaining state law claims.  As to the due process claim (the claim now at issue), the court held that neither ORS 243.303 nor the city's resolution adopted pursuant to it granted plaintiffs a constitutionally protected property interest.  The court determined that, because the statute required continued coverage only "to the extent possible," the statute did not "sufficiently limit the conditions under which the [c]ity would be required to extend health insurance coverage to retirees" to create such a property interest.  Plaintiffs appealed the federal district court's decision to the Ninth Circuit Court of Appeals.(2)  The Ninth Circuit noted that resolution of plaintiffs' due process claim -- that ORS 243.303 creates a property interest in health insurance coverage after retirement and that the city deprived them of that interest without due process of law -- requires interpretation of ORS 243.303 as a matter of state law.(3)  Doyle, 565 F3d at 540-41 (citing Board of Regents v. Roth, 408 US 564, 577, 92 S Ct 2701, 33 L Ed 2d 548 (1972) (property interests are created not by constitution, but by independent source, such as state law)).  The Ninth Circuit explained that "[p]inpointing how much discretion" ORS 243.303 confers on local governments is "central" to determining whether that statute creates a property interest.  Doyle, 565 F3d at 542 (citing Allen v. City of Beverly Hills, 911 F2d 367, 370 (9th Cir 1990)). The Ninth Circuit then examined the text, context, and legislative history of ORS 243.303 and concluded that the statute was ambiguous as to how much discretion it affords to local governments in determining whether to make retiree health insurance coverage available.  Doyle, 565 F3d at 541-42.  Because the court believed that resolution of that state law question would be essential to resolution of the due process issue, it certified to this court the question that is now before us.  As noted, that certified question asks what amount of discretion ORS 243.303 provides to local governments in determining whether to make health insurance coverage available to retirees.  Id. at 544.  This court accepted the certified question. ORS 243.303(2) provides: "The governing body of any local government that contracts for or otherwise makes available health care insurance coverage for officers and employees of the local government shall, insofar as and to the extent possible, make that coverage available for any retired employee of the local government who elects within 60 days after the effective date of retirement to participate in that coverage and, at the option of the retired employee, for the spouse of the retired employee and any unmarried children under 18 years of age.  The health care insurance coverage shall be made available for a retired employee until the retired employee becomes eligible for federal Medicare coverage, for the spouse of a retired employee until the spouse becomes eligible for federal Medicare coverage and for a child until the child arrives at majority, and may, but need not, be made available thereafter.  The governing body may prescribe reasonable terms and conditions of eligibility and coverage, not inconsistent with this section, for making the health care insurance coverage available.  The local government may pay none of the cost of making that coverage available or may agree, by collective bargaining agreement or otherwise, to pay part or all of that cost." (Emphasis added.)  The certified question focuses on the meaning of the phrase "shall, insofar as and to the extent possible" in that statute.  Plaintiffs argue that, because the legislature used the word "shall," the statute imposes a mandatory duty on local governments to make health insurance coverage available to retirees.  They argue that local governments may escape that duty only in the case of actual impossibility.  Plaintiffs argue that, "if there are providers available who are willing to provide [health insurance] coverage that includes retirees," the city must provide that coverage, regardless of cost or other circumstances.(4)  The city takes the contrary position, arguing that the statute imposes no duty at all.  In the city's view, because the legislature qualified the word "shall" with the phrase "insofar as and to the extent possible," ORS 243.303(2) is "a permissive statute leaving total discretion to [local governments]."  That is, the city contends that the statute, when properly read, merely provides authorization to make health insurance coverage available to retirees, rather than mandating that coverage.  As we discuss below, we reject both of those interpretations of ORS 243.303(2).  The proper interpretation lies between the parties' positions, and whether a local government has met its obligation under the statute will depend on the circumstances of each case and cannot be determined in the abstract. We begin with the text of the statute.  Ordinarily, use of the word "shall" implies that the legislature intended to create an obligation; in contrast, "may" generally implies that the legislature intended to create only the authority to act.  Friends of Columbia Gorge v. Columbia River (S055915), 346 Or 415, 426-27, 212 P3d 1243 (2009); see also Webster's Third New Int'l Dictionary 2085 (unabridged ed 2002) (defining "shall," in part, as "used in laws, regulations, or directives to express what is mandatory"); Legislative Administration Committee, Form and Style Manual for Legislative Measures 6 (2008) ("To impose an obligation to act, use 'shall.'").  There can be, of course, situations in which the context demonstrates that, although the legislature used the word "shall," it intended to create a permissive statute.  See Stanley, Adm. v. Mueller, 211 Or 198, 208, 315 P2d 125 (1957) ("[T]here are numerous instances in which 'shall' in a statute is interpreted as 'may' * * *.").  Here, however, as we describe below, the context demonstrates that the legislature intended "shall" to retain its ordinary meaning.  We therefore agree with plaintiffs that ORS 243.303(2) creates some obligation for local governments and is not merely an authorization to make coverage available for retirees; contrary to the city's view, the statute does not give the city the discretion simply to decline to make coverage available.  The more difficult question is, when and under what circumstances may a local government decide not to make the same coverage available to retirees that it makes available to current employees (or not to make any coverage available to retirees). ORS 243.303 was originally enacted in 1981 and provided that local governments "may, insofar as and to the extent possible," make health insurance coverage available to certain retired employees.  Or Laws 1981, ch 240, § 1.  The parties agree that critical changes were made to the statute in 1985, when the legislature amended several provisions of ORS 243.303(2).  The 1985 amendment provided as follows: "The governing body of any local government that contracts for or otherwise makes available health care insurance coverage for officers and employes of the local government [may] shall, insofar as and to the extent possible, make that coverage available for [retired officers and employes of the local government and for spouses and unmarried children under 18 years of age of those retired officers and employes.] any retired employe of the local government who elects within 60 days after the effective date of retirement to participate in that coverage and, at the option of the retired employe, for the spouse of the retired employe and any unmarried children under 18 years of age.  The health care insurance coverage shall be made available for a retired employe until the retired employe becomes eligible for federal Medicare coverage, for the spouse of a retired employe until the spouse becomes eligible for federal Medicare coverage and for a child until the child arrives at majority, and may, but need not, be made available thereafter.  The governing body may prescribe reasonable terms and conditions of eligibility and coverage, not inconsistent with this section, for making [that] the health care insurance coverage available.  The local government may [agree to] pay none[, part or all] of the cost of making that coverage available or may agree, by collective bargaining agreement or otherwise, to pay part or all of that cost." Or Laws 1985, ch 224, § 1 (new text in boldface; deleted text in [bracketed italics]). With that amendment, the legislature made two significant changes to the statute.  First, and most obviously, the legislature replaced the word "may," which ordinarily connotes authority or discretion, with the word "shall," which ordinarily connotes obligation.  The city argues that, notwithstanding the substitution of "shall" for "may," the legislature intended to completely eliminate the mandatory nature of the word "shall" by retaining the phrase "insofar as and to the extent possible."  However, we cannot ignore the fact that the legislature changed the wording from the permissive "may" to the mandatory "shall"; the legislature intended to accomplish something with that amendment, namely, changing the mere grant of authority to an obligation of some kind on local governments.   Second, the legislature added a provision providing a time period within which health insurance coverage must be made available.  That is, the 1985 amendment provided that health insurance coverage "shall be made available" for retirees until they become eligible for Medicare; after that point health insurance coverage "may, but need not," be made available.  The legislature thus contrasted the mandatory word "shall" (before Medicare eligibility) with the permissive word "may" (after Medicare eligibility).  That provision demonstrates that the legislature appreciated the difference between the two terms and that it intended to create some kind of obligation for local governments -- that they make health insurance coverage available to retired employees -- but that the obligation lasts only until the retired employees become eligible for Medicare.  See Friends of Columbia Gorge, 346 Or at 426 (when "shall" and "may" appear side by side, "shall" creates duty and "may" creates only authority).   The foregoing statutory text and context demonstrate that, by using the word "shall," the legislature intended ORS 243.303(2) to impose an obligation on local governments.  The city's argument that it has complete discretion to choose whether to make health insurance coverage available to retirees is simply inconsistent with the text of that statute.  However, the legislature also modified that mandatory wording with the phrase "insofar as and to the extent possible."  We now turn to a discussion of that phrase to determine how it influences our interpretation of the statute. We begin, again, with the text of the statute.  Plaintiffs contend that the plain, natural, and ordinary meaning of "possible" is "capable of happening," so that the phrase "insofar as and to the extent possible" creates a narrow exception for only actual impossibility.  See Webster's at 1771 ("possible" means "falling within the bounds of what may be done, occur, be conceived, or be attained within the framework of nature, custom, or manners").  They therefore argue that it is "possible" for a local government to make health insurance coverage available to retirees as long as there is an insurance provider that is willing to provide such coverage, regardless of increased cost to the local government or reduction in the local government's services.  The statutory wording is not as limited as plaintiffs suggest.  The phrase "insofar as and to the extent possible" is also used in common parlance to excuse performance of an obligation if, under the circumstances, performance would be unreasonably burdensome, even if it is not factually impossible.  See id. (defining "possible" as "being within or up to the limits of one's ability or capacity as determined by nature, authority, circumstances, or other controlling factor" (emphasis added)); Eck v. Market Basket, 264 Or 400, 405, 505 P2d 1156 (1973) (stating that, "insofar as possible," trial court should avoid interlineations and deletions in written jury instructions but acknowledging that it may not be possible due to the unavailability of "time and stenographic assistance"). Plaintiffs' argument that the word "possible" should be interpreted to mean "capable of happening" also ignores other words in the statute.  The legislature did not use the word "possible" by itself; ORS 243.303(2) does not require that health insurance coverage be made available to retirees "unless it is not possible" to do so, nor did the legislature provide that coverage must be made available "if possible."  Rather, the legislature modified the condition that providing coverage must be "possible" with the additional words "insofar as and to the extent."  "Insofar as" means "in such measure as : to such extent or degree as."  Webster's at 1170.  And "extent," as used in this context, is defined as "the point or degree to which something extends."  Id. at 805.  Both of those phrases emphasize the concept of degree or amount, indicating that the legislature did not view the health insurance coverage obligation as one that necessarily was either "possible" or "not possible" -- as plaintiffs suggest -- but rather as one that might be possible only to some degree or to some extent.  The statute recognizes that local governments face varying circumstances, and it gives local governments some flexibility in complying with the statute, based on those circumstances. That interpretation of ORS 243.303(2) is consistent with the way the legislature has modified the word "shall" with the phrase "to the extent possible" or the phrase "insofar as possible" in other statutes.  Ordinarily, the legislature appears to have used those phrases to articulate a specific legislative policy, rather than imposing an actual impossibility exception.  For example, in chapter 185, the legislature has created several commissions to advise the Governor and the legislature.  For each commission, the legislature provides, "To the extent possible, members appointed by the Governor shall provide for representation from all areas of the state."  ORS 185.320(1) (Commission on Hispanic Affairs); ORS 185.420(1) (Commission on Black Affairs); ORS 185.520(1) (Commission for Women); ORS 185.610(1) (Commission on Asian Affairs); see also ORS 672.615(2) ("Insofar as possible the [State Board of Geologist Examiners] shall be composed of members having diverse geological specialties including at least one engineering geologist.").  Our review of those and other statutes(5) in which the legislature has used the phrases "insofar as possible" and "to the extent possible" supports our conclusion that the legislature intended to impose an obligation, but also to provide some flexibility to local governments, when it used the phrase "insofar as and to the extent possible" in ORS 243.303(2). Other aspects of the statutory context support that view.  When the legislature in 1985 changed ORS 243.303(2) from an authorization to make health insurance coverage available to an obligation to do so "insofar as and to the extent possible," it nevertheless retained (with one slight modification) the sentence in that statute providing that "[t]he governing body may prescribe reasonable terms and conditions of eligibility and coverage not inconsistent with this section, for making the health care insurance coverage available."  The statute thus recognizes that it may not be possible for a local government to make the same coverage available to retirees that it makes available to current employees, but that, in that event, "insofar as and to the extent" that it is possible to make some coverage available to retirees, in light of all the circumstances, it is obligated to do so.  Moreover, the statute explicitly provides that the local government "may pay none of the cost of making that coverage available [to retirees] or may agree, by collective bargaining agreement or otherwise, to pay part or all of that cost."  Those provisions demonstrate that the legislature intended that, if it is not possible for a local government to make available to retirees the same health insurance coverage that it makes available to current employees, the government has flexibility in implementing the obligation that the legislature has imposed.(6) The foregoing text and context analysis supports the conclusion that, under ORS 243.303(2), local governments have an obligation to make health insurance coverage available to retirees, but that there may be factual circumstances that excuse that obligation.  To the extent that any uncertainty remains in interpreting ORS 243.303(2), the legislative history further supports the interpretation set out above.  See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (court may consider legislative history proffered by the parties, if useful).  In 1985, the legislature amended ORS 243.303(2) with House Bill (HB) 2430 (1985).  As noted, among other amendments, the legislature changed the relevant phrase from "may, insofar as and to the extent possible," to "shall, insofar as and to the extent possible."  Or Laws 1985, ch 224, § 1.  We therefore look to the legislative history of that bill for further guidance. There is little specific discussion in the legislative history of the phrase "insofar as and to the extent possible."(7)  However, two propositions can be gleaned from the legislative history overall.  First, it appears that the legislators understood that the bill would impose some sort of obligation on local governments.  As discussed above, that much is clear from the text and context of the statute.  Second, the legislators emphasized, particularly when questioning witnesses who were opposed to the bill, that the bill provided local governments flexibility in carrying out their obligations.  Two specific discussions in the legislative history illustrate the foregoing conclusions.  First, during a work session on the bill, Legislative Counsel Bob Lundy referred to the phrase "insofar as and to the extent possible."  In attempting to determine whether the bill would require local governments to make identical coverage available to retirees and current employees, Chairperson Hill requested Lundy's help.  He first sought Lundy's interpretation of the provision in the bill that permitted local governments to "prescribe reasonable terms and conditions of eligibility and coverage" for retiree health insurance coverage.  The following exchange ensued: Lundy:  "[T]he original reason for the terminology that the * * * governing body may provide reasonable terms and conditions of eligibility and coverage was * * * to provide some flexibility to the local governments in trying to fit the retired people into the coverage that is made available for the working employees of the local government.  * * * It is deliberately general." Chairperson Hill:  "Your [premise] then, in summary, would be to provide flexibility?" Lundy:  "Yes." "* * * * *" Chairperson Hill:  "Mr. Lundy, could you also speak to 'that coverage'? We have * * * terms here that say the local government 'shall insofar and to the extent possible' -- which sounds again like qualifying language, and that's excepting language -- 'make that coverage available.'  Would you * * * agree * * * that the coverage must be identical or that the coverage must be comparable?" Lundy:  "It contemplates with [the] flexible terminology -- not only down below but that insofar and to the extent possible -- it contemplates that the insurance plan provided for the working employees would be the plan that covers the retired employee, subject to whatever conditions they have to work out with the insurer on it, for example * * *." Tape Recording, House Intergovernmental Affairs Committee, HB 2430, Mar 26, 1985, Tape 97 (statement of Bob Lundy) (emphasis added). That exchange helps demonstrate that the legislature intended to provide flexibility to local governments throughout the bill and, in particular, by retaining the phrase "insofar as and to the extent possible."  Lundy specifically pointed to the fact that insurance companies might impose conditions on retiree coverage and noted that the bill was intended to require local governments to work with insurance companies to try to make health insurance coverage available, although perhaps not coverage identical to that of the active employees. Second, Senator Cohen's comments while presenting the bill on the Senate floor reinforce the interpretation suggested above.  After describing the bill in terms of creating a requirement for local governments, Senator Cohen qualified her statements: "I want to remind you, on line 14, it does say 'insofar as and to the extent possible make the coverage available' * * * so that it does provide that * * * they may offer different packages for * * * them to * * * pay for * * * as they go along so * * * it doesn't say that it shall be in fact the very very same, it says * * * you have to be provided that option within the group system.  And also that the governing body may prescribe reasonable terms and conditions of eligibility and coverage.  The local government may pay none or part of the costs of making the coverage available." Senator Cohen emphasized with those comments to the Senate that the bill was intended to be flexible.  Tape Recording, Senate Floor Proceedings, HB 2430, May 22, 1985, Tape 124B (statement of Sen Cohen).   Although most of the comments discussed above were made in the context of whether ORS 243.303 required local governments to make available the same terms of health insurance coverage for retired employees and active employees, both Lundy and Senator Cohen discussed the meaning of the phrase "insofar as and to the extent possible" generally.  That phrase modifies the local government's obligation to make health insurance coverage available to retired employees, as well as the particular terms of coverage.  We therefore find the legislative history useful in confirming that the phrase "insofar as and to the extent possible" was intended to create flexibility within the statute as a whole.  The statutory text and context demonstrate that the legislature intended the bill to impose an obligation on local governments, but the text, context, and legislative history also make it clear that the bill was not intended to be unduly burdensome. Based on the foregoing, we interpret ORS 243.303(2) to create an obligation on local governments to make the health insurance coverage that they provide to active employees available to retired employees.  It does not, as the city argues, leave the city with "total discretion" to decline to make coverage available to retirees or to choose health insurance coverage for its current employees without regard to whether the insurer is willing to offer coverage to retirees.  Neither, however, do we interpret the statute as imposing an absolute mandate, subject only to an exception for actual impossibility.  Local governments exist to provide government services, and they have statutory and contractual obligations to employees, retirees, and the citizens within their jurisdictions.  Whether a local government has complied with ORS 243.303(2) will depend on whether it has made health insurance coverage available to retirees "insofar as and to the extent possible," in light of all the facts.  The responsibility to demonstrate that it was not possible, under the statutory standard, to make coverage available to retirees rests with the local government, and we emphasize that the local government cannot make that showing, as the city attempts to here, by pointing solely to the fact that its chosen provider does not offer retiree health insurance coverage.  Although the statutory standard is a legal one, determining whether a local government has demonstrated that it should be excused from making health insurance coverage available to retirees will depend on the facts of each case.  The certified question asks what "amount of discretion" ORS 243.303(2) confers on local governments.  As the discussion above demonstrates, we reject the city's position that the statute delegates to the city discretion to make health insurance coverage available to retired employees; we likewise reject plaintiffs' position that the obligation is absolute, and can be excused only if making coverage available is not "capable of happening."  The answer, instead, lies somewhere in between.  We also find unhelpful the parties' efforts to reformulate the legal standard established by the statute.  The statute requires a local government to make the coverage available "insofar as and to the extent possible."  That is the standard that the local government must meet to be excused from the obligation imposed by ORS 243.303(2).  Whether a local government has met that standard cannot be answered in the abstract and will depend on the facts. The certified question is answered. 1. The Ninth Circuit order does not distinguish between the retired police officers and the retired management employees in discussing the availability of retirement benefits.  The court stated that, "[a]ccording to the [c]ity, the Teamsters were 'willing' to provide health insurance benefits to retired employees, but only 'if the members of the Teamsters voted for such coverage.'"  Doyle v. City of Medford, 565 F3d 536, 539 (9th Cir 2009) (emphasis added).  The city, however, states that the Teamsters were "willing" to provide benefits upon membership approval only to retired Teamsters, such as the retired police officers, and not to retired management employees.  It is unnecessary for us to resolve that factual issue to answer the certified question. 2. Plaintiffs also filed an action in Oregon state court asserting their state law claims, including a claim that the city had violated ORS 243.303.  In that action, the state trial court concluded that two plaintiffs were barred from asserting their claims by the statute of limitations but denied the city's motion for summary judgment as to the other two plaintiffs.  The court rejected the city's argument that making continuing coverage available to retirees was not "possible" because of the city's contract with OTET.  Because the city had not provided evidence that no health insurance provider was willing to provide coverage for both active and retired city employees, the trial court refused to hold that it was impossible for the city to make coverage available.  As of the date of the Ninth Circuit's order certifying the present question to us, the Oregon case was still pending in the state trial court. 3. In a separate decision, the court reversed the denial of discovery on the ADEA claim and remanded that claim to the district court. 4. Plaintiffs also urge us to reformulate the certified question and advise the Ninth Circuit that ORS 243.303(2) creates an "entitlement" and "vested rights" for retirees.  That request, however, would have us answer the federal question presented in this case and affirmatively state that ORS 243.303(2) creates a property interest for purposes of the Due Process Clause.  We decline to do so and instead answer only the state law question before us -- whether and to what extent ORS 243.303(2) imposes an obligation on local governments to make health insurance coverage available to retirees.  What that answer means in terms of the federal question will then be a matter for the Ninth Circuit to decide. 5. See, e.g., ORS 144.515 ("To the extent possible, the Department of Corrections shall cooperate with employers in making possible the continued employment of persons released [from confinement after participating in a work release program]."); ORS 802.270(3) ("A computer system designed for the purposes [of maintaining computerized records of insurance information with the Department of Transportation] shall, to the extent possible, enable insurers to transfer information directly to the computer in a way that is most convenient for the insurers and the department."). 6. The legislature also has imposed limits -- although they have differed at different times -- on the ways in which a local government could meet its obligation.  In 2001, the legislature amended ORS 243.303 by adding a provision that prohibited local governments and insurers from creating separate retiree "groups" and from establishing higher premiums for retirees than for current employees.  Or Laws 2001, ch 604, § 1, codified at former ORS 243.303(3) (2001).  In 2003, however, the legislature amended ORS 243.303(3), modifying the prohibition on creating separate groups and eliminating the prohibition on higher premiums for retirees.  Or Laws 2003, ch 62, § 1; Or Laws 2003, ch 694, § 1.  ORS 243.303(3), however, does not assist us in interpreting ORS 243.303(2), which took its present form more than 15 years earlier.  See State v. Tate, 347 Or 318, 328, 220 P3d 1176 (2009) (later-enacted statute ordinarily provides little interpretive assistance). 7. At one point during the public hearings before the House Intergovernmental Affairs Committee, Representative Cease questioned a witness, Don Satchell of the Oregon Education Association, regarding the term: "Rep. Cease:  "What's your understanding of the phrase 'insofar as and to the extent possible'?  What does that mean?" "Satchell:  "That is the current law, and I cannot explain it." "Rep. Cease:  "Whatever it means in the current law, it would mean the same here, then?" "Satchell:  "That's right." Tape Recording, House Intergovernmental Affairs Committee, HB 2430, Mar 26, 1985, Tape 97 (statement of Don Satchell).

60fc4682fe2143b716ce2e2afdbb7123106bd45f0d7991de3639b257d03c970e

2010-02-04T00:00:00Z

ec8c215a-4604-46bb-9bbe-fa56d25762ea

State v. Wedge

293 Or. 598, 652 P.2d 773

oregon

Oregon Supreme Court

652 P.2d 773 (1982) 293 Or. 598 STATE of Oregon, Respondent On Review, v. Raymond Delbert WEDGE II, Petitioner On Review. CA A21873; SC 28477. Supreme Court of Oregon. Argued and Submitted July 14, 1982. Decided October 5, 1982. Reconsideration Denied November 23, 1982. Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on brief was Gary D. Babcock, Public Defender. William F. Gary, Sol. Gen., Salem, argued the cause for respondent on review. With him on brief were Dave Frohnmayer, Atty. Gen., and Thomas H. Denney, Asst. Atty. Gen. CAMPBELL, Justice. Following defendant's conviction in a jury trial, the trial court imposed a minimum five-year sentence for the use of a firearm following ORS 161.610(4),[1] even *774 though the jury did not necessarily find that defendant had personally used or threatened to use a firearm. Defendant contends this minimum sentence is unconstitutional as a violation of his right to a jury under the Oregon Constitution. We agree and reverse. On February 17, 1981 two men disguised with face masks, one armed with a gun and the other with a knife, broke into Dennis McKinley's home and demanded money. The knifeman cut McKinley across the right shoulder. The gunman forced McKinley's wife and child to lie on the floor. McKinley gave them approximately $200, mostly in five dollar bills. The gunman put the money into his pocket. The robbers then demanded more money and marijuana. McKinley went to his bedroom, got his own gun, and shot at the gunman. McKinley saw no blood or other possible evidence of a wound except for a hole in the gunman's jeans. The knifeman then fought with McKinley and subdued him. McKinley escaped out the front door where he met a third masked man who hit him on the head with a gun. McKinley telephoned the police from a neighbor's home at 8:08 p.m. The three robbers left before the police arrived. The same evening at 8:36 the defendant was admitted to a hospital about ten miles away with a gunshot wound in the lower abdomen. He had a sizable number of five dollar bills with him. Defendant was charged by indictment with robbery in the first degree (two counts), burglary in the first degree, assault in the second degree (two counts), and theft in the first degree (two counts) and convicted on all counts following a trial by jury. The circuit court merged all the convictions and sentenced defendant to 20 years' imprisonment for robbery in the first degree. He ordered defendant to serve a minimum of ten years pursuant to ORS 144.110(2).[2] The indictments[3] in the present case were worded in such a way that a jury could find that defendant was the man with *775 the knife rather than one of the gunman, and still find him guilty of all the offenses. Nor did the defendant admit on the record that he used a firearm so the convictions did not necessarily establish defendant's use of a firearm. At the sentence proceeding this situation was recognized by the court, which then found beyond a reasonable doubt, pursuant to ORS 161.610(4), that a firearm was used or threatened to be used by the defendant in the commission of these offenses, and imposed a five-year minimum term of imprisonment.[4] Defendant only appeals this five-year minimum term, contending that the finding by the court rather than by a jury of his personal use of a firearm violated his constitutional right to a trial by jury guaranteed by Article I, Section 11 of the Oregon Constitution.[5] In State v. Hicks, 38 Or. App. 97, 589 P.2d 1130 (1979), construing a similar statute, former ORS 166.230, the court stated that an enhanced *776 penalty can be given only to a person who has actual physical possession of a gun during the commission of a felony because there is no statutory basis for enhanced penalty based on vicarious liability. We agree with this interpretation. The court would be without authority to sentence defendant if there were no finding he personally used or threatened to use a firearm. We approve the Court of Appeals explanation of ORS 161.610 in State v. Warner, 52 Or. App. 987, 630 P.2d 385 (1981): The court then explained the effect: The court stated the purposes as: There is no right to a jury for sentencing under the United States Constitution, even in a capital case. Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976). Nor does the Oregon Constitution mandate jury participation in sentencing. State v. Dixon, 238 Or. 121, 124, 393 P.2d 204 (1964). The Kansas Supreme Court, in State v. Mullins, 223 Kan. *777 798, 800, 577 P.2d 51 (1978), upheld a similar statute explaining: Defendant argues, however, that State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), is controlling in the present case. In Quinn this court struck down ORS 163.116 imposing a death sentence for murder as unconstitutional because it violated defendant's right to a trial by jury. The defendant's state of mind was an essential element of homicide, and the statute required the judge, rather than the jury, to determine the greater mental state for which a penalty of death could be imposed. We held in that case that a defendant has a constitutional right to have all elements of the crime (for which a defendant is subject to punishment) decided by a jury. However, in Quinn we recognized that not all enhanced penalty statutes are unconstitutional: In Quinn we stated as a simple principle that facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing judge. The application of this simple principle is not always so simple. The present fact to be found describes an act in the commission of the crime which determines the maximum penalty to which the defendant is *778 subject. In order to decide whether a jury determination is required in the present case, one must look beyond this categorization. We also said in Quinn that facts which go to the criminal acts for which a defendant is to be punished must be proved to a jury's satisfaction unless admitted or waived. Quinn, supra, 290 Or. at 406, 623 P.2d 630. The use or threatened use of a firearm is a finding that goes to the criminal act for which this defendant is punished, and thus is closer to an element of the crime than to a characterization of the defendant. Also, in both Quinn and the present case the finding in question is restricted to the one crime at issue in contrast to the post-trial habitual criminal and the sexually dangerous offender proceedings in which the scope of inquiry is not so limited. In Quinn we differentiated between subsections (2)(a) and (2)(b) in the former ORS 163.116. Subsection (2)(b) directs the trial judge to consider: These findings are the kind that may be properly considered by the court "for the purpose of determining the kind and character of the man upon whom sentence is to be imposed," State v. Hicks, 213 Or. 619, 630, 325 P.2d 794 (1958). However the findings required under (2)(a), go to the criminal acts for which the defendant is to be punished and this determination must be made by the jury. Quinn, supra, 290 Or. at 406, 623 P.2d 630. Although the challenged statute is denominated an enhanced penalty statute, in effect it creates a new crime. The jury only considered evidence offered on the question of first degree robbery, and convicted him of that offense, but the defendant was sentenced on the basis of having been found guilty of the crime of "first degree robbery using a firearm." If the legislature had actually described the crime as "first degree robbery using a firearm" the use of a firearm would certainly be an element and there would be no doubt defendant would have a right to a jury determination of guilt. The legislature cannot eliminate constitutional protections by separating and relabeling elements of a crime. Although in the present case the statutory mandatory minimum does not increase defendant's penalty, this would not always be true. Suppose our defendant is later convicted of a Class C felony, which carries a maximum sentence of five years. ORS 161.605(3). If either the jury or the court finds the use or threatened use of a firearm in this second felony, the court will be required to impose a ten year minimum sentence if ORS 161.610(5), (6) is literally applied. If he were convicted of a third felony in which he used or threatened to use a firearm after serving the ten year minimum pursuant to ORS 161.610(5)(b), a defendant would be forced to serve a minimum sentence of 30 years under ORS 161.610(5)(c) regardless of the classification of the felony, even though the maximum penalty proscribed by the legislature is 20 years for a Class A felony and 10 years for a Class B felony. ORS 161.605(2)(3). This might be a violation of defendant's constitutional right to a trial by jury, because he would be receiving an additional sentence based on the factual finding by the judge of the use of a firearm in the first conviction. Under the facts of this case, we hold the defendant was deprived of his constitutional right to a jury trial on the issue raised in this case. Reversed and remanded for resentencing. [1] ORS 161.610 states: "(1) As used in this section `firearm' means a weapon which is designed to expel a projectile by the action of black powder or smokeless powder. "(2) Prior to sentencing upon a felony conviction, it shall be the duty of the district attorney to advise the court, and the duty of the court to inquire, as to whether the defendant used or threatened to use an operable or inoperable firearm during the commission of the crime. "(3) Unless the conviction necessarily establishes that the defendant used or threatened to use a firearm during the commission of the crime, or unless the defendant admits on the record that he used or threatened to use a firearm during the commission of the crime, whenever the court has reason to believe that the defendant so used or threatened to use a firearm, it shall set a presentence hearing on the matter. The parties may offer evidence and examine and cross-examine witnesses during the hearing. "(4) Notwithstanding the provisions of ORS 161.605 or 137.010(2), if the court finds beyond a reasonable doubt that the defendant used or threatened to use a firearm during the commission of the crime, it shall impose at least the minimum term of imprisonment as provided in subsection (5) of this section. Except as provided in subsection (6) of this section, in no case shall any person punishable under this section become eligible for work release or parole until the minimum term of imprisonment is served, less reductions of imprisonment for good time served, nor shall the execution of the sentence imposed upon such person be suspended by the court. "(5) The minimum terms of imprisonment for felony convictions in which the court finds that the defendant used or threatened to use firearm shall be as follows: "(a) Except as provided in subsection (6) of this section, upon the first conviction for such felony, five years. "(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection, 10 years. "(c) Upon conviction for such felony committed after imprisonment pursuant to paragraph (b) of this subsection, 30 years. "(6) If it is the first time that the defendant is subject to punishment under this section, the court may suspend the execution of the sentence otherwise required under paragraph (a) of subsection (5) of this section, or impose a lesser term of imprisonment, when the court expressly finds mitigating circumstances justifying such lesser sentence and sets forth those circumstances in its statement on sentencing." [2] ORS 144.110 states: "(1) In any felony case, the court may impose a minimum term of imprisonment of up to one-half of the sentence it imposes. "(2) Notwithstanding the provisions of ORS 144.120 and 144.780: "(a) The board shall not release a prisoner on parole who has been sentenced under subsection (1) of this section until the minimum term has been served, except upon affirmative vote of at least four members of the board. "(b) The board shall not release a prisoner on parole who has been convicted of murder defined as aggravated murder under the provisions of ORS 163.095, except as provided in ORS 163.105." [3] The indictment filed against the defendant in Washington County contained in pertinent part the following language: "The above-named defendant(s) is/are accused by the Grand Jury of Washington County by this indictment of the crime(s) of robbery in the first degree in Counts I and II, burglary in the first degree in County III, assault in the second degree in Counts IV and V, ex-convict in possession of a concealable firearm in Count VI, and theft in the first degree in Counts VII and VIII, committed as follows: "That the above-named defendant(s) on or about the 17 day of February 1981, in Washington County, Oregon did unlawfully and knowingly use and threaten the immediate use of physical force upon Dennis Lee McKinley and Starlene Renee McKinley by brandishing a knife and cutting Dennis Lee McKinley with the knife, by pointing two firearms at both McKinleys, and by striking Dennis Lee McKinley with a firearm, and was armed with deadly weapons, to-wit: a long curve-bladed knife and two firearm handguns, while aided by two accomplices actually present, and while in the course of committing theft of property, to-wit: money and a pistol firearm, with the intent of compelling said McKinleys to deliver the said property to the said defendant, "Count II "as an alternative means of committing the crime alleged in Count I, the above-named defendant on or about the 17 day of February, 1981, in Washington County, Oregon, did unlawfully and knowingly use and threaten the immediate use of physical force upon Dennis Lee McKinley and Starlene Renee McKinley by brandishing a knife and cutting Dennis Lee McKinley with the knife, by pointing two firearms at both McKinleys, and by striking Dennis Lee McKinley with a firearm, and did use and attempt to use a dangerous weapon, to-wit: a long curve-bladed knife, while aided by two accomplices actually present, and while in the course of committing theft of property, to-wit: money and a pistol firearm, with the intent of compelling said McKinleys to deliver the said property to the said defendant, "Count III "as part of the same act and transaction alleged in the above counts, the above-named defendant on or about the 17 day of February, 1981, in Washington County, Oregon, did unlawfully and knowingly enter and remain in a building, to-wit: a dwelling, located at 11545 SW Beef Bend Road, Tigard, with the intent to commit the crime of robbery, assault and theft therein, "Count IV "as part of the same act and transaction alleged in the above counts, the above-named defendant on or about the 17 day of February, 1981, in Washington County, Oregon, did unlawfully and knowingly cause physical injury to Dennis Lee McKinley by means of a deadly and dangerous weapon, to-wit: a long curve-bladed knife, by cutting said McKinley, "Count V "as an alternative means of committing the crime alleged in Count IV, the above-named defendant on or about the 17 day of February, 1981, in Washington County, Oregon, did unlawfully and knowingly cause physical injury to Dennis Lee McKinley by means of a deadly and dangerous weapon, to-wit: a handgun firearm, by striking said McKinley with the firearm, "Count VI "as part of the same act and transaction alleged in the above counts, the above-named defendant on or about the 17 day of February, 1981, in Washington County, Oregon, did unlawfully and knowingly possess a firearm capable of being concealed upon the person, to-wit: two (2) handgun firearms, the said defendant having previously been convicted in Multnomah County, Oregon, on or about June 7, 1972, of the felonies of robbery and assault, "Count VII "as part of the same act and transaction alleged in the above counts, the above-named defendant on or about the 17 day of February, 1981, in Washington County, Oregon, did unlawfully and knowingly commit theft of money, of the total value of more than two hundred dollars, the property of Dennis Lee McKinley, "Count VIII "as an alternative means of committing the crime alleged in Count VIII, [sic] the above-named defendant on or about the 17 day of February, 1981, in Washington County, Oregon, did unlawfully and knowingly commit theft of a firearm, to-wit: a pistol revolver, the property of Dennis Lee McKinley, * * *" On defendant's motion count VI was severed, and counts VII and VIII renumbered to VI and VII. Although defendant was found guilty of count V (assault with a firearm) this is not dispositive of the issue presented because he could have been found vicariously liable as an aider and abetter. [4] This question is not moot because under the terms of ORS 144.110 the ten year minimum may be set aside by a vote of four of the five members of the parole board. [5] Article I, Section 11 of the Oregon Constitution states: "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *." [6] The right to trial by jury was neither raised nor considered in State v. Warner, 52 Or. App. 987, 630 P.2d 385 (1981).

f9759412eaef73f832d9fec036046f20b6089bf0c32b2cc65d5645f858aa50e2

1982-10-05T00:00:00Z

bfa262b6-fa75-4283-86ab-a2b3b79bbe1b

Freedman v. CHOLICK ET UX

233 Or. 569, 379 P.2d 575

oregon

Oregon Supreme Court

Affirmed March 13, 1963. *570 Paul R. Meyer, Portland, argued the cause for appellant. With him on the briefs were Kobin & Meyer, Portland. Thomas J. Moore, Portland, argued the cause for respondents and cross-appellants. With him on the briefs were Schedler & Moore, Portland. Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices. AFFIRMED. GOODWIN, J. This is an action for damages for breach of contract. Plaintiff paid defendant $250 for an option to buy a corner lot in downtown Portland for $115,000. Plaintiff in due course elected to exercise the option. Defendant was unable to deliver possession. This action followed. Plaintiff demanded in damages the difference between $115,000 and $132,000, the alleged market value of the property at the time he exercised the option. He also demanded $250 as return of his consideration for the option and $320 as lost interest on purchase money deposited in escrow by plaintiff. The *571 jury found for plaintiff but awarded him only $570 in damages. Plaintiff appeals, and assigns error to certain rulings upon the evidence. Expert witnesses testified in plaintiff's case-in-chief that the market value of the land and its improvement (a parking-garage) was between $130,000 and $132,000 at the critical time. Plaintiff's witnesses swore the building could be remodeled and used as an office building. In defendant's case, his value witness testified that the land as improved was worth only $100,000. Defendant's witness gave the building virtually no value. The value of the improvement thus became the central issue before the jury. The defendant's value witness stated that in his opinion the garage building could not economically be converted into a commercial office building. He conceded on cross examination that it was technically possible so to remodel. However, it was his conclusion that the building did not enhance the present market value of the land. He said that in order to develop the land to its highest and best use it would be better, in his opinion, to demolish the existing building. He acknowledged that he had based his opinion, in part at least, upon an assumption that the building was brick rather than brick facing on reinforced concrete. Plaintiff's witnesses earlier had sworn that the building was concrete with brick facing and trim. In rebuttal the plaintiff asked a contractor whether the existing improvement could be converted into a modern office building. The answer was affirmative. The plaintiff then asked the contractor the cost of such conversion. This evidence was excluded. The plaintiff then made an offer of proof, and combined in his offer of proof the contractor's testimony (a) that the building could be remodeled and (b) the cost *572 thereof. Another offer of proof consisted of the testimony of a property-management expert concerning the earnings which could be expected from a modern office building on the site in dispute. By its various rulings, the court sustained objections to all of this proffered testimony. Plaintiff has assigned error to these rulings. 1, 2. In general, rebuttal testimony will be excluded except for that made necessary by the opponent's case-in-chief. State v. Fischer, 232 Or 558, 376 P2d 418 (1962); 6 Wigmore, Evidence (3d ed) 510, § 1873. Whether such evidence is necessary is ordinarily a matter of discretion. Parmentier v. Ransom, 179 Or 17, 22, 169 P2d 883 (1946). 3. Normally, where the vendor breaches his contract to sell land, the vendee may recover the difference between the market value of the land at the time it should have been conveyed and the contract price. Crahane et al v. Swan, 212 Or 143, 156, 318 P2d 942 (1957); McCormick, Damages 680, § 177. Present market value obviously includes the value of existing improvements on the land; e.g., Public Market Co. v. Portland, 179 Or 367, 170 P2d 586 (1946), cert. den. 330 US 829, 67 S Ct 861, 91 L Ed 1278 (1947); City of Los Angeles v. Klinker, 219 Cal 198, 211, 25 P2d 826, 90 ALR 148; 2 Orgel, Valuation under Eminent Domain 4, § 189. The quest for present market value also makes relevant an inquiry into the possible future uses of the land (within limitations not in issue here). Boom Co. v. Patterson, 98 US 403, 408, 25 L Ed 206 (1878); 1 Sedgwick, Damages (9th ed) 510, § 253; 1 Orgel, Valuation under Eminent Domain, §§ 29-31. This inquiry is usually referred to as a search for the highest and best use of the land. In the case at bar, the jury had heard plaintiff's *573 value witness swear that the existing building was a valuable asset. The jury had also heard the defendant's witness say that he considered the building to be of little or no value. He reached a figure $30,000 lower than that of the plaintiff's witness because he thought the building ought to be torn down. There was, then, a conflict in the testimony of the two real-estate appraisers. Plaintiff sought to rebut the defendant's expert by asking two other kinds of experts (a builder and a rental manager) to swear that there was a valuable building on the land. Plaintiff relies upon State Highway Com'n v. Deal et al, 191 Or 661, 233 P2d 242 (1951), as authority that his proferred testimony was admissible in rebuttal. In the Deal case, the state's witnesses had sworn in the state's case-in-chief that the land taken could not be used for subdivision purposes. The point then under inquiry was the highest and best use of certain ocean-frontage land. During the owner's case-in-chief, he put in evidence to show that the best use of the property would be for subdivision purposes. The state objected when the owner then offered to prove how the land could be subdivided into lots, and when he sought to show the price for which the lots could be sold. The state argued, correctly, that this evidence was speculative. We held, however, that although the evidence normally would have been inadmissible as too speculative, it had become admissible in that case for a limited purpose. The state had opened up the collateral question of the cost of improvements and whether these costs could be recaptured in the selling price of the lots. We held that the defendant was thus entitled to meet the state's evidence with his own evidence that the lots could be sold. The testimony was admissible solely to prove that subdivision was feasible, *574 and then only because the state had opened the inquiry. In the case at bar, there is no dispute about the highest and best use of the land. Both parties agree that such use would be for a modern office building. Further, with reference to the value of the existing building and its future usefulness, it is clear that when plaintiff's witnesses testified to the market value of the property as a whole they took into account the value of the existing building as the start of a remodeled office building. Thus, when the rebuttal evidence was offered, the jury already had before it two different figures on market value, two extended explanations of how the figures had been reached, and two conflicting views on the feasibility of adapting the existing building. The Deal case might give some support to the plaintiff's position in the case at bar if in the Deal case the trial court had permitted the state to come back in rebuttal with proof that the lots could not be sold at the prices sworn to by the owner. That matter, however, was never presented, and we had no occasion to pass upon it. In any event, we have been cited to no authority that would require a court to receive such evidence. 4. That portion of the proffered testimony which the plaintiff sought to elicit from the building contractor, i.e., that the existing building could be remodeled, was cumulative. Testimony on that score had been placed before the jury in the plaintiff's case-in-chief. While there would have been no reversible error in receiving cumulative testimony on rebuttal, neither would there be error in excluding it. The matter is discretionary. The portion of the testimony which plaintiff sought to elicit from the property manager was not *575 cumulative, since it had not been touched upon before, but was so speculative, and opened up inquiry into so many collateral matters, that its relevance was outweighed by its diversionary effect. Testimony concerning rentals to be earned from a future building had not been made admissible by the mere statement of the owner's expert that he did not consider remodeling to be economically feasible. In the exercise of sound judicial discretion, the trial court properly excluded the plaintiff's offer of proof as containing only remotely relevant evidence, the probative value of which was not sufficient to overcome its essentially speculative nature. Plaintiff urges another ground for reversal. Plaintiff notes that the defendant's expert had relied on a supposed fact that the building was of brick. Plaintiff's witness, however, had already testified that the building was made of steel-reinforced concrete. Plaintiff then cites cases for the proposition that it is for the jury to determine whether the facts upon which an expert bases his opinion actually exist. Panko v. Grimes, 40 NJ Super 588, 596, 123 A2d 799 (1956); Thompson v. City of Bushnell, 348 Ill App 395, 109 NE2d 346 (1952). Those cases indeed support the proposition, which is unchallenged here. However, as the jury could have determined without any rebuttal that the facts upon which the defendant's expert's opinion was based were other than he thought them to be, it could have decided that his opinion was entitled to no weight. Oral argument, rather than cumulative evidence, is the method for dealing with this sort of situation. 5. Even if we assume, however, that there would have been no error, as such, in permitting the plaintiff to contradict the defendant's witness by showing once *576 again on rebuttal the true nature of the construction, the plaintiff's offer of proof went far beyond such a modest redundancy. As noted, plaintiff sought also to prove the costs and income-potential of a proposed office building, complete with air-conditioning and rent-paying tenants. The latter testimony was inadmissible under any theory. State Highway Com'n v. Deal et al, supra. As noted in Smith v. White, 231 Or 425, 372 P2d 483 (1962), if an offer of evidence contains within it evidence that is inadmissible commingled with evidence that is admissible, it is no error to exclude the entire offer. The good falls with the bad. In the case at bar there was no error in excluding the offers of proof. 6. Plaintiff's final assignment of error which we will notice challenges the refusal of the court to let plaintiff testify as his own witness on the value of the land. He claims that by exercising his option to buy the land he became equitable owner of the land and was, therefore, entitled to testify concerning value as an owner under the rule of Hanns v. Friedly, 181 Or 631, 641, 184 P2d 855 (1947). Plaintiff seeks comfort in noting that defendant was only an equitable owner himself (buying on a contract), but had been allowed to testify. The record reveals no objection to the defendant's value testimony, so the propriety of letting him testify is not before us. The defendant did object, however, when the plaintiff offered to testify on value. Plaintiff now says that the resulting inequality of opportunity to testify was prejudicial to him. The reason for the rule which permits a nonexpert owner to testify to value is the supposed familiarity an owner-occupier has with the neighborhood and the land values therein. Moss v. Peoples Calif. Co., 134 Or 227, 293 P 606 (1930); Hanns v. Friedly, supra at *577 642. The rule is of doubtful wisdom, and has not been extended in this state to corporate ownership. Highway Com. v. Assembly of God et al, 230 Or 167, 368 P2d 937, 942. We see no reason to extend to a person who merely exercises an option the testimonial status of an owner. There was no error in excluding the plaintiff's own opinion on value. 7. Another assignment of error is found in the plaintiff's brief, but we decline to notice it. The plaintiff did not comply with ORS 19.074 (2) (b). When less than a total transcript is designated, the points on which an appellant intends to rely must be stated in the designation of record. As the plaintiff failed to raise the point, it is not before us. The defendant has cross-appealed. The cross appeal challenges the propriety of submitting to the jury certain allegations of damages found in the complaint. One is the $250 paid by plaintiff for the option. Another is the sum of $320 in interest which plaintiff said he could have earned elsewhere on the purchase money which he put in escrow when he exercised the option. The evidence supported the submission of both items to the jury. There is no merit in the cross appeal. Affirmed.

9f6cd50e4eff0347a34b41dd8b603c97f3ae49dc4ac5a835f39302fcf4c7ab1b

1963-03-13T00:00:00Z

ec397fcd-10a1-4709-ac62-cce0c7ae44e5

State v. Ness

294 Or. 8, 653 P.2d 548

oregon

Oregon Supreme Court

653 P.2d 548 (1982) 294 Or. 8 STATE of Oregon, Respondent On Review, v. Russell Brian NESS, Petitioner On Review. CA 17831; SC 28376. Supreme Court of Oregon. Argued and Submitted March 4, 1982. Decided November 16, 1982. Robert J. McCrea of Morrow, McCrea & Divita, P.C., Eugene, argued the cause and filed the petition and brief for petitioner on review. Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review. On the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen. and Karen H. Green, Asst. Atty. Gen., Salem. Before DENECKE, C.J.,[*] and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. TANZER, Justice. This is a companion case to State v. Brock, 294 Or. 15, 653 P.2d 543 (decided today). Defendant assigns as error the denial of his motion to suppress evidence seized during a nighttime search in execution of a search warrant which authorizes execution "at any time of the day or night." We held in Brock that indorsement of a search warrant for nighttime execution must be based upon a showing of special circumstances consistent with the policy of ORS 136.565(3). We held that the showing need not be in any special form, but must be evidence from the allegations before the issuing judge. In this case the allegations were in the form of a lengthy affidavit by an undercover police officer. In summary, *549 he alleged that between 7:00 and 7:30 p.m. that evening, in the Springfield residence of his seller, he arranged to buy three pounds of marijuana. His seller gave the officer a sample and made a telephone call to tell another party that he "was going to his place shortly." The seller told the officer that he was going to Cottage Grove to get the marijuana. The officer left. Other officers kept the seller's car under surveillance. The seller drove to a house in Creswell and returned to Springfield where he delivered three pounds of marijuana to the officer and was promptly arrested. The search warrant is for the Creswell house. The allegations suggest that the Creswell house is a repository for a marijuana-selling enterprise. That does not suggest portability or transiency to the issuing magistrate. Moreover, there is no allegation to suggest that the operator of the enterprise in Creswell may have been tipped off or alerted by the apprehension and arrest of the seller. In short, there is no allegation that the purposes of the statute would be served by an indorsement for nighttime search. There is no suggestion that the allegations in support of the search warrant lack probable cause to believe that the fruits or instrumentalities of crime are secreted at the premises commanded to be searched. The indorsement for nighttime execution, however, is not authorized by statute. As we held in State v. Brock, suppression is not an authorized sanction for this statutory violation. The Court of Appeals, 54 Or. App. 530, 635 P.2d 1025, is affirmed; the judgment of the circuit court is affirmed. [*] Denecke, C.J., retired June 30, 1982.

30bed394f3c1eb1d49708ffdbebd805f7fe3c3f2ba8918a5a0a61f5aacab1347

1982-11-16T00:00:00Z

99efb08a-fb19-4742-abc6-a29dc718c365

State v. Hogevoll

S057014

oregon

Oregon Supreme Court

FILED: April 1, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. BENSON L. HOGEVOLL, Petitioner on Review. (CC 055715; CA A134536; SC S057014) En Banc On review from the Court of Appeals.* Argued and submitted November 3, 2009. Jesse Wm. Barton, Salem, argued the cause and filed the brief for petitioner on review. Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review.  With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. GILLETTE, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from the Lincoln County Circuit Court, Michael J. Gillespie, Judge. 223 Or App 526, 196 P3d 1008 (2008). GILLETTE, J. This criminal case arose out of a 2005 second-season coast bull elk hunt.  Defendant shot and hauled from the field an elk for which he had a tag, but he also took possession of a second elk for which he did not have a tag, which someone also had shot and killed.  Defendant was charged by a "Uniform Fish/Wildlife Citation and Complaint" with "exceeding bag limit on coast bull elk."  At defendant's trial, the trial court refused to give a special instruction that defendant requested, which would have told the jury that, to be guilty of "exceeding [the] bag limit," defendant would have to be found to have personally and knowingly killed both elk.  The trial court instead gave an instruction, to which defendant excepted, to the effect that, to find defendant guilty of "exceeding the bag limit," the jury must find that he "took" more than one elk.  The jury found defendant guilty.  He appealed his conviction, arguing that the trial court had erred in both respects.  A divided Court of Appeals affirmed.  State v. Hogevoll, 223 Or App 526, 196 P3d 1008 (2008).  We allowed defendant's petition for review and now affirm. Because this is a case involving jury instructions, we state the facts in the light most favorable to defendant.  See State v. Oliphant, 347 Or 175, 178, 218 P3d 1281 (2009) (court views evidence in light most favorable to establishment of facts necessary to require giving requested instruction).  Defendant was hunting on his own property for a second-season coast bull elk.  He wished to shoot a particular elk with five-point antlers that was grazing in a field with a number of other elk.  Defendant fired at the chosen elk twice before it collapsed.  After waiting for some time, defendant approached the elk, put his tag on it, and gutted it, which took about half an hour.  On the way to retrieving his vehicle to haul the elk out of the field, defendant saw a bull elk with seven-point antlers lying dead in a ditch.  Defendant testified, "I figured at the time that I screwed up, that I somehow shot that elk, that seven-point." Defendant did not have a second elk tag.  He nevertheless hauled the seven-point elk to his residence and then gave it to a neighbor who had a valid elk tag.  Defendant explained to the neighbor that he thought that he had shot through the five-point elk and into the seven-point elk, and that he was giving the elk away because he wanted to continue hunting.  Defendant later retrieved the five-point bull elk, dressed it, and refrigerated it. The matter came to the attention of the state police, which investigated.  Defendant initially told the investigator that he believed that he had shot the five-point elk twice, but that one of the bullets had passed through, striking the seven-point elk.  Defendant acknowledged that he should have tagged just one elk and called the state police about the second one.  Defendant also stated to the investigator that he did not call the authorities because he wanted the meat to go to "somebody that might enjoy it and utilize it."  A few days later, defendant changed his theory about what had happened and told the investigator that he did not know how the second elk was killed.(1)  As noted, the state, by a Uniform Fish/Wildlife Citation and Complaint, charged defendant with exceeding the bag limit on coast bull elk (former OAR 635-065-0001 (2005)).(2) At trial, defendant requested a jury instruction that, to exceed the bag limit, a person must knowingly kill more than one elk in a single season.(3)  The trial court declined to give the requested instruction and, instead, instructed the jury that a person exceeds the bag limit on coast bull elk by taking more than one elk.(4)  Defendant excepted to that instruction.  As noted, the jury ultimately found defendant guilty, and defendant appealed, assigning error both to the trial court's refusal to give the jury instruction requested by defendant and to the court's instruction to the jury that defined the crime using "to take" as the operative verb.(5)  Also as noted, a divided Court of Appeals affirmed.  Hogevoll, 223 Or at 526. "In determining whether it was error to give a particular instruction, we read the instructions as a whole to determine whether they state the law accurately."  State v. Woodman, 341 Or 105, 118, 138 P3d 1 (2006).  Defendant disputes neither that he took from the field and processed two elk, nor that he possessed only one elk tag when he did so.  Defendant asserts, however, that, under Oregon law, one does not commit the crime of exceeding the bag limit for coast second-season elk unless one knowingly kills more elk than the law and regulations authorize; by contrast, he asserts, merely taking possession of an already dead animal does not violate the rule under which he was prosecuted. Defendant correctly points out that neither former OAR 635-065-0001 (2005),(6) nor the 2005 Oregon Big Game Regulations that are incorporated by reference in that rule, expressly define the phrase "bag limit."  Defendant argues that the phrase is ambiguous and that its meaning is best understood by considering the definition of a "tag." Defendant's reasoning, as we understand it, is this:  A "tag" is required to hunt elk legally.  See OAR 635-045-0002(68) (tag is document authorizing "taking" of designated kind of mammal at specified time and place); OAR 635-065-0015(1) (any person hunting game mammals, for which tag is required, must have on his or her person valid tag for dates, area, and species being hunted); OAR 635-045-0002(68) (defining "tag" as document authorizing taking of designated kind of mammal at specified time and place); and OAR 635-065-0015(5)(c) (person may possess only one valid coast second-season elk tag).  Defendant then reasons that, because all the references to "tags" for elk are related to hunting with a weapon,(7) only those animals that are killed by a hunter may be counted toward the bag limit.  We are not persuaded. In construing an administrative rule, we apply the same analytical framework that applies to the construction of statutes.  See Osborn v. PSRB, 325 Or 135, 145-46, 934 P2d 391 (1997) (citing PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993)).  At the first level of analysis, we examine the text and context of the rule to discern the intent of the agency.  Marshall's Towing v. Department of State Police, 339 Or 54, 62, 116 P3d 873 (2005).  As is true with respect to a statute, terms of common usage within the text of a rule generally should be given their plain, natural, and ordinary meaning unless specifically defined or used in some other way.  See State v. Murray, 340 Or 599, 604, 136 P3d 10 (2006) ("Absent a special definition, we ordinarily would resort to dictionary definitions, assuming that the legislature meant to use a word of common usage in its ordinary sense.").  With that process in mind, we turn to the term at issue. As noted, no rule defines the phrase "bag limit," although its actual definition in the context of this case is not subject to serious question.  The 2005 Oregon Big Game Regulations provided, at 75, that the "bag limit" for the hunt in which defendant was engaged was "one bull elk with visible antler."  Footnote one directs the reader to look to the preceding page, 74, to find the pertinent "bag limit definitions."  Text within a box on that preceding page contains the following statement: "ELK BAG LIMIT DEFINITIONS: "* * * * * "Bull elk = Bull elk with at least one visible antler." The foregoing suggests that the phrase "bag limit" is simply a shorthand way of referring to the number of animals that lawfully may be taken by a hunter during a particular hunting season.  Dictionary definitions support that understanding.  Webster's Third New Int'l Dictionary 162 (unabridged ed 2002), defines "bag limit" as "the maximum number of fish or game animals permitted by law to be taken by one person in a given period."  As a noun, "bag" is defined, in part, as: "4 :  something that is bagged:  as * * * b :  a quantity of game taken during a particular hunt or during a particular period usu. by one person ;  often : the amount of game permitted (as by law) to be taken by one hunter c :  something likened to the bag taken by a hunter or fisherman esp. in being won, captured, seized or otherwise taken by personal effort[.]" Id.  As a verb, "bag" is defined, in part, as "3 a :  to take (animals) as game : to kill or capture (game) b : to get possession of esp. by strategy or stealth." Id. As is apparent from those dictionary definitions, the plain understanding of "bag limit" does not confine that concept to animals killed by a hunter, but also includes animals otherwise taken by a hunter during an authorized hunt.  And, in contrast to the absence of a definition of "bag limit," an Oregon statute does expressly define the term "take."  That term means "to kill or obtain possession or control of any wildlife."  ORS 496.004(16) (emphasis added).  A number of other statutory provisions provide further context -- assuming more were needed -- for ascertaining the meaning of "bag limit."  Most importantly, ORS 498.002 declares wildlife to be the property of the state and prohibits "taking" or "possessing" any wildlife in violation of the wildlife laws or regulations.(8)  ORS 496.162 sets forth the criteria for the State Fish and Wildlife Commission's determination of the number of elk that may be "taken" annually -- a number that translates into the number of tags that can be issued.  The statute also expressly utilizes the term "hunting" as only one of the methods by which elk may be "taken."(9)  Finally, ORS 497.075 prohibits "taking" game without a valid license, tag or a permit to do so.(10)  Thus, the systematic use of the expressly defined term "take," coupled with the designation of "hunting"(11) as only one of the methods of "taking," makes it clear that the legislature did not intend to restrict the methods by which the limits of a "bag" can be reached to shooting and killing alone.  It follows that a person may be in possession of more elk than permitted by the "bag limit," even if that person has not intentionally killed each animal.  It is sufficient that a person's "bag" exceeds the legal "limit" and that the person is aware of how many animals he or she possesses. Defendant contends that such a broad construction of the term "bag limit" would criminalize conduct that the Commission intended to make lawful -- for example, possession of a found or road-killed animal with the permission of the state police.  However, that contention is answered by directions contained in the 2005 Oregon Big Game Regulations.  That document requires that a person finding a dead animal notify the state police; it does not authorize the state police to permit a private person (and still less a person who already had shot another elk) to take possession of a carcass or to make a decision respecting how to dispose of it.  Id. at 13.  Had defendant notified the police on finding the second elk, the meat would have been donated to a charity or otherwise appropriately disposed of.  See OAR 635-002-0005 (so stating).(12)  Thus, defendant's assertion (which echoes the dissent in the Court of Appeals) that our construction of the term "bag limit" would or could lead to an absurd result -- the carcasses of edible wildlife going to waste -- is not well taken.  It follows from the foregoing that defendant's requested instruction was not a correct statement of Oregon law.  The trial court thus did not err in refusing to give it.  And, because defendant's objection to the instruction that the trial court did give was based on the same erroneous theory, the trial court also did not err in giving that instruction.  The Court of Appeals' decision affirming the trial court in both respects was correct. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. The change of mind may have been prompted by the neighbor who received the seven-point elk opining to defendant that the location of the bullet holes cast doubt on defendant's responsibility for killing the seven-point elk. 2. Defendant acknowledges that former OAR 635-065-0001(2) (2005) incorporated by reference the 2005 Oregon Big Game Regulations, making a violation of the 2005 Big Game Regulations also a violation of former OAR 635-065-0001.  Defendant further acknowledges that, by virtue of the provisions of ORS 496.992(1), such a violation becomes a Class A misdemeanor. 3. Defendant requested the following instruction: "Oregon law provides that a person commits the crime of exceeding the bag limit of coast bull elk if that person knowingly kills more than one coast bull elk in one season[.] "In this case, to establish the crime of exceeding the bag limit of coast bull elk, the state must prove beyond a reasonable doubt the following three elements: "a. The act occurred in Lincoln County[,] Oregon.  "b. The act occurred on or about November 22, 2005.  "c. [Defendant] knowingly killed more than one coastal bull elk in the second season for coastal bull elk." 4. The trial court instructed the jury: "'Take' means to kill or obtain possession or control of any wildlife.  "* * * * * "The * * * charge against [defendant] is Exceeding the Bag Limit on Coast Bull Elk.  "Oregon law provides that a person commits the crime of Exceeding the Bag Limit of Coast Bull Elk if that person knowingly takes more than one coast bull elk in one season.  "In this case, to establish this charge beyond a reasonable doubt, the State must prove * * * that the Defendant knowingly took more than one Coast elk * * * in one season * * *. "And again, the word 'took' * * * has the same * * * definition as the word 'take' that I've already * * * read to you." 5. Defendant did not (and does not) assign error to the form or content of the charging instrument -- in this case, the Oregon Uniform Fish/Wildlife Citation and Complaint.  It follows that the only issues before this court concern the jury instructions, whether given or refused. 6. Former OAR 635-065-0001(2) (2005) provided: "OAR chapter 635, division 065 incorporates, by reference, the requirements for hunting game mammals set out in the document entitled '[2005] Oregon Big Game Regulations,' into Oregon Administrative Rules. Therefore, persons must consult the '[2005] Oregon Big Game Regulations' in addition to OAR chapter 635, to determine all applicable requirements for game mammals." 7. See, e.g., OAR 635-065-0015(1) ("any person hunting game mammals for which a tag is required must have on their person a valid tag for dates, area and species being hunted"); see also 2005 Big Game Regulations at 13 ("No person shall:  Hunt with a centerfire * * * rifle without a valid, unused * * * elk tag for that time period and area on that person during * * * coast bull elk seasons; * * *; [t]he owner of a game mammal tag that kills a game mammal for which a tag is issued, shall immediately remove in its entirety only the month and day of kill and attach the tag in plain sight securely to the game mammal * * *."); id. at 74 ("You may only hunt one of the elk seasons listed on this page.  Make sure you purchase or redeem the correct tag for the season you want to hunt prior to the earliest hunt date.); id. at 76 ("It is unlawful to hunt with a centerfire * * * rifle without a valid, unused elk tag * * * during * * * [c]oast bull elk centerfire firearm seasons."). 8. ORS 498.002(1) provides: "Wildlife is the property of the state.  No person shall angle for, take, hunt, trap or possess, or assist another in angling for, taking, hunting, trapping or possessing any wildlife in violation of the wildlife laws or of any rule promulgated pursuant thereto." 9. ORS 496.162 provides, in part: "(1) After investigation of the supply and condition of wildlife, the State Fish and Wildlife Commission, at appropriate times each year, shall by rule: "(a) Prescribe the times, places and manner in which wildlife may be taken by angling, hunting, trapping or other method and the amounts of each of those wildlife species that may be taken and possessed. "* * * * * "(4) In carrying out the provisions of this section, before prescribing the numbers of deer and elk to be taken * * *." (Emphasis added). 10. ORS 497.075(1) provides: "Except as provided in subsections (2), (3) and (4) of this section, no person shall angle for, take, hunt or trap, or assist another in angling for, taking, hunting or trapping, any wildlife unless the person has in possession such valid licenses, tags and permits therefore as the State Fish and Wildlife Commission issues." 11. To "hunt" is to "take or attempt to take any wildlife by means involving the use of a weapon or with the assistance of any mammal or bird."  ORS 496.004(10); OAR 635-045-0002(68). 12. OAR 635-002-0005 provides: "Carcasses of edible wildlife, except black bear, shall be disposed of in the following manner: "(1) Donated to public and charitable institutions such as welfare organizations, churches, and others provided the receiving agency pays all storage and handling charges and does not sell the meat. "(2) Donated to persons determined to be eligible because of low income or medical reasons, provided the eligible person requests and accepts the carcass as delivered, consumes the meat at his/her place of residence, and does not offer it for sale. "(3) Donated to wildlife rehabilitators licensed by the Department provided those rehabilitators use the meat to feed sick, injured or orphaned wildlife and do not sell the meat. "(4) Donated to rendering plants, pet food manufacturers or disposed of as specified by personnel of the Department."

e45182e05ea3120144283ae0c5f1c8990656ea170b0e50a240496202bca98700

2010-04-01T00:00:00Z

36ff053c-1e77-46f2-9bed-c31d55326470

Lewis v. Department of Revenue

294 Or. 139, 653 P.2d 1265

oregon

Oregon Supreme Court

653 P.2d 1265 (1982) 294 Or. 139 Kenneth L. LEWIS, Respondent, v. DEPARTMENT OF REVENUE, State of Oregon, Appellant. TC 1413; SC 28121. Supreme Court of Oregon, In Banc. Argued and Submitted July 15, 1982. Decided November 30, 1982. Alfred B. Thomas, Asst. Atty. Gen., argued the cause for appellant. With him on *1266 the brief was Dave Frohnmayer, Atty. Gen., Salem. G. Jefferson Campbell, Jr., argued the cause for respondent. With him on the brief was Foss, Whitty & Roess, Coos Bay. LENT, Chief Justice. The issue is whether the Oregon Tax Court could properly award attorney fees to a plaintiff who successfully contended that a gender-based tax exemption statute was unconstitutional where that success did not result in his obtaining the benefit of the exemption but, rather, resulted in no one being entitled to the exemption. We hold the award of attorney fees was improper. A statute granted to the widow of a war veteran a certain exemption from property tax. Plaintiff was the widower of a war veteran and sought exemption under the statute. The county assessor denied the request for exemption, and the defendant sustained that denial. The Oregon Tax Court delivered an opinion, in which it held the statute to be unconstitutional on the general grounds asserted by the plaintiff in challenging the defendant's order. The Tax Court refused, however, to hold that plaintiff was entitled to the exemption. The result of the Tax Court opinion would be that no person, widow or widower, was entitled to the exemption as the surviving spouse of a war veteran. The plaintiff had not sought attorney fees in his complaint in the Tax Court, but following the issuance of the opinion in June, 1981, plaintiff filed a motion for an allowance of attorney fees, relying upon ORS 183.495, a statute applicable to judicial review by the Court of Appeals of certain agency actions. The Tax Court forthwith pointed out the inapplicability of that statute, and requested advice as to whether the court could award attorney fees to plaintiff "under the court's inherent equitable powers, permitting the award of attorney fees without resort to statute or contract in rare instances." The Tax Court specifically invited attention to this court's decisions in Gilbert v. Hoisting & Port. Engrs., 237 Or. 130, 384 P.2d 136, 390 P.2d 320 (1964), and Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975). Following briefing from both parties on that issue, the Tax Court issued its determination, stating in part: The Tax Court then entered its decree as follows: *1267 The defendant appeals from that part of the decree awarding attorney fees.[1] We start with the general rule that attorney fees are not recoverable in the absence of a statute or contractual provision authorizing the award. In Riedel v. First National Bank, 287 Or. 285, 290-91, 598 P.2d 302 (1979), we quoted with approval the following language from Hughes v. Bembry, 256 Or. 172, 177-78, 470 P.2d 151 (1970): Plaintiff here forthrightly does not pretend that there is a statute or contract authorizing such an award. In the final analysis, plaintiff relies only upon the inherent power of a court in equity to award attorney fees upon the authority of Deras v. Myers, supra, and Gilbert v. Hoisting & Port. Engrs., supra. In both of those cases, the plaintiffs expressly prayed for an allowance of attorney fees, thus putting the defendants on notice that the success of plaintiffs in the litigation might result in an award of attorney fees to the plaintiffs. In the case at bar there is nothing to put the defendant on notice that should plaintiff prevail defendant might be liable for an award of attorney fees. In Shipler v. Van Raden, 288 Or. 735, 608 P.2d 1162 (1980), a suit in equity, we denied the right to recover attorney fees to parties who did not assert a claim for attorney fees in the pleadings. This alone would be enough to deny such an award in the case at bar. Herein the trial court, nevertheless, has awarded attorney fees under a theory of inherent equitable power, apparently finding a basis in the pleadings by reason of the usual prayer for general equitable relief, even though there is no allegation in the complaint as to the right to recover fees and, consequently, no reason for a defendant to be put on notice that any part of the prayer might be addressed to that issue. Plaintiff and the trial court have proceeded upon the premise that this is a matter of general importance in the same sense as we have found present in Gilbert and Deras. We disagree. There is nothing in plaintiff's complaint here to show that he was proceeding to vindicate the rights or equities of a large class of persons similarly situated. To the contrary, plaintiff does not even mention that there may be others similarly situated. In his pleading, plaintiff purported to act for no other than himself. Finally, we note that it is very doubtful that plaintiff could be considered to be the prevailing party, and we are pointed to no decision in which it can be said that the party who did not prevail was awarded an attorney fee. The ultimate claim made by plaintiff in this case was that he was entitled to an exemption with respect to his ad valorem taxes. The predicate for that claim was the asserted unconstitutionality of the statute in question. In the trial court, plaintiff won the battle but lost the war. He succeeded in having the statute declared to be unconstitutional, but the trial judge held the effect to be that neither widow nor widower was entitled to the exemption. Plaintiff has not appealed that ultimate result, and we express no opinion as to what would have been the result of an appeal upon that issue. Compare, Hewitt v. SAIF, 294 Or. 33, 653 P.2d 970 (1982). The net result of plaintiff's success was, except for the intervention of the legislature at an ensuing session, to remove the statutory basis for a claim for exemption from taxation formerly belonging to widows of war veterans. Except for legislative action, the plaintiff's suit rewarded no one. *1268 Defendant has cited to us certain affirmative arguments partly based upon statute and partly based upon other policy. Those arguments are not without merit, but we need not reach them by reason of our holding that plaintiff's arguments for an award of attorney fees fail in and of themselves. The decree of the Oregon Tax Court is modified by deleting the award of attorney fees to plaintiffs. The decree is otherwise affirmed. [1] The defendant does not appeal from the holding that the statute is unconstitutional, citing as reason that the legislature has amended the statute so as to grant the exemption to widowers as well as widows of war veterans. Or. Laws 1981, chs. 530 and 680.

27be5bb1fdb3ffafe4ba13f3db2e79d088cc755bae07630c36b40fdfdb13f15e

1982-11-30T00:00:00Z

5f0a0edd-a1eb-457e-8c61-7b2dd090a8a4

Amfac Foods, Inc. v. INTERN. SYSTEMS, ETC.

294 Or. 94, 654 P.2d 1092

oregon

Oregon Supreme Court

654 P.2d 1092 (1982) 294 Or. 94 AMFAC FOODS, INC., Dba Lamb-Weston, Respondent On Review, v. INTERNATIONAL SYSTEMS & CONTROLS CORPORATION AND FLODIN, Inc., Petitioners On Review. CA 16706; SC 28071. Supreme Court of Oregon, In Banc[*]. Argued and Submitted March 2, 1982. Decided November 23, 1982. *1094 John B. Arnold, Eugene, argued the cause for petitioners on review. With him on the petition were Johnson, Harrang & Swanson, Eugene, and V. Thomas Lankford, Jr., and Sharp, Randolph & Green, Washington, D.C. On the briefs were Walter J. Cosgrave, and Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland. Thomas S. Moore, Portland, argued the cause and filed a petition for respondent on review. With him on the brief were William H. Morrison, and Morrison, Dunn, Cohen, Miller & Carney, Portland. PETERSON, Justice. Plaintiff Amfac Foods, Inc. (Amfac) brought this action to recover damages it allegedly incurred as a result of defendants' breach of contract. From a jury verdict in plaintiff's favor, defendants appealed. The Court of Appeals affirmed. 52 Or. App. 907, 630 P.2d 868 (1981). This case involves, inter alia, the question whether a corporate shareholder, by exercising control over the affairs of a corporation of which it is the sole shareholder, may lose the limitation of liability which corporate shareholders normally enjoy and become liable to creditors of the corporation. Amfac is a food processing firm which manufactures potato products. In early 1976 Amfac decided to build a large plant in Hermiston to process a new product. Amfac retained an engineering firm named Austin Company (Austin), not a party to this action, to construct and equip the plant. Austin contracted with defendant Flodin, Inc. (Flodin) to fabricate and install the major portion of the line machinery.[1] Flodin, an engineering and manufacturing firm specializing in food processing machinery, had previously built such machinery for Amfac. Since 1973 Flodin had been a wholly-owned subsidiary of defendant International Systems & Controls, Inc. (ISC), a Texas-based holding company. Following negotiations, a purchase order dated June 26, 1976, was prepared by Austin and sent to Flodin. It specified the machinery needed and set forth the relevant terms. Although Flodin neither signed nor expressly accepted the document as the agreement between the parties, it began to design and fabricate the equipment described in the June 26, 1976, purchase order. There is evidence from which the trier of fact could find that the purchase order of June 26, 1976, was a contract between Flodin and Amfac, through Austin, Amfac's agent. Numerous construction delays occurred, some of which were occasioned by Flodin's failure to perform timely and properly. Eventually Flodin notified Austin that it was having cash-flow problems and that it would be forced to stop production of the ordered machinery unless a different agreement was reached. A new purchase order dated December 7, 1976, was prepared by Austin and signed by Flodin, ISC and Austin. The new order gave Flodin *1095 $100,000 more than the original purchase order.[2] Flodin continued to have problems completing its work. Delivery by Flodin was not completed until mid-January 1977. Amfac contends that the machinery arrived in an unfinished and defective condition and that it sustained substantial damages as a result of repairs and delays. ISC owned all of the outstanding shares of Flodin capital stock. One of the main issues in the case is whether ISC is liable for Flodin's conduct. Amfac asserted two bases for recovery against ISC, Flodin's parent: (1) that Flodin was ISC's agent and is liable under agency principles for Flodin's breach; and (2) that ISC had so substantially interfered with Flodin's management and the performance of Flodin's contractual obligations that it should be held liable for Flodin's failure to perform under principles variously denominated "piercing the corporate veil," "alter ego," and the like. Defendants denied the claim of breach of contract and contested the extent of Amfac's damages. In addition, the defendants claimed that the terms of the December 7 purchase order determined the parties' rights, not the purchase order of June 26. ISC also denied that it was liable for Flodin's conduct. The defendants assert that the trial court erred in its instructions relative to ISC's responsibility for the acts of Flodin. The trial court instructed the jury that even if no agency relationship existed between Flodin and ISC, ISC should be held liable "if you find that an injustice would result if ISC was not held responsible for the acts or omissions of Flodin." The trial court so instructed the jury three separate times: *1096 Although the trial court's instructions are consistent with the broad brushstrokes of our earlier equity decisions, we conclude that instructing a jury in such terms was erroneous.[3] No one can disagree with the abstract proposition that the decisions of courts and juries must be just and fair. Honesty, fairness and justice are terms which describe a morally perfect standard, but an instruction to a jury to "avoid an unjust result" states an imperfect legal standard because each juror, in the end, decides the case by his or her subjective standard of right and wrong. Such a standard, though abstractly perfect, does not permit persons whose conduct is governed by the standard to plan their activities or conduct their affairs with a minimal degree of assurance that what they are doing is lawful. The effect of the court's instructions was to set the jury adrift with virtually no guidance as to the circumstances under which a shareholder may be held liable for a corporate obligation. The determining factor, under the court's instructions, was each juror's subjective feeling as to what is just or unjust. Although the rule under which the jury was instructed is not necessarily inconsistent with our previous decisions, it is an unsatisfactory statement of the law. In this opinion we state a definite rule to be applied in such situations.[4] What, then, is the rule of law which applies in this situation? Because most cases considering this question are in equity and subject to de novo appellate review, courts have not articulated rules with the specificity typical of rules applied in actions at law. Analysis of our decisions, of opinions of other courts and of the writings of commentators leads to the conclusion that understandable legal rules relative to this theory of recovery can be articulated so as to achieve a degree of predictability in both law and equity cases. This case presents a variant of a recurrent problem viz., a corporation, alleged to be liable to a plaintiff, happens to be judgment-proof or nearly so, and the plaintiff seeks to have its claim satisfied out of the assets of a shareholder. The question of when and under what circumstances a shareholder becomes liable for a corporate obligation has troubled judges and lawyers for a century or so. Although corporate shareholders were not insulated from liability for debts of the corporation in common law England,[5] shareholder insulation from such liability has been a cornerstone of corporate law in the United States since the nineteenth century. Virtually every state has a statute similar to ORS 57.131(1), which limits a shareholder's liability to the cost of the shares held.[6] *1097 Limited shareholder liability was extended to corporate shareholders to encourage risk capital investments. In 1929 then Professor William O. Douglas wrote: The corporate form was not intended to be a device by which persons could engage in business without obligation or risk. The privilege of limited liability of the shareholders of a business corporation carries with it the obligation to conduct business as a corporation, and abuse of the privilege may create personal liability for the act of the corporation. F. Powell, Parent and Subsidiary Corporations 2 (1931). It soon became apparent that the benefits of limited shareholder liability could lead to corporate abuses. The turn of the century saw the rise of numerous claims against corporate shareholders by creditors of insolvent corporations. A body of common law was created, denying shareholder limited liability when the corporation was being used for an improper purpose.[8] Unfortunately, many judicial opinions contain alluring but largely unhelpful rhetorical devices which purport to state a rule, but generally state merely a result.[9] *1098 The analysis must begin with the statutory premise of ORS 57.131 that shareholders, as shareholders, enjoy immunity from claims of creditors of the corporation in excess of the full consideration for which their shares were issued or to be issued. Limited liability is the rule. We are concerned with defining the exception.[10] It must be remembered that this exception exists as a potential basis for a claim in addition to existing theories of recovery which generally will provide a ready, practical form of relief to an injured corporate creditor. Where the corporation's liability to the plaintiff is incurred while the corporation is acting as agent for the shareholder, the liability of the shareholder, as the principal, is governed by traditional agency and respondeat superior principles. In such a case it is not necessary to disregard the separate corporate status to impose liability upon the shareholder for obligations not met by the corporation.[11] In many cases, a fraud form of action will afford relief, making it unnecessary to assert a claim that corporate separateness should be disregarded. Other potentially available theories of recovery include statutory remedies, see, e.g., ORS 57.231, as well as estoppel, quasi contract, creditors' bill, and, finally, the theory that the shareholder, by the shareholder's own conduct, has acted so as to create direct liability as an actor by virtue of the shareholder's own participation in the conduct which gave rise to the creditor's cause of action. See Krendl & Krendl, Piercing the Corporate Veil: Focusing the Inquiry, 55 Den L J 1, 3-5 (1978). Unfortunately, many opinions reflect a general tendency to use the exception to immunity rubric to describe recovery theories in which, strictly speaking, contract, agency, fraud, or estoppel principles are more appropriate. See id. at 2-5. The disregard of a legally established corporate entity is an extraordinary remedy which exists as a last resort, where there is no other adequate and available remedy to repair the plaintiff's injury. Inasmuch as it is an extraordinary remedy, the doctrine is limited by conditions and limitations which are inapplicable to the other remedies noted above. Accordingly, when a plaintiff seeks to impose liability upon a stockholder of a defaulting corporation, the plaintiff and the court must be careful to keep the theories of recovery scrupulously segregated.[12] *1099 The statements of the exceptions have taken many forms. Courts' opinions often described results more than rules, saying that the shareholder would be held liable "to prevent injustice," "to prevent fraud," to prevent "evasion of just responsibility," to prevent the "distortion or hiding of the truth," to prevent a public wrong, to protect the rights of innocent parties where recognition of corporate separateness would result in "a manifest absurdity," or to prevent the avoidance of a legal obligation or duty. See United States v. Milwaukee Refrigerator Transit Co., 142 F. 247, 255 (Cir.Ct. E.D.Wis. 1905); Boston & M.R.R. v. Peterborough R.R., 86 N.H. 217, 166 A. 275 (1933); Commonwealth v. Bonetti, 211 Pa. Super. 161, 235 A.2d 447 (1967); 1 W. Fletcher, Cyclopedia of the Law of Private Corporations, § 41.2 at 180, § 45 (1974).[13] Some courts and commentators have stated that the shareholder would be liable if the corporation is a mere "instrumentality" of the shareholder. See United States v. Lehigh Valley R Co., 220 U.S. 257, 268, 31 S. Ct. 387, 389, 55 L. Ed. 458 (1911); F. Powell, Parent and Subsidiary Corporations 8 (1931). The "instrumentality" theory merely substitutes a label for analysis. This court has stated the rule that under some circumstances corporate shareholders who control and dominate a corporation may be held personally liable if the corporation is a mere "instrumentality" or "alter ego" and where fraud or injustice has resulted. These statements from Schlecht v. Equitable Builders, 272 Or. 92, 535 P.2d 86 (1975), summarize some of our prior holdings: Analysis of the opinions reveals that in many cases shareholder immunity was upheld even though the defendant was the sole owner of the stock and controlled the day-to-day operations of the company. E. Latty, supra at 162. Though control is an element in the formula, we are convinced that if one does not look beyond the element of control (adding "domination" to "control" does not aid the analysis), hopeless confusion will be the result of an inductive effort to derive a legal rule which can be applied to attain predictable results. Ownership of all the stock of the corporation by one person, in and of itself, is insufficient to breach the wall of immunity created by ORS 57.131(1). Nor is the control of the corporation by a shareholder, in and of itself, sufficient to support a claim for recovery that the shareholder's immunity should be disregarded. Our recent decision in Schlecht v. Equitable Builders, supra, makes that point clear. There, even though an insolvent wholly-owned subsidiary corporation was controlled by the parent corporation, we refused to hold the parent liable for the subsidiary's debt absent some form of moral culpability by the parent. 272 Or. at 97-99, 535 P.2d 86. We should add that proof of the control actually exercised may, in some cases, suffice to establish an agency relationship. As an exception to the rule of limited liability, the burden of proving shareholder liability under the exception may be more difficult than proving a right to recovery under an agency theory. Where actual exercise of control is shown to exist, improper conduct must also be demonstrated. In Security S. & T. Co. v. Portland F.M. Co., 124 Or. 276, 287, 261 P. *1101 432 (1928), one Houser owned and "had absolute control" of two corporations. The court refused to "disregard the distinction which exists between a corporation and its stockholder, and to treat Houser as if he were the only party in interest" because there was no evidence of improper conduct on Houser's part. 124 Or. at 287-88, 261 P. 432. In Wakeman v. Paulson, 257 Or. 542, 480 P.2d 434 (1971), the defendant was president of and owned 98.87 percent of the stock of the B.B. Distributing Co. at the time the plaintiff was hired as sales manager. The corporation became insolvent and the plaintiff sued the defendant, claiming that he should be held liable on a contract between the plaintiff and B.B. Distributing Co. because the defendant controlled the corporation and because he "manipulated the corporation by misrepresentations as to sales so that he could profit by a public stock sale * * *." 257 Or. at 546, 480 P.2d 434. The defendant had negotiated the contract on behalf of the corporation. Judgment for the plaintiff was reversed. Although the opinion made reference to the "rule" that corporate entity will be disregarded if the entity is used to accomplish fraud or injustice, the court denied recovery saying that "* * * ownership of substantially all of the stock of a corporation is, of itself, not an adequate basis for disregarding the corporate entity." 257 Or. at 544, 480 P.2d 434. So far as the claim of wrongful use of the corporation was concerned, the court noted that the misconduct did not affect the plaintiff. 257 Or. at 546, 480 P.2d 434. The opinion concluded with this comment, "Even if Paulson in effect was the entire management this is not sufficiently strong evidence to disregard the corporate entity." 257 Or. at 547, 480 P.2d 434. Although Schlecht v. Equitable Builders, supra, makes reference to the general rule that the corporate entity will be disregarded "when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime," 272 Or. at 97, 535 P.2d 86 (quoting United States v. Milwaukee Refrigerator Transit Co., 142 F. 247, 255 (1905)), the real underpinning of the opinion (and of other opinions of this court) is found in this sentence: Although many, perhaps most, opinions of this and other courts have articulated the exception to the rule of shareholder immunity in terms of the result (using such terms as "to defeat public convenience," "result in the perpetration of a fraud or injustice," "to achieve equity," or "to prevent a public wrong"), a more understandable exception to the rule, with more consistent and predictable results, will obtain if the analysis centers upon the conduct of the shareholder sought to be charged, and the relationship between the improper conduct and the creditor's claim. We state the exception to the rule as follows: When a plaintiff seeks to collect a corporate debt from a shareholder by virtue of the shareholder's control over the debtor corporation rather than on some other theory, the plaintiff must allege and prove not only that the debtor corporation was under the actual control of the shareholder but also that the plaintiff's inability to collect from the corporation resulted from some form of improper conduct on the part of the shareholder. This causation requirement has two implications. The shareholder's alleged control over the corporation must not be only potential but must actually have been exercised in a manner either causing the plaintiff to enter the transaction with the corporation or causing the corporation's default on the transaction or a resulting obligation. Likewise, the shareholder's conduct must have been improper either in relation to the plaintiff's entering the transaction or in preventing or interfering with the corporation's performance or *1102 ability to perform its obligations toward the plaintiff.[15] Conduct which has been held to be "improper" under the foregoing rule has included: Inadequate capitalization: It has been held that gross undercapitalization of the debtor corporation, by itself, may suffice to hold the shareholder liable to a creditor who is unable to collect against the corporation because it was inadequately capitalized. See Minton v. Cavaney, 56 Cal. 2d 576, 364 P.2d 473, 15 Cal. Rptr. 641 (1961); Automotriz Del Golfo DeCalifornia v. Resnick, 47 Cal. 2d 792, 306 P.2d 1 (1957); Campbell, Limited Liability for Corporate Shareholders: Myth or Matter-of-fact, 63 Ky.L.J. 39, 40 (1975); Hamilton, The Corporate Entity, 49 Tex.L.Rev. 983, 985-86 (1971); Note, Inadequate Capitalization As A Basis For Shareholder Liability: The California Approach and A Recommendation, 45 S.Cal.L. Rev. 825 (1972). Milking: Shareholders have been held liable for a corporation's debt because they have milked a corporation by payment of excessive dividends, Burton v. Roos, 20 F. Supp. 75 (W.D.Tex. 1937), aff'd sub nom Texas Co. v. Roos, 93 F.2d 380 (5th Cir.1937), by the sale of products to the shareholders at a reduced price, Rounds & Porter Lumber Co. v. Burns, 216 Ark. 288, 225 S.W.2d 1 (1949), or by exacting unreasonable management charges, Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 59 S. Ct. 543, 83 L. Ed. 669 (1939). See also Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281 (1939); Interstate Tel. Co. v. Baltimore & O. Tel. Co., 51 F. 49 (Cir.Ct.D. Md. 1982), aff'd, 54 F. 50 (4th Cir.1893).[16] Misrepresentation, commingling and holding out: Krendl and Krendl suggest, 55 Den.L.J. at 31-34, supra, that misrepresentations which may not be sufficient to constitute fraud would support a recovery against a shareholder on a misrepresentation theory. In some number of cases, shareholders have been held liable for corporate debts because of misrepresentations by the shareholder to the creditor, Paumier v. Barge B.T. 1073, 395 F. Supp. 1019, 1039 (1974) ("This is not an action for common law misrepresentation in which scienter must be proven"), confusion or commingling of assets, My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 233 N.E.2d 748 (1968); Zaist v. Olson, 154 Conn. 563, 227 A.2d 552 (1967), or because the respective enterprises were not held out to the public as separate enterprises, Ross v. Pennsylvania R.R. Co., 106 N.J.L. 536, 148 A. 741 (1930).[17] Violation of Statute: In a number of cases involving regulations, courts have enjoined conduct of parent corporations which, in order to evade federal or state regulation, were doing business by means of wholly-owned subsidiaries. See, e.g., Zale Corp & Corrigan-Republic, Inc. v. F.T.C., 473 F.2d 1317 (5th Cir.1972), United States v. Ira S. Bushey & Sons, Inc., 363 F. Supp. 110 (D.C.Vt. 1973). In United States v. Reading Co., 253 U.S. 26, 40 S. Ct. 425, 64 L. Ed. 760 (1920), a railroad company unsuccessfully attempted to utilize a subsidiary to evade the commodity clause of the Act of June 29, 1906, 34 Stat. 584, 585, which made it illegal for a railroad to transport any commodity mined by it. The railroad was *1103 held in violation of the statute. Accord Chicago, M. & St. P. Ry. v. Minn Civic & C Ass'n., 247 U.S. 490, 38 S. Ct. 553, 62 L. Ed. 1229 (1918); United States v. Del., Lack., & West R.R., 238 U.S. 516, 35 S. Ct. 873, 59 L. Ed. 1438 (1915). The foregoing examples are just that, examples. This case is being remanded for a new trial. The plaintiff will have the opportunity to plead and prove the specific acts of ISC which are claimed to result in its loss of shareholder immunity. This case was tried on the "injustice" theory referred to above, and the evidence in the record of the specific instances of shareholder misconduct apart from proof of an agency relationship is not notably specific or in detail. Setting forth the precise evidence upon which the plaintiff relied to prove its case against ISC would only add to the length of the opinion and we see no need to do so. We turn then to the causal connection which must be shown. Given improper conduct by the shareholder exercising control over the corporation, the plaintiff must also demonstrate a relationship between the misconduct and the plaintiff's injury.[18] If a shareholder's improper conduct causes no injury to a corporate creditor, there is no basis for a recovery from the shareholder. Consistent with the general policy of shareholder immunity, a shareholder's improper conduct does not give a hunting license to a corporate creditor to redress a general wrong. Surprisingly, this requirement has received little express attention in many of the appellate court opinions. Absence of the causal relationship between the misconduct and the creditor's claim has, however, been the basis for the denial of liability in situations where control and improper conduct were shown to exist. In Wakeman v. Paulson, supra, there was evidence that the defendant was president of the corporation and owned a majority of its stock. In denying recovery for lack of a relationship between alleged misconduct and the plaintiff's damage, this court held: Schlecht v. Equitable Builders, supra, reached the same result. Although there was evidence that the parent might have caused the subsidiary to guarantee certain loans, the court denied recovery because of the absence of a causal relationship, saying that "* * * there is no evidence that the rights of plaintiffs were jeopardized thereby." 272 Or. at 98, 535 P.2d 86. On remand, if there is evidence of conduct by ISC which, if believed by the jury, gives rise to a right of recovery against ISC, the jury should be instructed that the plaintiff can recover those damages which resulted from *1104 the improper conduct. We turn then to some of the other issues in the case. The evidence shows, without substantial dispute, that Flodin undertook the design and fabrication of the equipment described in a purchase order dated June 26, 1976, even though it never signed the purchase order. Problems arose later in 1976, leading to negotiations between Flodin and Austin. On December 6, 1976, a new purchase order was signed containing terms and conditions which were substantially different from those contained in the purchase order of June 26, 1976. On December 9, 1976, Austin wrote Amfac, saying: The trial court instructed the jury: The effect of the trial court's instruction was to hold, "as a matter of law," that the December 7 contract should be entirely disregarded by the jury, if they found that the June 26 purchase order had been accepted by the defendants. The Court of Appeals, in deciding this issue, stated: We disagree. Although the preferable procedure is for a party to submit requested instructions consistent with the party's theory of the case, the failure to request such an instruction does not prevent a party from assigning error to the court's giving erroneous instructions. The instruction given, in effect, told the jury to disregard the December 7, 1976, purchase order if they found that the June 26 offer had been accepted. There was evidence from which the trier of fact could have found that the June 26 agreement, even if accepted, had been modified or replaced by the December 7 purchase order. It was error to give the instruction. The defendant asserted three affirmative defenses based upon the December 7 agreement. All were stricken by the trial court. Defendants' third affirmative defense was: "That liability of Flodin was limited by its contract with Austin to $10,000.00." This affirmative defense was based upon a provision of the December 7 purchase order which provided: The Court of Appeals held that it was not error to strike this affirmative defense because This was error. The clause, by its express terms, appears to apply to some of the plaintiff's claims for defective material and workmanship. Although the affirmative defense may not have applied to all of the plaintiff's claims, the trier of fact might have found the limitation of liability applicable to part of the plaintiff's claims, and limited the award on those claims to $10,000. Even though the clause may not have been relevant to claims for (quoting the Court of Appeals opinion) "design defects in certain equipment, delay in delivery, failure to complete all the machinery required by the contract," the clause appears to be otherwise relevant. The affirmative defense should not have been stricken.[19] One further point requires discussion. On December 8, 1976, the day following the execution of the December 7 purchase order, J. Hilder, an ISC executive in Houston, sent a Telex to T. Key at Flodin, which read: Mr. Key, who was no longer employed by ISC at the time of trial, was called by Amfac and testified as follows: To counter that testimony, the defendant called a former vice president and counsel *1106 to ISC who, before obtaining his law degree, had been a designer, inspector and construction engineer in Texas, and had attended Rensselaer Polytechnic Institute. The witness was asked, "Mr. Hofker, would you tell us whether you are familiar with the expression `pick it green'?" The trial court refused to permit the witness to explain the meaning of the term "pick it green." The defendants then made the following offer of proof: The offer of proof tends to show that the term "pick it green" had a specific, somewhat unique meaning in the industry, with which the average juror would not be familiar. The evidence was clearly relevant, both to explain the meaning of a colloquial term having a unique significance in the industry, and to rebut Key's testimony. On remand, the evidence should be received. The defendants have raised a host of other assignments of error. On remand, most of the other questions raised by the defendants are not likely to recur, and we will not further discuss them in this opinion. Reversed and remanded to the trial court for a new trial. [*] Denecke, C.J., retired June 30, 1982. [1] The contract was between Austin and Flodin. Throughout this proceeding, however, Amfac has contended that Austin was acting merely as its agent when it contracted with Flodin. The defendants controverted this contention. The Amfac-Austin agency issue was eventually submitted to the jury which, in returning a verdict for Amfac, necessarily found that the alleged agency in fact existed. This finding was upheld on appeal, 52 Or. App. at 912, 630 P.2d 868, and defendants have not sought review on this issue. [2] The December purchase order was signed by representatives of Austin and Flodin, and contained this entry on the last page: "ACKNOWLEDGED BY C.E. ROEHLER, JR. [Signature] International Systems and Controls Corp" Comparison of the December and June purchase orders reveals that some equipment listed in the June purchase order was not required under the December purchase order. Conversely, the December purchase order lists a "cross-conveyor" not found in the June contract. The December purchase order also contains a number of terms and conditions not found in the June purchase order. [3] We have previously stated that instructing juries in the words of appellate opinions is "not advisable," Ireland v. Mitchell, 226 Or. 286, 294, 359 P.2d 894 (1961), and that "care and discretion must be exercised" in drawing upon the words of appellate opinions for instructions to juries, Thornburg v. Port of Portland, 244 Or. 69, 73, 415 P.2d 750 (1966). Many of our previous opinions in this area of the law were written with no view that juries would be involved in the decisionmaking process in such cases. [4] The plaintiff contends that the trial court's use of the word "injustice" in the court's instructions was invited by the defendants, because they requested an instruction reading as follows: "The owners of the stock of a subsidiary corporation are not liable on the contracts of a subsidiary unless it is proved that the party dealing with the subsidiary was misled or used the subsidiary to perpetrate a fraud or injustice." Were this the only claim of error, we would be reluctant to reverse because the instruction which was requested by the defendants contains language which is similar to the instruction given by the trial judge. As will be seen below, however, other errors require reversal of this case. [5] Salmon v. Hamborough, 1 Ch. Cases 204 (Ch Ct 1671). See M. Dodd, The Evolution of Limited Liability in American Industry: Massachusetts, 61 Harv.L.Rev. 1351, 1351 n. 1 (1948). [6] ORS 57.131(1) provides: "(1) A holder of or subscriber to shares of a corporation shall be under no obligation to the corporation or its creditors with respect to such shares other than the obligation to pay to the corporation the full consideration for which such shares were issued or to be issued." Flodin is a Delaware corporation doing business in Washington and Oregon. ISC is a Delaware corporation with its headquarters in Texas. Amfac is a Delaware corporation doing business in Oregon as Lamb-Weston. No party has suggested that there are any choice of law questions in this case. [7] Douglas & Shanks, Insulation from Liability Through Subsidiary Corporations, 39 Yale L.J. 193, 193-94 (1929). "Limited liability is the rule, not the exception; and on that assumption large undertakings are rested, vast enterprises are launched, and huge sums of capital attracted." Anderson v. Abbott, 321 U.S. 349, 362, 64 S. Ct. 531, 537, 88 L. Ed. 793 (1943) (Douglas, J.). [8] As early as 1896 this court upheld a decree setting aside a sale of goods to a corporation, saying: "* * * [T]he effect of the allegations is that Minott was the corporation and the corporation was Minott, and that it was organized and used by him as a means of hindering and delaying his creditors. Under such circumstances a court of equity will look through and beyond the legal forms in which the transaction was clothed, and, if its real object and purpose was to hinder and delay creditors, will declare the sale and transfer void as to them, and no rule of law which regards a corporation as an artificial person, separate and independent of its shareholders, can stand in the way of such a result. * *" Bennett v. Minott, 28 Or. 339, 347, 44 P. 288, 290 (1896). Bennett v. Minott was a creditor's bill suit to set aside a conveyance made for the purpose of hindering creditors. A suit to set aside a fraudulent conveyance presents an independent theory of recovery which differs from the plaintiff's theory in this case. [9] * * [N]o help is to be derived from the multitude of meaningless, though undeniably picturesque, epithets which have been applied to corporations whenever the court has felt, often inarticulately, that the corporate device was being used in ways or circumstances which the court did not sanction. Whatever failure there has been in recognizing the specific issue presented in various types of cases involving parent and subsidiary corporation or in giving expression to the real factors which made the court do what it did, there has been no lack of emotive epithets synonymous with and as empty as `instrumentality': adjunct, agent, alter ego, alter idem, arm, blind, branch, buffer, cloak, coat, corporate double, cover, creature, curious reminiscence, delusion, department, dry shell, dummy, fiction, form, formality, mere name, mouthpiece, mere phrase, puppet, screen, sham, snare, subterfuge, tool. The word juggling occasionally goes so far as to state that if facts X, Y, and Z exist the corporation is not a mere `instrumentality,' but that the existence of those facts will not prevent the corporation from achieving that status if it is but a `creature' or `puppet.'" E. Latty, Subsidiaries and Affiliated Corporations 157-58 (1936). In Elvalsons v. Industrial Covers, Inc., 269 Or. 441, 452, 525 P.2d 105 (1974), this court wrote: "The `alter ego' theory of `piercing the corporate veil' as a means of preventing fraud or injustice has been criticized for its indefiniteness and because of the absence of objective standards by which the application of that theory can be determined." [10] See F. Powell, Parent and Subsidiary Corporations 6 (1931): "A refusal to recognize the ordinary immunity of stockholders not only overturns a basic provision of statutory or common law, but is also contrary to a vital economic policy underlying the whole corporate concept. Such a result must therefore be viewed as an extraordinary exception and should be permitted only in cases in which it is necessary in order to promote justice. * * *" Id. [11] This very case illustrates that point. The jury was also instructed that the plaintiff could recover against ISC on an agency theory if they found that Flodin was acting as ISC's agent. Compare Elvalsons v. Industrial Covers, Inc., 269 Or. 441, 452, 525 P.2d 105 (1974): "In this case we need not decide whether or not the verdict and judgment may be affirmed on the ground that Industrial Covers was the `alter ego' of Sargent because there was ample evidence to support a judgment against Sargent on the theory that it was the principle [sic] if not the `real party in interest'; that Industrial Covers was its agent, if not its `instrumentality,' and that Sargent also promised and undertook to perform warranty obligations under this contract." See also Portland T. & S. Bank v. Lincoln Realty Co., 180 Or. 96, 116, 170 P.2d 568 (1946); I W. Fletcher, Cyclopedia on Corporations § 43 (Perm.ed. 1974 and 1980 Supp. at 44); Annot., Liability of Corporations for Contracts of Subsidiary, 38 A.L.R.3d 1102, at 1110-19, §§ 2-4 (1971). [12] The pleading should separately set forth each theory of recovery as a separate count. When more than one theory of recovery is pleaded, the trial court's instructions should make clear that the plaintiff is asserting separate theories of recovery, and the instructions, as to each separate theory, should be self-contained. On remand, the plaintiff should file an amended pleading which separately states facts concerning its theory of recovery as to ISC's conduct which results in its loss of shareholder immunity and the damages resulting from that conduct. On trial, depending upon the facts alleged and evidence presented, the trial judge will instruct the jury as to what constitutes improper conduct, and that the jury must also find that the improper conduct resulted in damage to the plaintiff. [13] For a further list of authors and articles, see W. Cary & M. Eisenberg, Cases and Materials on Corporations 80-103 (1980); Henn, Corporations 205 (1961), E. Latty, Subsidiaries and Affiliated Corporations (1936); F. Powell, Parent and Subsidiary Corporations (1931); Krendl & Krendl, Piercing the Corporate Veil: Focusing the Inquiry, 55 Den.L.Rev. (1978). [14] See also Wakeman v. Paulson, 257 Or. 542, 544, 480 P.2d 434 (1971); Peet v. Rose City Dodge, Inc., 251 Or. 68, 69, 444 P.2d 478 (1968); Creditors Protective Asso. v. Balcom, 248 Or. 38, 46, 432 P.2d 319 (1967); Miller Lumber Corp. v. Miller, 225 Or. 427, 433-436, 357 P.2d 503 (1961); A.J. Rose & Son, Inc. v. Board of Funeral Directors and Embalmers, 31 Or. App. 537, 542, 570 P.2d 1008 (1977); State ex rel. Grabhorn v. Grabhorn, 28 Or. App. 357, 360, 559 P.2d 923 (1977); Palm Gardens, Inc. v. OLCC, 15 Or. App. 20, 26-27, 514 P.2d 888 (1973); Annot., Liability of Corporation for Contracts of Subsidiary, 38 A.L.R.3d 1102 (1971). [15] The reported cases reflect an unstated but discernible difference in the treatment of voluntary (contract) and involuntary (tort) creditors. Whether there is a basis for different treatment of a creditor who voluntarily deals with or extends credit to a corporation and one who finds himself with a claim against the corporation which arose without his consent, we need not decide. On this question, see W. Cary & M. Eisenberg, Cases and Materials on Corporations 100 (1980); E. Latty, supra at 201-05; Note, Inadequate Capitalization as a Basis for Shareholder Liability: The California Approach and a Recommendation, 45 S.Cal.L.Rev. 825, 836 (1972); Comment, Limited Limited Liability: A Definitive Standard for the Inadequate Capitalization Problem, 47 Temp.L.Q. 321, 342-44 (1974). [16] Insofar as milking is concerned, in many instances readily effective independent theories of recovery may exist, such as a creditor's bill, a derivative suit, or a direct claim against directors. See ORS 57.231. [17] Some of the cited cases would allow recovery on an estoppel theory. [18] On the requirement that the creditor must show that the improper conduct caused damage to the creditor, see Krendl & Krendl, Piercing the Corporate Veil: Focusing the Inquiry, 55 Den.L.J. 1, 21-22 (1978); Comment, Limited Limited Liability: A Definitive Standard for the Inadequate Capitalization Problem, 47 Temp. L.Q. 321, 348 (1974). The rule contained in the text, 294 Or. at 108-09, 654 P.2d 1101-02 although easily stated, may not be easily applied. The damages which flow from, say, improper capitalization or milking, may or may not be limited to the amount of the shortage of capital or amount milked from the corporation. In some cases the causal relationship will be clear. In others, the causal relationship will be less clear, but still sufficient to create a question for the trier of fact. For example, if the sole effect of a shareholder milking $200,000 from a corporation is to reduce the amount available for creditors, the shareholder's liability to corporate creditors would be limited to $200,000. On these and related questions, see Landers, A Unified Approach to Parent, Subsidiary, and Affiliate Questions in Bankruptcy, 42 U.Chi.L.Rev. 589, 606 (1975); Posner, The Rights of Creditors of Affiliated Corporations, 43 U.Chi.L.Rev. 499 (1976). [19] Technically speaking, the affirmative defense is a partial defense in two respects. The first is that it admits that Flodin could be held liable for up to $10,000. It is also a defense which is applicable only to claims for defects in material or workmanship. The plaintiff moved to strike the defense "because it does not state facts which would be a legal defense, and also, there is no evidence to sustain it." Plaintiff at no time objected to the defense because it had not been pleaded as a partial defense. See Pelton v. Gen. Motors Accept. Corp., 139 Or. 198, 208, 7 P.2d 263, 9 P.2d 128 (1932). We believe that there was evidence to support the defense.

6da19831799699185095009b3376f6d4cde8bcab638d901ab9b3e94c4a2a3f67

1982-11-23T00:00:00Z

aa4625a7-3c5b-4c1f-a4f3-e3747a9639e5

Hewitt v. SAIF

294 Or. 33, 653 P.2d 970

oregon

Oregon Supreme Court

653 P.2d 970 (1982) 294 Or. 33 In the matter of the Compensation of the Beneficiaries of Marian A. Williams, Deceased. Floyd HEWITT, Claimant, Petitioner On Review, v. STATE ACCIDENT INSURANCE FUND CORPORATION, Respondent On Review. CA 19548; SC 28252. Supreme Court of Oregon, In Banc[*]. Argued and Submitted April 7, 1982. Decided November 16, 1982. *971 Darrell E. Bewley, Salem, Appellate Counsel for State Acc. Ins. Fund, argued the cause and filed the petition and supplemental brief for respondent on review. With him on the brief were K.R. Maloney, Gen. Counsel, and James A. Blevins, Chief Trial Counsel, State Acc. Ins. Fund, Salem. Eric R. Friedman, Portland, argued the cause for petitioner on review. With him on the briefs was Fellow, McCarthy, Zikes & Kayser, P.C., Portland. Margaret H. Leek Leiberan and Mitchell, Lang & Smith, Portland, filed a brief amicus curiae on behalf of the American Civil Liberties Union. Cynthia L. Barrett, Portland, filed a brief amicus curiae on behalf of the Oregon Trial Lawyers Ass'n. ROBERTS, Justice. We are asked in this case to determine the constitutionality of ORS 656.226, a portion of the Oregon workers' compensation laws which provides: Claimant in this case, Floyd Hewitt, Jr., cohabited in Oregon with Marian A. Williams, a female, from 1974 until Williams's death as a result of a compensable industrial accident in 1979. When a child was born to the couple in 1976, claimant and Williams executed a joint declaration of paternity naming claimant as father. Following Williams's death, claimant filed a claim for compensation under ORS 656.226, claiming benefits for himself. The referee and Worker's Compensation Board denied his claim, both stating they were without jurisdiction to reach the constitutional issue.[1] The Court of Appeals reversed and ordered that benefits be paid to claimant as if ORS 656.226 were written in gender-neutral terms. 54 Or. App. 398, 635 P.2d 384. ORS 656.226 is not unusual in its attempt to classify recipients of workers' compensation benefits on the basis of gender. Though not cited by the parties, we have discovered cases from seven other states holding unconstitutional workers' compensation statutes which granted automatic death benefits to widows, but allowed such benefits to widowers only upon a showing of dependency. See Arp v. Workers' Compensation Appeal Board, 19 Cal. 3d 395, 138 Cal. Rptr. 293, 563 P.2d 849 (1977); Insurance Company of North America v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980); Day v. W.A. Foote Memorial Hospital, Inc., 412 Mich. 698, 316 N.W.2d 712 (1982); Tomarchio v. Township of Greenwich, 75 N.J. 62, 379 A.2d 848 (1977); Passante v. Walden Printing Company, 385 N.Y.S.2d 178, 53 A.D.2d 8 (1976); Davis v. Aetna Life & Cas. Co., 603 S.W.2d 718 (Tenn. 1980); Swafford v. Tyson Foods, Inc., 2 Ark. App. 343, 621 S.W.2d 862 (1981). In all of these cases the courts found the statutes at issue violative of the equal protection clause of the fourteenth amendment to the United States Constitution.[2] In so doing, the courts commonly relied on the cases of Wengler v. *972 Druggists Mutual Insurance Company, 446 U.S. 142, 100 S. Ct. 1540, 64 L. Ed. 2d 107 (1980) and Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975). Wiesenfeld formed the basis of the Court of Appeals opinion in the present case as well, that court finding "no meaningful distinction between [Wiesenfeld] and the case at hand." 54 Or. App. 398, 403, 635 P.2d 384 (1981). Claimant challenges the constitutionality of ORS 656.226 under the fourteenth amendment to the United States Constitution and article I, section 20 of the Oregon Constitution. Article I, section 20, states: The fourteenth amendment to the United States Constitution states, in pertinent part: This court's forays into the field of alleged gender discrimination have been neither frequent nor recent.[3] This court first considered the issue of gender discrimination in the case of State v. Baker, 50 Or. 381, 92 P. 1076 (1907). Baker was a criminal prosecution against the proprietors of a saloon for allowing a woman under the age of 21 to remain in or about their saloon. Defendants contended that because the law permitted males over the age of 18 to enter and remain in a saloon, but denied that right to women between the ages of 18 and 21, it was invalid. Baker illustrates two points. First, it recognized that men and women constitute "classes" within the meaning of article I, section 20. Second, it shows the view of its era that the "general welfare and good morals" might be pursued by regulating the personal conduct of one of these classes, women, for no better reason than to match that individual conduct to the stereotype imposed upon their sex. The court observed, "By nature citizens are divided into the two great classes of men and women, and the recognition of this classification by laws having for their object the promoting of the general welfare and good morals, does not constitute an unjust discrimination." 50 Or. at 385-86, 92 P. 1076. Other language from the opinion states: "The liberties or rights of every citizen are subject to such limitations in their enjoyment as will prevent them from being dangerous or harmful to the body politic * * *." 50 Or. at 385, 92 P. 1076. Baker is an early example of a "balancing" test approach to "class legislation." It was not until 1956 that this court again considered the validity of legislation which effects unequal treatment of men and women. In State v. Hunter, 208 Or. 282, 300 P.2d 455 (1956) we upheld the constitutionality of a statute which prohibited females from participating in wrestling exhibitions or competitions. We restated State v. Baker to the effect that nature divides citizens "into the two great classes of men and women," and elaborated: In Hunter this court found that the legislative classification denying women the right to participate in public wrestling events was based upon a reasonable distinction having a fair and substantial relation to the object of the legislation. Surely no judge today, however, would attempt to justify a statute in the language used by this court then to hypothesize the statutory objective in Hunter: The United States Supreme Court historically has also upheld the constitutionality of gender specific laws.[5] Its willingness to overturn them is a very recent development. That development began with Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), in which a unanimous court held a statutory preference for male estate administrators unconstitutional because it provided "dissimilar treatment for men and women who are * * * similarly situated." 404 U.S. at 77, 92 S. Ct. at 254. The court framed the issue as "whether a difference in the sex of competing applicants *974 (as estate administrator) * * * bears a rational relationship to a state objective that is sought to be advanced * * *." 404 U.S. at 76, 92 S. Ct. at 254. The court held the state's objective, administrative convenience, insufficient to justify the classification. In Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), a female military officer challenged a requirement that she demonstrate that her spouse was dependent upon her for at least fifty percent of his maintenance in order to receive dependents' benefits. Male personnel received the benefits without such a showing on the part of female dependents. Four of the justices found gender, like race, to be a "suspect" classification bearing a heavy burden of justification. Justice Stewart found "invidious discrimination" on the basis of Reed. The three justices who joined Justice Powell in concurring on the basis of Reed specifically stated they would not add gender to the list of suspect categories. Weinberger v. Wiesenfeld, supra, relied upon by the Oregon Court of Appeals in this case, invalidated a provision of the Social Security Act which made the widow and children of a deceased husband automatic beneficiaries but excluded a widower as a deceased wife's beneficiary. The court found that the purpose of the statute was to allow children deprived of one parent the attention of the other parent. Given this purpose, the court held the genderbased classification "entirely irrational." 420 U.S. at 651, 95 S. Ct. at 1234-1235. It concluded "[i]t is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female." 420 U.S. at 652, 95 S. Ct. at 1235. Wengler v. Druggists Mutual Insurance Company, supra, invalidated a statute similar to the one at issue in this case. There the husband claimed workers' compensation benefits for the death of his wife in a work-related accident. The law required Wengler, because he was a man, to demonstrate his dependency in order to be eligible for compensation. This he was unable to do. In deciding the case the court refers to a "heightened scrutiny under the Equal Protection Clause." 446 U.S. at 152, 100 S. Ct. at 1546. The Supreme Court when faced with gender discrimination challenges imposes what has come to be known as an "intermediate tier" scrutiny somewhere between a "rational basis" equal protection test and a "strict scrutiny" test. Emden, Intermediate Tier Analysis of Sex Discrimination Cases: Legal Perpetuation of Traditional Myths, 43 Alb.L.Rev. 73, 1978-1979; Gunther, The Supreme Court 1971 Term Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 34 (1972-1973). The apparent inconsistency of results[6] under the court's "heightened" but not "strict" scrutiny has sparked criticism for failure to provide a consistent analysis *975 offering guidelines to trial and appellate courts. One early commentator said, "[T]he Court is not certain what constitutes sex discrimination, how virulent this form of discrimination is or how it should be analyzed in terms of due process and equal protection." Johnston, Sex Discrimination and the Supreme Court 1971-1974, 49 N.Y.U.L.Rev. 617, 689 (1974). The kaleidoscope of standards and rationales underlying the United States Supreme Court decisions prompted one judge to write, "* * * the lower courts searching for guidance in the 1970's Supreme Court's sex discrimination precedents have `an uncomfortable feeling,' like players in a shell game who are not absolutely sure there is a pea." Vorchheimer v. School District of Philadelphia, 400 F. Supp. 326, 340-41 (E.D.Pa. 1975) rev'd 532 F.2d 880 (3rd Cir.1976) aff'd by an equally divided court 430 U.S. 703, 97 S. Ct. 1671, 51 L. Ed. 2d 750 (1977). There is no requirement in this case that this court adopt a fourteenth amendment standard for the application of article I, section 20, or that we decide this case on the basis of the federal gender discrimination cases. Claimant here alleges the invalidity of ORS 656.226 under both the federal and state constitutions. It is our duty to determine what the standard should be under our own constitution for statutes that classify on the basis of gender. In doing so, we decline the opportunity to adopt the present standards of the United States Supreme Court's opinions. This court has not considered the validity of a gender-specific statute challenged under article I, section 20 of our own constitution in twenty-six years. As a result we are not hampered by recent holdings attempting to whittle away at stereotyped and outmoded notions of "proper" roles for men and women. We are free in Oregon to begin our analysis of genderbased laws on a clean slate. There is no violation of claimant's fourteenth amendment rights if those rights are protected under the Oregon Constitution. Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981). It is therefore appropriate to decide this case on the basis of whether ORS 656.226 violates article I, section 20. Article I, section 20, of the Oregon Constitution has been said to be the "antithesis" of the equal protection clause of the fourteenth amendment. State ex rel. Reed v. Schwab, 287 Or. 411, 417, 600 P.2d 387 (1979) cert. denied 444 U.S. 1088, 100 S. Ct. 1051, 62 L. Ed. 2d 776 (1980); State v. Savage, 96 Or. 53, 59, 184 P. 567, 189 P. 427 (1919). While the fourteenth amendment forbids curtailment of rights belonging to a particular group or individual, article I, section 20, prevents the enlargement of rights. See Linde, Without "Due Process," 49 Or.L. Rev. 125, 141 (1969-1970). There is an historical basis for this distinction. The Reconstruction Congress, which adopted the fourteenth amendment in 1868, was concerned with discrimination against disfavored groups or individuals, specifically, former slaves. State v. Bunting, 71 Or. 259, 263, 139 P. 731 (1914). When article I, section 20, was adopted as a part of the Oregon Constitution nine years earlier, in 1859, the concern of its drafters was with favoritism and the granting of special privileges for a select few. State v. Clark, 291 Or. 231, 236, 630 P.2d 810 cert. denied 454 U.S. 1084, 102 S. Ct. 640, 70 L. Ed. 2d 619 (1981); School Dist. No. 12 v. Wasco County, 270 Or. 622, 628, 529 P.2d 386 (1974). It is quite clear that the law in question, ORS 656.226, grants an economic privilege to certain women who have cohabited with men and produced a child or children as a result of that cohabitation, while withholding such benefits from men who might request them on the same terms. It grants as well to certain working men the privilege of providing benefits through workers' compensation to keep their family unit intact following accidental death but withholds the same benefit from working women. It discriminates against men in claimant's position who have cohabited with female workers and fathered a child by denying them benefits altogether, and it discriminates against women such as Williams by denying them the privilege of providing through their employment for their surviving *976 family unit.[7] The privilege created by ORS 656.226 is bestowed or withheld solely on the basis of gender. We have often said in dicta that like the fourteenth amendment, article I, section 20, of the Oregon Constitution prohibits disparate treatment of groups or individuals by virtue of "invidious" social categories. A number of opinions have noted that compliance with article I, section 20 will correspond to compliance with the equal protection clause. City of Klamath Falls v. Winter, supra; Tharalson v. State Department of Revenue, 281 Or. 9, 573 P.2d 298 (1978); Nilsen v. Davidson Industries, Inc., 226 Or. 164, 360 P.2d 307 (1961); Plummer v. Donald M. Drake Company, 212 Or. 430, 320 P.2d 245 (1958); Savage v. Martin, supra; State v. Savage, supra. In Olsen v. State ex rel. Johnson, 276 Or. 9, 554 P.2d 139 (1976), this court said of the developing equal protection jurisprudence of the United States Supreme Court: "We do not have any difficulty following that part of the analysis which asks whether the classification is made on the basis of a suspect class such as race or sex and, if so, holding that such a classification is subject to a strict scrutiny." Olsen, 276 Or. at 19, 554 P.2d 139.[8] This "suspect class" and "strict scrutiny" language has found its way into the law of the various states as well, as courts have been called upon to determine the constitutionality of particular state statutes in the face of state constitutional challenges. Eighteen state constitutions contain provisions proscribing discrimination on the basis of gender.[9] Many of these states have incorporated *977 the "suspect class" analysis of the federal cases to invalidate genderbased legislation under their state constitutions. Maryland State Board of Barber Examiners v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973) (dictum); People v. Ellis, 57 Ill. 2d 127, 311 N.E.2d 98 (1974); Darrin v. Gould, 85 Wash. 2d 859, 540 P.2d 882 (1975); Page v. Welfare Commissioner, 170 Conn. 258, 365 A.2d 1118 (1976) (dictum); Mercer v. Board of Trustees, North Forest Independent School District, 538 S.W.2d 201 (Tex.Civ. App. 1976); Lowell v. Kowalski, 380 Mass. 663, 405 N.E.2d 135 (1980); Hardy v. Stumpf, 21 Cal. 3d 1, 145 Cal. Rptr. 176, 576 P.2d 1342 (1978) (dictum); Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 95 Cal. Rptr. 329, 485 P.2d 529 (1971) (decided under the state and federal equal protection clauses). Oregon has no equal rights provision related specifically to gender, yet we do not feel constrained to limit our application of article I, section 20 on this basis. By its terms article I, section 20 forbids the granting of privileges to "any citizen" or any "class of citizens." The privileges of ORS 656.226 extend to the classes of working men, and women with children by working men. Like other state and federal courts, we agree that a classification is "suspect" when it focuses on "immutable" personal characteristics. It can be suspected of reflecting "invidious" social or political premises, that is to say, prejudice or stereotyped prejudgments. Historically, the most obvious such classification, and the one recognized to be such within the special concerns that gave rise to the fourteenth amendment, was, of course, racial discrimination.[10] But when we consider "classification" by collective human characteristics apart from whether the discrimination is adverse, in violation of the equal protection clause, or favorable, as proscribed by article I, section 20, we find that classification of one's personal privileges and immunities by one's gender is at least as old as by race, and as much based on unexamined societal stereotypes and prejudices. Gender is a visible characteristic determined by causes not within the control of the individual. It bears no relation to ability to contribute to or participate in society. The purposeful historical, legal, economic and political unequal treatment of women is well known.[11] Accordingly, we hold that when classifications are made on the basis of gender, *978 they are, like racial,[12] alienage[13] and nationality[14] classifications, inherently suspect. The suspicion may be overcome if the reason for the classification reflects specific biological differences between men and women. It is not overcome when other personal characteristics or social roles are assigned to men or women because of their gender and for no other reason. That is exactly the kind of stereotyping which renders the classification suspect in the first place. SAIF argues that the statute embodies legislative concern for workers' dependents and its purpose is to provide only for women because women are assumed to be dependent on men more often than the reverse. If we were convinced of this interpretation the issue of the constitutionality of the classification could be speedily resolved. The assumption of female dependency is "an archaic and overbroad generalization." Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S. Ct. 572, 577, 42 L. Ed. 2d 610 (1975). Such a statutory classification relying on gender as legislative shorthand for dependency is the kind of stereotype that cannot withstand an article I, section 20 challenge. Cf., under the federal constitution, Schlesinger v. Ballard, supra; Califano v. Goldfarb, 430 U.S. 199, 217, 97 S. Ct. 1021, 1032, 51 L. Ed. 2d 270 (1977); Frontiero v. Richardson, supra. The Court of Appeals found it apparent from the statute that its purpose was to give assistance to the surviving members of the family, not to women as a disadvantaged group, supra, 54 Or. App. at 402, 635 P.2d 384. ORS 656.226 was originally enacted in 1927 and has continued in force with little change. No legislative history of ORS 656.226 exists to clarify its original purpose and we are reluctant to surmise. In 1973, ORS 656.226 was the subject of discussion during proffered amendments to the workers' compensation statutes. Senator Burbidge proposed Senate Bill 46 to equalize gender specific language throughout Chapter 656. In introducing the package to the Senate Labor Committee on February 8, 1973, Senator Burbidge indicated that the amendments were prepared to remedy serious inequities in benefits in keeping with the cost of living, adding "there are as many working women as men." Minutes, Senate Labor Committee, February 8, 1973, at 3. A statement of that date drafted by Robert Babcock, a Portland attorney, states that the effect of the amendments is to "erase the only remaining distinctions of treatment under the Oregon Workmen's [sic] Compensation Act which are based on the sex of the workman [sic] or the beneficiary." Minutes, Senate Labor Committee, February 8, 1973, Exhibit B, at 1. That exhibit specifically addresses ORS 656.226. It notes that one purpose of the workers' compensation laws is to reduce litigation. The exhibit explains that without the amendments the "common law husband" receives no benefits under the act; he nonetheless retains his potential right of action for death or injury of his partner. The amendment would serve to avoid this frustration of the purpose of the act. The section of the bill amending ORS 656.226 to incorporate gender neutral language remained in effect throughout Senate amendments but the House Committee on Labor and Industrial Relations, at Representative Wilhelms's initiative, struck the gender neutral language of ORS 656.226. Wilhelms commented that he desired to withhold ORS 656.226 benefits from "an able-bodied man who was cohabiting with a woman worker who was injured or killed." House Labor and Industrial Relations Committee, May 21, 1973. Before the vote there was considerable discussion that if the gender neutral language were eliminated the law would continue as it was and children would receive benefits. It was emphasized twice that the major concern was for the children. Id. On June 15, 1973, Mr. Kulongoski (not a legislator at that time) *979 explained to the committee the need for the Senate language in order to avoid discrimination. Representative Elliott, a committee member, was of the opinion that there would be a legal problem with discrimination against the woman worker and moved to restore the gender neutral language. One committee member expressed concern that without the amendment "what you're doing here in effect is recognizing a common law marriage for one and not the other." House Labor and Industrial Relations Committee, June 15, 1973. Another committee member indicated that the statute sought to provide benefits not to women but to the "survivor whoever that may be." Id. Representative Elliott's motion to restore carried. Representatives Wilhelms and Patterson arrived after the vote and voted against and successfully prevented moving the bill to the floor with a do pass recommendation. Discussion of the constitutionality of the statute ensued. When faced with a suggestion by one committee member that judicial invalidation of the statute could follow a successful constitutional attack, another committee member responded that they did not want "the attorney general or the court to throw it out." Id. There was general agreement among committee members in support of this sentiment. In an apparent attempt to resolve the impasse created by Representative Wilhelms's dissatisfaction with the Senate amendment one committee member suggested they delete the entire section. This idea gained no support. The discussion once again indicates the committee's concern that benefits be available to children. Id. No resolution of the issue was reached at this meeting. On June 18, 1973, Representative Wilhelms again moved to delete the gender neutral language. The motion carried without discussion and the amended bill passed to the floor. While the Committee's reasons for the ultimate rejection of gender neutral amendments to ORS 656.226 are open to conjecture,[15] its perception of the purpose of ORS 656.226 is clear. The committee recognized the statute as one designed primarily to ensure entitlement to benefits for the worker's family unit, not the adult partner alone. A concern with the welfare of workers' children dominated the debates. The Committee was aware that throughout the workers compensation statutes, illegitimate as well as legitimate children enjoy equal entitlement to benefits. ORS 656.005(6). Significantly, the Committee rejected a proposal that ORS 656.226 be deleted in its entirety, desiring instead to ensure that eligible children receive the additional benefits available to the family through application of ORS 656.226. That the statute was designed to benefit the family unit is apparent from the eligibility requirements of the statute itself. Without a child of the relationship living with the family a cohabitor is ineligible. Thomas v. SAIF, 8 Or. App. 414, 495 P.2d 46 (1972). Without an entitled parent, i.e., cohabitation for over one year prior to injury, a child cannot benefit. A family must exist before entitlements ensue.[16] It is apparent that the gender classification of ORS 656.226 is not based on intrinsic differences between the sexes. Rather, it reflects assumptions about the relative social roles and the probable dependency of men and women. Families of deceased male workers may receive benefits regardless of marital status of the mother while families of deceased female workers may receive benefits only if the parents were married. Accordingly we find the statute unconstitutional. *980 We turn now to the issue of the appropriate remedy. Respondent urges invalidation of the entire statute arguing that whenever a statute is found unconstitutional its invalidation is the only remedy; claimant desires extension of benefits to himself and all classes unconstitutionally excluded. Cases from other jurisdictions have remedied unconstitutional provisions in workers' compensation laws with a variety of results. Thus Arp v. Workers' Compensation Appeal Board, supra, invalidated a statutory presumption of female dependency and held extension of benefits to be inappropriate without a reasonably clear expression of legislative intent. The court was careful to demonstrate that the family unit would not suffer as a result of its decision. Both parents remained eligible if they could demonstrate dependency; and the children would now receive the full death benefit that was originally awarded to the widow. Day v. W.A. Foote Memorial Hospital, Inc., supra, invalidated a similar statutory presumption of dependency for widows. The court found extension inappropriate in light of a deliberate legislative decision to exclude widowers. Swafford v. Tyson Foods, Inc., supra, struck a similar statutory presumption and extended benefits. The court indicated that legislative abolition of the gender distinction after the case was filed demonstrated an intent to provide compensation to all survivors equally. Tomarchio v. Township of Greenwich, supra, extended a similar dependency presumption to widowers. The court was persuaded that in light of legislative revisions to the workers' compensation laws subsequent to the filing of the case extension was the remedy least destructive of the dominant plan to provide dependency benefits. Davis v. Aetna Life & Cas. Co., supra, extended a similar dependency presumption to men. Legislative revisions since the case arose indicated to the court an intent to provide equal treatment. Passante v. Walden Printing Company, supra, extended the statutory presumption of dependency to widowers without discussion. In Insurance Company of North America v. Russell, supra, a similar presumption was both eliminated for women and rewritten for men. After the court's decision, survivors of both gender could recover upon proof of dependency. Widowers were no longer required to prove, in addition to dependency, incapacity to support themselves. In Fenske v. Public Employees Retirement System Board of Administration, 103 Cal. App. 3d 590, 163 Cal. Rptr. 182 (1980), the California Court of Appeals reviewed the Arp remedy. Fenske addressed the constitutionality of an entitlement available only to men which allowed an employee to elect a job classification which resulted in an increased retirement pension if the employee became disabled. Rather than invalidate the regulation after finding it unconstitutional, the court extended the entitlement to the female plaintiff indicating that "[t]his is the very type of situation in which Arp would extend the benefits rather than invalidate the statute." (Footnote omitted.) 103 Cal. App. 3d at 598, 163 Cal. Rptr. at 187. Of significance to the court was the fact that invalidation would result in an absolute denial of benefits to both males and females, unlike the situation in Arp, and in contradiction of legislative intent. Fenske, while not involving a workers' compensation statute, is most closely analogous to the situation in the present case. Invalidation of ORS 656.226 will result in total elimination of statutory benefits for all recipients. In the above cited workers' compensation cases benefits remained available even where the statute was invalidated so long as an applicant could demonstrate actual dependency. Our sister states' decisions are illustrative for a number of reasons. First, they demonstrate there is no universal rule compelling invalidation of constitutionally defective statutes. Second, contrary to the dissent's view that we should not extend the statute, these opinions affirm that courts are not without power to repair such statutes in appropriate circumstances. Finally, they provide an analytical framework by which the appropriate remedy may be assessed: we first examine the legislative purpose in providing benefits under the *981 challenged statute; we then resolve what the legislature would have done if faced with the invalid statute. Would it terminate coverage to all recipients or extend benefits to those improperly excluded? We find equally strong support for the proposition that courts are empowered to extend underinclusive statutes from the United States Supreme Court. Justice Harlan concurring in Welsh v. United States, 398 U.S. 333, 361, 90 S. Ct. 1792, 1807-1808, 26 L. Ed. 2d 308 (1970) stated: Wiesenfeld, supra, examined the legislative purpose in providing Social Security benefits to widows and found extension of benefits to widowers the alternative least disruptive of that purpose. In Wengler, supra, the United States Supreme Court remanded the case to the Missouri Supreme Court for the specific purpose of addressing the issue of extension or invalidation. The court stated: As we have seen, the purpose of ORS 656.226 is to provide benefits to families of workers injured or killed on the job. Except for his gender, claimant and his family in this case fulfill the statutory requirements for entitlement. In resolving how the legislature would have remedied the invalidation of the statute we need not hypothesize. We have seen that when faced with the issue of the statute's discriminatory impact on women workers the committee was in general agreement that they did not want the statute "thrown out." When presented with the suggestion that they delete the statute entirely committee members thought it more important to ensure benefits to the family unit. Thus, given the choice between eliminating the statute entirely or passing it out of committee in potentially unconstitutional form, they chose to preserve existing entitlements to male workers' families. Invalidation here would deprive all cohabitants of unmarried workers of benefits. This is in clear conflict with legislative intent. We note that one objective of the workers' compensation law is "to provide * * * fair, adequate and reasonable income benefits to injured workers and their dependents." ORS 656.012(2)(a). Extension of benefits in this case advances the purpose of the legislation and comports with the overall statutory scheme.[17] This court has never addressed the issue of remedy in a case like the present. Our analysis appropriately includes consideration of the remedial alternative of extension of benefits to the excluded class. This is so because even though the classification *982 is unconstitutional the underlying purpose of the statute remains valid. Where, as here, the statutory classification is underinclusive, the court must examine legislative history to assess how best to maintain the objective sought to be achieved by the statute. In addition, we are reluctant to adopt a policy of per se invalidation of statutes containing discriminatory classifications. Such a policy provides a disincentive for litigants to challenge objectionable statutes. More importantly, we are not convinced that denial of benefits to all adequately and fairly resolves the problem of discriminatory laws. We see no reason why in this case, for example, the entitlements of female cohabitants and their families should be eliminated so that the rights of male cohabitants and their families may be vindicated.[18] Having resolved that the purpose of ORS 656.226 is to provide benefits to families of injured workers and in light of the legislative reluctance to eliminate the statute when faced nine years ago with the hypothetical facts of the case we are in fact deciding today, we affirm the Court of Appeals decision, recognizing that extension of benefits to claimant most effectively fulfills the purpose of the legislation. Affirmed. PETERSON, Justice, concurring in part; dissenting in part. I concur in that portion of the majority opinion which holds that ORS 656.226 is invalid because it impermissibly discriminates on gender grounds against men in claimant's position and discriminates against women by denying them the privilege "of providing through their employment for their surviving family unit." 294 Or. at 42-43, 653 P.2d 975-976. I dissent, however, from that part of the opinion which extends benefits to the claimant. In my opinion, this court lacks the power to legislatively repair the constitutional infirmity of ORS 656.226. The vexing problem in this case is whether, because ORS 656.226 is unconstitutional, we should remedy the constitutional imperfection by extending the benefits to the underincluded class, represented in this case by the plaintiff. Cases such as this raise particularly difficult questions of extension versus invalidation because if the statute is merely invalidated without extension, the claimant does not obtain benefits (even though he prevailed in having the statute declared unconstitutional) and the spectre arises that those needy persons now receiving benefits will also lose them if extension is not granted. Therefore, as many of the cases cited in the majority opinion demonstrate, many courts grant extension without consideration or discussion of the vexing separation of powers question implicit in the extension-invalidation controversy. See generally, Note, Extension versus Invalidation of Underinclusive Statutes: A Remedial Alternative, 12 Colum.J.L. & Soc.Probs. 115 (1975). In 1973, Senate Bill 46 proposed to amend ORS 656.226 to read: The amendment was rejected. One irrebuttable conclusion can be drawn from the *983 1973 history: The legislature then intended that ORS 656.226 should not be amended to extend benefits to cohabiting males on the same terms as cohabiting females. This court has, by judicial legislation, now passed the very measure which the legislature rejected in 1973. Legislatures pass laws. Courts interpret laws. Had it known that ORS 656.226 would be held invalid, the legislature may well have enacted the statute proposed in SB 46. But I do not know that, and neither does any other member of this court. Why, then, does the majority judicially amend the statute in the very manner the legislature rejected in 1973? Apparently because of its perception of what the legislature would have done had it known that we would invalidate the statute. The solution enacted by the majority is only one of several actions the legislature might take after this law is nullified. There are other possible solutions to the problem, each solution having significant fiscal and sociological consequences. If we do nothing but discharge our constitutionally-appointed task and nullify the offending statute, the legislature, when it convenes in January, 1983, will undoubtedly consider the problem. It might consider these solutions in responding to our decision invalidating ORS 656.226: 1. Do nothing. 2. Extend the benefits of ORS 656.226 consistent with this court's judicial extension of coverage by amendment along the lines proposed in 1973. 3. Provide benefits to male and female cohabitants alike, but only if the injured person was a family's principal wage earner. 4. Provide benefits to male and female cohabitants alike if proof of dependency is shown. 5. Decide upon a solution incorporating some of the features of 2, 3, and 4 above. The legislature could also provide for continued benefits to claimants who were receiving benefits before the date of our decision invalidating ORS 656.226, and whose benefits had been terminated, as well as benefits to claimants whose claims arose between the date of our decision and the date of the amendment. Legislatures should not look to courts to discharge legislative functions. When legislatures pass laws which may be unconstitutional, expecting the courts to rewrite the law in constitutional terms, courts should not accept the invitation.[1] True, many courts, when faced with the choice of invalidation of an unconstitutional benefits statute vis-a-vis extension of underinclusive statutes by judicial act have extended benefits to the excluded class. Most of the cases in which judicial extension has occurred involved statutes which already extended benefits to the excluded class, but required a higher showing a greater degree of proof to qualify for benefits. One leading case, Califano v. Goldfarb, 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977), typifies such cases. There, widows of deceased workers qualified for survivor's benefits without proof of dependency. Widowers were ineligible unless they proved that they received more than half of their support from their deceased wife. The Supreme Court struck the requirement that male claimants make a greater showing than female claimants in order to qualify and granted extension without discussion of the issue. Accord: Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), in which the Supreme Court struck a similar provision requiring that spouses of servicewomen prove that she supplied more than half of her husband's support in order for him to receive dependents' benefits in the same manner as a spouse of a serviceman, and applied the statute as if the exception to coverage did not exist. The cases cited 294 Or. on pages *984 50-51, 653 P.2d on pages 974-975 of the majority opinion fall within that category.[2] The only recent Supreme Court case discussing the question of extension versus invalidation is Califano v. Westcott, 443 U.S. 76, 99 S. Ct. 2655, 61 L. Ed. 2d 382 (1979) (AFDC Unemployed Father program provided welfare benefits to families with young children in which the father was unemployed, but not to families with young children in which the mother was unemployed, held violative of equal protection component of Fifth Amendment due process; extension to families with unemployed mothers held proper remedy). In Westcott the Massachusetts Public Welfare Commissioner stipulated that some form of judicial extension should be made. 443 U.S. at 90, 99 S. Ct. at 2263-2264. The commissioner argued that the least disruptive extension would be to extend benefits to children when the unemployed person was the principal wage earner. This suggestion was rejected, and extension was granted because nullification "* * * would impose hardship on beneficiaries whom Congress plainly meant to protect." 443 U.S. at 90, 99 S. Ct. at 2664. The court specifically noted that "[s]ince no party has presented the issue of extension versus nullification for review, we would be inclined to consider it only if the power to order extension were clearly beyond the constitutional competence of a federal district court." 443 U.S. at 91, 99 S. Ct. at 2664. Even so, four justices dissented on the ground that the court was usurping the prerogatives of the legislature. 443 U.S. at 93-96, 99 S. Ct. at 2665-2667.[3] There can be no denying that this court is legislating, and I believe that in so doing we violate the separation of powers clause of the Oregon Constitution.[4] It may be that the legislature would enact ORS 656.226 in the very form the majority has. On the other hand, it might not. In addition, the very fact that this court has passed SB 46 may have a future effect upon further legislative consideration of this question. The effect of this court's opinion is to enact a new law. I have no experience as a legislator, but I suspect that it is sometimes impossible to obtain a majority for any one change to a statute even though a majority of the legislators agree that some change should be made. Thus, the fact that we nullify and extend may have legislative significance apart from the outcome of this case. If the legislature is unable to agree on a solution, this court's "legislative" solution would remain in force. The point is not only that courts are forbidden to legislate, we lack the resources to make legislative decisions. Though we may possess judicial ingenuity, we have no knowledge of the fiscal implications of our opinion, and little knowledge of its other implications. We have no idea what the legislature's collective belief is concerning the extension of benefits to able-bodied, nondependent male claimants[5] as compared with some other form of relief to families *985 of injured or deceased unmarried workers who have living children as a result of cohabiting with another person. Were I a legislator, in all probability I would do what the majority has done in extending benefits. But I might vote for some other solution, were I convinced that there are other policies which suggest a different answer, or other needs which are greater or more immediate, or if my constituents disfavored the extension of benefits. The legislature convenes in two months, perhaps earlier. It has the power to avoid almost every adverse effect of invalidation, even those occurring before it convenes. That is its constitutionally-appointed job, and we should let them do it.[6] The legislature, by virtue of Article III, section 1, of the Oregon Constitution has been determined to be better able to yoke in common harness the diverse temperaments, qualities and needs of our society. Although this is an appealing case for extension, I believe that our deference to the legislative department is compelled, lest the judicial lamb swallow the legislative lion. CAMPBELL, J., joins in this opinion. [*] Denecke, C.J., retired June 30, 1982. [1] It appears from the record that SAIF paid $1,000 funeral expenses and has paid, on behalf of claimant's and decedent's child, benefits of $100 per month. [2] Only the California Supreme Court, in Arp v. Workers' Compensation Appeal Board, 19 Cal. 3d 395, 138 Cal. Rptr. 293, 563 P.2d 849 (1977), based its holding on state constitutional grounds as well. [3] Nor has the Court of Appeals had much opportunity in this area. See State v. Hodgdon, 31 Or. App. 791, 571 P.2d 557 (1977); State v. Goddard, 5 Or. App. 454, 485 P.2d 650 (1971); State v. Bearcub, 1 Or. App. 579, 465 P.2d 252 (1970). [4] In two other Oregon cases, State v. Muller, 48 Or. 252, 85 P. 855 (1906) aff'd 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908) and Stettler v. O'Hara, 69 Or. 519, 139 P. 743 (1914) aff'd 243 U.S. 629, 37 S. Ct. 475, 61 L. Ed. 937 (1916), this court addressed itself to the treatment of women in employment. Those cases involved challenges to laws which discriminated either on the basis of type of business, Muller, or location of business, Stettler. Neither involved gender discrimination. Both cases were resolved pursuant to the "liberty of contract" versus "police power" analysis of that period. [5] See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 21 L. Ed. 442 (1872), (prohibiting married women from practicing law); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L. Ed. 627 (1874), (granting only men the right to vote); Goesaert v. Cleary, 335 U.S. 464, 69 S. Ct. 198, 93 L. Ed. 163 (1948) overruled 429 U.S. 190, 210, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (forbidding women to work as bartenders); and Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961), (exempting women from jury duty). [6] Compare Frontiero v. Richardson, supra, (striking down a requirement that female but not male military personnel demonstrate spouse's dependency in order to receive dependent's benefits) with Personnel Administration of Massachusetts v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979) (upholding the lifetime preference for veterans in the civil service system); and Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981) (validating the Military Selective Service Act which authorized a presidential proclamation requiring men, but not women, to register for the draft). Compare Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974) (holding that the school board could not require all teachers to stop work after four or five months of pregnancy) and Geduldig v. Aiello, 417 U.S. 484, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974) (upholding California's disability insurance system for private employees which excluded from coverage disability due to normal pregnancy). Compare Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (invalidating an Oklahoma statute which forbade the sale of 3.2% beer to males under the age of 21 and females under the age of 18) and Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981) (declaring valid a California law which makes sexual relationship with a female under the age of 18 a crime while not imposing a like penalty against a female who has a sexual relationship with a male under 18). [7] Claimant's supplemental brief before us characterizes the privilege also as "the privilege of the surviving partner * * * to exercise that constitutionally protected right to the companionship, care, custody, and the management of children he or she [sic] has sired and raised * * *" citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972). Stanley involved a statute by which children of unmarried fathers, upon the death of the mother, were declared wards of the state without any hearing on parental fitness. Without articulating a "fundamental interest" test, the court said that "[t]he private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection." 405 U.S. at 651, 92 S. Ct. at 1212. We do not pass upon the merits of this argument as applied to the facts of claimant's case, because this issue was not raised at trial or on appeal. [8] Olsen involved an equal protection challenge to the state's system of public school financing. This court examined the United States Supreme Court's analysis in San Antonio School District v. Rodriquez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) and ultimately rejected plaintiffs' claim that education was a fundamental right compelling "strict scrutiny." The opinion in San Antonio also considered a classification on the basis of wealth, and held such a classification not "suspect." The opinion makes no mention of race or gender. [9] State constitutional provisions proscribing discrimination on the basis of gender and dates of enactment: Alaska Const. art. I § 3, 1972 California Const. art. I § 8, (enacted in 1879 as art. 20 § 18, amend in 1970, ren. in 1974) Colorado Const. art. II § 29, 1972 Connecticut Const. art. I § 20, 1974 Hawaii Const. art. I § 5, 1968, art. I § 21, 1972 (rev. in 1978) Illinois Const. art. I § 18, 1970 Louisiana Const. art. I § 3, 1974 Maryland Const. Declaration of Rights, art. 46, 1972 Massachusetts Const. pt. 1, art. I, 1976 Montana Const. art. II § 4, 1972 (art. IX § 12, of the 1889 constitution provided for women's suffrage) New Hampshire Const. pt. I art. 2, 1974 New Mexico Const. art. II § 18, 1972 Pennsylvania Const. art. I § 28, 1971 Texas Const. art. I § 3a, 1972 Utah Const. art. IV § 1, 1894 Virginia Const. art. I § 11, 1971 Washington Const. art. XXXI § 1, 1972 Wyoming Const. art. I § 3, 1889 Most of these provisions are similar to the proposed federal Equal Rights Amendment which reads: "Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex." (Colo., Ill., Md., Mass., N.H., N.M., Pa., Tex., Wash.) Alabama, Connecticut, Hawaii, Montana and Virginia include sex with race, color, national origin, etc. The California provision reads: "§ 8. Business, profession, vocation or employment; sex, race, creed, color, or national or ethic origin "Sec. 8. A person may not be disqualified from entering or pursing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethic origin." The Louisiana provision reads: "§ 3. Right to Individual Dignity "Section 3. No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime." The Utah provision appears in Article IV entitled Elections and Right of Suffrage: "Section I. [Equal political rights.] "The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges." The Wyoming provision states: "§ 3. Equal political rights. "Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction." [10] The notion of suspect classifications was originally formulated in United States Supreme Court cases involving racial discrimination. See McLaughlin v. Florida, 379 U.S. 184, 196, 85 S. Ct. 283, 290-291, 13 L. Ed. 2d 222 (1965). [11] Until the passage of the nineteenth amendment to the federal constitution in 1920 women were denied the right to vote. It was not until the passage of the Civil Rights Act of 1957 that women became eligible to serve on federal juries. See Sail'er Inn, Inc. v. Kirby, supra, 5 Cal. 3d at 19, n. 19, 95 Cal. Rptr. at 341, 485 P.2d at 541. Kahn v. Shevin, 416 U.S. 351, 353-54 n. 4 and 5, 94 S. Ct. 1734, 1736-1737 n. 4 and 5, 40 L. Ed. 2d 189 (1974). [12] Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 1823, 18 L. Ed. 2d 1010 (1967); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954). [13] Graham v. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 1852, 29 L. Ed. 2d 534 (1971). [14] Oyama v. California, 332 U.S. 633, 646, 68 S. Ct. 269, 275, 92 L. Ed. 249 (1948). [15] Petitioner relies on Representative Wilhelms's comment expressing his desire to withhold ORS 656.226 benefits from able-bodied men. In light of subsequent committee discussion it is very doubtful that Rep. Wilhelms was expressing more than a personal opinion. [16] We note that petitioner's earlier interpretation of the purpose of ORS 656.226 in Kempf v. SAIF, 34 Or. App. 877, 580 P.2d 1032 (1978), corresponds with our own. In Kempf SAIF argued that the purpose of the statute was not to provide compensation to surviving partners in their own right, but to protect children by insuring that the surviving parent who has responsibility for such children is not left destitute. 34 Or. App. at 883 n. 1, 580 P.2d 1032 (Joseph, J. dissenting). [17] We do not read Pavlicek v. SIAC, 235 Or. 490, 385 P.2d 159 (1963) to compel invalidation whenever a nonseverable statute is held unconstitutional. Pavlicek involved a worker's challenge to the constitutionality of the Oregon Occupational Disease Law on the grounds that the statute failed to provide for jury trial or judicial review of the commission's decision. The court rejected the claim because it reasoned that severance, the requested remedy, would not provide the relief sought. 235 Or. at 492-93, 495, 385 P.2d 159. The court did not reach the constitutional issue but stated in dicta that a finding of unconstitutionality would compel invalidation of the entire statutory scheme. 235 Or. at 495, 385 P.2d 159. The Pavlicek court correctly assumed that no other course was available short of rewriting the procedures available to a litigant at the agency level. The instant case is quite different. It does not concern the adequacy of procedural due process rights afforded by statute but addresses rather the propriety of an underinclusive classification which confers benefits. [18] The dissent criticizes the majority for "legislating" by extending the statute. It should be pointed out that the dissent's remedy would repeal the entire statute, a result no less "legislating" in effect and contrary to the statute's purpose and the intent expressed in the legislative history described in the text of this opinion. The dissent suggests alternate remedies the legislature may choose were we to invalidate the statute. Those remedies are no less available to the legislature by the extension of the statute to the excluded males should it decide to amend the law. [1] Situations in which legislatures enact legislation using broad language, leaving it to the courts to interpret ambiguous terms are distinguishable. See, e.g., DeCicco v. Ober Logging Co., 251 Or. 576, 579, 447 P.2d 297 (1968). [2] Moreover, in a number of cases cited by the majority, by the time of the appellate court decision the legislature had already made the change made by the court. In most cases ordering extension, extension was ordered without discussion of the issue whether extension was appropriate and permissible. [3] In addition to the commissioner's stipulation for extension, there was a compelling practical reason for the Westcott extension: all benefits to dependent children would be limited if extension was not ordered. In the case at bar (contrary to the statement, 294 Or. on pages 52-53, 653 P.2d on page 981 of the majority opinion that "[i]nvalidation here would deprive all cohabitants of unmarried workers of benefits"), children of injured workers, male or female, would continue to receive benefits under ORS 656.204(4). [4] Article III, section 1, of the Oregon Constitution provides: "The powers of the Government shall be divided into three separate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." [5] I should point out that the legislature has not required a showing of dependency for nondependent, able-bodied male spouses to receive benefits. See, e.g., ORS 656.204. [6] Particularly when time is not of the essence.

7095b5ff8343a376a964bbabc8e86b9fa1ea3e071bd18c5fe4da2251917515cd

1982-11-16T00:00:00Z

746c4ff7-1fa0-4178-9096-37bedfa98e46

State v. Threet

294 Or. 1, 653 P.2d 960

oregon

Oregon Supreme Court

653 P.2d 960 (1982) 294 Or. 1 STATE of Oregon, Respondent On Review. v. John B. THREET, Lee Fortier, Anna Lisa Onsrud, Donald Peter Sloan, Suzanne Sloan, Steve Ruttenburg, Petitioners On Review, CA A24418, A24604, A24605, A24606, A24607 and A24625; SC 28747. Supreme Court of Oregon, In Banc. Argued and Submitted October 5, 1982. Decided November 16, 1982. *961 Robert J. McCrea, of Morrow, McCrea & Divita, P.C., Eugene, argued the cause for petitioners on review. With him on the petition for review was Ralph A. Bradley, of Bradley & Gordon, Eugene. Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response to the petition for review were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. PETERSON, Justice. Appellants are witnesses who were subpoenaed to appear and testify before the Lane County grand jury. Each appeared and refused to testify, invoking constitutional provisions against self-incrimination, Article I, section 12, of the Oregon Constitution and the Fifth Amendment of the United States Constitution. Pursuant to ORS 136.617-.619,[1] the state moved the circuit court to order the witnesses to testify. The circuit court ordered that each of the witnesses "is hereby compelled to testify * * * regarding the following: [areas of testimony were specified]." Each witness appealed from the orders. By letter to the parties, the Court of Appeals dismissed the appeals, saying that "the Court of Appeals has today dismissed on its own motion your notice of appeal * * * as being an appeal from a nonappealable order." Appellants seek review, claiming that the orders are appealable under ORS 19.010(4). After review was allowed, the state filed a response agreeing with appellants' assertion that the orders are appealable *962 under that statute. This court must nevertheless determine if the Court of Appeals had jurisdiction granted to it by statute to decide the appeal, for jurisdiction cannot be conferred by stipulation. See J. Gregcin, Inc. v. City of Dayton, 287 Or. 709, 713, 601 P.2d 1254 (1979); Lulay v. Earle v. Wolfer, 278 Or. 511, 513, 564 P.2d 1045 (1977); Johnson v. Assured Employment, 277 Or. 11, 14, 558 P.2d 1228 (1977). The issue in this case is whether an order issued pursuant to ORS 136.617 which compels a witness to testify before a grand jury is appealable under ORS 19.010(4). ORS 19.010(4) provides: This statute was enacted in 1927, Or. Laws 1927, ch. 248, and has remained substantially the same since then.[2] It is necessary to determine whether the procedure established by ORS 136.617-.619 is a "special statutory proceeding." We therefore examine how the terms "special proceeding" and "special statutory proceeding" have been used historically in Oregon statutes and case law. "Special proceedings" have existed in Oregon law since 1862. See General Laws of Oregon, 1845-1864, ch. 7 (M. Deady ed 1866). In 1862, the legislature provided for procedures to be followed in special proceedings. Remedy by special proceedings was provided for in a separate chapter of the code of 1862, the detailed requirements of which differed from the pleading and practice prescribed for ordinary actions. See Buell v. Jefferson County Court, 175 Or. 402, 408-09, 152 P.2d 578 (1944). The specific special proceedings dealt with there were the writs of review, mandamus, and habeas corpus, and the punishment of contempt. Each of these proceedings is a separate judicial proceeding with clearly defined parties. We believe that separateness is a necessary attribute of a "special statutory proceeding." This is true of the writs of review, mandamus, habeas corpus, and contempt proceedings. It is also true of other proceedings that we have held to be "special statutory proceedings." As we said in Smith Securities Co. v. Multnomah County, 98 Or. 418, 422, 192 P. 654 (1920), rehearing denied, 98 Or. 422, 194 P. 428 (1921), in reference to a special statutory proceeding, "This statute provides a special proceeding and is summary and complete within itself." An examination of our cases decided under ORS 19.010(4) reveals that where we have held judicial proceedings to be "special statutory proceedings," the proceedings were always separate. Allowing appeals in our previous cases under ORS 19.010(4) and its predecessors did not disrupt other judicial proceedings. In Nickerson v. Mecklem, 169 Or. 270, 273, 126 P.2d 1095 (1942), we held that a decree in a proceeding brought under the Corrupt Practices Act to compel the proponents of an initiative to disclose a statement of contributions and expenditures to the Secretary of State was appealable because the proceeding was a "special statutory proceeding." In Perry v. Oregon Liquor Commission, 180 Or. 495, 497-98, 177 P.2d 406 (1947), we allowed an appeal of a circuit court decree setting aside and cancelling an order of the Oregon Liquor Control Commission suspending a license. In Tax Com. v. Consumers' Heating Co., 207 Or. 93, 109, 294 P.2d 887 (1956), we recognized that an appeal could be taken under ORS 19.010(4) from a decree of the circuit court which set aside an ad valorem assessment entered by the State Tax Commission. See also Case *963 v. Chambers, 210 Or. 680, 704 n. 6, 314 P.2d 256 (1957). In all of these cases the proceedings were separate from other judicial proceedings and thus qualified as "special statutory proceedings." A case where we held that an appeal would not lie under ORS 19.010(4) is instructive. In State v. Endsley, 214 Or. 537, 541-42 & n. 1, 331 P.2d 338 (1958), we held that an appeal could not be taken from an order of the circuit court denying a motion in the nature of coram nobis. The Endsley court said, "[A] motion in the nature of coram nobis, is not * * * a new case, civil in nature, but simply a part of the original criminal proceedings." Id. at 541-42, 331 P.2d 338. The coram nobis proceeding in Endsley was not sufficiently separate from the criminal action from which it arose to be appealed as a "special statutory proceeding."[3] Our recent cases discussing ORS 19.010(4) are consistent with the requirement that special statutory proceedings be separate from other judicial proceedings. Andrysek v. Andrysek, 280 Or. 61, 64, 569 P.2d 615 (1977), held that a petition to register a foreign judgment and a resulting order which in effect sustained the registration of the judgment, was a special statutory proceeding. The proceeding in Andrysek was wholly distinct from any other proceeding. In Southern Oregon Broadcasting Co. v. Dept. of Revenue, 287 Or. 35, 38-40, 597 P.2d 795 (1979), we held that an order of the Tax Court, entered after a proceeding under ORS 305.190(2) requiring a taxpayer to let the Department of Revenue inspect financial records, could be appealed as an appeal from a special statutory proceeding. The proceeding in Southern Oregon Broadcasting was not dependent upon another judicial proceeding for its existence; allowing the appeal there did not affect any other ongoing judicial proceeding.[4] We conclude that the legislature did not intend to allow an appeal from an order issued pursuant to ORS 136.617-.619 because the procedures established by ORS 136.617-.619 do not constitute a "special statutory proceeding." The proceedings established by ORS 136.617-.619 only come into play when a witness refuses to testify or produce evidence on the ground of self-incrimination "[i]n any criminal proceeding before a court of record or in any proceeding before a grand jury, or in any proceeding before a court of record under ORS 646.760 [civil antitrust proceedings brought by the Attorney General]." Grand jury proceedings, which often require quick resolution, would be disrupted by allowing appeals from these orders. "[E]ncouragement of delay is fatal to vindication of the criminal law." Cobbledick v. United States, 309 U.S. 323, 327, 60 S. Ct. 540, 84 L. Ed. 783 (1940). Allowing appeals from orders issued under ORS 136.617 might abort grand jury proceedings in some cases. The term of a grand jury is limited by statute. ORS 132.120 provides that "when the term of court is completed the grand jury must be discharged by the court," except where the court deems it advisable not to discharge the grand jury. See generally Comment, Interlocutory Appeals in Criminal Cases: An Open But Closely Guarded Door, 66 Geo LJ 1163 (1978). The Court of Appeals properly dismissed the appeals. ORS 136.617-.619 is not a *964 "special statutory proceeding" within the meaning of ORS 19.010(4).[5] Affirmed. [1] ORS 136.617 provides: "In any criminal proceeding before a court of record or in any proceeding before a grand jury, or in any proceeding before a court of record under ORS 646.760, if a witness refuses to testify or produce evidence of any kind on the ground that the witness may be incriminated thereby, the prosecuting attorney may move the court to order the witness to testify or produce evidence. The court shall forthwith hold a summary hearing at which the prosecuting attorney shall show reasonable cause to believe the witness possesses knowledge relevant to the proceeding, or that no privilege protects the evidence sought to be produced. The witness may show cause why the witness should not be compelled to testify or produce evidence. The court shall order the witness to testify regarding the subject matter under inquiry upon such showing of reasonable cause or shall order the production of evidence upon a finding that no privilege protects the evidence sought, unless the court finds that to do so would be clearly contrary to the public interest. The court shall hold the summary hearing outside the presence of the jury and the public and may require the prosecuting attorney to disclose the purpose of the testimony or evidence. The witness shall be entitled to be represented by counsel at the summary hearing." ORS 136.619 provides: "After complying with the order to testify or produce evidence and if but for ORS 136.617 the witness would have been privileged to withhold the answer given or the evidence produced, such testimony or evidence, or any information directly or indirectly derived from such testimony or evidence, may not be used against the person in any proceeding or prosecution for a crime or offense concerning which the witness gave answer or produced evidence under court order. However, the witness may nevertheless be prosecuted or subjected to penalty for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. If a person refuses to testify after being ordered to testify as provided in this section, the person shall be subject to penalty for contempt of court for failure to comply with the order." [2] There is no available legislative history of ORS 19.010(4). It is possible that ORS 19.010(4) was enacted to overrule the decision of this court in Smith Securities Co. v. Multnomah County, 98 Or. 418, 192 P. 654 (1920), rehearing denied, 98 Or. 422, 194 P. 428 (1921). In Smith Securities we held that a property owner aggrieved by an assessment decision of the Board of Equalization could appeal to the circuit court, but not to this court, because such an appeal was not granted by statute. [3] We also indicated in Endsley that ORS 19.010(4) is not applicable in coram nobis because (1) coram nobis is not a statutory proceeding; and (2) ORS 19.010(4) applies only in civil cases. State v. Endsley, 214 Or. 537, 542 n. 1, 331 P.2d 338 (1958). With the exception of habeas corpus, all common law post-conviction remedies, including coram nobis and the motion for relief in the nature of coram nobis, have been abolished in criminal cases. ORS 138.540(1). [4] See also Peter Kiewit v. Port of Portland, 291 Or. 49, 63, 628 P.2d 720 (1982) (holding that the procedure provided by ORS 33.240 for the entry of an order directing the parties to proceed with arbitration is ancillary to the "special proceeding" provided by the complete arbitration statute, ORS 33.210-.340 and thus the order is not appealable). [5] Our decision in this case is consistent with the long-standing federal rule and consistent with the rules of other states. See United States v. Ryan, 402 U.S. 530, 533, 91 S. Ct. 1580, 1582, 29 L. Ed. 2d 85 (1971) (order denying a motion to quash a subpoena to give evidence before a grand jury not appealable); Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783 (1940) (same); State v. Grover, 387 A.2d 21, 21 (Me 1978) (same); In re Investigating Grand Jury of Philadelphia County, 437 A.2d 1128 (Pa. 1981) (same); In re Specter, 455 Pa. 518, 317 A.2d 286, 286 (1974) (same); Commonwealth v. Winer, 404 N.E.2d 654 (Mass. 1980) (order to produce records before grand jury not appealable).

65e5c1237c80530d4bfabb780aa5183084748c5cac2be7098d8c7a376a165aa0

1982-11-16T00:00:00Z

b820d6f4-43d5-4bc9-8d44-7c5693e57c5e

In Re Jordan

293 Or. 788, 652 P.2d 1268

oregon

Oregon Supreme Court

652 P.2d 1268 (1982) 293 Or. 788 In re Complaint As to the Conduct of J. Robert JORDAN, Accused. OSB 82-2; SC 28527. Supreme Court of Oregon, In Banc. Argued and Submitted September 8, 1982. Decided November 2, 1982. Frank Pozzi, Portland, argued the cause and submitted the brief for the accused. With him on the brief was Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland. Paul J. Kelly, Jr., Portland, argued the cause for the Oregon State Bar. With him on the brief was Glasgow & Kelly, P.C., Portland. PER CURIAM. The Oregon State Bar filed a complaint against J. Robert Jordan accusing him of unethical conduct. The complaint alleged that Jordan, who represented the petitioner-wife in a contested suit for the dissolution of a marriage, obtained an ex-parte order restraining the respondent-husband without any notice to opposing counsel and without contemporaneously providing a copy of the order to opposing counsel. The conduct was alleged to be in violation of DR 7-110(B) of the Code of Professional Responsibility.[1] *1269 Both the Trial Board and the Disciplinary Review Board found Jordan not guilty. We find Jordan not guilty. The facts are essentially undisputed. On September 11, 1980 Jordan, representing the wife, filed a petition in Multnomah County for the dissolution of her marriage. As additional relief, the wife asked for the custody of two female children (ages 6 years and 15 months), support for the children and herself, and the division of the assets and liabilities. The wife in an "affidavit for restraining order" swore the respondent-husband had become addicted to the excessive use of alcoholic liquor, had physically assaulted her with increased frequency, and had rendered the home dangerous to her and the minor children by his increased violent disposition. On the same day an order was entered requiring the husband to vacate the family residence and restraining him from harassing or contacting the wife. A second order was entered setting a show cause hearing on the custody and support matters. On September 25, 1980, the show cause order came on for hearing before a different judge. Jordan told the judge "things have calmed down considerably" and that the wife wished to withdraw that part of the restraining order which prevented the husband from returning home, but wanted to "continue the order restraining him from harming or harassing her." The husband's lawyer wanted the restraining order removed immediately. The judge, after exacting a promise from the husband that he would not "beat up" the wife, dissolved the restraining order. The custody and support matters were resolved by stipulation. On September 26, 1980, the husband, through his attorney, filed a response to the petition for dissolution. On Friday morning, November 7, 1980, the wife called Jordan by telephone and in the afternoon of the same day she went to his office. Jordan testified that the wife was "almost hysterical" and gave him some new information about the husband. The wife told Jordan that the principal of the six-year-old girl's school had called and said that the Gresham police had picked up the girl. After verifying that the girl was there, Jordan advised the wife to go to the Gresham police department and demand the return of the child. The girl was returned to the wife with a warning by both the Children's Services Division and the police that she should leave her home immediately to protect herself and the children from the husband. Also, on November 7, 1980, the wife executed an affidavit which Jordan had prepared to obtain a second restraining order. The affidavit alleged that within the last month the husband had: (1) falsely accused the wife of having performed various unnatural sex acts; (2) started coming home during his working hours to check on the wife's conduct; (3) attempted to rape the wife; (4) falsely accused the wife of being a lesbian and having sexual relations with the children; (5) as a part of his irrational behavior, pretended that the wife had a desire to kill him, and (6) on November 6, 1980 filed ridiculous charges against the wife with the Children's Services Division causing the Gresham police department to remove the six-year-old girl from school and take her to the police station. On Monday, November 10, 1982, Jordan filed the motion and affidavit and presented the second restraining order to a third Circuit Judge. This was done ex parte, even though Jordan knew the husband was represented by a lawyer. There is no testimony in the record as to what Jordan told the Circuit Judge when he presented the order. The second restraining order was signed by the Circuit Judge on November 10, 1980. It required the husband to move out of the *1270 family home, restrained him from harming the wife and children, set a show cause hearing for November 21st, and set bail for each violation of the order at $5,000. November 11th was a holiday. The husband was served with the second restraining order on November 12, 1980, and on the same day called and fired his attorney. Sometime between November 12th and 14th the husband's lawyer called Jordan to complain that the restraining order had been obtained ex parte and to request a copy of the order. Jordan's letter forwarding a copy of the order to husband's attorney was dated November 17th. The certification that the order was true copy was dated November 18th. The envelope enclosing the letter and the order was postmarked November 19th and the husband's lawyer testified that he received it on November 20th. On November 21, 1980, at the show cause hearing, the husband's lawyer and his partner were allowed to withdraw as attorneys of record.[2] On November 26, 1980, the husband's lawyer's partner filed a complaint of Jordan's conduct in letter form with the Oregon State Bar. There are two issues in this case. Did Jordan violate DR 7-110(B) by: (1) seeking and obtaining the November 10, 1980 restraining order without prior notice to the husband's lawyer, and (2) waiting until November 12th to November 14th to discuss the order with husband's lawyer and waiting until November 19th to mail a copy of the order to the husband's lawyer? The Trial Board found Jordan not guilty of violating the disciplinary rules in obtaining the ex parte restraining order because former ORS 32.050 did not prohibit obtaining the order without notice and the "local custom or practice permitted the obtaining of a restraining order without notice under extreme circumstances." On the question of the timeliness of Jordan notifying the husband's lawyer that the restraining order had been obtained the Trial Board stated it could not find a violation upon the evidence before it. The Disciplinary Review Board agreed with the recommendation of the Trial Board that the complaint against Jordan should be dismissed. Jordan in this court argues that the ex parte contact with the judge was: (1) not on the merits of the cause, or (2) authorized under former ORS 32.050 and therefore excepted from the disciplinary rule under DR 7-110(B)(4). The Oregon State Bar counters by arguing that the ex parte contact was on the merits and that former ORS 32.050 did not apply to domestic relations matters. DR 7-110(B), as it applies to this case and when stripped of its inapplicable language, in effect provides that in an adversary proceeding a lawyer shall not, without notice to opposing counsel, communicate as to the merits of the cause with a judge before whom the proceeding is pending, except as otherwise authorized by law. Former ORS 32.050 was in effect at the time in question and provided: Former ORS 32.050 was enacted by the legislature in 1862 and remained in the above form until it was repealed on January 1, 1982. Deady's Code § 408 (1862); Oregon Laws 1981, Chapter 898. There is no legislative history available. There are no cases from this court which interpret the restraining order provisions of the former statute. No doubt, the reason is that a restraining order is not a final order and therefore not appealable under ORS 19.010. *1271 Dobbs, Handbook of Law Remedies, § 2.10 at 107 (1973) defines a temporary restraining order as follows: The Oregon State Bar cites ORS 107.095 as giving domestic relations courts specific authority to enter orders after the commencement of suit and before decree restraining one party from molesting or interfering with the other or their minor children and argues that former ORS 32.050 did not apply to the limited jurisdiction domestic relations courts. ORS 107.095 only authorizes the court to enter the restraining order. Former ORS 32.050 provided the procedure. The statutes must be read together. This is confirmed by former ORS 32.020(3) which provides that no undertaking shall be required to "protect a person from violent or threatening behavior." If domestic relations cases were to be excluded, the statute would so state. We think that a fair reading of former ORS 32.050 allowed the court to enter a restraining order without notice after the answer had been filed. No one has suggested that a restraining order can be anything but temporary. The former statute made a distinction between injunctions and restraining orders. It made no distinction between domestic relation cases and all other cases. It necessarily follows that Jordan was authorized by the law in force at that time to obtain the ex parte order and therefore he was not in violation of DR 7-110(B). Because of the result we reach in this case we find it unnecessary to consider if Jordan's contact with the judge was "on the merits." We point out to the parties and the Bar in general that former ORS 32.050 has been replaced by ORCP 79 B. effective January 1, 1982: The legislative history does not indicate that this clear intention to include domestic relations restraining orders was considered in any way a change from the existing law. The Oregon State Bar also charges Jordan with causing the "restraining order to be served on (the husband) without contemporaneously providing notice or a copy thereof to opposing counsel" in violation of DR 7-110(B). This charge simply does not *1272 fit DR 7-110(B). That rule does not place upon the lawyer a duty to provide notice or a copy to opposing counsel. The Bar argues that Jordan was in violation of ORCP 9 A. The problem with that argument is that Jordan was not charged in the complaint with violating ORCP 9 A.[4] even though the rule was in effect on November 10, 1980. For the above reasons, we find Jordan not guilty and order the complaint filed against him by the Oregon State Bar be dismissed. Costs awarded to accused. [1] DR 7-110(B) provides as follows: "(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except: "1) In the course of official proceedings in the cause. "(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer. "(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer. "(4) As otherwise authorized by law or by Section A(4) under Canon 3 of the Code of Judicial Conduct. The complaint also alleged that Jordan's conduct was in violation of DR 7-106(C)(5). The Bar's brief in this court conceded that there was "insufficient evidence in the record to support the allegation that" Jordan's conduct violated DR 7-106(C)(5). [2] To close the chapter on the dissolution of marriage petition it should be noted that a decree dissolving the marriage was entered on July 21, 1981. [3] The parties have called our attention to the fact that on October 19, 1981 the Department of Domestic Relations for Multnomah County issued new rules which include rule 10.15: "No ex parte order shall be presented in court by any litigant or attorney where such litigant or attorney knows or has reason to know that the opposing party is represented by counsel. An attorney requesting ex parte relief must provide reasonable notice to opposing counsel of the date, time and court where the ex parte relief will be sought." [4] ORCP 9 A. "A. Service; when required. Except as otherwise provided in these rules, every order, every pleading subsequent to the original complaint, every written motion other than one which may be heard ex parte, and every written request, notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 7."

8ea534eccae00dd4140cb68591b17c4f9048ae048396bc5fdbcd1af4da911069

1982-11-02T00:00:00Z

c529f5cd-2421-45b5-aa36-e7b05574ebcb

Moore v. STATE, MOTOR VEHICLES DIV., ETC.

293 Or. 715, 652 P.2d 794

oregon

Oregon Supreme Court

652 P.2d 794 (1982) 293 Or. 715 Dennis Delair MOORE, Respondent On Review, v. THE STATE OF OREGON, MOTOR VEHICLES Division of the Oregon Department of Transportation, Petitioner On Review. In the matter of the Refusal to Submit to a Breath Test by: John Hiram Schenk, Respondent On Review, v. MOTOR VEHICLES DIVISION, State of Oregon, Petitioner On Review. In the matter of the Refusal to Submit to a Breath Test by: Hugh Bunten, Respondent On Review, v. MOTOR VEHICLES DIVISION, STATE of Oregon, Petitioner On Review. In the matter of the Refusal to Submit to a Breath Test by: Samuel Irving Jagger, Jr., Respondent On Review, v. MOTOR VEHICLES DIVISION, State of Oregon, Petitioner On Review. In the matter of the Refusal to Take a Breath Test by: Michael Ernest Carter, Respondent On Review, v. MOTOR VEHICLES DIVISION, STATE of Oregon, Petitioner On Review. SC 28452; CA 18130, CA A20656, CA 18170, CA A20153, CA A21023. Supreme Court of Oregon. Argued and Submitted July 14, 1982. Decided October 26, 1982. *795 Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave *796 Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen. and William F. Gary, Sol. Gen., Salem. Ronald D. Thom and Zack M. Lorts, Oregon City, filed a response to the petition for respondent on review Schenk. Terrence B. O'Sullivan of Merrill & O'Sullivan, Bend, filed a response to the petition for respondent on review Carter. Oral argument was waived as to all respondents on review. No appearance for respondents on review Moore, Bunten and Jagger. Before LENT, C.J., and LINDE, PETERSON, TANZER, CAMPBELL and CARSON, JJ. TANZER, Justice. In each of these five consolidated cases, the Court of Appeals, Carter v. Motor Vehicles Division, 55 Or. App. 535, 638 P.2d 1180, Jagger v. Motor Vehicles Division, 55 Or. App. 535, 638 P.2d 1180, Moore v. Motor Vehicles Division, 55 Or. App. 510, 638 P.2d 1171, Schenk v. Motor Vehicles Division, 55 Or. App. 535, 638 P.2d 1181, Bunten v. Motor Vehicles Division, 55 Or. App. 515, 639 P.2d 135 reversed a Motor Vehicles Division (MVD) order suspending a driver's license which the court held to be invalid under the Implied Consent Act, ORS 487.805 et seq. In each case, the licensee, upon being requested to submit to a breath test, asked or demanded to speak to an attorney. We allowed the state's petition for review to attempt to clarify principles applicable to drivers' license suspension proceedings. The Motor Vehicles Division issued these orders pursuant to ORS 482.540 which requires the agency to suspend an operator's license for 120 days upon receipt of notice that the motorist has refused a chemical test of his breath. The Implied Consent Act provides that a motorist impliedly consents to chemical testing of his breath if he is arrested for driving under the influence of intoxicants and if a police officer having probable cause to believe he committed the offense asks him to submit to a breath test. ORS 487.805(1) provides: ORS 487.805(2) sets out request and refusal procedures. It is phrased in the negative; that is, the test may not be administered if, after advice of the consequences of refusal (license suspension) and the permissibility of an independent test, the person refuses to submit to the test. ORS 487.805(2) states: Taken together, ORS 482.540 and 487.805 provide a procedure whereby the state may suspend drivers' licenses. The statutes divide assigned procedural responsibilities among different agencies, namely police agencies and the Motor Vehicles Division.[1]*797 Unlike situations where the action of one governmental agency may not bind another, these statutes establish one procedure culminating in a single state action, a license suspension, even though at least two agencies perform the requisite acts upon which that action is based. Therefore, in this statutory setting, an examination into the lawfulness of MVD orders must include scrutiny of both police action and MVD action for statutory and constitutional validity. The Court of Appeals, with two opinions citing our plurality holding in State v. Newton, 291 Or. 788, 636 P.2d 393 (1981) (decided after these cases were submitted in the Court of Appeals), vacated the suspensions. Newton is distinguishable in that it is a criminal case regarding suppression or admissibility of evidence, whereas these cases present a civil review of the legality of administrative action. Nevertheless, several premises to the Newton decision are pertinent here. Most significant was our holding that an arrested person is entitled to communicate with counsel or others and that the police must reasonably accommodate a request to do so unless it would interfere with their duties. The plurality opinion identified the Fourteenth Amendment as the source of this liberty to communicate and the separate opinions looked to other sources, but all members of the court agreed that it exists and that it is subject to reasonable restriction for lawful police purposes. We said: The most compelling source of "lawful restraints" in the Implied Consent Act cases relate to the fact that blood alcohol dissipates with the passage of time. We recognized that promptness was necessary: Because the Newton record showed no circumstances which would justify denying the defendant an opportunity to call his lawyer, we held that the denial violated the defendant's rights and the breath test was unlawfully obtained. Our decision not to suppress the result of the test in a resulting criminal prosecution does not diminish the substantive holding that an unjustified refusal to allow an arrested person to call counsel is unlawful. That holding has different consequences where, as here, the decisional inquiry is the lawfulness of an agency's action rather than whether unlawfully obtained but trustworthy evidence should be admissible in a criminal prosecution. In this case, the scope of a hearing challenging Implied Consent Act orders of suspension is governed by ORS 482.550(2): Judicial review of the administrative order of suspension is allowed by ORS 482.560(1): We take the reference to "trial * * * de novo" to mean that the same issues, those specified in ORS 482.550(2), are presented on judicial review as were material at the administrative hearing. The argument in this case has focused on ORS 482.550(2)(c), "Whether the person refused to submit to a test." The state contends that we should adopt the rule applied by the Court of Appeals in Stratikos v. Dept. of Motor Vehicles, 4 Or. App. 313, 477 P.2d 237, 478 P.2d 654 (1970), rev. den. (1971); see also Lundquist v. Motor Vehicles Div., 23 Or. App. 507, 543 P.2d 29 (1975), and Cavagnaro v. Motor Veh. Div., 19 Or. App. 725, 528 P.2d 1090 (1974), that anything other than immediate submission to a request for a breath sample is a refusal. The rule is taken from an oft-cited passage from a leading New Jersey case: We agree with the general thrust of a rule requiring immediate submission and regarding any substantial delay as a refusal, but the rule must be applied with a flexible regard for arrested persons' freedom to communicate. Also, we agree that a refusal to submit need not be explicit. ORS 487.805 does not suggest that there is no refusal unless and until the arrested person says "I refuse." The word "refusal," as used in the Implied Consent Act, means nonsubmission. Newton, 291 Or. at 792-93, 636 P.2d 393. Thus, if an arrested driver is requested to submit to a breath test and, after the statutorily required advice is given he does not promptly do so, he has refused to submit. The refusal is implicit in his conduct. On the other hand, there is not necessarily a refusal every time an arrested person fails to snap to like a recruit at the command of a drill sergeant. Otherwise, the Act would be more an administrative snare for the non-alacritous than an evidence-gathering process for release or prosecution. The construction and application of the statute must allow for both the public need to seize "highly evanescent evidence," see State v. Heintz, 286 Or. 239, 248, 594 P.2d 385 (1979), and that which we recognized in Newton as the liberty of an arrested person to communicate promptly upon arrest if it does not unreasonably interfere with performance of police duties. We also held in Newton that the advice routinely given by the Oregon State Police was not necessarily correct in every case. That advice was: The advice may often be technically correct in that the time ordinarily taken to arrange for the attendance of counsel would likely impair the effectiveness of the test. Insistence on such a delay would be non-submission or refusal. On the other hand, it is conceivable that such arrangements could be speedily made without impairing the test. A request is not a delay. Insistence, as a condition of taking the test, can be a delay. These cases involve requests and insistence to speak to attorneys rather than requests to have an attorney present. The routinely given advice is not apt. A request to call a lawyer (or a relative or friend) is not in itself a refusal. It cannot be seized upon as a decisive event which ends the transaction between officer and arrestee as would non-submission or express non-refusal. On the other hand, an insistence on speaking to counsel under circumstances where to do so would significantly delay the testing would be nonsubmission constituting a refusal. We recognize that injecting circumstantial considerations into the process makes it less predictable than would strict application of the New Jersey rule, but it also makes it less draconian and more accommodative of liberty. We hold that if an arrested person, upon being given the advice required by ORS 487.805(2)(a) and (b), does not submit promptly to the request, his non-submission is a refusal. We further hold that if the person requests to speak with an attorney, the request itself is not a refusal and the person must be afforded reasonable opportunity to do so unless or until it would interfere with effective administration of the test. For example, a person might be given opportunity to call during the 15-minute observation period without affecting the validity of the test. If a person requests to communicate and is afforded a reasonable opportunity to do so, consistent with the temporal requirements of the testing process, and the person does not submit to the test, that is a refusal. If an arrested person asks to speak to counsel, an unjustified failure to afford reasonable opportunity to do so would be a deprival of the person's liberty, see Newton. In that situation, the person's non-submission (i.e., refusal) would have resulted from a legally unauthorized procedure. An administratively imposed penalty based on that procedure would be invalid. Our holdings apply variously to the cases at bar. We take the facts largely from the petition for review which, in turn, takes them from the record or from the Court of Appeals. Moore was arrested for DUII, and the police officers requested that he take a breath test. Rather than explicitly agreeing or refusing to take the test, Moore kept repeating "I want an attorney." The police advised Moore of his rights under the Implied Consent Law, the consequences of refusal, and that, if he insisted on telephoning his attorney, his response would treated as a refusal. When he continued to ask for an attorney, the officers told him that his insistence was deemed to be a refusal. Shortly thereafter, Moore was permitted to telephone his attorney but was unable to reach him. The officers did not thereafter request Moore to take the breathalyzer test because as far as they were concerned, petitioner had already refused, and a refusal form had been filled out stating that petitioner's refusal resulted from his requesting to talk to his attorney. Petitioner Moore's conduct in requesting counsel was not a refusal. To have deemed it a refusal was erroneous. Had the police allowed Moore to try to call his lawyer prior to a final request, a different case would be presented. The order as to Moore must be vacated. Arrested for DUII and taken to the Clackamas County Jail, Schenk was offered a breath test. In response, Schenk stated *800 that he wanted to talk to an attorney but did not expressly refuse to take the test. According to the officer, The order as to Schenk must be vacated for the same reason as in the Moore case. Bunten was arrested for driving under the influence of intoxicants and taken to the Washington County Jail. On arrival, he was asked to take a breath test; he asked if he could call his attorney before submitting to the test; he was told he could not. Petitioner then refused to take the test without advice from counsel. Bunten actually refused. The refusal, however, was the direct result of a procedural error, the unjustified deprival of Bunten's liberty to call his attorney. The order as to Bunten must be vacated. The police arrested Jagger for DUII, took him to the Linn County Jail, and requested that he take a breath test. Jagger refused to do so, stating that he wanted to contact an attorney. The police then refused to permit Jagger to use an available telephone for this purpose and informed him of the statutory consequences of his refusal. He was also read the routine advice that he was "not entitled to have an attorney present at this breath test. Any request for a delay on this ground will constitute a refusal." This advice, of course, was not responsive to Jagger's request. These facts could be analyzed either as those in Moore or as in Bunten. Either way, the order as to Jagger must be vacated. Carter, having been arrested for DUII, was offered a breath test. He responded, "Not without the advice of my attorney," which MVD found to be a refusal to submit to the test. The parties stipulated that the sole issue for trial is whether Carter's statement was a refusal. No facts were shown or issue presented regarding a request to speak to counsel. Carter's response was not a submission and, for purposes of the Implied Consent Act, is deemed a refusal. The order of suspension must be upheld. In Moore, Schenk, Bunten and Jagger, the Court of Appeals is affirmed. In Carter, the Court of Appeals and the circuit court are reversed. [1] Also, the Health Division of the Department of Human Resources has responsibilities for regulating testing procedures. ORS 487.815.

ed49ede607d7def650ed9eb2386a832590ef22cf5c293d00c0b891f423a80ba6

1982-10-26T00:00:00Z

b233fa68-5d8a-41d2-82ae-52b82697f514

Carlson v. Blumenstein

293 Or. 494, 651 P.2d 710

oregon

Oregon Supreme Court

651 P.2d 710 (1982) 293 Or. 494 Donald B. CARLSON & Agnes Carlson, Husband and Wife, Petitioners On Review, v. Robert BLUMENSTEIN, Jr., and Robert B. Blumenstein, Dba Mill City Builders, Respondents On Review. CA 18864; SC 28259. Supreme Court of Oregon. Argued and Submitted April 6, 1982. Decided September 21, 1982. Rehearing Denied October 26, 1982. Paul J. De Muniz, of Garrett, Seideman, Hemann, Robertson & De Muniz, P.C., Salem, argued the cause for petitioners on review. On the briefs in the Court of Appeals were Duncan, Tiger & Rothlisberger, Stayton. Dale L. Crandall, of Crothers & Crandall, Salem, argued the cause and filed the briefs for respondents on review. With him on the reply brief was Kathleen A. Evans, certified law student. *711 Before DENECKE, C.J.,[*] and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. PETERSON, Justice. The parties entered into a contract containing a provision that "the losing party agrees to pay to the successful party" reasonable attorney fees to be fixed by the court. The plaintiffs' complaint for damages for breach of contract was met with a counterclaim for damages for breach of the same contract. The trial court found for plaintiffs on some of their claims and for defendants on some of their claims. The judgment concluded as follows: We first set forth the governing statutes. ORS 20.096 provides, in part: The "offer of compromise" statute, ORS 17.055, provided:[1] In this case, a $3,000 offer of compromise was made after filing, two months before trial. The offer was not accepted, and a judgment was entered for the plaintiffs for damages, attorney fees, costs and disbursements. The defendants assert that the judgment ultimately returned against them was not "more favorable" than their offer, and they therefore claim entitlement to costs, disbursements and attorney fees. The decision in this case turns upon a construction of the attorney fees statute, ORS 20.096, in relation to the offer of compromise statute, ORS 17.055. On December 13, 1975, the parties entered into a contract under which the defendants contracted to build a residence for the plaintiffs. The parties used a printed Stevens-Ness Law Publishing Co. contract, Form No. 920, entitled "CONTRACT FOR PURCHASE AND CONSTRUCTION ON BUILDER'S LOT." The contract contained this provision: In the plaintiffs' complaint, the plaintiffs sought damages for the defendants' failure to properly perform the construction work, and credits for work they performed and material they supplied. The defendants asserted three counterclaims. One involved a claim for extra work performed by the defendants. The second was for amounts due under the contract. The third counterclaim was unrelated to the contract. On May 3, 1979, the defendants filed an "offer of compromise" offering "to allow Judgment in favor of the plaintiffs against the Defendants in the amount of $3000." According to its terms, the offer was "made pursuant to ORS 17.055; ORS 20.096; ORS 20.180; and Wetzstein v. Hemstreet, 276 Or. 623, 555 P.2d 1243 (1976)." Plaintiffs did not accept the offer, and the case went to trial in July. The trial judge found as follows: The court awarded plaintiffs the difference, $2,717.04, plus prejudgment interest to March 19, 1979,[2] making a total award in excess of $3,000. The court also awarded plaintiffs $2,000 attorney fees. The defendants appealed. The Court of Appeals, 54 Or. App. 380, 635 P.2d 380, held: 1. The defendants were entitled to prejudgment interest on items C and D from July 1, 1976, and on item E from August 1, 1976. 2. The plaintiffs were not entitled to prejudgment interest on item A, but were entitled to prejudgment interest on item B from July 1, 1976. 3. The plaintiffs' total judgment, after the Court of Appeals calculations were made, amounted to less than $3,000. Therefore, that court held that defendants, "having tendered $3,000 in settlement, are the prevailing parties, not plaintiffs." 54 Or. App. at 386, 635 P.2d 380. The Court of Appeals remanded the case to the trial court for "a precise calculation of the correct amount" of interest, and ordered that the trial court, on remand, "also award defendants an amount for attorney fees as the prevailing parties." 54 Or. App. at 386, 635 P.2d 380. The plaintiffs have petitioned for review. They do not seek review of the Court of Appeals holding on the prejudgment interest questions. Their only claim is that they "are the prevailing party for purposes of ORS 20.096 and are not prohibited by ORS 17.055 from an award of attorney's fees." The defendants claim that because the plaintiffs' net award did not exceed $3,000, the defendants were the "prevailing party" and therefore entitled to attorney fees under ORS 20.096. The plaintiffs claim that they were the "prevailing party" under ORS 20.096, irrespective of the offer of compromise made by the defendants under ORS 17.055. They further claim that "any offer of compromise must be compared with the petitioners' damages and the amount of attorney's fees accrued as of the date of the compromise offer, in determining whether [plaintiffs] have failed to `obtain a more favorable judgment or decree' pursuant to ORS 17.055." The contract is on a printed form in which the blanks contain handwritten entries. There is no evidence that the parties bargained about, considered or discussed the meaning of the attorney fee clause or the meaning of the terms "the losing party" and the "successful party." Both parties invoke ORS 20.096. ORS 20.096 contains neither the term "the losing party" nor the term "the successful party." It uses the term "the prevailing party." In the absence of any evidence that the intention of the parties was otherwise, we will ascribe to the term "the successful party," the statutory meaning of "prevailing party," which is defined in ORS 20.096(5) as "the party in whose favor final judgment or decree is rendered."[3] U.S. Nat'l Bank v. Smith, 292 Or. 123, 637 P.2d 139 (1981), held that even though a defendant obtained a reduction of a judgment on appeal and was entitled to an award by the appellate court of the costs incurred on the appeal, the plaintiff, having obtained a final judgment in its favor, was entitled to attorney fees under ORS 20.096. Here, as well, the words of ORS 20.096(5) are dispositive. The plaintiffs are the party "in whose favor final judgment or decree" was entered. They are "the prevailing party" under ORS 20.096(5). As such, they are entitled to attorney fees, unless ORS 17.055 operates to prevent such a recovery.[4] This result is inconsistent with two previous decisions of this court, Webster v. General Motors Accept., 267 Or. 304, 516 P.2d 1275 (1973), and Wetzstein v. Hemstreet, 276 Or. 623, 555 P.2d 1243 (1976). To the extent that the holding of those cases is inconsistent with the holding expressed herein, they are disapproved.[5] *715 We turn then to ORS 17.055 to consider how it bears on the attorney fees and costs questions. ORS 17.055 concerns costs and disbursements. The final clause of the statute provides that "if the plaintiff fails to obtain a more favorable judgment or decree [than the offer], he shall not recover costs, but the defendant shall recover of him costs and disbursements from the time of the service of the offer."[6] ORS 17.055 and ORS 20.096 are not inconsistent with each other. An offer of compromise under ORS 17.055 operates to cut off a plaintiff's rights to costs and disbursements. It does not concern attorney fees. Under the analysis in Part II, supra, the plaintiffs remain entitled to attorney fees, even after the modifications ordered by the Court of Appeals, because they are "the party in whose favor final judgment * * * is rendered." One question remains. Even though ORS 17.055 does not entitle the defendants to attorney fees because the plaintiffs are the "prevailing party" under ORS 20.096(5), are the defendants entitled to costs and disbursements from the time of service of the offer because the plaintiffs failed "to obtain a more favorable judgment or decree"? ORS 17.055 has been a part of Oregon law since 1862. Deady's General Laws of Oregon § 511. Its purpose was undoubtedly to encourage the settlement of cases and reduce court congestion by penalizing a plaintiff who fails to accept what, in retrospect, is seen to have been a reasonable offer. A "judgment" normally includes (1) an award or awards of damages and (2) costs and disbursements. In addition, many judgments include an award for attorney fees. Generally, some costs and attorney fees are incurred before a complaint is filed. Thereafter, additional costs and attorney fees may be incurred before the offer of compromise is made. We think it likely that the legislature, in providing for a statutory offer of compromise, intended that costs and recoverable attorney fees to the *716 time of making the offer should be considered in deciding whether plaintiff obtained "a more favorable judgment." The comparison of the offer with the judgment received should be made by comparing the offer of compromise against the sum of the award plus the costs and recoverable attorney fees incurred up to the time of service of the offer. Hammond v. N.P.R.R. Co., 23 Or. 157, 162, 31 P. 299 (1892). Cf. Colby v. Larson, 208 Or. 121, 124-27, 297 P.2d 1073, rehearing denied, 208 Or. 121, 299 P.2d 1076 (1956); Equitable Life Assur. Soc. v. Boothe, 160 Or. 679, 684, 86 P.2d 960 (1939). Here, the offer was $3,000. The plaintiffs' award, after modification by the Court of Appeals, is $2,586.53, plus costs of $165.70 and $2,000 attorney fees. See note 9 infra. Although the $2,586.53 award includes $316.97 in interest which accrued after the offer was made (interest on $4,131.59 for the period May 3, 1979, to August 12, 1980), the record shows, without contradiction, that at least half of the time spent by plaintiffs' attorneys had been "incurred" before the service of the offer of compromise. (The cost bill also shows a filing fee of $34.10 and sheriff's fees of $44.60.) Allocating half of the $2,000 attorney fee to the period before the offer was made, the total amount of the plaintiffs' judgment, including the award and costs and attorney fees incurred before the service of the offer, exceeded $3,000. The plaintiffs obtained a "more favorable judgment" and were entitled to costs in the trial court.[7] As stated, the plaintiffs have sought review of only the attorney fees and costs issues. The decision of the Court of Appeals is modified by reversing its orders that the plaintiffs are not entitled to receive costs, disbursements and attorney fees in the trial court.[8] Except as so modified, the Court of Appeals opinion is affirmed. As so modified, it is not necessary to remand the case to the trial court for the entry of judgment. Pursuant to the Court of Appeals decision concerning prejudgment interest, plaintiffs are entitled to judgment of $4,586.53, plus their costs in the trial court, $165.70, plus interest on those amounts from the date of the trial court judgment, August 12, 1980.[9] The judgment of the Court of Appeals is modified in part and affirmed in part. As so modified and affirmed, plaintiffs are entitled to judgment of $4,586.53, plus costs in the trial court, $165.70, all bearing interest from August 12, 1980. [*] Denecke, C.J., retired June 30, 1982. [1] ORS 17.055 has been repealed. See note 6 infra. ORCP 54 E now contains the provisions previously included in ORS 17.055, plus others. [2] The March 19, 1979, date was described in the trial court's findings as the date the defendants "tendered performance." [3] Before 1971, contracts often contained one-sided provisions for the recovery of attorney fees by but one of the parties to a contract. Such provisions put the disfavored party at a tactical disadvantage. The purpose of ORS 20.096 was to make, by statute, such contracts reciprocal, to allow both parties the same right to collect attorney fees, withdrawing the tactical advantage previously enjoyed by only the favored party. Jewell v. Triple B Enterprises, 290 Or. 885, 888, 890, 626 P.2d 1383 (1981). The attorney fee provision involved in this case is, by its terms, reciprocal. It could be argued that ORS 20.096 has no application because it was intended to deal only with one-sided contractual provisions. Since 1971, however, this court has applied ORS 20.096 in cases in which the contractual provisions at issue were already reciprocal. Shipler v. Van Raden, 288 Or. 735, 737, 608 P.2d 1162 (1980); McMillan v. Golden, 262 Or. 317, 318, 497 P.2d 1166 (1972). (Shipler and McMillan were decided under a slightly different version of ORS 20.096, but the differences are not relevant here.) In Shipler, as here, the parties did not question the applicability of ORS 20.096. See 288 Or. at 737 n. 2, 608 P.2d 1162. We hold that ORS 20.096 applies to attorney fee clauses such as the one at bar, which are already, by their terms, reciprocal. We do so for these reasons: First, the literal terms of the statute permit that construction. Such contracts do provide for the award of attorney fees (quoting the statute) "to one of the parties." Second, the legislative history suggests that the statute would apply to all contracts containing attorney fees provisions. Third, it appears that the bench and bar, including this court, have been construing and applying the statute to all cases involving attorney fee provisions, cases such as this one. We therefore hold that absent any express language in a contract to the contrary, or absent other evidence, the meaning of "prevailing party" (or similar terms) in contracts such as the contract at bar, be given the meaning contained in ORS 20.096(5). Compare these California cases, which are not in agreement with each other: Mabee v. Nurseryland Garden Centers, Inc., 88 Cal. App. 3d 420, 427 n. 4, 152 Cal. Rptr. 31, 35 n. 4 (1979); Sain v. Silvestre, 78 Cal. App. 3d 461, 475-76, 144 Cal. Rptr. 478, 487-88 (1978); Beneficial Standard Properties, Inc. v. Scharps, 67 Cal. App. 3d 227, 230-32, 136 Cal. Rptr. 549, 551 (1977); and Herzog v. Riel, 99 Cal. App. 3d Supp. 12, 15 n. 1, 16 n. 2, 160 Cal. Rptr. 510, 512 nn. 1, 2 (1979). [4] This may be an unanticipated result, not contemplated by the framers of the statute. See U.S. Nat'l Bank v. Smith, 292 Or. 123, 129-30, 637 P.2d 139 (1981) (Denecke, C.J., concurring). We recognize that the wording of the statute may deter a party who has a valid counterclaim from defending or asserting the counterclaim because of the risk that the other party's recoverable claim is likely to be larger. The net difference would be in favor of the other party, and the party having a valid counterclaim might be deterred from asserting it. Of course, the party need not assert the counterclaim. Such a party could file a separate suit, claiming attorney fees. But that course of action may have pitfalls as well. On the question of who is the "successful party" or "prevailing party" for purposes of awarding costs where both parties prevail on affirmative claims, see Annot., 66 ALR3d 1115 (1975). As the cases discussed in that annotation reveal, problems of assessing costs and attorney fees in such cases can become very complex. Perhaps the last sentence of ORCP 54 E, in its present form, obviates some of the problems. See notes 6, 7 infra. [5] Webster v. General Motors Accept., 267 Or. 304, 516 P.2d 1275 (1973), involved an action by the plaintiff to recover a surplus from a foreclosure sale of a used truck which he had purchased from the defendant. The defendant conceded that a surplus of $475.84 existed in favor of the plaintiff, and offered that amount to plaintiff by an offer of compromise filed on the day of trial pursuant to ORS 17.055. Although the trial court awarded damages in excess of $6,000 to the plaintiff, on appeal this court held that the plaintiff was entitled to a judgment of the exact amount offered by the defendant, $475.84. This court rejected the plaintiff's contention that he was nonetheless entitled to attorney fees under ORS 20.096, saying: "While the defendants made an offer to compromise the plaintiff's claim on the day of trial in an amount which we have determined to be correct, this offer was not accepted by the plaintiff. Because the plaintiff failed to accept the offer of compromise and because he did not receive an award in excess of the offer, he should recover attorney fees only for those services rendered up to the time of the offer." 267 Or. at 310, 516 P.2d 1275. As will appear below, ORS 17.055 does not concern attorney fees and the quoted paragraph above is disapproved. Defendants' principal reliance is upon Wetzstein v. Hemstreet, 276 Or. 623, 555 P.2d 1243 (1976). In that case, the plaintiffs purchased an unfinished home from the defendant builder. The contract provided that if suit or action was brought on the contract, "the losing party agrees to pay the * * * prevailing party's reasonable attorney's fees." Before suit was filed, the defendant offered to pay the plaintiffs the sum of $2,689.50. The trial court awarded the plaintiffs $2,689.50. The trial court, citing ORS 17.055, held that because the plaintiffs "failed to obtain a more favorable result," the defendant was the prevailing party and entitled to a reasonable attorney's fee. 276 Or. at 629, 555 P.2d 1243. We affirmed, saying: "In Gorman v. Boyer, 274 Or. 467, 472, 547 P.2d 123 (1976), we held that the allowance of attorney fees, when provided for in a contract, are not costs and that `[t]he basis for allowance of attorney fees in such cases is different than in cases involving statutes which expressly provide that attorney fees may be allowed as a part of the costs of an action.' ORS 20.180 provides only for the assessment of costs. "In the case at bar, the trial court specifically found that the defendant was the prevailing party and did not err in allowing attorney fees to the defendant." 276 Or. at 629, 555 P.2d 1243. As will be seen, infra, there is no relationship between ORS 17.055 and ORS 20.096, insofar as an award of attorney fees is concerned, and the above holding of Wetzstein is also disapproved. State ex rel. State Scholarship Com'n.v. Magar, 288 Or. 635, 607 P.2d 167 (1980), is distinguishable. In that case, the defendant's offer of compromise was accepted by the plaintiff, who thereafter claimed attorney fees even though the offer had been accepted. We held that ORS 17.055 requires that "judgment or decree shall be given accordingly," as with a consent decree, and that ORS 20.096 did not independently create a right to recover attorney fees, once the offer of compromise was accepted by the plaintiff. The only judgment that can properly be entered is one which is in accordance with the terms of the offer, as accepted. 288 Or. at 641-42, 607 P.2d 167. Hammond v. N.P.R.R. Co., 23 Or. 157, 162, 31 P. 299 (1892), holds that costs follow "* * * as a matter of course after judgment without an offer, or with an offer when accepted." The Magar result may not obtain when attorney fees are recoverable as a part of costs. Compare Gorman v. Boyer, 274 Or. 467, 472, 547 P.2d 123 (1976). See also note 7 infra. [6] Effective January 1, 1980, ORS 17.055 was repealed and ORCP 54 E became effective. Although ORCP 54 E, in its original form, differed in wording from ORS 17.055, the substance of ORCP 54 E, as it became effective in 1980, was virtually identical to ORS 17.055. CCP 12/2/78; amended, Or. Laws 1979, ch. 284, § 32. ORCP 54 E was again amended in 1981, Or. Laws 1981, ch. 912, § 2, to include specific provisions for attorney fees. The final sentence of ORCP 54 E now reads: "* * * If the offer is not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial; and if the party asserting the claim fails to obtain a more favorable judgment, the party asserting the claim shall not recover costs, disbursements, and attorney fees incurred after the date of the offer, but the party against whom the claim was asserted shall recover of the party asserting the claim costs and disbursements from the time of the service of the offer." (Emphasis added.) The significance of the 1981 changes to ORCP 54 E is not before us in this case. [7] ORCP 68 now sets forth specific procedures to be followed in awarding attorney fees, "regardless of the source of the right to recovery of such fees." ORCP 68 C(1). Note the exceptions contained in ORCP 68(C)(1)(a)-(c). ORCP 54 E now specifically provides that "[u]nless agreed upon by the parties, costs, disbursements, and attorney fees shall be entered as part of the judgment as provided in Rule 68." [8] After its opinion was rendered, the Court of Appeals awarded attorney fees to the defendants for their services on the appeal. This order is also vacated. [9] We calculate the respective awards as follows: The plaintiffs are entitled to judgment for the difference between $10,401.98 and $5,815.45, $4,586.43, plus costs in the trial court, $165.70, all bearing interest from August 12, 1980.

5d634af83d7ed7ddb02ca08a974b0d0b757715206acf2716072161407d7b7ccf

1982-09-21T00:00:00Z

47c11efc-2844-4bfd-8255-1d7887660a71

Norwest v. Presbyterian Intercommunity Hosp.

293 Or. 543, 652 P.2d 318

oregon

Oregon Supreme Court

652 P.2d 318 (1982) 293 Or. 543 Vernon NORWEST, by and through His Guardian, Marion Crain, Petitioner On Review, v. PRESBYTERIAN INTERCOMMUNITY HOSPITAL, an Oregon Corporation, and Kenneth Tuttle, M.D., Respondents On Review. SC 27982; CA 17847; TC 80-374L. Supreme Court of Oregon. Argued and Submitted February 8, 1982. Reargued and Resubmitted July 23, 1982. Decided October 5, 1982. Richard P. Noble, Portland, argued the cause for petitioner on review. With him on the brief was Kathryn H. Clarke, Portland. *319 Stanley C. Jones, Klamath Falls, argued the cause for respondent Presbyterian Hospital. With him on the brief was Giacomini, Jones & Associates, Klamath Falls. William L. Hallmark, Portland, argued the cause for respondent Kenneth Tuttle, M.D. With him on the brief was Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland. Before LENT, C.J.,[*] and LINDE, TANZER, CAMPBELL and CARSON, JJ. LINDE, Justice. An action against a physician and a hospital whose negligence permanently disabled plaintiff's mother brings before us the issue whether a minor child may recover damages for the loss that a mother's incapacitation means for the child. According to the complaint, the defendants' negligent treatment caused brain damage that will require the mother to have lifelong custodial care, with the result that "plaintiff has been deprived of his mother's society, companionship, support [and] education" as well as incurring a future obligation to support his mother. A memorandum opposing defendants' motion to dismiss the complaint adds that when the mother was disabled she was 25 years old and the sole surviving parent of the then three-year old plaintiff. The circuit court accepted the defendants' position that plaintiff's claim was one for "parental consortium" unknown to Oregon law and dismissed the complaint. The Court of Appeals affirmed, three judges dissenting, 52 Or. App. 853, 631 P.2d 1377 (1981), and having allowed review, we also affirm. Novel issues of nonstatutory law, and especially tort claims, pose recurring questions of the sources and methods of law. Because other courts examining the child's tort claim for a parent's disablement have based divergent results on a variety of reasons, well briefed by the present parties, we review the reasons that do not as well as those that do enter into our assessment of the present state of Oregon law on this issue. Discussion of the child's claim often begins with a statement that such a claim was unknown at common law. This implies that to allow the claim means a change in existing law and therefore places on the plaintiff the burden to show why the law should be changed by judges rather than by legislators.[1] If by "common law" one means the common law of England and those among its one-time dependencies that continued to follow the decisions of English appellate courts, the statement denying the child's claim appears to be correct. See Fleming, The Law of Torts 142, 644 (5th Ed 1977). Until recently, it seemed true also in this country, at least where the issue had been litigated.[2] When the Restatement of Torts was revised in 1969, the American Law Institute adopted a new section 707A, denying liability to a minor child for loss of parental support and care, with the comment *320 that the rule was stated "with some reluctance on the part of several of the drafting group, and under compulsion of the case law."[3] This is no longer accurate; recent decisions in three states have recognized a child's claim in cases like that before us. Moreover, other states are counted as rejecting the claim on the strength of decisions of intermediate courts or of federal courts which may prove not to be accurate reflections of the state's law. Whatever may have been assumed in the early years of American law, the decentralization of private law in our federal system precludes reference to a single American common law.[4] When the Supreme Judicial Court of Massachusetts, in Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980), first allowed the children of a man disabled by another's negligence to demand damages for mental anguish and loss of consortium and society, the court did not purport to change the common law of Massachusetts. It undertook to relate the claim to the state's existing law without assuming that, in the absence of a prior decision, it would be more a change to allow the claim than to deny it. Like that court, we do not assume that without some radical innovation, present law precludes liability to the minor children of a person disabled by a defendant's negligence, an assumption that calls into question the roles of court and legislature in such innovations. That question is proper, even unavoidable, when a court is asked to depart from its own well-settled prior doctrine; but when a claim is new to this court, either a decision for or one against liability may be harder to square with established law. The Court of Appeals rightly considered the child's claim to be open for judicial decision, although the majority and the dissent divided over the significance of existing legislation in deciding it. That a novel issue is open to judicial resolution says little about how to resolve it. Analysis often depends on the starting *321 point from which one enters upon it. Two characteristics of the claim at issue here are that the injury to the plaintiff occurs as a consequence of an injury to another person, and that this consequential injury is to plaintiff's psychic interests rather than to his physical person or tangible property. If one starts from a broad premise that every person predictably injured by another's negligence is entitled to recover appropriate damages, defendants are hard put to present a compelling obstacle to allowing such damages to a child negligently deprived of a functioning parent. Starting, on the other hand, from a body of negligence law that generally imposes liability only to the initial victim but not to others who depend on that victim, and no liability for psychic harm divorced from tangible injury, a plaintiff is hard put to show how and why such liability extends to the minor children of a disabled parent but to no other classes of plaintiffs whose comparable interests are similarly harmed. A number of courts have undertaken to allow or deny the child's action for loss of parental society, care, and support by assessing numerous arguments of policy and practicality adduced for and against such a cause of action. An examination of these arguments will explain why we do not follow that course. In one of the early decisions to consider the issue, the Supreme Court of Kansas sympathetically stated the case for the child's claim: Hoffman v. Dautel, 189 Kan. 165, 168, 368 P.2d 57, 59 (1962). The court nevertheless rejected the claim because of "far-reaching results," which it identified as the growth of a "new field of litigation" with the possibilities of multiple actions and double recovery. Id. The New Jersey Supreme Court later denied the child's cause of action upon similar "considerations of policy." Russell v. Salem Transportation Co., 61 N.J. 502, 295 A.2d 862 (1972). The court assumed that jury verdicts for an injured parent took into account the consequential injury to children and considered this preferable to the separate appraisal and cumulation of multiple awards arising out of a single incident and the segregation of damages awarded the child from the parents' disposition of the overall family finances. Academic commentary has been critical, finding none of the concerns stated by the Kansas court to be "persuasive." Clark, Law of Domestic Relations 279 (1968). Dean Prosser characteristically was more outspoken: *322 Prosser, The Law of Torts 896-97 (4th ed 1972). Two articles published in 1976 reviewed the arguments against a child's cause of action for the intangible harm of a parent's disablement in more detail and found them without merit. Love, supra note 2; Note, supra n. 2. Nevertheless, the California Supreme Court in 1977 declined to recognize what it called "a new cause of action for loss of consortium in a parent-child relationship." Borer v. American Airlines, 19 Cal. 3d 441, 563 P.2d 858, 860, 138 Cal. Rptr. 302 (1977) (child's action); Baxter v. Superior Court of Los Angeles County, 19 Cal. 3d 461, 138 Cal. Rptr. 315, 563 P.2d 871 (1977) (parent's action). The court denied liability for psychic injury to children of a negligently disabled person, even when this injury is foreseeable, on grounds of "social policy." As reasons it listed the inadequacy of money to restore or compensate for the intangible harm of losing a disabled mother's companionship and guidance, substituting only a future benefit unrelated to that loss; the consequent difficulties of measuring damages for the child's loss and of instructing juries so as to avoid double recovery; the multiplication of actions and of damages when there are several children; and the resulting public burden of increased insurance rates. 563 P.2d at 862-63. Justice Mosk, dissenting, pointed out that three years earlier the California court had rejected each of these policy arguments in establishing a wife's action for loss of consortium,[5] except for the potential recovery by more than one child. 563 P.2d at 867-68. Ferriter v. Daniel O'Connell's Sons, supra, reached its contrary result in Massachusetts without rehearsing the policy arguments previously debated by the California court and its predecessors.[6] The following year, Michigan's supreme court became the second to allow the child's cause of action. Berger v. Weber, supra n. 1. The case illustrates the uncertain role of such arguments in common law decisions. The court's opinion began by finding analogies for the child's claim in "existing judicial and legislative policies" such as the action for loss of consortium between spouses, the right of parents to recover for the loss of companionship and society of negligently injured children, and the child's similar recovery under the wrongful death statute and under a "dramshop act." It then reviewed and rejected the pragmatic arguments concerning multiple litigation and insurance costs only as unpersuasive objections to an otherwise valid claim. 303 N.W.2d at 425-27. Justice Levin, writing for three dissenters, complained that the majority had not subjected the reasons given for the cause of action to the same critical scrutiny as the objections to it and argued for an "independent reexamination" and "subtle balance" of the competing interests and policy considerations involved. 303 N.W.2d at 430. Most recently, the Iowa Supreme Court blended analytical and policy arguments in the third decision allowing the child's claim, Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981). Like Michigan, the Iowa court began with the implications of an existing parental action for loss of a child's "consortium."[7] It then entered upon an extended assessment of the arguments against a parallel action by the child for loss of "parental consortium," including a contention that the action would be "anomalous" in a state that denies a child's action for the intentional alienation of a parent's affection, as well as the *323 conventional arguments of social policy and litigation processes previously discussed. 311 N.W.2d at 265-68. After examining the "drawbacks," the court turned to "considerations weighing in favor of recognizing a child's independent action for loss of consortium." 311 N.W.2d at 268. It found these partly in general principles, such as the trend to recognize the independent legal personality and rights of minors, and partly in the factual assumption that "in any disruption of the parent-child relationship, it is probably the child who suffers most." Finally, the Iowa court concluded that the child would have to sue separately if any damages were to be recovered for the child's loss, since the court reversed its interpretation of a statute that previously had been held to include this loss in the recovery of the injured parent, see supra note 7. 311 N.W.2d at 269. The arguments reviewed in the foregoing opinions and commentary juxtapose different kinds of reasons. Contentions about the character of plaintiff's loss and its compensability by money address facts or assumptions about human beings in society, in our case a society that postulates the dependence of children on their parents and that leaves other services and satisfactions to an economic market. We accept the view that a parent's disablement is likely to mean a painful and possibly permanent psychic injury to a child, although one to be proved in the individual case, and that in principle it is no more or less compensable in money than other psychic injuries for which damages are allowed. But whatever the opposing psychological and social contentions mean for a legal obligation to compensate a child for incapacitating one of its parents, they cannot properly be "weighed" against concern about insurance rates, at least not by a court of law. A person's liability in our law still remains the same whether or not he has liability insurance; properly, the provision and cost of such insurance varies with potential liability under the law, not the law with the cost of insurance. Nor are such contentions about the child's loss commensurable with concerns about the processes of litigation. No doubt there are genuine wrongs that courts are ill suited to set right, and others that do not merit the social costs of litigation. But if these costs are to be the reason for denying an otherwise meritorious cause of action, that is one judgment to be made by legislatures rather than by courts. Courts exist to serve whatever rights people have, Or. Const. art. I, § 10;[8] it is not for them to weigh or "balance" their own institutional concerns against the merits of such a right. Assuming that a child has a cognizable claim for damages at all, we would agree with the view of the Iowa court that it is more rational to identify and evaluate that claim individually, preferably in a consolidated proceeding, rather than with the New Jersey court's view that the child's loss will implicitly be included in a jury verdict for the injured parent's damages.[9] If existing procedures make it difficult to consolidate different claims for trial or to avoid overlapping recoveries for the same loss, the obvious answer is not to deny that there is a claim but to reform the procedures. Shortfalls in procedural reform do not justify shortchanging otherwise valid claims. There is another reason not to explain the court's understanding of the existing state of the law by the court's views of desirable social policy. Legislators, unlike judges, may change the law at any time without any demonstration of error, illogic, or incongruity, *324 simply upon changes in personnel and in the political agenda. That is what elections and legislative debates are for. One day's unsuccessful proponents or opponents of a social policy may renew the campaign the next day to change the law. They should be free to debate the merits untrammeled by a court's arguments why its view of the existing law represents the better policy. This court expresses no such view of the present issue. We therefore lay aside the pragmatic arguments adduced for and against a child's damage action for the disablement of a parent and turn to the question how plaintiff's claim relates to other comparable claims. As we have said, two characteristics of the harm for which plaintiff would hold a negligent defendant liable are that it occurs as a consequence of an injury to another person, and that it is psychic or emotional harm divorced from any injury to plaintiff's physical person or tangible property. These characteristics generally, though not invariably, preclude recovery based on negligence. Plaintiff, however, narrows the asserted liability specifically to injury to a minor child's interest in its closest family relationship, that with its parents. Legal arguments for and against the existence of such a tort claim therefore have sought analogues in the treatment of other claims for damages for emotional distress in such family relationships. Typically these include (1) actions for loss of spousal consortium, (2) parents' recovery of damages for negligent injuries to minor children, (3) recognition of the child's noneconomic loss in the wrongful death of a parent, (4) actions for alienation of affections, and (5) bystanders' actions for emotional distress from witnessing the death or injury of a close relative. Courts confronted with a child's claim based on negligent injury to a parent have examined some or all of these analogues with divergent results. Not only do the foregoing actions differ among the states, they may reflect apparent inconsistencies within one state, and each is distinguishable in some respect from the child's claim. The Massachusetts court in Ferriter, the first decision to allow the child's cause of action, drew support from the parent's recovery of damages for emotional injury in actions for abduction or seduction of a child, in which the father's loss of the child's services was recognized to be a fiction. Although such an action was also available if one's child was beaten or wounded, the court conceded that no Massachusetts case had compensated a parent's mental suffering from physical injury to the child, so this offered little support for the court's assertion that such a claim by a child had "analogous precedent" in such compensation for the parents' "sentimental as well as economic injuries." 413 N.E.2d at 692-93. Moreover, the Massachusetts court faced its earlier rejection of a child's claim for damages against a defendant who had enticed her mother to desert her and her father, which it described in Ferriter as the "disfavored action for alienation of affections" and distinguished as posing greater threats of "extortionate litigation" and of pitting family members against each other. 413 N.E.2d at 694. These may be distinctions of policy, but they do not differentiate the character of the harm inflicted upon the minor child by the negligent as distinct from the intentional tort. Finally, the Ferriter court fell back on the inclusion of damages for loss of the decedent's society in the statutory action for wrongful death, concluding: "We think it entirely appropriate to protect the child's reasonable expectation of parental society when the parent suffers negligent injury rather than death." 413 N.E.2d at 695. The Iowa Supreme Court's decision in favor of the claim, as already mentioned, was substantially influenced by its reading of an Iowa statute which provided for the recovery of "the value of services and support as spouse or parent, or both" by the directly injured person or her estate and further provided that "recovery for these elements of damage may not be had by the spouse and children, as such." The court previously had interpreted this statute as *325 permitting recovery for all elements of the child's claim for injury to a mother, though procedurally incorporated in the action by the mother or her administrator. Hankins, supra n. 7. When it reexamined its interpretation in Weitl v. Moes, supra, the court cited Hankins as recognizing a statutory claim for a child's loss of parental consortium. It therefore treated its new decision as merely moving the child's damages from the claim on behalf of the parent into a separate action: "[T]he more drastic change in our law would result not from recognition of the claim, but from its denial." 311 N.W.2d at 269.[10] In the Michigan case, Berger v. Weber, supra n. 1, the majority briefly listed the action for loss of spousal consortium, the parents' action for a fictitious loss of an injured child's services, and inclusion of loss of companionship in damages under the wrongful death act as well as under a "dramshop act" as sufficiently demonstrating the state's policy to recognize a child's cause of action based on a negligent injury to a parent.[11] It discounted the asserted contrary policy of a statute barring suits for alienation of affection, because this bar coexists with actions for negligent injury to one's spouse or child. The court concluded that "the real anomaly is to allow a child's recovery for the loss of a parent's society and companionship when the loss attends the parent's death but to deny such recovery when the loss attends the parent's injury." 303 N.W.2d at 426. The Michigan dissenters dismissed the analogy to a parent's action for injury to a child because in such an action damages are limited to "loss of services and expenses incurred." 303 N.W.2d at 434, n. 38. Their main attack was on the analogy to the action for loss of consortium, which they described as a "historical curiosity" that first had been unthinkingly expanded from old intentional torts into negligence and thereafter equalized between the spouses by extending it to the wife rather than by abolishing the husband's action.[12] Apparently the dissenters were not prepared to make a similar attack on the inclusion of damages for lost society and companionship under the wrongful death act; they only warned that this analogy for a claim based on nonfatal injuries would be available to all who are eligible claimants under the wrongful death act, not only to the injured person's children. To turn to the major recent opinion rejecting the child's cause of action, Borer v. American Airlines, supra, the California Supreme Court faced an additional argument for recovery by analogy to that court's decision in Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), which allowed a mother's cause of action for emotional trauma in witnessing the negligently caused death of her child. The holding that such a trauma is compensable by damages is hard to square with the statement in Borer that money cannot compensate for a child's trauma of growing up with a permanently disabled and helpless mother, which may well be longer lasting and harder to forget than the shock of witnessing an injury or even a death. The Borer court, however, explained Dillon as being limited to cases in which the bystander's psychic trauma has somatic consequences. 563 P.2d at 864. This sufficed to deny the analogy to *326 the child's claim in Borer, although only until another child claims that such consequences accompanied its psychic injury from a parent's disabled condition; however, the California court later abandoned the requirement of physical harm in an action for negligent infliction of emotional distress. Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916, 167 Cal. Rptr. 831, 616 P.2d 813 (1980).[13] In Borer, the California court also denied any anomaly in allowing recovery for emotional loss in wrongful death actions but not when the injured parent is permanently disabled. It saw the primary purpose of the wrongful death statute not in compensating the survivors for their loss but in preserving the deterrent function of tort law when a fatally injured person's own claim did not survive, thus "providing to tortfeasors a substantial incentive to finish off their victims."[14] 563 P.2d at 865. In rejecting the analogy to the spousal action for loss of consortium, the Borer court added to its previously described reasons of "social policy" the distinction that the spousal action rests in part on impairment of plaintiff's sexual life. 563 P.2d at 863. In sum, the opinions of other courts have ascribed varying significance to the several evident analogies in deciding for or against the child's damage claim for the negligent incapacitation of a parent. The child's negligence action has been labeled as one for "loss of consortium," and then allowed as involving a similar family relationship as the spousal action or denied for lacking the sexual element, or because that action is an anachronism which should not be extended. An analogy has been drawn to the parent's action for loss of the child's "services," but the analogy is shaky when that action has not previously been allowed for solely emotional injury. Recovery for psychic trauma from witnessing serious injury to a family member is potentially a close parallel, but that action and its prerequisites are unsettled.[15] Denial of an action for intentional alienation of affections has been cited as incompatible with allowing an action for negligent invasion of the same interest, or it has been distinguished as involving a dispute over the voluntary conduct of a family member. Probably the recovery of psychic damages for a parent's wrongful death offers the strongest parallel for a similar recovery for losing a parent by negligent disablement. That action is statutory, and the opinions have not agreed on what underlying policies a state's wrongful death statute enacts. In the light of these divergent analyses, we examine how the opposing contentions fit into the existing law of this state. Like other common law jurisdictions, Oregon has few precedents for liability for negligent injury to solely psychic interests or for harm resulting from an injury to another person. Although defendant's motion to dismiss characterized plaintiff's complaint as pleading a cause of action for loss of "parental consortium," plaintiff himself describes it simply as an "action in negligence." *327 Viewed simply as a common law negligence case, without a special statutory basis, plaintiff's action must escape each of these two obstacles. If there are few causes of action for psychic or emotional harm as such, the reason is not found in objections to monetary damages for harm of that nature. The reason may be found by focusing, not on the nature of the plaintiff's loss, but on the source and scope of the defendant's liability. This court has recognized common law liability for psychic injury alone when defendant's conduct was either intentional or equivalently reckless of another's feelings in a responsible relationship,[16] or when it infringed some legally protected interest apart from causing the claimed distress, even when only negligently.[17] The court has found infringements of legal rights in an invasion of privacy, Hinish, supra n. 4, in the negligent removal of the remains of a deceased spouse, Hovis, supra n. 17, and in the negligent delivery of a passport that allowed plaintiff's child to be taken from this country, McEvoy, supra n. 17. But we have not yet extended liability for ordinary negligence to solely psychic or emotional injury not accompanying any actual or threatened physical harm or any injury to another legally protected interest.[18] Under these principles, to use a simple illustration, a child might well have a cause of action for solely emotional distress if someone, in order to cause that distress, injured not the child's parents but a favorite family pet. Cf. Fredeen v. Stride, supra n. 17. Arguably, also, the child has rights in the parental relationship sufficiently like those asserted in Hovis and McEvoy to support a similar recovery for a psychic injury inflicted even by negligence. The nature of the harm asserted here therefore does not alone defeat plaintiff's claim. There remains, however, the objection that the loss he asserts, though it is an injury to himself, arises solely as a consequence of an injury to another person. We have recently reaffirmed the denial of damages to one person economically injured in consequence of a negligent injury to another person. Ore-Ida Foods v. Indian Head, 290 Or. 909, 627 P.2d 469 (1981). In his opinion for the Court, Justice Peterson reviewed, without endorsing, the various ways in which this denial of a negligence claim for consequential injuries has been explained. These include such propositions as that the defendant's negligence, though the cause of plaintiff's loss, was not the "proximate cause," a concept no longer employed in our cases;[19] or that the consequence is "too remote," which generally means the same thing; or that it is not foreseeable, which is a question of fact and will often be untrue; or that claims by consequentially injured plaintiffs would burden the courts, a reason we have rejected above; or that the negligent defendant's duty to avoid unreasonable risk of harm to the person initially injured does not extend to such plaintiffs, which merely states the *328 result.[20] 290 Or. at 916-17, 627 P.2d 469. As the dissenting opinion in the Court of Appeals pointed out, this court has said that generally the scope of the duty to avoid negligent injury to another is governed by the foreseeable risk of harm, and on appropriate evidence a factfinder might well find it within a physician's or hospital's knowledge or reasonable expectation that a 25-year-old female patient has one or more young children who risk immediate and long-range psychic harm if she is incapacitated.[21] Nonetheless, all these propositions express a rule that negligence alone, as a reason to shift the burden of a resulting loss, has not been deemed so grievous as to hold the negligent actor liable beyond the immediate victim's injury to others who suffer a loss only in consequence of that injury. The denial of recovery for a third person's consequential economic loss in Ore-Ida Foods, supra, meets the present plaintiff's claim for his alleged loss of his mother's support and his own future obligation to support his disabled mother. The question remains whether the law recognizes a wider range of liability for foreseeable noneconomic consequences to others beyond a physically injured person. We note that plaintiff, and those courts that have allowed claims like his, do not assert such liability for the foreseeable psychic harm to any person who is in a close emotional relationship to the injured person. They speak only of the relationship between parents and minor children. See Ferriter v. Daniel O'Connell's Sons, supra, 413 N.E.2d at 696; Weitl v. Moes, supra, 311 N.W.2d at 270. But see Berger v. Weber, supra n. 1, 303 N.W.2d at 427 (reserving decision on whether action is limited to minor children with "severely" injured parents). This has its own difficulties in a society whose practices and common assumptions about such relationships are rapidly changing. Would the parentage that entitled a child to claim a psychic injury follow from biology, or cohabitation, or only married cohabitation, or solely from legal parentage by birth or adoption?[22] In any event, to limit recovery to minor children means that the premise for the asserted cause of action is not found in general negligence theory applied to indirect but foreseeable psychic injury as such, because this can occur in many other close relationships. Rather, as shown by the cases discussed in Part II, the premise must be sought in those parts of the state's law that specifically deal with injuries to family relationships. Several of the analogies from which other courts have drawn arguments for or against a child's tort claim for psychic harm from *329 the negligent disablement of a parent are themselves open issues in Oregon. Of the custodial parent's action for the injury of a child, ORS 30.010, this court has said that the statute preserved the parent's common law action for such injury independent of an action by the child or the child's estate;[23] but the court has not decided whether the parent has a claim for emotional distress from a child's nonfatal injury, perhaps because almost all the decisions involved deaths, for which recovery of such damages was excluded until 1973. The parent's action therefore does not lend support to such a claim on the part of a child. The same applies to recovery for emotional trauma from observing a physical injury to a member of the family, another open issue in this state. Similarly, there is no Oregon precedent on a child's action for alienation of a parent's affection.[24] Other injuries to family relationships have had recent legislative attention and perhaps might provide principles for one coherent view of the role of civil liability in protecting such relationships. This proves not to be so. As between spouses, both the action for alienation of affection and that for loss of consortium began as actions available only to the husband. This court held that the act removing a wife's civil disabilities allowed her to sue for alienation of her husband's affection, but that the same act did not extend to the wife a cause of action for loss of the husband's consortium.[25] The court later explained that alienation of affections differed from loss of consortium in being an intentional tort and one "inflicted directly upon the wife" rather than a consequence of injury to another.[26] The action for loss of consortium was soon extended to the wife by statute. Or. Laws 1941, ch. 228. The evident concern was with equality between the spouses, not with the principle of the tort itself. In more recent times, however, equality with respect to alienation of affections was provided not by making this claim available to wives but by abolishing it altogether, along with the tort of criminal conversation. Or. Laws 1975, ch. 562.[27] The legislative history makes clear that despite their intentional character and the resulting emotional harm to the injured spouse, these actions for invasion of the family relationship were considered outmoded by changing views of marriage, divorce, and sexual relations, as reflected in the repeal in 1971 of criminal laws against adultery and enactment of nofault divorce laws. No attention was given to the question whether children had or, if so, should retain an action for deprivation of a parent's affection. Again, this history does not lend support to a negligence claim for psychic injury from loss of a parent's *330 society and companionship based specifically on the family relationship, as distinct from other relationships of close emotional dependence. Most directly in point is the inclusion of the survivor's loss of a decedent's society and companionship in the statutory action for wrongful death. As stated above, this parallel also gave the majority in Borer v. American Airlines, supra, and the dissent in Berger v. Weber, supra, the most difficulty. We are not convinced by the California court's distinction of the wrongful death action on the ground that, unlike an action based on a nonfatal injury, its main object is to assure that the tortfeasor not escape the deterrent effect of liability. More in point is the observation of the Michigan dissenters that the wrongful death law recognizes intangible losses of others besides a decedent's children, not so much because this scope of the law threatens to extend recovery for such losses from nonfatal disablements, but because it undercuts the premise that the law expresses a special concern for minor child's psychic dependence on its parents. In 1972, the history of Oregon's wrongful death act and decisions under it were reviewed in Justice Tongue's opinion for the Court in Goheen v. General Motors Corp., 263 Or. 145, 502 P.2d 223 (1972). See also Escobedo v. Ward, supra n. 23, 255 Or. at 97-99, 464 P.2d 698. In summary, the original version of Lord Campbell's Act enacted in the Deady Code of 1862 allowed the personal representative of a decedent to recover damages for the wrongful death of the decedent, limited to $5000 for the benefit of the estate. The act made no special provision for the decedent's family or other dependents, and it was interpreted to allow no "solatium" for their grief and anguish but only for pecuniary loss to the estate.[28] This was changed in 1939 to provide that the personal representative would act "for the benefit of the widow or widower and dependents," and only if there were none of these for the benefit of the estate, but the economic premise of the recovery was not changed. Or. Laws 1939, ch. 466. The act again was amended in 1967 to remove the limitation on the maximum recovery (then $25,000) and to specify damages in terms of reasonable and fair compensation for the actual pecuniary loss, if any, to the spouse, dependents, or estate. Or. Laws 1967, ch. 544; see Goheen, supra 263 Or. at 168-171, 502 P.2d 223. Following Goheen, the 1973 legislature further amended the specification of damages allowable in an action for wrongful death, Or. Laws 1973 ch. 718. See Comment, Wrongful Death Actions in Oregon: New Developments, 10 Will. L.J. 217 (1974). Two provisions of the 1973 statute are relevant to the present issue. One provision expanded the damages recoverable by the decedent's spouse, children and parents to include damages "for loss of the society, companionship and services of the decedent." ORS 30.020(2)(d).[29] Another provided for the apportionment of these damages according to each beneficiary's loss. ORS 30.040, ORS 30.050. Indisputably this legislation recognizes that a person's immediate family suffers more from his or her untimely death than merely pecuniary loss. What does this recognition mean for the child's cause of action for a parent's nonfatal disablement? The correct answer is by no means selfevident. The implications drawn from the historical development by the Chief Justice's dissent and by Judge Roberts in the *331 Court of Appeals are tenable conclusions. A majority of the Court, however, has concluded that the amendments to the wrongful death statute do not demonstrate a more general exception from the limits on negligence liability for one person's loss from injury to another. The legislative history of the 1973 wrongful death legislation offers some help. The amendments were opposed in committee testimony on the grounds that the emotional injury of lost companionship cannot be compensated by money and that such compensation would lead to increased litigation and higher insurance costs. The legislature's rejection of these objections supports our rejection of the same arguments made by the present defendants and in Borer v. American Airlines, supra. On the other hand, the legislative history also makes clear that the object of the legislation was to correct shortcomings in the existing measure of damages for an established cause of action, not to recognize a new one. The prescription of "actual pecuniary loss," if strictly applied, often would preclude any recovery for wrongful death, particularly when the decedent was very young or old or a disabled person. The sponsor of the 1973 amendments cited the opinion in Goheen to suggest that juries nevertheless would take nonpecuniary elements into consideration, so "why not put them in the statute and be frank with the jury."[30] The legislature proceeded to make that adjustment in the familiar action for wrongful death without further reexamining either the historical or the contemporary basis for that action. The tortfeasor's liability to the survivors of a deceased victim was not in question. Although the emotional impact of the lost "society, companionship and services" resulting from a nonfatal disablement is similar to that now recognized in recoveries for wrongful death, and may even be more lasting and severe, it need not follow from this alone that a defendant's liability is the same. The law may treat liability for causing death as a special case, in which compensation necessarily extends beyond the ordinary restitution to the immediately injured person. Perhaps that distinction between the often fortuitous death or survival of the injured person deserves reexamination when the focus is moved to the consequential harm to third persons.[31] But the single analogy to the 1973 amendments of the wrongful death act does not suffice to show that among such third persons, children now have a cause of action for such harm from nonfatal injuries that deprive them of a parent's society and companionship. Plaintiff also argues that the law must entitle him to damages for his injury in order to avoid denying him a privilege on equal terms with other citizens, contrary to article I, section 20 of the Oregon Constitution, or the equal protection of the laws, contrary to the federal 14th amendment.[32]*332 He attacks two distinctions, one between the child of a dead parent, who recovers for loss of the parent's society, and the child of a disabled parent, who does not, the other between the spouse of a disabled person, who recovers for loss of consortium, and that person's child, who does not. It may be questioned whether these are actually "classes" of people, at least as that word is used in article I, section 20.[33] As between two children, either may lose a parent to disablement or to death, or first to one followed by the other, as indeed children lose parents who leave the family for other reasons. When the legislature provided for damages for the child's loss in a wrongful death action, it did not distinguish between children ad hominem, by personal or social characteristics, as illustrated by laws discriminating against children born out of wedlock that have been found to deny them equal protection.[34] The distinction is not among kinds of children but between the scope of defendants' liability for causing fatal as distinct from nonfatal injuries to the immediate victims of their negligence. The rules that allow a cause of action to an injured person's spouse but not to a child can more plausibly be described as a distinction by personal or social characteristics. At least it could be so described if the law purported to deny otherwise identical claims to a child merely by reason of age or relationship, although the classification would not necessarily violate article I, section 20. The age of majority, of course, is a criterion for many legal privileges or immunities; indeed, it is the plaintiff who argues for making this the distinction between otherwise identical claims of children who have lost the society and companionship of a disabled parent.[35] But the law is not constitutionally obliged to treat the spousal relationship and that between parent and child as identical. The notion that constitutional equality in tort law must be judged by the sole test of the plaintiff's harm was rejected when this court held that a guest in an automobile could be held to proving greater negligence by the driver than one who is not a guest, or a guest injured in a different setting.[36] The analysis in that 1974 decision was based primarily on federal equal protection concepts, and no more recent decision of the United States Supreme Court has been cited to us as requiring a different result in the present case. To recapitulate: Plaintiff's complaint claims damages for injuries resulting from the incapacitation of his mother by defendants' negligence. While some of the pleaded consequences to plaintiff might be described as economic, his emphasis in this court is on the loss of his mother's society and companionship. The injury encompassed within that pleading might well be proved to be real and severe. It is not ineligible for the recovery of compensatory pecuniary damages merely because the injury itself is to psychic and emotional rather than to physical or economic interests, for injury to such interests of personality and emotional wellbeing is compensable in various other contexts. The present holding does not judge the desirability of such compensation as a matter of policy. Plaintiff's injury, however, does not result from the defendants' negligent treatment of himself but as a consequence of their negligent treatment of his mother. *333 He may be able to show that defendants reasonably should expect this consequential injury to a child if they caused the kind of injury to a young woman that the complaint alleges here. The obstacle to plaintiff's action is that ordinarily negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person's consequential loss has a legal source besides its foreseeability. Plaintiff points to exceptions to this general rule in three actions for consequential injury to family members: The parent's action for injury to a child, the spouse's action for loss of consortium, and the wrongful death action as recently expanded to entitle a spouse, child, or parent to damages for loss of a decedent's society, companionship, and services. The argument that these analogues imply a different rule for consequential damages within close family relationships has been well presented, and it has proved persuasive to some courts with perhaps distinguishable statutes and common law precedents. The foregoing review of these different actions in Oregon, however, does not convince us that they can be cumulated to support a general liability toward dependent children for negligent injury to their parents. Finally, we hold that the state and federal constitutions do not preclude different treatment of the injuries represented by these claims. The decision of the Court of Appeals is affirmed. TANZER, Justice, concurring. I concur generally, but add these few words of qualification. The majority reasons that the anticipated effect of our holding on insurance rates is immaterial to our decision and I agree. I do not wish to be understood, however, as holding that economic realities relevant to assignment of risk are never relevant in making policy judgments as discussed in Ore-Ida Foods v. Indian Head, 290 Or. 909, 627 P.2d 469 (1981). Also, I am hesitant to create judicially an entitlement as unpredictable, formless and limitless as compensation of children for psychic losses due to nonfatal injury to their parents. Unlike the courts, the legislature has the power to create not only new bases for recovery but also appropriate procedures to account for all affected interests. The legislature did so with the current wrongful death statutes, for example. ORS 30.020. Thus, I do not necessarily reject the Iowa approach; rather I recognize that practical limits sometimes render judicial power an unsuitable means for the recognition of new theories of recovery. CAMPBELL and CARSON, JJ., join in this opinion. LENT, Chief Justice, dissenting. I dissent because I believe plaintiff has stated ultimate facts sufficient to constitute a claim. ORCP 21 A. I desire, however, to acknowledge the truly excellent discussion by the author of the majority opinion insofar as parts I, II and III are concerned. Indeed, I find little to dispute in the majority opinion preceding the discussion of the 1973 legislative amendments to the action for damages for death resulting from the wrongful act of another. It is with the rest of the opinion, commencing 293 Or. at 565, 652 P.2d at 330, that I find that my views diverge from those of the majority. In coming to my contrary conclusion, I desire to acknowledge the assistance of the author of the majority opinion in shaping my remarks. Both in oral conference and in written suggestion of form and content, he has been of invaluable aid to me in expressing the holding I would reach. As noted in the majority opinion, the legislature in 1973 recognized that the loss the immediate family suffers from the death of a member is something above and beyond "mere" pecuniary loss and fashioned the measure of recovery accordingly. See also Prauss v. Adamski, 195 Or. 1, 23-24, 244 P.2d 598 (1952), in which this court had recognized some twenty years earlier a like concept: The measure of damages thus legislatively recognized was apportioned according to each beneficiary's loss. Clearly, the 1973 legislation reaffirmed and extended liability for ordinary negligence to persons whose loss is an "indirect" or "secondary" consequence of immediate injury to another. If such extended, consequential liability were deemed a departure from principle and an anachronistic anomaly in negligence law, the attention given the subject in 1973 provided an occasion to reconsider it. The legislature and citizens concerned with tort liability had the opportunity to reexamine whether recovery of damages for wrongful death was properly premised on a tortfeasor's liability to the decedent, represented by his estate, for the destruction of the decedent's own economic future, or whether the premise was compensation for the consequential losses of his surviving family, or perhaps both. Neither the legislature nor witnesses questioned the propriety of consequential liability to members of the victim's immediate family. In fact, the legislature extended this liability to include nonpecuniary, emotional losses that in no way could be a substitute for the victim's own economic loss. The amendments were opposed in committee testimony on the grounds that the emotional injury of lost companionship cannot be compensated by money and that such compensation would lead to increased litigation and higher insurance costs, the very arguments made by the present defendants and accepted by the California court in Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563 P.2d 858, 138 Cal. Rptr. 302 (1977). The legislature rejected these objections to liability for the nonpecuniary loss of society and companionship of a spouse, parent, or child. Of course, this does not mean that the legislature implicitly enacted a parallel liability when nonfatal injuries to the initial victim are corresponding losses on the stated family members. It shows, however, that the usual limitation of negligence liability recognized in Ore-Ida Foods v. Indian Head, 290 Or. 909, 627 P.2d 469 (1981), is not an ironclad principle. It does not always stand in the way of ordinary liability for negligently inflicted injury based on its foreseeability. It has not been a principle in the narrow area of immediate family relationships. That much is true of the long existing parent's action under ORS 30.010, as well as of the spouse's action for loss of consortium, whatever else distinguishes them from the present claim. The legislature might have repealed the husband's action instead of extending it to the wife in 1941, just as it might have reconsidered the individual family member's consequential claims in 1973, if the limitation of liability to immediate victims were thought an overriding principle of negligence law. Obviously it has not been thought so. Sometimes it has yielded to compensation for consequential injury suffered by a tort victim's spouse, parent, or child. The present plaintiff has pleaded an ordinary negligence claim except insofar as it may lie beyond the scope of negligence liability by resulting from injury to a third person, his mother, and by claiming damages for loss of society and companionship. The majority has discussed why the first of these is not an insuperable obstacle. In retaining and expanding the claims there *335 reviewed, the legislature did not merely retain historic anomalies. Its abolition of actions for alienation of affection shows that it will deal with perceived anachronisms in family law. Rather, the legislature's choice to retain and expand compensation for those family members closest to an injured tort victim echoes implicit social assumptions and values that also form much of the common law. The implicit assumptions reflected in these highly selective torts do not concern the justice of compensating consequential injury as such. They do not extend to all who in fact suffer genuine material or emotional injury in the loss of the immediate victim's support or society. They do not even extend to every close relative. Rather, what the history of treatment of these torts reflects is the value that has long and continuously been attached specifically to the family relationships between married spouses[1] and between parents and children. The premise of recovery in tort was not emotional dependency in fact but assumptions arising from these specific relationships, though, of course, a recovery would depend on the facts in the individual case. The barrier that limits negligence liability to the initially injured victim and prevents recovery by others foreseeably injured as a consequence, as in Ore-Ida Foods, therefore does not govern here. Nor does the nature of the harm for which the child seeks compensation bar recovery. As the majority acknowledges, this court has allowed recovery based on ordinary negligence for various kinds of psychic or emotional harm, unaccompanied by physical injury, when the negligent defendant invaded some legally protected interest of plaintiff separate from the infliction of the psychic or emotional injury itself. As between a child and its custodial parent, the very concept of legal custody expresses the set of mutual obligations and interests imposed and protected by law.[2] The child's interest in the relationship of custody and its accompanying rights surely is no less than that of the parent which was held to support a negligence claim in McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977). It cannot be said that the consequential injury to this plaintiff was beyond the class of foreseeable injuries as a matter of law. This is not a case of negligence toward one of many unknown potential victims, such as a collision with a vehicle carrying an unknown driver or passenger, or liability for unsafe business premises, where foreseeability might be reduced to an issue of mere statistics. Here we deal only with liability in a relationship of professional responsibility for the health of a known patient, a 25 year old woman. A factfinder could well conclude that defendants should have foreseen that such a patient would be likely to have one or more minor children, if not indeed that defendants knew that she did. The issue of foreseeability is one for determination on the evidence adduced at trial. Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970). For these reasons, I would hold plaintiff has pleaded a claim under the ordinary principles of liability for injury foreseeably resulting from defendants' negligence. [*] Denecke, C.J. retired June 30, 1982; Lent, J. became Chief Justice July 1, 1982. [1] Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424, 425 (1981); Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57, 58 (1962); Halberg v. Young, 41 Haw. 634, 59 A.L.R.2d 445, 449 (1957); Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723 (1954). [2] None of the 20 jurisdictions in which the issue had been litigated before 1980 allowed the child's claim. See Annot., 11 A.L.R. 4th 549 (1982); Hinde v. Butler, 35 Conn.Sup. 292, 408 A.D.2d 668 (1979); Love, Tortious Interference With the Parent-Child Relationship: Loss of an Injured Person's Society and Companionship, 51 Ind.L.J. 590, 591 n. 2; Note, The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L.Rev. 722, 722 n. 1 (1976). As stated in the text, three state supreme courts recognized this cause of action in 1980 and 1981. Courts in four additional states have denied it. Sawyer v. Bailey, 413 A.2d 165, 168 (Me. 1980); Morgel v. Winger, 290 N.W.2d 266 (N.D. 1980); Hoesing v. Sears, Roebuck & Co., 484 F. Supp. 478 (D.Neb. 1980); Koskela v. Martin, 91 Ill. App.3d 568, 47 Ill.Dec. 32, 414 N.E.2d 1148 (1980). Two states recently reaffirmed their denial of the action. Schmeck v. City of Shawnee, 231 Kan. 588, 647 P.2d 1263 (1982); DeAngelis v. Lutheran Medical Center, 445 N.Y.S.2d 188, 84 A.D.2d 17 (1981). [3] American Law Institute, Restatement of the Law Second, Torts, Tent. Draft No. 14 (April 15, 1969) at 28. "§ 707A. ACTION BY CHILD FOR HARM CAUSED BY TORT AGAINST PARENT "One who by reason of his tortious conduct is liable to a parent for illness or other bodily harm is not liable to a minor child for resulting loss of parental support and care." Restatement of Torts (second) (1977). In the oral proceedings, the Reporter, Dean Prosser, said: "Well, I gather that nobody wants to reverse the position of 707A and allow the child to recover for loss of the equivalent of consortium when the father or mother is personally injured. One federal case in Hawaii did that once, and presently got reversed when the state law changed, and all of the cases have refused to allow recovery, so we would have no case support whatever for taking the position that the action would lie. "I don't hear any voices uplifted in favor of reversing 707A, so I would assume that it is approved, and proceed." 1969 Proceedings, American Law Institute, at 179. [4] Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The first laws adopted in the Oregon Territory in 1843 were "[t]he laws of Iowa territory ...; ... where no statute of Iowa territory applies, the principles of common law and equity shall govern." Harris, History of the Oregon Code, 1 Or.L.Rev. 129, 135 (1922). Later enactments referred more specifically to "the Common Law of England." Act of June 27, 1844, Or.L. 1843-49 at 98, 100, Art. III, § 1; Act of Aug. 12, 1845, Or. Acts and L. 1845 at 16. See City of Woodburn v. Domogalla, 1 OTR 292, 339-344 (1963), rev'd on other grounds 238 Or. 401, 395 P.2d 150 (1964). In 1859 the constitution continued in force all territorial laws consistent with the constitution "until altered, or repealed." Or. Const. art. XVIII, § 7. This would include the laws adopting the common law of England until those laws were "altered, or repealed." See Smith v. Chipman, 220 Or. 188, 195, 348 P.2d 441 (1960). But those acts themselves left open to interpretation the significance to be given subsequent changes in English law and differences between conditions in Oregon and those underlying English decisions. See, e.g., Re Water Rights of Hood River, 114 Or. 112, 166-181, 227 P. 1065 (1924) (common law riparian rights superseded in Oregon). This constitutional provision has not stood in the way of recognizing common law causes of tort action that were not established in English common law in 1776 or even in 1845. Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955) (wife's action against husband for intentional tort); Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438 (1941) (invasion of privacy). [5] Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 525 P.2d 669, 115 Cal. Rptr. 765 (1974). [6] The court noted that it had rejected most of the pragmatic objections in Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973) which allowed a wife's action for loss of the consortium of an injured husband. 413 N.E.2d at 695. So had the California court in Rodriguez, supra n. 5. [7] The Iowa court previously had rejected a child's claim partly on the strength of a statute apparently precluding independent recovery by the spouse or child or an injured person. Hankins v. Derby, 211 N.W.2d 581 (Iowa 1973). Much of the opinion in Weitl is devoted to reexamining and reaching a contrary interpretation of the statute. [8] Or. Const. art. I, § 10: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation." [9] Moreover, to examine the injury to the child as a separate claim raises more cleanly the question whether a total or partial defense against the injured parent's claim, such as the parent's contributory fault, should defeat or diminish tort damages for injury to the child's interest. If not, it would be difficult to apply the distinction in a trial which assumes that both interests are covered in one lump sum recovery. [10] The Iowa court denied any contradiction between allowing the child an action for negligence while rejecting one for intentional alienation of a parent's affections on the ground that the difference between the two claims lies in the voluntary conduct of the deserting parent, not in the intent or negligence of the defendant. The anomaly of greater liability for a negligent than for an intentional tort was one of the reasons given for denying the child's negligence claim in Pleasant v. Wash. Sand & Gravel Co., 262 F.2d 471, 473 (D.C. Cir.1958) (DC law). [11] The court did not say that the parents' action for injury to a child extends to damages for their emotional distress divorced from any tangible loss, a gap in the analogy conceded by the Massachusetts court in Ferriter. [12] Justice Levin quoted the House of Lords to the effect that the husband's action for negligent interference with consortium is an anomaly that would not be created as a new tort in 1952 and therefore would not be extended even to the wife. 303 N.W.2d at 432-33, quoting from Best v. Samuel Fox & Co., [1952] AC 716. [13] Molien allowed such a cause of action to a husband against medical defendants who had negligently misdiagnosed his wife as having syphilis and told her to inform him, with destructive consequences on his marriage. The California court's limitation of Dillon to cases involving physical injury has itself recently been rejected by the Maine Supreme Judicial Court in Culbert v. Sampson's Supermarkets, 444 A.2d 433 (Me. 1982). [14] "Recovery for loss of affection and society in a wrongful death action thus fulfills a deeply felt social belief that a tortfeasor who negligently kills someone should not escape liability completely, no matter how unproductive his victim. "A suit for loss of consortium of a disabled parent presents a wholly different picture. Here the tortfeasor cannot escape with inpunity, for the immediate victim of his tort retains a cause of action for the injuries inflicted. The claim by the child in this setting is not essential to prevent the tortfeasor from totally escaping liability." Borer, 563 P.2d at 865-66. [15] See Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969); Simons, Psychic Injury and the Bystander: The Transcontinental Dispute Between New York and California, 51 St. Johns L.Rev. 1 (1976). [16] Hall v. The May Dept. Stores Co., 292 Or. 131, 637 P.2d 126 (1981); Turman v. Cent. Billing Bureau, 279 Or. 443, 568 P.2d 1382 (1977); Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971). [17] Edwards v. Talent Irrigation Dist., 280 Or. 307, 570 P.2d 1169 (1977) (interference with use and enjoyment of land); McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977) (negligent delivery of passport resulting in removal of plaintiff's child); Hovis v. City of Burns, 243 Or. 607, 415 P.2d 29 (1966). But cf. Melton v. Allen, 282 Or. 731, 580 P.2d 1019 (1978) (denying damages for mental distress from erroneous repossession removal of automobile). In some cases both factors were present, e.g. Mooney v. Johnson Cattle Co., 291 Or. 709, 634 P.2d 1333 (1981) (interference with contract); Douglas v. Humble Oil, 251 Or. 310, 445 P.2d 590 (1968) (trespass to a home and conversion of personal property); Fredeen v. Stride, 269 Or. 369, 525 P.2d 166 (1974) (conversion of a dog). [18] We have not had occasion to examine the bystander's claim for psychic injury from witnessing a negligent physical injury to a close relative which was variously decided in the Dillon, Tobin, and Culbert cases cited above, and we therefore exclude it from the pertinent analogues in Oregon. [19] Sandford v. Chevrolet Div. of Gen. Motors, 292 Or. 590, 606, 642 P.2d 624, 633 (1982); McEwen v. Ortho Pharmaceutical, 270 Or. 375, 385 n. 7, 528 P.2d 522 (1974). [20] One may, of course, have no legal obligation to maintain a particular level of care under certain circumstances, but when such a duty exists by virtue of a safety regulation or foreseeable risk of harming some person, to exclude recovery by a person actually harmed for lack of "duty" begs the question. See Nylander v. State, 292 Or. 254, 637 P.2d 1286 (1981); Molien v. Kaiser Found. Hosp., supra, 616 P.2d at 816. One who undertakes the professional obligation to treat patients with professional care and skill has that duty whether it is invoked by a sick infant, by the distraught parents who brought him in, or by a professional licensing board. If the parents nevertheless do not recover damages for emotional distress in the absence of aggravated rather than merely negligent conduct, cf. Rockhill v. Pollard, supra n. 16, this is not because a negligent physician or hospital had no duty to take care. [21] 52 Or. App. at 863-64, 631 P.2d at 1382-83, quoting from Brennen v. City of Eugene, 285 Or. 401, 406, 591 P.2d 719 (1979). Brennen was not a case of injury to one person as a consequence of negligent injury to another. The city's failure to follow an ordinance making adequate insurance a prerequisite for a taxicab license was negligent toward the persons primarily intended to be protected by that ordinance, i.e. those potentially dependent upon the licensee's financial responsibility, not primarily toward the licensee. While the predictable existence of potentially affected children would appear as a premise of liability in conventional negligence analysis, "social policy" cites it as an argument that liability is too expensive, see Russell v. Salem Transp. Co., supra, quoted in Borer v. American Airlines, supra, 563 P.2d at 863, and Mosk, J., dissenting in Borer, 563 P.2d at 868-69. [22] See Love, supra n. 2, 51 Ind.L.J. at 620-23. [23] ORS 30.010: "(1) A parent having custody of his or her child may maintain an action for the injury of the child. "(2) A parent may recover damages for the death of his or her child only under ORS 30.020." See Schleiger v. N. Terminal Co., 43 Or. 4, 9-11, 72 P. 324 (1903); Whang v. Hong, 206 Or. 125, 135, 290 P.2d 185 (1955), overruled on other grounds Naber v. Thompson, 274 Or. 309, 546 P.2d 467 (1976); Wolff v. Du Puis, 233 Or. 317, 320, 378 P.2d 707 (1963); Escobedo v. Ward, 255 Or. 85, 96-99, 464 P.2d 698 (1970). [24] See Note, Tort Parent and Child Right of Children to Sue for Alienation of Parent's Affections, 26 Or.L.Rev. 63 (1946). [25] Or. Laws 1880, at 6, § 1: "All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband, are hereby repealed; Provided, that this Act shall not confer the right to vote or hold office upon the wife except as is otherwise provided by law; and for any unjust usurpation of her property or natural rights, she shall have the same right to appeal in her own name alone, to the courts of law or equity for redress, that the husband has." Keen v. Keen, 49 Or. 362, 364, 90 P. 147 (1907); Kosciolek v. Portland Ry., L. & P. Co., 81 Or. 517, 522, 160 P. 132 (1916). [26] Sheard v. Or. Elec. Ry., 137 Or. 341, 344, 351, 2 P.2d 916 (1931). [27] ORS 30.840: "There shall be no civil cause of action for alienation of affections." ORS 30.850: "There shall be no civil cause of action for criminal conversation." [28] Carlson v. Or. Short Line Ry., 21 Or. 450, 457, 28 P. 497 (1892), following Judge Deady's own opinion in Holmes v. Or. & Cal. Ry., 6 Sawyer 262 (D.Or. 1880). [29] ORS 30.020(2)(d): "(2) In an action under this section damages may be awarded in an amount which: ".... "(d) Justly, fairly and reasonably compensates the decedent's spouse, children and parents for pecuniary loss and for loss of the society, companionship and services of the decedent...." The 1973 amendments also made provisions for punitive damages in wrongful death cases, ORS 30.020(2)(e), and for offsetting any separate recovery by a parent for loss of a deceased child's services, ORS 30.010(2). [30] Minutes, House Committee on Judiciary, Or. Leg. 1973 Sess. (May 3, 1973) at 5. [31] In other contexts this court has described as anomalous a distinction in liability for fatal or nonfatal injuries. See Libbee v. Permanente Clinic, 268 Or. 258, 266, 518 P.2d 636 (1974), Whang v. Hong, supra n. 23. In allowing a longshoreman's wife to recovery damages for loss of her husband's "society" under general maritime law, the Supreme Court of the United States commented: "Within this single body of judge-formulated law, there is no apparent reason to differentiate between fatal and nonfatal injuries in authorizing the recovery of damages for loss of society. The vitality of the longshoreman is logically irrelevant once we have accepted the principle that injury suffered by a longshoreman's spouse from loss of society should be compensable, when proved." American Export Lines v. Alvez, 446 U.S. 274, 281, 100 S. Ct. 1673, 1677, 64 L. Ed. 2d 284, 291 (1980). [32] Or. Const., art. I, § 20: "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." U.S. Const., amend. XIV, § 1: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." Although article I, section 20 literally is addressed to legislation ("No law shall be passed ..."), no rule violative of this principle would remain a part of the common law in this state. Or. Const. art. XVIII, § 7. [33] State v. Clark, 291 Or. 231, 240, 630 P.2d 810 (1981). Plaintiff does not claim discrimination against himself as an individual, see 291 Or. at 237-239, 630 P.2d 810. [34] Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968). [35] Similarly, the question under Or. Const. art. I, § 10, which guarantees a "remedy by due course of law for injury done [to one's] person, property, or reputation," is not whether a minor child is to be recognized as having rights, but whether it has special rights as a minor child to damages that an older person would not have. [36] Duerst v. Limbocker, 269 Or. 252, 525 P.2d 99 (1974). [1] See Huard v. McTeigh, 113 Or. 279, 232 P. 658 (1925) (no common law marriage in Oregon), cf. Ore-Ida Foods v. Gonzalez, 43 Or. App. 393, 602 P.2d 1132 (1979), rev. den. 288 Or. 335 (1980) (no wrongful death recovery under ORS 30.020(1) for unmarried cohabitant). [2] See, e.g., ORS 109.010 (mutual duties of support), ORS 163.535-ORS 163.555 (criminal abandonment, child neglect, nonsupport). Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978) recognized the child's legal claim to "parental nurturing," 284 Or. at 710, 588 P.2d 1105, but concluded that intentional parental failure to provide it did not give rise to a damage action against an offending parent, on the theory that the legislature had provided other remedies for parental failure. In this case, the alleged injury is not due to any default on the part of the parent but is caused by a third party. It cannot be said that such remedies as change of custody or termination of parental rights and intervention by public agencies are legislative substitutes for the liability of third party who tortiously disrupts the parental relationship.

c48c858031d8ca6483065a32b0996ef054b726ffdd80d3b3c74c62e7d440723b

1982-10-05T00:00:00Z

3069d42e-1ff4-4008-8d31-33549d7c61ae

State v. Burrow

293 Or. 691, 653 P.2d 226

oregon

Oregon Supreme Court

653 P.2d 226 (1982) 293 Or. 691 STATE of Oregon, Respondent On Review, v. Melvin Ray BURROW, Petitioner On Review. TC C81-02-30968; CA A21176; SC 28506. Supreme Court of Oregon. Argued and Submitted July 13, 1982. Decided October 26, 1982. Reconsideration Denied November 23, 1982. Richard L. Lonergan, Portland, argued the cause for petitioner on review. With him on the brief were Howard R. and Clint A. Lonergan, Portland. Thomas H. Denney, Asst. Atty. Gen., Salem, argued cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. Before LENT, C.J., LINDE, PETERSON, TANZER and CAMPBELL, JJ., and CARSON,[**] J. Pro Tem. PETERSON, Justice. Defendant participated with three others in an armed robbery of a man and a woman in a motel room, in the course of which the man was injured and the woman was fatally stabbed. At his jury trial on charges of felony murder, attempted murder, and two counts of first degree robbery, defendant testified that after entering the motel room with his accomplices he withdrew from the planned robbery before any criminal act occurred and that he did not know that one of the other participants had a knife. Defendant was convicted of the two robberies and of felony murder and acquitted of attempted murder. After unsuccessfully appealing his convictions on several *227 grounds,[1] defendant petitioned this court to review his claim that he was unconstitutionally required to shoulder the burden of proving an affirmative defense to the charge of felony murder. The felony murder statute then provided: ORS 163.115 (1979) (amended 1981).[2] The trial court instructed the jury that "[i]t is a defense to this charge if the defendant proves each of the following," continuing by reading the jury the five items listed in the foregoing paragraphs (a) through (e). The court further stated: Defendant excepted to this instruction on the grounds, first, that it shifted the burden of proof from the state to the defendant, and second, that the "reasonable grounds" test of paragraphs (d) and (e) make stupidity a crime.[4] The court's instruction that the defendant must prove the items constituting the "affirmative defense" follows ORS 161.055(3), which states that when a defense is so labeled in the Criminal Code of 1971, "the defendant has the burden of proving the defense by a preponderance of the evidence." The drafters of the criminal code allocated the burden of proof in this way before recent judicial decisions that limited the extent to which due process allows lawmakers to shift the burden of proof to defendants in criminal cases. We therefore examine whether the provisions of ORS 163.115 and ORS 161.055 are compatible with the requirement that guilt be proved *228 beyond a reasonable doubt as a matter of federal constitutional law.[5] The decision in this case involves the application of the Fourteenth Amendment, as interpreted in recent decisions. The United States Supreme Court has held proof of guilt beyond a reasonable doubt to be required by Fourteenth Amendment due process since In re Winship, 397 U.S. 358, 361-64, 90 S. Ct. 1068, 1070-73, 25 L. Ed. 2d 368 (1970). Exactly what must be proved beyond a reasonable doubt has been phrased in various ways. Winship, 397 U.S. at 362, 90 S. Ct. at 1071, quoted two earlier cases which said that what must be proved beyond a reasonable doubt in a criminal case is "guilt." In Winship, 397 U.S. at 362, 90 S. Ct. at 1071, quoting from Davis v. United States, 160 U.S. 469, 484, 16 S. Ct. 353, 356, 40 L. Ed. 499, 507 (1895), and later in Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S. Ct. 1881, 1883, 44 L. Ed. 2d 508 (1975), the Court stated the due process requirement to be that the prosecution prove beyond a reasonable doubt "every fact necessary to constitute the crime" charged. The Winship phrasing was quoted in Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 2324, 53 L. Ed. 2d 281 (1977). The same opinion said that "Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt * * *," 432 U.S. at 215, 97 S. Ct. at 2329. In a later case, the court has phrased the Winship principle as requiring proof "beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979). Mullaney and Patterson are the two principal cases upon which the outcome of this appeal turns. Both were murder cases. Both concerned the mental state of a defendant which, if established, would make a homicide either murder or manslaughter. Mullaney was decided in 1975 under a Maine murder statute which provided: "Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder * * *." Me. Rev. Stat. Ann., tit. 17, § 2651 (1964). The jury was instructed that if the prosecution established that the homicide was both intentional and unlawful, "malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." 421 U.S. at 686, 691-92, 95 S. Ct. at 1883, 1885-86. The Supreme Court observed that "the fact at issue the presence or absence of the heat of passion on sudden provocation has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. * * * [T]he clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact." 421 U.S. at 696, 95 S. Ct. at 1888. The court held that the presumption had the effect of relieving the state of the burden to prove malice aforethought. The presumption forced the defendant to disprove malice aforethought in his heat of passion affirmative defense. The court struck down Maine's affirmative defense of provocation on the ground that requiring the defendant to prove provocation was inconsistent with the teaching of Winship that the state prove "every fact necessary to constitute the crime with which he is charged." Mullaney, 421 U.S. at 685, 704, 95 S. Ct. at 1883, 1892; Winship, 397 U.S. at 364, 90 S. Ct. at 1073. *229 The Mullaney decision was unanimous. In the minds of many it made unconstitutional virtually all criminal law affirmative defenses, most certainly (as the dissent would hold) those affirmative defenses affecting guilt. Many courts so read and applied the case. For example, a Maryland appellate court wrote: Some commentators opined that Mullaney, carried to its logical conclusion, would forbid all affirmative defenses.[6] The dissenting opinion is consistent with Mullaney. But it is not consistent with Patterson, decided two years later. In Patterson, which concerned an essentially indistinguishable legal issue, the Supreme Court reached a contrary result. Patterson denuded Mullaney without overruling it. Patterson involved a murder conviction under a New York murder statute that had two elements: (1) "intent to cause the death of another person"; and (2) "caus[ing] the death of such person or of a third person." N.Y. Penal Law 125.25 (McKinney 1975). Malice aforethought was not an element of the crime. Under New York law, if the defendant could prove that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse * * *" the crime would be reduced to manslaughter. The Supreme Court held that the imposition of this burden upon the defendant did not violate the federal Due Process Clause. The court began its analysis with the statement that the creation of affirmative defenses is normally within the power of the state "unless * * * `it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' * * *" 432 U.S. at 201-02, 97 S. Ct. at 2322 (quoting Speiser v. Randall, 357 U.S. 513, 523, 78 S. Ct. 1332, 1340, 2 L. Ed. 2d 1460 (1958)). The court made it clear that Mullaney is to be limited to its facts, and specifically rejected the theory advanced in the dissenting opinion in apparent anticipation of the situation presented here. The Patterson court adhered to its earlier decisions in Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976) *230 (court, for want of a substantial federal question, dismissed appeal in a case involving a Delaware statute which required a defendant raising an insanity defense to prove mental illness or defect by a preponderance of the evidence), and Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952) (Oregon statute which placed burden of proving insanity beyond a reasonable doubt on defendant held constitutional), saying: As stated, there may be reason for confusion in reconciling Mullaney and Patterson. But there is no reason for confusion as to the ultimate result of those decisions: Unless an affirmative defense has the effect of transferring to the defendant the burden of disproving an element of the prosecution's case, the affirmative defense will be permitted. The state need not establish "every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment. * * * The Due Process Clause * * * does not put [a state] to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment." Patterson, supra, 432 U.S. at 207-08, 97 S. Ct. at 2325-26.[8] *231 The purpose of creating the ORS 163.115(3) affirmative defense was to lessen the harshness of the felony murder doctrine by creating an affirmative defense which, if proved, would exculpate the defendant. The legislature had a choice: It could have provided for affirmative defenses as to which the defendant had the burden of proof (such as in the New York Revised Penal Law § 25.00, upon which ORS 161.055 is based) or it could have provided (as recommended by the Model Penal Code) that once the defendant has introduced some evidence of the defense, the prosecution must then persuade the factfinder beyond a reasonable doubt that the defense does not exist.[9] The legislature opted to impose the burden of proof upon the defendant. The preference of this writer or any other member of this court as to the better procedure is irrelevant. Patterson states that the decision is for the legislature, subject to the remaining constitutional constraints imposed by Mullaney.[10] We therefore examine the statutes and the trial court instructions in light of Mullaney, as limited by Patterson. The defendant was charged with four crimes: robbery of Johnson, robbery of Kleinberg, attempted murder of Johnson, and felony murder of Kleinberg. The uncontradicted evidence was that the defendant and three others planned the robbery. Kleinberg was stabbed by one of the defendant's associates, Richard "Tiny" Roberts, and later died. Property was taken. The defendant's principal defenses were that he withdrew before any criminal act occurred and that he did not know that Roberts was armed with a knife. There was evidence, however, that the defendant assaulted Johnson during the time that Roberts was assaulting Kleinberg and that the defendant knew that Roberts was armed with a knife. The Kleinberg robbery indictment charged defendant and another participant as follows: The first degree robbery statute under which defendant was charged is ORS 164.415. It provides: The felony murder indictment alleged that the defendants Defendant was found guilty of both crimes. ORS 161.150 makes one guilty of a crime "if it is committed by his own conduct or by the conduct of another for which he is criminally liable, or both." ORS 161.155(2)(b) makes a person "criminally liable for the conduct of another person constituting a crime if * * * with the intent to promote or facilitate the commission of the crime he * * * [a]ids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime * * *." It is clear that the defendant's conviction on both the Kleinberg robbery charge and the Kleinberg felony murder charge arose from his participation as an accomplice in the robbery. On the Kleinberg robbery charge the trial court instructed the jury: On the felony murder charge, the jury was instructed on the statutory elements contained in ORS 163.115(1)(b), which are quoted earlier in this opinion. Relative to the defendant's affirmative defense, the jury was instructed as follows: The defendant claims that ORS 163.115(3) is unconstitutional in a felony murder case in which the underlying crime is first degree robbery because the affirmative defense of ORS 163.115(3)(c) ("that the defendant was not armed with a dangerous weapon") effectively required him to disprove an element of the underlying robbery (a person commits robbery if, in the course of robbing another he "is armed with a deadly weapon"). The Mullaney rule is that the state must prove every ingredient of an offense beyond a reasonable doubt and it may not, by a presumption or otherwise, shift to the defendant the burden of disproving an element of the crime. We compare the instructions to see whether the Mullaney rule was violated. The instructions concerning use of a deadly weapon are best analyzed by putting them side by side. *233 The instructions, though similar, are not inconsistent. The instructions on the robbery charge required the state to prove that "the defendant or his accomplices were armed with a dangerous weapon." (Emphasis added.) The felony murder instruction required the defendant to prove that he "was not armed with a dangerous weapon." If the conduct of the defendant alone is considered under the instructions, they are plainly inconsistent. They are not, however, when considered in their entirety. It was not necessary for the defendant to be armed to be guilty of robbery. The jury found the defendant guilty, not because he was armed with a dangerous weapon, but because he was an accomplice to Roberts, who was armed.[11] The instructions did not have the effect of transferring an element of the underlying crime being armed with a dangerous weapon from the state to the defendant. Concededly, when the relevant statutes, ORS 163.115(3)(c) and ORS 164.415(1)(a), are compared, an apparent Mullaney problem arises. But the problem is only an apparent one, for other statutes are involved and must be considered in making a Mullaney analysis. In cases in which the defendant's robbery criminal liability derives from his status as an accomplice under ORS 161.150-161.155, the role of those statutes must be considered. Almost every crime described in the criminal code includes by implication the criminal responsibility language of ORS 161.150-.155, and it would be error for us, in making a Mullaney analysis, to fail to consider the defendant's liability as an accomplice. Therefore, in examining the language of ORS 164.415(1)(a), we must (as did the trial judge in his instructions) add the words "or his accomplice." With that addition, for reasons already stated, the apparent Mullaney problem disappears. We do not commend the giving of instructions under ORS 163.115(3) when there is no dispute as to the issue. The trial court, in giving the affirmative defense instructions under ORS 163.115(3), should have mentioned only those subsections which were in issue. Even though the affirmative defense instruction under ORS 163.115(3)(c) should not have been given, we are convinced, beyond any doubt, that the giving of the instructions in no way prejudiced the defendant. The defendant also claims that the trial court erred in instructing the jury, on the felony murder affirmative defense, that it is a defense to the charge "if the defendant proves each of the following: The defendant claims that it was error to instruct the jury in terms of what the defendant had reason to believe, rather than in terms of his actual knowledge. He excepted to the instructions as follows: The defendant claims that defining a crime in terms of what a reasonable person would believe is improper.[12] In State v. *234 Aschenbrenner, 171 Or. 664, 138 P.2d 911 (1943), the defendants were charged under a statute which described no culpable mental state and provided in relevant part that "[a]ny person who shall take up any estray * * * shall be deemed guilty of larceny * * *." The jury was instructed that the defendants' criminal liability turned on whether "a man of ordinary intelligence and observation" in defendants' place would believe that estray animals were in their flock. The defendants appealed their convictions claiming that the instruction was erroneous because it permitted conviction on evidence short of evidence of actual knowledge. This court reversed, saying: Aschenbrenner is distinguishable. There the statute was silent on the mental state required for conviction. This court construed the statute to require conduct based upon knowledge, saying that "[although the] word `knowingly' is not used in the statute, * * * we believe that it is implied * * *." 171 Or. at 668, 138 P.2d 911. Aschenbrenner did not hold that it is constitutionally improper for a legislature to define a crime or an affirmative defense in terms of an accused's reasonable grounds for belief. We see no impropriety in establishing an affirmative defense in terms of an objective standard the defendant's reasonable grounds for belief. The defendant has not shown any reason why the statute is unconstitutional, and we are unable to discern any such reason. Affirmed. Remanded to trial court for sentencing.[13] LINDE, J., filed a dissenting opinion. LINDE, Justice, dissenting. When Patterson's case was before the New York Court of Appeals, Chief Judge Breitel cautioned in a concurring opinion: People v. Patterson, 39 N.Y.2d 288, 305, 383 N.Y.S.2d 573, 583-84, 347 N.E.2d 898, 909 (1976), quoted in Patterson v. New York, 432 U.S. 197, 211 n. 13, 97 S. Ct. 2319, 2327-2328 n. 13, 53 L. Ed. 2d 281, 291 n. 13 (1977). In the United States Supreme Court, Justice Powell, joined by Justices Brennan and Marshall, began his dissent with the warning that the Court "surrenders to the legislative branch a significant part of its responsibility *235 to protect the presumption of innocence." Patterson, 432 U.S. at 216, 97 S. Ct. at 2330. Today's decision demonstrates the cogency of those warnings when a state court does not use sensitive and critical judgment in applying Patterson nor exercise its own responsibility for maintaining the state's historic burden of proof in criminal prosecutions. As far as fourteenth amendment due process goes, the Supreme Court's opinion in Patterson may permit the majority's reading in this case, though it does not compel it. Patterson, like Mullaney[1] before it, dealt only with the mitigating effect of emotional disturbance on the guilt of an intentional killer, and it held that because New York law made intent alone sufficient for the crime of murder, the state could leave it to the defendant to show the mental condition that would reduce his guilt to manslaughter. It is important to note the two characteristics of the issue decided in Patterson. First, it dealt only with proof of a defendant's state of mind at the time he intentionally committed an unlawful homicide as a factor in determining the extent of his culpability. This focus on defendant's mental condition is emphasized by the lengthy attention the Court gave to its own prior decisions on proof of the defense of insanity, contrasting Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895) (placing the burden on the prosecution to prove sanity) with Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952) (holding that due process did not foreclose placing this burden on the defendant).[2] 432 U.S. at 202-04, 206, 97 S. Ct. at 2322-2324, 2325. Second, the Patterson opinion treated the issue as one concerning mitigation and the appropriate degree of punishment. 432 U.S. at 207, 97 S. Ct. at 2325.[3] In view of these two characteristics, that Patterson concerned degrees of a defendant's accountability for an intentional homicide and that defendant's mental state was seen as a mitigating fact, Patterson is far from holding that legislatures are wholly free to transfer burdens to prove facts on which a defendant's guilt will actually depend by manipulating "elements" of the statutory definition of the crime. Yet this is exactly how the majority opinion in the present case chooses to apply Patterson. The majority's reading is invited by the shifting vocabulary of the United States Supreme Court's statements that due process requires the prosecution to prove beyond a reasonable doubt the defendant's "guilt,"[4] or "every fact necessary to constitute the crime charged,"[5] or "every ingredient *236 of an offense,"[6] or "the existence of every element of the offense."[7] "Every fact" connotes the occurrence of those events and circumstances, at the time of the alleged act and its consequences, that either do or do not add up to guilty conduct at that time. Proof of "guilt" similarly conveys the thought that the state must prove all events and circumstances on which defendant's guilt depends. In contrast, the phrases "every ingredient" or "every element" in the "definition" of the offense focus attention on legal analysis rather than facts and thereby open the door to legislative manipulation. Concern about this possibility was at the core of Justice Powell's opinion for three dissenters: 432 U.S. at 223, 97 S. Ct. at 2333 (footnote omitted). The majority acknowledged this risk and expressed confidence that it would not happen. 432 U.S. at 211 n. 12, 97 S. Ct. at 2327 n. 12. The question, therefore, is whether the affirmative defense to felony murder stated in ORS 163.115(3) (1979) merely deals with mitigation "affecting the degree of culpability or the severity of the punishment" or whether, in the words which the Court quoted from Judge Breitel, above, its effect is "to unhinge the procedural presumption of innocence" and "to undermine the privilege against self-incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf." ORS 163.115(3) (1979) is not concerned with gradations of culpability and mitigation of punishment.[8] Nor is it confined to the issue of the mental state with which the defendant committed an intentional act. Rather, it deals with factual events of a crime leading to the death of a nonparticipant, with the circumstances under which a participant either is or is not guilty of murder. The first fact is whether the defendant was or was not the only participant in the crime. The second fact is whether he did or did not commit, verbally counsel, cause, or aid in the homicidal act. The third fact is whether defendant was or was not armed with a dangerous or deadly weapon. The fourth and fifth facts are whether he had "reasonable grounds to believe" that another participant was armed and intended to endanger someone's life. In sum, if a death occurs in the course of a listed crime, an unarmed participant who neither counseled nor aided in the fatal act, or had reason to expect that another participant would commit it, has not committed a murder. But the statute would force a defendant to prove these facts. This both shifts the procedural burdens in the case and in effect forces the defendant to testify concerning the events of the "underlying crime" alleged by the prosecution. The statute lists the facts negating felony murder cumulatively. In other words, the legislature has prescribed that one who participates in the fatal crime is a murderer if, but only if, he committed, or counseled, or assisted in the fatal act, or was armed, or *237 had reason to believe that another participant was armed or intended to risk anyone's death. If the jury believes one of these facts, defendant committed felony murder, otherwise not. Only one of the items listed in paragraphs (a) to (e) is a prerequisite to defendant's guilt of murder, not all of them. But in my view, as long as at least one of the facts must have occurred to make the defendant a murderer, the state cannot constitutionally relieve itself of the burden to prove that fact. Of course it is verbally possible to redefine any crime in broad, general terms with exculpatory exceptions, and then to argue that an individual is guilty of the broadly defined crime unless he proves the exculpatory circumstances. This is the kind of textual manipulation that is cautioned against by the Supreme Court and Judge Breitel in Patterson. But the statute's words do not disguise the substance of the legislative determination that a criminal is a murderer only if he either did or had reason to believe one of the things listed in ORS 163.115(3) (1979) and there assigned to him to disprove. It is what he did or should have known at the time of the crime that made his crime murder or not under the statute. The shift of the burden of proving these facts is very different from the mitigation of the degree of culpability for intentional murder by reason of a defendant's emotional state which was at issue in Patterson. Whatever words the majority may quote from the majority opinion in Patterson, its holding is not compelled by the holding in that case. The glaring flaw in a premise that the state's burden of proof extends only to those "elements" which it chooses to describe as such in defining a crime is that such a constitutional test provides no terminal point for the potential rearrangement of the burden of proof in criminal prosecutions. Whenever the state recognizes that some fact or circumstance is important to whether conduct truly is criminal but finds it awkward, troublesome, or expensive to produce evidence of that fact or circumstance, the state can simply shift to the defendant the burden to prove its nonexistence. By that test, a person found in possession of another's property can be defined as a thief unless he proves that he did not take the property or receive it knowing that it was not his own. A person found trespassing on another's premises can be defined to be a burglar unless he proves that he entered with consent or did not intend to commit a crime. In both examples the facts which are made an "affirmative defense" remain elements of the person's guilt or innocence of theft or burglary at the time of the act; they are shifted only as elements of the legal definition of the crime in order to shift the burden of proof. This court has taken a different view with respect to removing elements of a defendant's guilt from jury trial. In State v. Quinn, 289 Or. 727, 618 P.2d 412 (1980) we invalidated a statute that took from the jury a fact necessary to make defendant's act a capital murder and left it to be decided by the judge at sentencing. Only three weeks ago, in State v. Wedge, 293 Or. 598, 653 P.2d 773 (1982), we held that a robbery statute unconstitutionally omitted jury trial of the question whether defendant used a firearm. The requirement of proof beyond a reasonable doubt is a constitutional protection for one accused of a crime as much as trial of the facts by a jury. We are bound to maintain one as much as the other. But on the theory of the present decision, the state could define the crime of robbery so as to make the accused prove that he did not use a firearm rather than make the prosecution prove that he did. In State v. Wedge, supra, the court drew the constitutional line between "the facts which constitute the crime ... and those which characterize the defendant," acknowledging that the distinction is not always simple. I agree that it is not simple. But even when exculpatory emotional or mental factors are excluded, as in Patterson, it is not unmanageable to draw a line short of shifting to a defendant the burden to prove objective events and circumstances external to himself. *238 It is sometimes argued that affirmative defenses are a desirable device because they offer lawmakers a way to ameliorate harsh general rules when they would be unwilling to do so unless the defendant has to prove the mitigating circumstances.[9] The argument is not persuasive. First, the definition of substantive crimes generally is a matter of legislative choice, but constitutions guarantee the protections of such procedures as trial by jury and the state's burden to prove guilt beyond a reasonable doubt without compelling the testimony of the accused. A legislature faced with the choice between making an element of guilt part of the state's case or eliminating it altogether may or may not make the harsher choice. Perhaps the drafters of the revised criminal code would have kept the old, stringent rule of felony murder without the affirmative defense, perhaps they would have left it to the prosecution to prove at least one of the elements listed in ORS 163.115(3)(a)-(e) (1979). Waves of more or less harsh penal policy come and go. The process by which the state applies its penal power to the individual, however, is not left to changing winds of policy. It goes to the essence of the relationship between the government and the individual in our system of law. Second, as acknowledged in Patterson, most states place the burden on the prosecution to disprove a defense offered by the accused. 432 U.S. at 207 n. 10 and 211, 97 S. Ct. at 2325 n. 10 and 2327. This does not suggest that the burden is incompatible either with effective or with humane penal laws. The majority sticks closely to parsing the majority opinion of the United States Supreme Court in Patterson v. New York. That Court, of course, only tells us the minimum below which the fourteenth amendment permits no state to fall. Fourteenth amendment due process is not necessarily correct process, but more often than not cases are briefed as if it were. Patterson quotes Justice Cardozo's old definition under which the fourteenth amendment denies the states a criminal procedure only if "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." 432 U.S. at 202, 97 S. Ct. at 2322, quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L. Ed. 674 (1934). The force of that quotation may be judged by the fact that it was followed by listing trial by jury, indictments, the privilege against self-incrimination, and possibly confrontation and cross-examination as dispensable guarantees. 291 U.S. at 105-106, 54 S. Ct. at 332. In any event, if a procedure is "so rooted in the traditional conscience of our people as to be ranked as fundamental," the people of Oregon do not need the fourteenth amendment to protect it. I take article I, section 33 of the Oregon Constitution to preserve such "unenumerated" rights as were of constitutional magnitude in 1859, that is to say, rights specifically against government and "so rooted as to be fundamental."[10] It seems likely that the right not to be convicted of crime except upon proof of guilt beyond a reasonable doubt was so recognized.[11] But the question what if any affirmative defenses were recognized at that time has not been briefed, and, as the majority points out, defendant miscites the relevant constitutional clause. This is not the place, therefore, to pursue the difference between the federal and the state premises. In any event, in sustaining the shift of the burden of proof from the prosecution to the defense in this case, the majority is too eager to follow the words of Patterson beyond its holding. *239 The "presumption of innocence" and the prosecution's burden to prove guilt beyond a reasonable doubt rank high among those distinctions that are commonly boasted to place our system of justice above those of supposedly less enlightened nations, including some in which a defendant perhaps may be haled before a court, confronted with some modicum of incriminating evidence, and invited to persuade the tribunal that he has not committed a crime. Under the view adopted by the majority in this case, if carried to its logical conclusion, those boasts can be relegated to Law Day editorials and the popular misconceptions of television crime programs. I therefore dissent. LENT, C.J., joins in this dissenting opinion. [**] Justice Pro Tempore at time of argument. [1] The state conceded error in defendant's sentence, and the Court of Appeals remanded the case for resentencing. 55 Or. App. 1030, 639 P.2d 1318 (1982). [2] This opinion contains frequent references to ORS 163.115(3), the felony murder affirmative defense statute then in effect. It was amended in 1981, Or. Laws 1981, ch. 873, § 5. What was ORS 163.115(3) is now ORS 163.115(2). [3] So reported in the transcript. Possibly the judge said "greater"; there was no objection to what he said. [4] For the first exception, defendant invoked "due process under the State and federal constitutions." He cited no legal basis at trial for the second exception. [5] Defendant's objection at trial referred generally to "due process of law" and to "the due process clause of the state and federal constitutions" without further identification. In his brief, he cited Article I, section 10, of the Oregon Constitution. That section provides that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." Unlike the Fifth and Fourteenth Amendments and similar "due process" clauses in state constitutions, Article I, section 10, does not refer to official deprivations of "liberty" nor to "due process of law." Rather, it provides an affirmative claim upon the state to provide a legal "remedy" for an "injury done." It is not relevant to this case. [6] See The Supreme Court, 1976 Term, 91 Harv. L.Rev. 1, 97 (1977). See also Comment, Affirmative Defenses After Mullaney v. Wilbur: New York's Extreme Emotional Disturbance, 43 Brooklyn L.Rev. 171 (1976); Note, The Constitutionality of Affirmative Defenses After Patterson v. New York, 78 Colum.L.Rev. 655, 656, 659, 669 (1978); Note, Affirmative Defenses and Due Process: The Constitutionality of Placing a Burden of Persuasion on a Criminal Defendant, 64 Geo.L.J. 871 (1976). [7] Patterson generated immediate comment. Some commentators opined that because Patterson was indistinguishable from Mullaney, the court should have reversed per curiam, citing Mullaney. Others, agreeing that Patterson was indistinguishable from Mullaney, asserted that the court should have been honest about it, and overruled Mullaney. See Allen, The Restoration of In Re Winship: A Comment on Burdens of Persuasion in Criminal Cases After Patterson v. New York, 76 Mich.L.Rev. 30, 35 n. 4, 54 (1977). The point is that Patterson has largely limited Mullaney. "The Court is unmistakably disenchanted with Mullaney v. Wilbur and quite possibly means to limit to egregious cases the involvement of federal courts in allocating burdens under state law." Id. at 53. [8] In State v. Stilling, 285 Or. 293, 297-98, 590 P.2d 1223 (1979), we held that instructions on presumptions which suggest "that the state does not have to carry the burden of proof on the intent element" are impermissible under Mullaney. Our decision in State v. Stockett, 278 Or. 637, 644, 565 P.2d 739 (1977), involved the constitutionality of ORS 161.305, which imposed upon a defendant the burden of proving diminished or partial responsibility under ORS 161.295(1). It was rendered four days after Patterson was decided. We said that "as in Mullaney, the state, through ORS 161.305, has attempted to shift the burden of proof on this issue to the defendant. * * * Therefore, we hold that ORS 161.305 is unconstitutional insofar as it places the burden of proving partial responsibility or diminished intent on the defendant." 278 Or. at 637, 565 P.2d 739. Rehearing was not requested. We express no opinion as to the effect of the Patterson holding on our decision in Stockett. [9] See Model Penal Code, Proposed Final Draft No. 1, § 1.12(2) (1961); W. LaFave & A. Scott, Criminal Law § 8, at 46-51 (1972); C. McCormick, Handbook of the Law of Evidence § 341, at 800-02 (2d ed. 1972). [10] The dissenters are apprehensive that this holding may lead the legislature to define crimes in terms requiring but a "modicum of incriminating evidence," thrusting upon the defendant the burden of proving that he or she did not commit a crime. 293 Or. at 714, 653 P.2d at 239. Since Patterson was decided in 1977, we have not seen that situation arise. On the contrary, this very case illustrates precisely the opposite. Before the enactment of our present felony murder statute, no affirmative defenses were available. Before 1971, ORS 163.010(1) provided: "(1) Any person who purposely, and of deliberate and premeditated malice, or in the commission of or attempt to commit rape, arson, robbery or burglary, kills another, is guilty of murder in the first degree." The legislative creation of a felony murder affirmative defense has operated to ameliorate the harshness of the previous felony murder doctrine. If the nonexistent parade of horribles described in the dissenting opinion becomes existent by reason of legislative manipulation of elements of the crime, courts will be equal to the task of protecting the constitutional rights of persons charged with crimes. [11] The defendant could also have been found guilty on two other bases the use or attempted use of a dangerous weapon by an accomplice, ORS 164.415(1)(b) or the attempted or actual causing of serious physical injury to Kleinberg by an accomplice, ORS 164.415(1)(c). [12] He cites State v. Redeman, 9 Or. App. 329, 337, 496 P.2d 230 (1972), a decision in which the Court of Appeals relied upon State v. Aschenbrenner, 171 Or. 664, 671, 138 P.2d 911 (1943). Compare State v. Thomas, 13 Or. App. 164, 170, 509 P.2d 446 (1973) (holding that theft by receiving statute requires that defendant have actual knowledge that the property is stolen) with State v. Gulbrandson, 2 Or. App. 511, 514, 470 P.2d 160 (1970) (holding that an indictment which charged that the defendant had "reason to believe" a vehicle was stolen was not unconstitutionally vague). See also W. LaFave and A. Scott, Criminal Law § 93, at 686 (1972); C. Torcia, 4 Wharton's Criminal Law § 455, 5-11 (1981). [13] See note 1 supra. [1] Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). [2] The Court also cited Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976) as reaffirming Leland. [3] The Court repeated the point: "If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate." (footnote omitted). Patterson, supra, 432 U.S. at 209, 97 S. Ct. at 2326. This quotation was accompanied by a footnote reference to the American Law Institute's Model Penal Code, which recommends placing the burden on the state to disprove so-called "affirmative defenses" of the kind here at issue, once the defendant has come forward with some evidence of the defense. ALI Model Penal Code § 1.13, Comment, p. 113 (Tent.Draft No. 4, 1955). [4] In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970). [5] Mullaney, supra, n. 1, 421 U.S. at 685, 95 S. Ct. at 1883. [6] Patterson, supra, 432 U.S. at 215, 97 S. Ct. at 2329. [7] Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560, 571 (1979). [8] ORS 163.115(3) (1979) (amended 1981): "(3) It is an affirmative defense to a charge of violating paragraph (b) or (c) of subsection (1) of this section that the defendant: "(a) Was not the only participant in the underlying crime; and "(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof; and "(c) Was not armed with a dangerous or deadly weapon; and "(d) Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and "(e) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death." [9] See, e.g., Judge Breitel's further comments quoted in Patterson, supra, 432 U.S. 211 n. 13, 97 S. Ct. 2327 n. 13. [10] Or.Const., art. I, § 33: "This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people." [11] See, e.g., State v. Glass, 5 Or. 73, 82 (1873) ("The true rule was undoubtedly laid down in the case of Commonwealth v. Webster [59 Mass.] 5 Cush. 295, 296 [1850].... Each fact necessary to the conclusion sought to be established, must be proved by competent evidence, beyond a reasonable doubt"); criminal code of 1864, § 203, Or.L. 1845-64 (Deady, 1866) at 476.

096beafebafadb88d5703ff942870b16575c680444704dbce1e1a8dfab136ffe

1982-10-26T00:00:00Z

c114464e-6358-49f1-9654-f3c72be96a28

In Re Conduct of Adams

293 Or. 727, 652 P.2d 787

oregon

Oregon Supreme Court

652 P.2d 787 (1982) 293 Or. 727 In re Complaint As to the CONDUCT OF Harold ADAMS, Accused. OSB 79-26; SC 28540. Supreme Court of Oregon, In Banc. Argued and Submitted July 15, 1982. Decided October 26, 1982. Asa L. Lewelling, Salem, argued the cause and submitted the brief for accused. Dean M. Quick, Albany, argued the cause for the Oregon State Bar. With him on the brief was Weatherford, Thompson, Brickey & Powers, P.C. PER CURIAM. The Oregon State Bar filed a complaint against Harold W. Adams accusing him of unethical conduct in four separate causes: The Trial Board found Adams not guilty of all four causes of action and recommended that the complaint be dismissed. The Disciplinary Review Board found Adams guilty of the first cause and not guilty of the second cause. On the third cause the Review Board found Adams guilty of violating ORS 9.460(3), but not guilty of DR 7-101(A)(3). The Review Board recommended that the fourth cause be dismissed because it was not set out substantially in the form required by Section 17 of the Oregon State Bar Rules of Procedure.[4] It also recommended that Adams be suspended from the practice of law for a period of 30 days and that he "be required to refund to his former client * * * any sums not ultimately approved in the Workers' Compensation claim * * *." Two members of the six member Disciplinary Review Board filed a separate concurring and dissenting opinion. In it they concurred with the majority's opinion in all respects except that they would find Adams guilty of the second cause of complaint. We find Adams guilty of the first three causes of complaint and order that he be suspended from the practice of law in this state for a period of 60 days. All four causes of complaint result from Adams' representation of William R. Whitt. In August, 1970 Whitt fell 14 feet from a scaffold to the ground injuring his back and left shoulder. Thereafter, Whitt employed Adams to represent him in connection with his Workers' Compensation claim. At first Whitt received an award of permanent partial disability, and in January, 1975, he was awarded permanent total disability. Transamerica Insurance Group was the employer's insurance carrier. On December 29, 1977, the employer requested the Workers' Compensation Board to hold a hearing to determine if Whitt was still permanently and totally disabled. In early January, 1978, Whitt again contacted Adams to represent him. At that time Whitt resided in Salem where Adams had his law office. Adams was concerned that Whitt might be required to carry the burden of proof that he was still permanently and totally disabled because of changes in the Workers' Compensation laws by the legislature in 1977. Adams discussed with *789 Whitt the possibility of bringing a class action to challenge the 1977 statutory amendments. Adams discussed the question of attorney fees generally with Whitt and Whitt's wife, but they executed no written agreement and Adams gave no statement for fees to Whitt. On May 3, 1978, Adams filed a declaratory judgment suit "to test" the 1977 amendments by the legislature to the Workers' Compensation law affecting individuals receiving permanent total disability awards. It was a class action in which Whitt and five other individuals were named as parties plaintiff. The defendants were described in the body of the complaint as the President of the Oregon State Senate, the Speaker of the House of Representatives, the Governor of the State of Oregon, the Chairman of the Workers' Compensation Board, two additional members of the Workers' Compensation Board, and the Director of the Workers' Compensation Department. This class action was referred to in the proceedings before the Trial Board as Whitt v. Boe. After considerable negotiations between Adams and the attorney for Transamerica, a referee for the Workers' Compensation Board, on June 12, 1978, approved a "bona fide dispute" settlement wherein Transamerica was required to pay Whitt the sum of $27,500[5] as "full and final payment" for his injury. On June 27, 1978, Transamerica forwarded to Adams a draft payable jointly to himself and Whitt. Adams had Whitt endorse the draft and delivered to Whitt his trustee check in the amount of $20,725. That amount was computed by subtracting $6,875 (25% of the settlement which Adams claimed as attorney fees) from $27,500. Later in the same day, Whitt's wife contacted Adams to complain about the amount of the attorney fees. It was her understanding that Whitt was to receive $25,000 from Transamerica and that the excess ($2,500) was to be paid to Adams as his fee. On July 7, 1978, Whitt cashed Adams' trustee check. On August 11, 1978, the Workers' Compensation Board by an "Own Motion Order" pursuant to ORS 656.278 set aside the approval by the referee on June 12, 1978 of the "bona fide dispute" settlement between Whitt and Transamerica. The Board concluded that the instrument submitted by the parties for approval was "nothing more than a compromise and release and is prohibited by the provisions of ORS 656.236." In early August, 1978, Whitt hired an attorney in Albany to represent him. On August 29, 1978, the Albany attorney wrote to Adams demanding the refund of the "all attorney fees received pursuant to the disputed claim settlement." On September 6, 1978, Adams replied that he took the position "that the 25% was a reasonable fee and that I am entitled to a reasonable fee." On December 1, 1978, Adams filed a declaratory judgment suit in which he challenged the Workers' Compensation Board order of August 11, 1978 vacating the disputed claim settlement. Adams was the plaintiff and Whitt and Transamerica were named in the suit as defendants. The Court of Appeals found that Adams lacked standing to bring the declaratory judgment suit and dismissed it. Adams v. Transamerica Insurance, 45 Or. App. 769, 609 P.2d 834 (1980). Transamerica filed an action in the Marion County Circuit Court against both Adams and Whitt to recover the attorney fees kept by Adams in the amount of $6,875. On January 30, 1981, Adams, acting as his own attorney, cross-claimed against Whitt seeking $2,500 damages and attorney fees in the amount of $3,000. Adams alleged that because Whitt had initiated a "fruitless" complaint against him with the Oregon State Bar, he had been subjected to "substantial mental anguish and expenditure of time." On June 2, 1981, Adams' *790 counsel amended the answer and eliminated the cross-claim against Whitt. The record in this case does not disclose the ultimate disposition of the class action suit of Whitt v. Boe filed by Adams on behalf of Whitt and others to test the 1977 amendments to the Workers' Compensation law. We also do not know the final disposition of the action filed by Transamerica against Whitt and Adams to recover the $6,875 retained by Adams as attorney fees. In the first cause the Oregon State Bar alleges that Adams charged Whitt an excessive fee in violation of DR 2-106(A) because the Oregon Administrative Rule in effect at that time allowed a fee of only $3,950, so that $2,925 of the $6,875 fee charged was in excess. Adams agrees that the administrative rules in effect at that time provided for an attorney fee of $3,950 on a disputed claim settlement of $27,500, but contends that he did substantial additional work for Whitt which justified the additional fee. The Trial Board found that Adams did in fact do additional work and that Whitt by accepting and negotiating the trust account check agreed to the amount of the fee and the manner of its payment. On the other hand, the Disciplinary Review Board found that the "evidence does not support a finding that the fee collected by [Adams] included agreed fees or charges for services rendered * * * in connection with matters other than settlement of [Whitt's] disputed Workers' Compensation Claim." We make our own independent review of the evidence. In re Chambers, 292 Or. 670, 672, 642 P.2d 286 (1982); In re Galton, 289 Or. 565, 578, 615 P.2d 317 (1980). It seems to be Adams' position that between early January, 1978, when Whitt contacted him in connection with the employer's request for a hearing, and May 3, 1978, when the class action of Whitt v. Boe was filed, he did legal work for Whitt separate and apart from the disputed case settlement which had a reasonable value of $3,000. Adams also seems to say that the additional legal work during that period of time was in preparation for the filing of the class action, but did not include that case once it was filed. Before the Trial Board Adams explained: Adams broke down the additional charge of $3,000 as follows: Adams kept no time records to verify the above hours he estimated. He testified that the law clerks prepared seven different memos none of these are in the record. The Disciplinary Review Board found that the evidence of additional services was "unconvincing and vague." We agree. For example, Adams testified that a certain law student was his "summer intern" and that this work was the clerk's "primary assignment that summer." Someone is confused Whitt contacted Adams during the winter rains in January, the Whitt v. Boe case was filed on the 3rd day of May, and the referee officer approved the disputed case settlement on June 12th before the heat of summer. It is difficult to understand why Adams would charge the sum of $3,000[6] to Whitt *791 alone for the preliminary work that led to the filing of the class action when there were five other plaintiffs. Adams charged all the plaintiffs including Whitt the sum of $200 each for the actual preparation and filing of the complaint. The complaint also requested attorney fees for each plaintiff in the amount of $200. ORS 656.388(1) provides in pertinent part as follows: The parties agree that the referee who approved the disputed claim settlement on June 12, 1978 approved attorney fees in only general terms and not in a specific amount. The obvious purpose of ORS 656.388(1) is to protect the worker from excessive attorney fees. The fact, standing alone, that Adams charged 25% of the amount of the disputed claim settlement as attorney fees supports a strong inference that he intended to charge the full amount to his work in connection with the settlement to the exclusion of any other alleged services. For the foregoing reasons we find by clear and convincing evidence that the attorney fees charged by Adams were clearly excessive and that he is guilty of the first cause of complaint. In the second cause the Bar alleged that Adams had intentionally prejudiced and damaged his client (Whitt) in violation of DR 7-101(A)(3) by filing suit for declaratory judgment seeking to have the Circuit Court declare the order of August 11, 1978 by the Workers' Compensation Board invalid and reinstate the referee's order of June 12, 1978. Adams answered that he filed the suit for a declaratory judgment in his own name against Whitt and Transamerica because: The Trial Board found that Adams was not guilty of the second cause because the attorney-client relationship with Whitt had terminated prior to the filing of the suit for a declaratory judgment. Four members of the Disciplinary Review Board in a majority opinion agreed with the Trial Board. Two members of the Disciplinary Review Board filed a concurring and dissenting opinion which in part is as follows: We agree with the dissenting opinion filed by two members of the Disciplinary Review Board. DR 7-101 in effect provides: In the case of In re Drake, 292 Or. 704, 642 P.2d 296 (1982), the attorney Drake was accused of borrowing the sum of $10,000 from his client, Gallagher, in violation of several Disciplinary Rules. Before the Trial Board Drake consistently contended that at the time the loan was made the relationship of attorney and client did not exist because the previous employment had terminated. This court found that the relationship of attorney and client did in fact exist and quoted from the Disciplinary Review Board in that case as follows: We think that the dissent filed with the Disciplinary Review Board in this case hit the nail on the head when it made a distinction between "professional employment" and "professional relationship." A lawyer owes a duty to a client in the context of a "professional relationship" long after the "professional employment" has terminated. For example, the lawyer cannot reveal privileged communications after the termination of his or her employment by the client or use secrets he gained through the employment. Just as a lawyer may not undertake litigation for a subsequent client which, if successful, might reasonably impose liability on a former client by reason of a transaction in which the lawyer represented the former client, a lawyer may not undertake such litigation for himself. In re Nicholas D. Zafiratos, 259 Or. 276, 486 P.2d 550 (1971).[7] We find by clear and convincing evidence that Adams intentionally damaged Whitt during the course of a professional relationship by filing the suit for a declaratory judgment seeking to set aside the Workers' Compensation Board's order of August 11, 1978. The suit was contrary to the position of Whitt. Mrs. Whitt testified that the new attorney from Albany employed by her husband called the Workers' Compensation Board and requested that the hearing officer's order of June 12, 1978 be cancelled. Whitt was forced to hire a lawyer to defend the declaratory judgment suit in the Circuit Court and to appeal to the Court of Appeals. Adams v. Transamerica, supra. This was not the type of case that was filed in anger on short notice. The Workers' Compensation Board order was *793 entered on August 11, 1978 and the declaratory judgment suit was not filed until December 1, 1978. If Adams' only concern, as indicated by his answer, was to determine whether Whitt or Transamerica was entitled to the $6,875, he could have merely pleaded the money into court. The conclusion is inescapable that Adams was trying by the declaratory judgment suit to gain court approval of the attorney fees in the amount of $6,875 to the complete disregard of Whitt's long term welfare.[8] We therefore find Adams guilty of the second cause of complaint. In the third cause of complaint the Bar alleged that Adams, by filing a counterclaim against Whitt seeking to recover damages and attorney fees because Whitt had filed a complaint against Adams with the Oregon State Bar, was in violation of DR 7-101(A)(3) and ORS 9.460(3). The counterclaim filed by Adams was in an action filed by Transamerica against Adams and Whitt seeking to recover on the basis of money had and received the sum of $6,875 retained by Adams as attorney fees from the sum of $27,500 paid by Transamerica pursuant to the disputed case settlement approved by the referee on June 12, 1978. The counterclaim was filed on January 30, 1981 and in part provided: The counterclaim of Adams was withdrawn when an amended answer was filed on June 2, 1981. The Trial Board found Adams not guilty of the third cause of complaint because: (1) ORS 9.550(3) provided Whitt with a defense to the counterclaim for damages, (2) the filing of the counterclaim did not occur "during the course of the professional relationship," and (3) ORS 9.550(3) does not provide a basis for the violation of the Disciplinary Rules. All six members of the Disciplinary Review Board found that Adams was guilty of violating ORS 9.460(3), but not guilty of violating DR 7-101(A)(3) as the conduct did not occur during Adams' representation of Whitt. ORS 9.550(3) provides: ORS 9.460(3) provides: ORS 9.550(3) gives an absolute privilege, except for perjury, to complaining witnesses and parties in disciplinary proceedings. Because of the absolute privilege the counterclaim simply was not available to Adams and could not be a legal claim under ORS 9.460(3). As the Bar has pointed out in its brief in this court, the issue is not whether Whitt can answer the counterclaim with a valid defense but whether Whitt should be held to answer in any proceedings for filing a complaint with the Oregon State Bar against Adams, short of perjury. The fact that Adams filed an amended answer and thereby withdrew the crosscomplaint does not change matters. For the period of January *794 30, 1981 to June 2, 1981, Whitt was held to answer by the counterclaim this may have cost him some additional attorney fees and caused him some mental anguish of the type that Adams had complained about. We find by clear and convincing evidence that Adams is guilty of the third cause of complaint because he violated ORS 9.460(3) by filing the counterclaim. He therefore is guilty of wilful misconduct and subject to suspension under ORS 9.480(4). Because of the result we reach on the third cause of complaint, we find it unnecessary to decide if Adams violated DR 7-101(A)(3) by filing the counterclaim against Whitt. We find that Adams is not guilty of unethical conduct in the aggregate as charged in the fourth cause of complaint. We do not decide whether the form of the fourth complaint substantially complies with Section 17 of the Oregon State Bar Rules of Procedure. The Disciplinary Review Board recommended that Adams be required to refund to Whitt "any sums not ultimately approved in the Workers' Compensation Claim." We do not accept that recommendation because that matter is currently being litigated in the case of Transamerica v. Adams and Whitt. It is ordered that Adams be suspended from the practice of law in this state for a period of 60 days. Costs awarded to the Oregon State Bar. [1] "DR 2-106 Fees for Legal Services. "(A) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee." [2] "DR 7-101 Representing a Client Zealously. "(A) A lawyer shall not intentionally: "(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B). [3] "DR 1-102 Misconduct. "(A) A Lawyer shall not: "(5) Engage in conduct that is prejudicial to the administration of justice." [4] "Section 17. Form of Formal Complaint in Disciplinary Proceedings. (Effective September 21, 1976) A complaint in a disciplinary proceeding shall be in substantially the following form: * * * * * * "The aforesaid conduct and course of conduct of the Accused, alleged hereinabove in causes first to and including ____ of this complaint, taken in the aggregate, was and is detrimental and prejudicial to the honor, integrity and standing of the profession of lawyer, the practice of law and the administration of justice in this state and was and is subversive to the public interest; it constituted and constitutes conduct rendering the Accused unfit to practice law in this state; and it was and is such conduct, in breach of the standards and rules of professional conduct established by law and by the Oregon State Bar, that, if the Accused were now applying for admission to practice law in this state, or for admission to the Oregon State Bar, his application should be denied." (Underscoring added.) The above underscored portions of Section 17 were omitted from the fourth cause of complaint. The phrase "in violation of Disciplinary Rule 1-102(A)(5);" was added following the words "prejudicial to the administration of justice in this state." [5] The joint petition of the parties recited that a bona fide dispute existed because one medical doctor was of the opinion that Whitt was "capable of physically performing work of a sedentary nature" while another doctor said that Whitt was "totally disabled and unable to work." [6] The actual amount charged by Adams for this "additional work" was the sum of $2,925 or the difference reached when the $3,950 is subtracted from $6,875. [7] This would not include a situation where the attorney was suing to collect his attorney fees. [8] At the time of the hearing before the Trial Board Whitt was again receiving permanent total disability payments from Transamerica with some sort of an arrangement to repay the lump sum received in June, 1978 as a result of the disputed case settlement.

04e99e7eeae94b1ee6de111d7d71ca9eb6e9fd4a6cc2192e032574286ed15bec

1982-10-26T00:00:00Z

1c0570fd-bead-429d-994f-b01e6ac2cab6

Application of Bevans

294 Or. 248, 655 P.2d 573

oregon

Oregon Supreme Court

655 P.2d 573 (1982) 294 Or. 248 In the matter of the APPLICATION OF Russell D. BEVANS for Reinstatement As an Active Member of the Oregon State Bar. No. SC 28036. Supreme Court of Oregon, In Banc. Argued and Submitted December 6, 1982. Decided December 21, 1982. Richard E. Miller, Eugene, argued the cause for applicant. With him on the briefs was Hershner, Hunter, Miller, Moulton & Andrews, Eugene. Paul D. Clayton, Eugene, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM. This is a proceeding upon an application for reinstatement to membership in the Oregon State Bar. On July 10, 1981, applicant *574 was convicted upon his guilty plea of a misdemeanor involving moral turpitude. The next day he informed the Supreme Court by letter. On October 14, 1981, this court summarily suspended applicant from the practice of law pursuant to Section 4, Rules of Procedure.[1] Within the month, applicant applied for reinstatement. Pursuant to ORS 9.525, the court directed that the matter be heard by a trial board and then, pursuant to ORS 9.535, reviewed by the disciplinary review board.[2] After an extensive hearing by the trial board we have the benefit of fully developed facts as well as especially thoughtful majority and separate opinions from both the trial board and the disciplinary review board. All agreed that the applicant should be reinstated after a period of suspension. They disagreed as to the length of suspension adequate for an appropriate sanction. Because reinstatement proceedings are infrequent and there has been some procedural uncertainty in the course of this proceeding, we first address certain procedural aspects of the case. It is important to recognize that a Section 4 suspension for conviction of crime is a discrete proceeding. It is not and should not be confused with a disciplinary proceeding. Section 6 expressly states the existence of a Section 4 suspension does not preclude a disciplinary proceeding. Such a suspension, like that in a disciplinary proceeding, is for the protection of the public, but a Section 4 suspension is indefinite whereas a disciplinary sanction can be for a term. A suspension under Section 4 ends only if the member is reinstated by action of the court. (The current version, Section 4(e), provides for suspension "until further order of the court.") Section 18, now applicable to reinstatements following Section 4 suspensions, states rules which were applicable to this proceeding only as a matter of general principle. It requires that a suspended member seeking reinstatement must do so by formal application. Section 18(b) specifies that the applicant must show that "he or she has good moral character, general fitness to practice law and that his or her resumption of the practice of law in this state will not be detrimental to the administration of justice or the public interest."[3] At a hearing upon an application, the burden is upon the applicant, because if no showing is made, the suspension would continue indefinitely. The applicant must prove that the allegations in the application regarding his or her present moral character and fitness are true. The grounds of the suspension are not placed in issue by the application except as they may reflect upon the applicant's present state.[4] If the applicant successfully makes a showing, the application for reinstatement *575 is to be allowed and the suspension terminated; if not, the application is to be denied and the suspension continued. Conceivably, a termination may be conditioned, but we need not decide that in this case. Here, the application is not in the words of the rule, but the allegations embody the same notions. Applicant's evidence persuades us that the averments of his application are true. Although the crime for which he was convicted unquestionably involved moral turpitude, we are persuaded that it does not reflect upon his present moral character and fitness. It arose from his personal rather than professional life. Applicant recognized the wrongfulness of his unlawful conduct and discontinued it a year before it was reported. He has dealt forthrightly and constructively with his problems, never minimizing them or casting responsibility upon others. In this respect, compare In re Easton, 289 Or. 99, 610 P.2d 270 (1980), with In re Jolles, 235 Or. 262, 383 P.2d 388 (1963). Psychological counseling has been effective. The extraordinary degree of positive intervention and monitoring by the applicant's church, combined with the applicant's wholehearted participation, has been an unusually effective resource in this case. Except for this transgression, applicant's record as a member of his family, his church and his community has been exemplary. We accept his colleagues' and clients' estimates of his competence and trustworthiness in the practice of law. Viewed in that context, applicant's crime appears to have been an uncharacteristic act, the like of which is unlikely to recur. We find that it no longer reflects adversely upon applicant's ability to practice law. The Bar, the trial Board and the disciplinary review board dwelt on applicant's post-suspension conduct. In several respects, such as the continued use of the applicant's name on the outdoor sign and letterhead of the firm, the applicant's separation from the practice of law was less than complete. Since then, the applicant has completely detached himself from his law firm. We are persuaded that the earlier acts occurred because applicant and members of his firm believed that the suspension would be temporary and shortlived. They did not anticipate the protracted proceeding that this has become. Although we do not approve of applicant's failure to completely sever himself from his practice, we do not find that his conduct in this respect reflects adversely upon his present moral character and fitness to practice law. We find that the applicant is presently possessed of good moral character and is generally fit to practice law. We further find that his resumption of the practice of law will not be detrimental to the administration of justice or the public interest. Application for reinstatement allowed. No costs awarded. [1] At the time of the suspension, Section 4 provided: "If it appears to the court that a member has been convicted of a misdemeanor involving moral turpitude or of a felony, the court may suspend such member summarily. * * Rules of procedure relative to discipline do not apply to a suspension under this rule. The suspension continues until the former member is reinstated by the court. * * *" Section 4 was amended on May 14, 1982, and now provides for a more elaborate procedure with the option of initiating a related disciplinary proceeding. [2] At times relevant to this matter, no rule governed proceedings on an application for reinstatement by a person suspended under Section 4, Rules of Procedure. Sections 18, 20 and 21 have since been amended to include this class of applicant and to allow expeditious rulings on applications for reinstatement with a hearing at the option of an applicant. [3] ORS 9.220(2)(b) defines "good moral character" as that term applies to Supreme Court suspensions under ORS 9.480: "* * * `[G]ood moral character' means conduct not restricted to those acts that reflect moral turpitude, but rather extending to acts and conduct which would cause a reasonable person to have substantial doubts about the individual's honesty, fairness and respect for the rights of others and for the laws of the state and the nation. The conduct in question should be rationally connected to the applicant's fitness to practice law." [4] Section 4 now provides a procedure to be followed if the suspended person wishes to challenge the validity of a proposed suspension. In this case there was no question but that the misdemeanor involved moral turpitude and that the applicant was the person so convicted.

198f4bf78ffd221d01913016c393d729c5c5f42fa43c857b9c43a231e65ac773

1982-12-21T00:00:00Z

d8fa0873-846c-46fc-bd64-3e4c623cd8cd

Matter of Marriage of McDonnal

293 Or. 772, 652 P.2d 1247

oregon

Oregon Supreme Court

652 P.2d 1247 (1982) 293 Or. 772 In the matter of the Marriage of Deanna I. McDonnal, Petitioner On Review, and Frederick J. McDonnal, Respondent On Review. CA 18841; SC 28363. Supreme Court of Oregon, In banc.[*] Argued and Submitted May 5, 1982. Decided November 2, 1982. James W. McClurg, Portland, argued the cause for petitioner on review. With him *1248 on the brief was Kennedy, King & McClurg, Portland. Ira L. Gottlieb, Portland, argued the cause for respondent on review. On the brief were Chris P. Ledwidge and Ledwidge & Ledwidge, Portland. ROBERTS, Justice. In this dissolution of marriage case, wife seeks review of a Court of Appeals decision finding that there was no change of circumstances warranting an extension of spousal support. We allowed review to examine the effect to be given property settlement agreements between the parties which have been incorporated into dissolution decrees and which provide for future review of spousal support by the court. We take the facts from the Court of Appeals opinion. The Court of Appeals reversed the trial court, stating "the trial court correctly concluded that the reviewability language in the decree was surplusage," 54 Or. App. at 301, 634 P.2d 1357, and finding that wife had We agree that there was not sufficient evidence of a substantial change of circumstance. The question, therefore, is whether a trial court may modify a decree of dissolution so as to give effect to an agreement of the parties, incorporated into the decree, that an award of spousal support for a fixed period of time may be reviewed without the requirement of a showing of changed circumstances. This requires consideration of the general enforceability of private agreements between parties to a dissolution and the application of the "changed circumstances" rule to modification of such agreements. The Court of Appeals opinion fails to recognize a significant provision in the decree. The decree specifically states "that the oral settlement agreement of the parties should be approved and the same is hereby approved and made a part of this decree." It is that language coupled with the language "[T]he matter of alimony may be reviewed by the court at the expiration of three years * * *" that is the pivotal point of this case. ORS 107.105(1)(c) provides: This statute provides two separate methods for establishing the amount and duration of spousal support. The parties may enter into a property settlement agreement providing for spousal support which the court may approve and ratify by incorporating it into the decree, or the court may itself determine the appropriate amount and duration of spousal support based on the evidence presented. In the second case, the court shall apply the factors set out in the statute. A court is not required to accept an agreement between the parties, Unander v. Unander, 265 Or. 102, 107, 506 P.2d 719 (1973); Frey and Frey, 23 Or. App. 25, 541 P.2d 145 (1975). It may, upon consideration, reject an agreement as unfair to one or the other of the parties. Bach and Bach, 27 Or. App. 411, 555 P.2d 1264 (1976).[1] However, agreements made in anticipation of a dissolution are generally enforceable and accepted by the court when they are equitable given the circumstances of the case. Jensen v. Jensen, 249 Or. 423, 438 P.2d 1013 (1968); Prime v. Prime, 172 Or. 34, 139 P.2d 550 (1943); Taylor v. Taylor, 154 Or. 442, 60 P.2d 942 (1936). We do not read the statute to require the court to apply an analysis of the statutory factors to the circumstances of each case when confronted with a proposed agreement. There are very good reasons to allow courts to accept agreements at face value without the requirement that evidence be taken in an attempt to "match-up" the agreement provisions with the statutory factors. First, the enactment of the so-called "no fault" divorce law in 1971 addressed in part a legislative concern with the growing number of divorce cases and the excessive use of court time in litigating cases under the then existing fault provisions. It was thought that if fault were not in issue much litigation could be avoided. In addition, the desirability of removing divorce proceedings from the adversarial process was often expressed. It was anticipated that a non-adversarial, "no fault" procedure would encourage parties to settle their disputes as amicably as possible. Hearings on House Bill 1239 before the House Judiciary Committee, February 17, 1971 and Senate Judiciary Committee, April 5, 1971. These two objectives, decreased litigation and dispute resolution through agreement at the initiation of the divorcing parties, are most effectively advanced when proposed property and support agreements are accepted by the court and incorporated into the dissolution decree without a requirement for the presentation of evidence. Once approved by the court and incorporated into the decree, agreements entered into by the parties are to be enforced as a matter of public policy. Additional considerations bear upon our affirmance of a policy of enforceability of agreements between divorcing parties. In cases where a support agreement has been incorporated into the decree in lieu of an evidentiary hearing and factual determination by the court the agreement itself is the court's only measure of the equities between the parties. The parties' own resolution of their dispute should be accorded great weight. In all cases of dissolution the court exercises full equity powers. ORS 107.405. Where parties have foregone their opportunity to litigate disputes and have chosen instead to enter into an agreement their reliance on the agreement can be presumed. Inequity may result if this court adopts a policy of less than full enforcement of mutually agreed upon property and support agreements. We do not suggest that a property settlement providing for spousal support may go so far as to preclude the court's statutory power to modify support even where changed circumstances exist. Prime v. Prime, supra, would disallow enforcement of such a provision. However, short of conflict with the statutory powers of the court we recognize the court's responsibility to discover and give effect to the intent of the parties as reflected in the incorporated settlement agreement. In Prudential Insurance Company v. Weatherford, 49 Or. App. 835, 621 P.2d 83 (1980), an ambiguity existed as to the intent of the parties in providing for life insurance benefits in the property settlement incorporated into the decree. It was acknowledged that "in construing the effect of property settlement agreements, as with any contract, the inquiry is directed to the ascertainment of the intent of the parties." 49 Or. App. at 839, 621 P.2d 83. In Waterman v. Armstrong, 291 Or. 551, 633 P.2d 774 (1981), this court construed a disputed paragraph in an incorporated property settlement agreement providing for payment of medical benefits for one of the children. A determination of the intent of the parties was reached by consideration of "the circumstances under which [the agreement] was made, the testimony of the draftsman and the parties, and the entire instrument." 291 Or. at 558, 633 P.2d 774. The preceding cases demonstrate that provisions of a property settlement agreement are interpreted by courts like any other contract. Questions relating to the construction, operation, and effect of property settlement agreements between a husband and wife are governed, in general, by the rules and provisions applicable in other contract cases. As in all contract disputes, resolution depends upon the intent of the parties as evidenced by the language of the document, or, where ambiguity exists, by extrinsic evidence. ORS 41.740. The language of the decree we are concerned with here provided that wife was to receive spousal support for only three years with the added provision that the court would review the support at the end of that time, and it provided that husband would be obligated to pay support for only three years with the court reviewing that obligation at the end of the period. Neither party appealed. Wife did not appeal the three year limitation and husband did not appeal the retention of jurisdiction by the court to review the support. Husband informs us that the dispute as to support duration was only finally resolved on the day of trial. It seems evident that wife would not have accepted support for only three years without the reviewability provision; similarly, it seems likely that husband was willing to accept the reviewability provision in return for his obligation to pay support for only a limited time. *1252 Husband contends that the reviewability provision of the decree merely states the language of ORS 107.135 providing for modification. He relies on Warrington v. Warrington, 160 Or. 77, 80, 83 P.2d 479 (1938) and Prime v. Prime, supra, for the proposition that any agreement of the parties regarding support was made in view of the court's statutory power of modification. In both cited cases plaintiffs sought to preclude any modification and it was held the court's power to modify support awards outweighs any agreement entered into between the parties, whether or not such agreement was incorporated into the decree. However, the dispute in the case before us does not center on the enforceability of a preclusion of the court's power to modify but addresses rather the enforceability of a provision in the parties' agreement providing modification to support without a showing of a change of circumstances. Wife's affidavit in support of the modification motion states that This language indicates that it was wife's understanding of the decree that no change of circumstances was required for the court to review the support and continue it at the amount set in the decree. In her memorandum in support of her petition for review, wife presents the two issues of continuation and increase as distinct. She contends that after three years the alimony provisions of the decree were to be reviewed to determine if wife's physical condition were such that support should be continued; but in order for support to be increased above the level already established, it was incumbent upon wife to show a substantial change of circumstances. Grove and Grove, 280 Or. 341, 571 P.2d 477, modified 280 Or. 769, 572 P.2d 1320 (1977). The parties thus are in disagreement as to the effect of the language in the decree. The factual question is whether the parties, by inserting this provision into the decree, meant merely to state the jurisdiction of the court as it already exists by statute, or whether they meant to provide an authority not already existing but within the court's powers. As was stated in Bakke v. Bakke, 30 Or. App. 345, 349, 567 P.2d 126 (1977), "assuming that here the court at the time of entry of the decree gave thought to the issue and decided to adopt the parties' language, we assume that it used the phrase * * * advisedly and with intent to give meaning to it." In the present case, it was not necessary to state the court's authority to modify the alimony award at any time, since this authority is statutory. In the absence of any language in the decree relating to review of the support provisions it would be proper to apply ORS 107.135 and the changed circumstances rule to any modification and to assume that if the parties considered the potential for modification this is what they intended. However, in light of the specific review provision, we are not convinced that this is what the parties or the court intended in this case. Though we do not have the dissolution court record before us, we believe the language of the decree is ambiguous. At the modification hearing the judge remarked, It is, in fact, so surprising that we are reluctant to read the decree in that manner. We conclude that the agreement to pay spousal support for three years could have been dependent upon the provision that the court could review the support award at the end of that time. If that is the case, it is necessary for us to consider whether under those circumstances the court's decision at the time of the modification hearing was subject to the changed circumstances rule. ORS 107.135(1)(a) provides: This statute, while granting the court the power to set aside, alter or modify the support provisions of a decree at any time after dissolution, does not specifically require a showing of changed circumstances. It is a rule of case law, not statutory law, that the party seeking the modification bears the burden of showing a substantial change in circumstances since the original decree. Prime v. Prime, supra; Grove and Grove, supra. The rule has become so well established that this court said almost thirty years ago that it had "become hornbook law in this state." Feves v. Feves, supra, 198 Or. at 159, 254 P.2d 694. The purpose of this rule has been said to be the avoidance of relitigation of matters settled by the final decree. H. Clark, Law of Domestic Relations 456 (1968). However, the Court of Appeals has noted that the changed circumstances rule Deffenbaugh is a case in which the trial court, entering a dissolution decree, desired to keep the issue of custody open for several months to determine whether the mother would go through with her plans for remarriage. The decree granted temporary custody of the children to the husband, the court intending to award permanent custody to the mother if she remarried by a specified date. If that event were to occur, the court said, wife would not have to show any other change of circumstances to obtain permanent custody. 286 Or. at 763, 596 P.2d 966. At a subsequent hearing on wife's motion to modify the decree, the court awarded her the children. Husband objected that the court had erred in failing to hold a hearing to determine if there had been a substantial change of circumstances after the initial temporary custody award which justified a change of custody. 286 Or. at 764, 596 P.2d 966. This court said, "If an award is permanent, the change of circumstances rule applies when someone seeks a change of custody. If an award is temporary, and validly so, the rule does not apply." 286 Or. at 765, 596 P.2d 966. We refused to recognize as permanent an award of custody "that was intended by the trial court to be temporary." 286 Or. at 770-71, 773, 596 P.2d 966. Since the trial court had never decided the issue of permanent custody, we said it would be unfair for it to do so in the first instance with the wife "laboring under the disability of having to show a change of circumstances since the trial of the case," 286 Or. at 774, 596 P.2d 966, and removed the requirement of such a showing on remand. In Perley we held that where the trial court had properly provided in its decree that permission might be granted to wife to move to another state and take children with her after due notice to husband, it was not necessary to show a change of circumstances as a condition precedent to making an order modifying the decree to authorize such a move. The Court of Appeals in Eusterman held that the requirement of proof of changed circumstances is inapplicable to the question of modifying child support so as to extend it to children over the age of 18 who are regularly attending school while the children are still so young as not "yet to be in or on the threshold of college." 41 Or. App. at 727, 598 P.2d 1274. The Court of Appeals, reversing the trial court in this case, relied upon its opinion in Slauson and Slauson, 29 Or. App. 177, 562 P.2d 604 (1977) in which it invalidated a provision in a dissolution decree permitting the wife to request a review of alimony at any time without a showing of a substantial change in circumstances, finding such a provision "without legal authority." 29 Or. *1254 App. at 183.[2]Slauson cited for this proposition our opinions in Watson v. Watson, 213 Or. 182, 323 P.2d 335 (1958) and Hurner v. Hurner, 179 Or. 349, 170 P.2d 720 (1946). Watson, however, was an award of temporary custody of a child to juvenile authorities because the court refused to give permanent custody to either parent. In Hurner the court considered an agreement of the parties which purported to settle property distribution and alimony. The court held that alimony was not an integral part of the property settlement and was subject to modification on a showing of changed circumstances. Review by this court was not sought in Slauson, and in the only Court of Appeals opinion relying on Slauson to apply the changed circumstances rule that reasoning was rejected by this court on review. Deffenbaugh, supra. Here we are faced with a situation different from Slauson. There was no agreement in Slauson; the court on its own initiative provided in the decree that the wife could request a review of the provisions at any time without a necessity of showing a change of circumstances. The Court of Appeals said, "* * * the court should seek a high degree of finality so that the parties can plan their future with some certainty and are not encouraged to repeatedly march to the courthouse." 29 Or. App. at 183, 562 P.2d 604. In the present case, while it is not clear from the record, the reviewability provision of the court's decree appears to have originated with the parties. If it did, this is a significant difference. This court has recognized and the Court of Appeals has applied a dissimilarity in treatment between provisions in property and support settlement agreements which are imposed by the court and those which arise at initiation of the parties. Grove v. Grove, supra, note 12a, at 356, 571 P.2d 477; Weseman v. Weseman, 51 Or. App. 675, 626 P.2d 942 (1981); Desler v. Desler, 56 Or. App. 812, 643 P.2d 655 (1982). Because wife suffers from multiple sclerosis, a disease known for its unpredictability of progression or remission, it may be that the parties agreed to postpone the decision on permanent spousal support until a future time when wife's condition might be more permanently diagnosed. If that is the case it would be unfair, as it was in Deffenbaugh, supra, for wife to establish the need for permanent support laboring under the disability of having to show a change in circumstances. We do not intend this decision to in any way dilute the importance of the change of circumstance rule. We have pointed out that there are significant reasons for courts to accept agreements entered into by parties to a dissolution; we have also pointed out that trial courts are not obligated to accept agreements and that equity dictates that courts should, in fact, reject agreements that appear unfair. Only under the most extraordinary circumstances which justify departure from the change of circumstance rule should a court enter a decree that incorporates an agreement for future review. A court should never on its own provide for a review in the future. The use of such language cannot be a substitute for the duty of the court to examine at the dissolution proceeding the fairness of any agreement between the parties, either through application of the statutory factors set forth in ORS 107.105(1)(c) or by exercise of its independent judgment in light of the parties' circumstances at that time. In the trial court wife proceeded on the basis of two claims: One, that the court could extend spousal support without a showing of changed circumstances because of the provisions of the decree, and two, that there had, in fact, been a change of circumstances. The court thought it was precluded from considering the first claim and decided the case on the basis of *1255 changed circumstances. Because the trial court has not had an opportunity to address the first claim this case is remanded for that purpose. The inquiry on remand is whether the oral property settlement included the provision for post-decree review by the court. If the provision arose at the initiation of the parties then it should be made effective. The only way the question can be resolved is by a determination of the intent of the parties. The proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the agreement bearing on the intent of the parties. For that reason we remand to the trial court for further proceedings. Reversed and remanded to the trial court for further proceedings. Costs to neither party. TANZER, Justice, dissenting. I dissent for the reasons stated in the opinion of the Court of Appeals. Additionally, I offer these general comments. If ever a hard case made bad law, this one has. The court's sympathy for wife's plight leads it to carve a gap into the change-of-circumstances rule, supported neither by experience nor persuasive reason. Any practitioner or domestic relations judge will recognize as unwise this qualification of a rule which is rooted in experience and is a fundament of domestic relations law in Oregon and elsewhere. I take at face value the concluding avowal that the holding is applicable only in unique situations. So unique, I expect, that McDonnal and McDonnal will be cited in future cases only in obligatory footnotes preceded by "cf" or "but see." Even in dissent, I wish to emphasize that the majority disfavors reliance on review provisions. For this court to allow parties and trial courts to defer decision of difficult disputes in order to obtain a present settlement agreement is antithetical to the entire notion of adjudication. I take small solace in the majority's holding that it will only apply such a provision in exceptional situations. A case can be made that wife's health has deteriorated since the decree, contrary to the hopes (rather than reasonable expectation) of the trial judge. Even so, however, her earning capacity, being nil, has not deteriorated. The argument for a change is not persuasive and it affords no basis to modify husband's decreed transitional burden into a lifelong one. It is not necessarily inequitable to require wife to look to other resources for her support. It is surely a wiser course than to tamper with a universally recognized, sound rule of law. CAMPBELL, Justice, dissenting. I dissent. It is my opinion a trial "anew upon the record" as provided by ORS 19.125 would show that there was a substantial change in the wife's circumstances since the entry of the dissolution decree. Therefore I would reverse the Court of Appeals and affirm the trial court without a remand. It is not necessary to reach the questions decided by the majority opinion. [*] Denecke, C.J. retired June 30, 1982. [1] In Bach, the court modified a property settlement agreement entered into by the parties before incorporating it into the decree. The court adjusted the property division in husband's favor because he suffered from multiple sclerosis and would be unable to maintain employment. [2] The Court of Appeals, in this case, termed the three years of alimony "temporary support" and noted that wife did not appeal this provision nor petition for permanent support. 54 Or. App. at 299, note 1, at 298, 634 P.2d 1357. Wife understandably did not appeal because the three year condition was a term agreed upon by the parties in their own settlement agreement. We disagree that wife did not seek permanent support. Her petition for dissolution of marriage requested husband to pay $600 per month alimony. This is clearly cognizable as a request for permanent support, without being specially pleaded.

ed53435bb5c0be06ae4c82000a8609a46384ffca1bb095857e23a5c95329a973

1982-11-02T00:00:00Z

85df5944-1027-4953-84ba-eb6adfe3a8b0

Application of Liberman

293 Or. 457, 650 P.2d 83

oregon

Oregon Supreme Court

650 P.2d 83 (1982) 293 Or. 457 In the matter of the APPLICATION OF Jeffrey Frank LIBERMAN, for a Writ of Habeas Corpus. Jeffrey Frank Liberman, Plaintiff, v. David Burks, Sheriff of Lane County, Defendant. No. SC 28833. Supreme Court of Oregon, In Banc. Argued and Submitted July 27, 1982. Decided August 24, 1982. *84 Ross M. Shepard, Asst. Director, Public Defender Services of Lane County, Inc., Eugene, argued the cause and filed the petition for plaintiff-relator. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for defendant. PETERSON, Justice. This original habeas corpus proceeding was filed in this court pursuant to Article VII, section 2, (Amended) of the Oregon Constitution on July 23, 1982. The plaintiff, an inmate of the Lane County Jail, is in the custody of the defendant, the Lane County Sheriff. Plaintiff contends that he should be released because the security amount set for his release, $3 million, is excessive in violation of his rights under ORS 135.230 135.295, Article I, section 16, of the Constitution of Oregon and amendment VIII to the Constitution of the United States. The writ issued on July 23, 1982 (ORS 34.370), and pursuant to the writ, the defendant produced the plaintiff before this court on July 27, 1982 (ORS 34.420), at which time the court inquired into the circumstances of plaintiff's imprisonment (ORS 34.580). We found that the plaintiff was illegally restrained of his liberty because the security amount was excessive and ordered that plaintiff be released from custody at 2:00 p.m. on the following day, July 28, 1982, unless in the interim another release decision had been made which was "reasonably designed to assure the plaintiff's appearance within the criteria of ORS 135.245, 135.250, 135.260, and 135.265." This opinion is in explanation of the court's disposition of the matter. Plaintiff was arrested in Lane County, Oregon, on June 26, 1982, and charged with the crimes of Unlawful Possession of a Controlled Substance, ORS 475.992 (a Class C Felony) and Conspiracy to Deliver a Controlled Substance, ORS 161.450, ORS 475.992 (a Class B Felony). Following plaintiff's completion of a security release questionnaire, a Lane County custody release assistance officer[1] set the security amount for the plaintiff at $3 million (which would require, under ORS 135.265, a deposit of "10 percent of the security amount," $300,000, to obtain plaintiff's release). Plaintiff's motion for release on recognizance, ORS 135.245(3), or, in the alternative, for a conditional release, ORS 135.260, was denied, and the security amount was not reduced. During the hearing on plaintiff's motion for release the judge stated: *85 Although the circuit court's conclusion that a security release was appropriate and necessary was permissible under the statute and the record, as we explain below, the security amount of $3 million was in excess of the minimum "amount that will reasonably assure the defendant's appearance," ORS 135.265(1). ORS 135.245 provides: Those statutory provisions "are premised upon Oregon Const.Art. I § 16: `excessive bail shall not be required * * *.'" Proposed Or.Crim.Proc. Code 139, Commentary, § 240 (1972). The commentary to the proposed code states that the Oregon Constitution, Article I, section 14, "requires that `Offences [sic] except murder, and treason, shall be bailable by sufficient sureties.'" Id. The commentators explained ORS 135.245 as follows: The security release of a defendant is governed by the provisions of ORS 135.265: As to ORS 135.265, the drafters of the proposed criminal procedure code stated: *87 We have before us the petition for a writ of habeas corpus, which included by reference the district attorney's information, a police report, the security release questionnaire (which included a financial statement), and the affidavit of plaintiff's attorney. The defendant, in his return, does not controvert any of the facts contained in those documents. Appended to the defendant's return was a copy of a transcript of proceedings. These documents comprise the record in this case, to which we turn in examining the facts concerning the cause of the plaintiff's imprisonment. ORS 34.580. Plaintiff is 39 years old with a "doctorate" in pharmacy and he was honorably discharged from the Army Medical Service Corps. He has no prior criminal record, although he was incarcerated for 39 months in Peru on a cocaine trafficking charge of which he was never convicted. Before his arrest he was not uncooperative and freely admitted that he was to have received $2,500 for setting up a drug transaction between two other persons. His recent employment record is sporadic. He claims that he was either employed or had been offered employment in Southern California just before his arrest. His attorney represented that plaintiff, if released, would live with either his father or a long-time friend in California while awaiting trial. The security release questionnaire executed by plaintiff, under oath, shows that his total income for 1981 was $2,200, with approximately the same amount in 1982. His total assets, including a tax refund due but unpaid, were less than $1,000 and he reported that he had less than $200 cash with which to secure his release. Applying the release criteria of ORS 135.230(6) to the facts, we reach these conclusions: The plaintiff's previous employment status was not stable. Although he claimed to be employed, his most recent employment began in June, 1982, and the job that he had before then lasted less than two months. He had very little income during 1981 and 1982. He has no close family relationships in Oregon, and there is little evidence of close family relationships elsewhere. He had no fixed residence of any duration. He was unsure of his present address. On his questionnaire he described his address as "610 or 615 (?) Rossmore, Hollywood, Calif." He had lived there for six weeks. He had been in Oregon for but two days. He listed no persons who might assist him in attending court at the proper time, and he had no strong ties to the community. He was charged with two felonies, felonies which, if guilt is found on both, and consecutive sentences are imposed, are punishable by imprisonment totaling 15 years. ORS 161.605. Although the defendant has no previous convictions, there is evidence of previous incarceration on a similar charge, and continued association with persons with whom he had previously been incarcerated on criminal charges in Peru. So far as the existence of "facts indicating the possibility of violations of law if the defendant is released without regulations," ORS 135.230(6)(g), it is not mere conjecture to conclude that defendant might be involved in drug traffic, if released. The record amply supports the conclusion of the Lane County magistrate that if the defendant were to be released, a security release should be imposed. Setting the security amount has been, and continues to be, a matter of trial court discretion. State v. Keller, 240 Or. 442, 452, 402 P.2d 521 (1965). In examining the reasonableness of the security amount, we again look to the release criteria listed in ORS 135.230(6). Here, too, the seriousness of the charges, the plaintiff's lack of stable employment or personal relationships, the lack of strong ties to the community and his admitted association with drug trafficking suggest a substantial security amount. On the other hand, he has no prior convictions; he has apparently cooperated with the police; the imposed charges are for nonviolent crimes; there is no evidence in this record that he had personal possession of large amounts of drugs; and there is no evidence *88 that his assets are so substantial that the forfeiture of an amount less than $300,000 and the possibility of an additional substantial judgment would not be a sufficient inducement to assure his appearance. Our function is to decide only whether the security amount is excessive. It is. On the record before us, including the virtually total absence of any findings by a magistrate to support the conclusion that $3 million is such an amount as will "reasonably assure the defendant's appearance," we are convinced that bail of $3 million is an amount which, if not designed to make it impossible, as a practical matter, for the prisoner to secure his release, was unreasonably large and impermissble under ORS 135.265(1).[7] A security amount intentionally set so high that it will be beyond reach of the defendant will, beyond question, assure the defendant's appearance, because the defendant will remain in custody. But setting a security amount with that goal in mind is not consistent with the statute. It is implicit in ORS 135.265(1) that the security amount be set at the lowest amount that will "reasonably assure defendant's appearance." The mandate of ORS 135.245(3) that the magistrate "shall impose the least onerous condition reasonably likely to assure the person's later appearance" applies not only to the type of release personal recognizance, conditional release, or security release but also to the amount of the security release. We are convinced that, on the record before us, setting the security release amount at $3 million is excessive. Even though, as stated by the magistrate, "* * * he's a severe risk. No ties to Oregon. Traveled a lot. Been an international traveler and has been jailed, rightly or wrongly, in a foreign country for drug trafficking," the evidence does not support the conclusion that a $3 million amount is required to "reasonably assure the defendant's appearance." The plaintiff was entitled to be discharged.[8] TANZER, J., filed a dissenting opinion. TANZER, Judge, dissenting. The majority orders the release of petitioner in habeas corpus upon a holding as a matter of law that the amount of $3 million bail is excessive. Regardless of whether any of us, sitting as trial judges, would set bail that high, I cannot join the holding that it is constitutionally excessive as a matter of law. According to the petition, the trial court had before it information indicating that the petitioner has no connections to Oregon and intended to return to California pending these proceedings. On his application for release on recognizance, petitioner indicates that his total net income last year was $2,200 and that it was about the same this year, which, without further explanation, might cause the trial judge to be skeptical of petitioner's candor. Police reports before the trial court and attached to the petition indicate that petitioner had been jailed in Peru for cocaine trafficking for 39 months, where he met one of his current associates. Upon his arrest, petitioner admitted, among other things, that he was to be paid $2,500 for setting up a sale of a kilo of cocaine for $63,000. The seller was his Peruvian jail associate who had been furnished four kilos of cocaine by a Columbian national at a price of $53,000 to $55,000 per *89 kilo. The trial court may reasonably infer that a transaction of that magnitude is not an isolated or casual one. From this information, the trial court was entitled to infer that petitioner is involved in cocaine trafficking at a level involving large sums of money and that it might well be worth anything less than $300,000 cash security deposit and the risk of a probably uncollectible $2.7 million debt for petitioner to flee and avoid a potentially long-term prison sentence. A trial judge could reasonably infer that petitioner's associates would find it worth something less than $300,000 security deposit to allow petitioner to flee, whether from loyalty or from a desire to eliminate him as a potential witness. Petitioner's lack of any roots anywhere, let alone in Oregon, together with information indicating high-level, big money, international traffic in cocaine make the trial court's determination reasonable. Particularly, I cannot join in a majority holding that the trial court was unreasonable as a matter of law unless it is able to come up with a figure which it deems to be the maximum reasonable bail figure or with conditions of release which are reasonable under the circumstances. This they cannot do. In the absence of their ability to do so, I am unwilling to say that the trial court order, and hence petitioner's restraint, was unlawful. [1] ORS 135.235 provides for the appointment of release assistance officers: "(1) The presiding circuit court judge of the judicial district may designate a Release Assistance Officer who shall, except when impracticable, interview every person detained pursuant to law and charged with an offense. "(2) The Release Assistance Officer shall verify release criteria information and may either: "(a) Timely submit a written report to the magistrate containing, but not limited to, an evaluation of the release criteria and a recommendation for the form of release; or "(b) If delegated release authority by the presiding circuit court judge of the judicial district, make the release decision. "(3) The presiding circuit court judge of the judicial district may appoint release assistance deputies who shall be responsible to the Release Assistance Officer." [2] "Security release" is defined by ORS 135.230(8), as "a release conditioned on a promise to appear in court at all appropriate times which is secured by cash, stocks, bonds or real property." [3] "Personal recognizance" is defined by ORS 135.230(3) as "the release of a defendant upon his promise to appear in court at all appropriate times." [4] ORS 135.230(6) defines "release criteria" as follows: "(6) `Release criteria' includes the following: "(a) The defendant's employment status and history and his financial condition; "(b) The nature and extent of his family relationships; "(c) His past and present residences; "(d) Names of persons who agree to assist him in attending court at the proper time; "(e) The nature of the current charge; "(f) The defendant's prior criminal record, if any, and, if he previously has been released pending trial, whether he appeared as required; "(g) Any facts indicating the possibility of violations of law if the defendant is released without regulations; "(h) Any facts tending to indicate that the defendant has strong ties to the community; and "(i) Any other facts tending to indicate the defendant is likely to appear." [5] "Conditional release" is defined by ORS 135.230(1) as "a nonsecurity release which imposes regulations on the activities and associations of the defendant." ORS 135.260 provides: "Conditional release may include one or more of the following conditions: "(1) Release of the defendant into the care of a qualified person or organization responsible for supervising the defendant and assisting him in appearing in court. The supervisor shall not be required to be financially responsible for the defendant, nor to forfeit money in the event he fails to appear in court. The supervisor, however, shall notify the court immediately in the event that the defendant breaches the conditional release. "(2) Reasonable regulations on the activities, movements, associations and residences of the defendant. "(3) Release of the defendant from custody during working hours. "(4) Any other reasonable restriction designed to assure the defendant's appearance." [6] The dissent suggests that $3 million is a reasonable amount because "* * * the trial court was entitled to infer that petitioner is involved in cocaine trafficking at a level involving large sums of money and that it might well be worth anything less than $300,000 cash security deposit and the risk of a probably uncollectible $2.7 million debt for petitioner to flee and avoid a potentially long-term prison sentence. * * *" This smacks of the proposition that the security amount should be 10 times the amount necessary to assure appearance. Professor (now Judge) William Snouffer has written: "The legislature placed great faith in the judiciary to implement honestly and diligently the policy of Article 8 that security amounts be set at the minimum level that reasonably will assure the defendant's appearance in court following his release from custody. Because of the provision which permits a defendant to be released upon depositing ten percent of the security amount set by the magistrate, the argument frequently was made to the legislature that judges would be inclined to increase security amounts by ten times that which has prevailed in the past few years. The argument, which essentially is an argument that judges will not follow their sworn duty to uphold the law, was voiced by skeptical private attorneys. Predictably, it also was an argument made by bail bondsmen and by representatives of bail bondsmen who grossly distorted the available statistics. And it was voiced ironically, and perhaps pessimistically, by some members of the judiciary. "The available data tend to indicate that it is not necessary to multiply customary security amounts in order to achieve subsequent court appearances. Published data indicate that Illinois, the first state to adopt the ten per cent system, has had an acceptable rate of return of defendants without the need to resort to multiplied bail settings. While the Commission recognized the argument, it nevertheless decided that the question of judicial inflation of security amounts could not be dealt with by statute. * * *" W. Snouffer, An Article of Faith Abolishes Bail in Oregon, 53 Or.L.Rev. 273, 307-308 (1974). (Footnotes omitted.) [7] This statement from Owens v. Duryee, 285 Or. 75, 80, 589 P.2d 1115 (1979), is apposite: "Knutson v. Burks, No. 25680, decided March 14, 1978, without opinion, is an example of a habeas corpus proceeding in which we concluded the plaintiff was held illegally. We determined there were no circumstances which would justify the trial court's order setting security in the sum of one million dollars while the prisoner was awaiting trial on a drug offense. Bail may not be set at an amount chosen in order to make it impossible, as a practical matter, for a prisoner to secure his release." [8] As stated in the text, in our order in this case, we ordered that plaintiff be released from custody unless another release decision had been made by 2 p.m. the following day. In making this order, we had in mind the possibility that a further hearing could be conducted during that time, to reduce the security amount to a reasonable amount under ORS 135.265(1).

fd90699cd2d314ec9880b2b88af5210b6203e8c451f957543d8d56a82fa3ed46

1982-08-24T00:00:00Z

d5088c64-e9c7-4f2a-9368-d972e85e220e

In Re Conduct of Lathen

294 Or. 157, 654 P.2d 1110

oregon

Oregon Supreme Court

654 P.2d 1110 (1982) 294 Or. 157 In re Complaint As to the CONDUCT OF Neil F. LATHEN, Accused. SC 28725. Supreme Court of Oregon, In Banc. Argued and Submitted September 8, 1982. Decided December 7, 1982. Malcolm F. Marsh, Salem, argued the cause for accused. With him on the brief was Clark, Marsh, Lindauer, McClinton & Vollmar, Salem. Frank Noonan, Portland, argued the cause for the Oregon State Bar. With him on the brief was Winfree & Noonan, Portland. PER CURIAM. The issue is whether the accused was required by the Disciplinary Rules of the Code of Professional Conduct to withdraw as counsel from the conduct of a trial. DR 5-102(A) provides: This matter, for the most part, calls upon us to exercise our factfinding function. We follow the rule that an accused in a disciplinary action is entitled to the presumption that he is innocent of the charge. In re Galton, 289 Or. 565, 579, 615 P.2d 317 (1980). When exercising our factfinding responsibility, we independently review the evidence and require that it be clear and convincing to establish the charge. In re Adams, 293 Or. 727, 652 P.2d 787 (1982); In re Galton, supra. This means that the evidence must be such as to cause the trier of fact to find that the truth of the facts *1111 asserted is highly probable. Cook v. Michael, 214 Or. 513, 527, 330 P.2d 1026 (1958). Having so reviewed the evidence, we find facts as follows: 1. The accused is, and at all times material hereto was, a lawyer. Charles Burt was a member of his law firm. 2. On June 22, 1980, a lady, whom we shall call "Client," was driving a motor vehicle and became involved in an accident. Investigating Salem police decided to charge Client with driving while under the influence of intoxicants (DUII) and took her to jail. 3. Burt was a friend of Client and had represented members of her family. Upon her request, Burt was called by telephone, whereupon he went to the scene of the accident and engaged in conversation concerning the accident with an investigating police officer. Burt then went to the jail, where he was kept waiting for approximately twenty minutes in a place where he could hear conversation between Client and the police but could not see them. 4. Approximately two hours after the accident, Client came into Burt's sight, was released and, at her request, Burt took her to the abode of her friend Marge and departed. 5. A few days later Client telephoned the accused, and they agreed that the accused would represent her upon the DUII charge. During that telephone conversation, Client mentioned to the accused that Burt had picked her up at the jail. She also then discussed with the accused Marge's knowledge of the events.[1] 6. In late July, 1980, Client came to the accused's office and again related to him the events of the day of the accident. Among other things, she told the accused that she had asked the police to call Burt to come get her, that Burt had done so and that Burt had dropped her off at Marge's apartment. 7. The case was set for trial on a Wednesday, January 7, 1981, and on the preceding Monday, January 5, 1981, Client had a telephone conversation with the accused concerning the trial. In discussing witnesses to be used in addition to Marge, Client reminded the accused that Burt had picked her up at the jail and driven her to Marge's place. The accused wrote down Burt's name. 8. Pursuant to the rules of the municipal court where the case was to be tried, the accused on that Monday furnished to the city attorney's office a list of defense witnesses, giving the names of Marge and Burt and another person, who was not actually called at trial. 9. On that same Monday, the accused spoke to Burt's secretary and asked her whether he would be available as a witness on Wednesday. The secretary informed the accused that Burt had a case to try in another county on Wednesday. At that time the accused had never discussed the matter with Burt and did not know exactly to what Burt might testify. The accused told the secretary that if Burt "can spring himself, and agree to come up, send him up." 10. On that same Monday, Burt's secretary informed him that the accused had spoken to her concerning having Burt as a witness at the trial on Wednesday. Burt told his secretary that his scheduled trial in the other county would prevent his being a witness on Wednesday. 11. On that same Monday, the deputy city attorney, who was to prosecute the case, learned from the accused's secretary the names of Client's witnesses, including that of Burt. The prosecutor was aware that Burt was a law partner of the accused. It came to the prosecutor's mind that this perhaps presented an "ethical problem." *1112 12. The prosecutor consulted the Code of Professional Conduct and on Tuesday, January 6, 1981, mentioned the problem to other attorneys in the city attorney's office at a meeting. She put in a telephone call to the accused on Tuesday, but he did not return it. 13. On Wednesday morning, Burt settled the case which he was to try and in his words "was told sometime Wednesday to be over to the City Court in the afternoon around 2:30 perhaps 3:00." 14. On Wednesday at noon, Client and Marge came to the accused's office, and they all talked about the trial and the testimony to be given until about 1:10 p.m. and then went to the place where the trial was to take place. 15. Prior to the commencement of the trial, the prosecutor did not talk to the accused about the ethical problem which she had perceived. 16. Trial without jury commenced before a judge pro tempore. The prosecution called two police officers; each testified to an opinion that Client had been under the influence of intoxicants, and the prosecution rested. A recess was taken. 17. During the recess, the accused and Client went outside the courtroom and found that Burt was there. After Burt told the accused what Burt knew about the case, the accused told Burt that he would be called as a witness. 18. Marge was called as the first defense witness and testified that she had been with Client during the afternoon in the time just prior to the accident, that Client had had two drinks, that Client was emotionally upset by a matter concerning a personal relationship with another person, and that in Marge's opinion Client was not under the influence of intoxicants "minutes before the accident." 19. The accused then called Burt as a witness, and as he entered the courtroom, the prosecutor, either by objection or motion, sought to exclude any testimony from him on the ground that it was unethical to allow him to testify.[2] The accused then conferred with Burt about the ethical question but did not confer with Client. A colloquy ensued in which the accused first contended that there was no violation of the disciplinary rules and then offered twice to withdraw as counsel. The judge knew that the cause could not be set for another trial for about six months and eventually ordered the accused to proceed with the trial. 20. Burt testified, among other things, that at the time he observed Client after the accident, it was his opinion that she was not under the influence of intoxicants. 21. Client testified in her own defense, and the defense then rested. 22. The judge, in announcing his finding of "not guilty," stated that he considered Burt's testimony and gave it weight in finding that Client was not under the influence of intoxicants. 23. Client had retained the accused because of his reputation as an outstanding DUII defense lawyer and previous acquaintanceship with him. During the time between her arrest and the trial, and throughout the trial, Client was very nervous and desired that the matter be brought to a conclusion as soon as possible. 24. If the trial had not continued, Marge might not have been available for trial at a later time. 25. At the time the accused conferred with Burt outside the courtroom at recess, the accused learned and it was obvious that Burt ought to be called as a witness. In his answer to the complaint filed by the Oregon State Bar, the accused denied the charge that his conduct was unethical and raised five affirmative defenses primarily based upon exceptions to the requirement of withdrawal. DR 5-102(A) *1113 provides that the lawyer may continue the representation in the circumstances enumerated in DR 5-101(B)(1), (2) and (4). Those exceptions permit the member of the firm to testify: The second affirmative defense was based upon DR 5-101(B)(1) and made a claim that Burt's evidence related solely to an uncontested matter because his testimony did not go to If that were so, Burt's opinion that Client was not under the influence at the time he observed her at the police station could not have been legally relevant and one must wonder why it was offered. The evidence was relevant and admissible. It did not go to an uncontested matter but to the very heart of the contested matter. The trial judge gave it weight in his decision. The affirmative defense is not established. The third affirmative defense was based upon DR 5-101(B)(2) and contended that there was This affirmative defense is baseless for the same reasons as was the second. The fourth affirmative defense is that the accused's conduct was permissible under "Ethics Opinions 48, 91, 126, and 262" of the Opinions of the Oregon State Bar Committees dealing with legal ethics. We have examined those opinions although, of course, they are not binding authority. The first three were rendered prior to the adoption of the disciplinary rules by this court in 1970 and were concerned with the largely hortatory language of former American Bar Association Canon 19. As we have noted previously, it is the text of the particular disciplinary rule with which we must be concerned, not the general terms of a Canon. In re Ainsworth, 289 Or. 479, 493, 614 P.2d 1127 (1980). Those committee opinions are of no continuing importance in considering whether a lawyer has violated the disciplinary rule herein concerned. The fourth opinion on which the accused relies is by its own terms limited to the particular set of facts before the committee which rendered the opinion. This case is not even close to that case. The fourth affirmative defense is rejected.[3] In the first affirmative defense based upon DR 5-101(B)(4), the accused asserted that had he refused to proceed as counsel There was testimony, which we believe, from the trial judge, a circuit judge, a district judge, and practicing lawyers that the accused is regarded in legal circles as being one of the best trial counsel for defense of DUII cases in the territory. There was other evidence, which we likewise believe, from the same witnesses that there were in the area other trial counsel skilled, and often successful, in defense of such cases. To accept the fact of the accused's premier place among DUII trial lawyers in Marion *1114 on and Polk Counties as in itself being sufficient to establish hardship sufficient unto the exception would mean that an outstanding trial lawyer in any given universe of trial practice would be free to testify to the merits of his client's case or to call his partner to do so. We do not believe that result is intended by the exception and, accordingly, reject that defense. Without objection, however, evidence was adduced before the Trial Board to establish the facts we have found in Finding No. 23, supra. This evidence was introduced to support a claim of undue hardship upon the client should it be necessary to commence the trial anew some six months later rather than to proceed to a conclusion on the day in question. We are inclined to agree that given the emotional makeup of Client and the effect upon her of the wait between arrest and trial and the emotional trauma of the trial itself, it would have been a "substantial hardship" on her to bring the trial to a halt by requiring the accused to withdraw as counsel. That does not satisfy the terms of the exception. The "substantial hardship" must be "because of the distinctive value of the lawyer or his firm as counsel in the particular case." It is our finding that the substantial hardship was not thus caused. Any substantial hardship would have been the result of Client's emotional makeup and the failure of the accused to ascertain earlier that his partner "ought to be called" and, therefore, to withdraw long before trial. The fifth affirmative defense is that the testimony by Burt was given There was no discussion of that rule of evidence with the trial judge. That rule of evidence had not yet been adopted when the DUII trial took place. The Bar has argued, and the Trial Board agreed, that it should not be applied therefore to this case. The Disciplinary Review Board suggested that "this was error." Whether such inherent power exists, we do not here decide. It is true, however, that the trial judge did testify that many things went through his mind at the time he ordered the accused to proceed. He was concerned for the expense to the client; he was confused as to the terms of the disciplinary rule and its application to the trial of a DUII case; he was aware of the substantial delay before the case could again commence trial. He testified that taking all of these concerns together, he did believe that it was in the interest of justice that the trial proceed with the accused as counsel. The terms of the disciplinary rule required the accused to withdraw as counsel at the time he learned at recess that Burt ought to be called as a witness. None of the exceptions in DR 5-101(B)(1), (2) or (4) are applicable. He did not withdraw. He violated DR 5-102(A) as charged by the Bar. Because of the trial judge's order to proceed with the trial, however, the accused was faced with the choice of withdrawing when he believed, wrongly or not, that he had not behaved unethically, or obeying the ruling of the judge to continue. In the circumstances, the accused was required to continue. We hold, therefore, that although the accused should have withdrawn as counsel when he learned and it was obvious that he *1115 ought to call his partner as a witness, the imposition of discipline is not appropriate in the circumstances. The Bar has urged that the accused should have withdrawn prior to trial and thus the contretemps which occurred during trial would never have arisen. This contention rests upon the implied premise that prior to trial it was either obvious or the accused should have known that Burt ought to be called as a witness. The accused testified to the following: He handles a large volume of DUII defenses. He processes them "as quickly and as efficiently as possible." He has his secretary write to the prosecutor to get the police reports. When the report is secured, he does not read it "because I have a great deal of cases going." He has his secretary copy it and send the copy to the client. He has a "tickle system" which gets the file back to his attention about three months later. He checks to make sure the police report is in and the client has received a copy. He checks for the payment of the fee. At that time he reviews the file as "quickly as possible." He arranges to have the file again brought to his attention about two or three days before the assigned trial date. He followed that procedure in this case. He further testified: He lets the client contact the witnesses because they are usually friends of the client. He never spoke to Burt about what his testimony might be prior to the recess in the trial at the end of the prosecution's case. We accept the foregoing as being true. The accused's position is that at no time prior to the interview outside the courtroom did he know or was it obvious that Burt ought to be called. He makes the point that the disciplinary rule is not couched in terms of negligence; it does not predicate the duty to withdraw on what the lawyer, in the exercise of reasonable care, should have known. We agree that the test under text of DR 5-102(A) is not what one might have learned in the exercise of reasonable care in preparing a case for trial. We are not confronted with a claim for malpractice by a disappointed client insisting that her case was lost as a result of a failure to prepare properly for trial. Neither do we have a charge of failure to obey DR 6-101(A): Such a charge would call for a different analytical approach than we have here taken. Rather, we have a charge of failure to obey a particular disciplinary rule, which requires that it be shown that the lawyer actually learned or that it was obvious that his partner ought to be called.[5] Upon the evidence in this record, we cannot say that *1116 it is highly probable that the accused either learned or that it became obvious to him prior to the middle of the trial that Burt ought to be called. In other words, the charge as to unethical conduct in failing to withdraw before trial has not been established by clear and convincing evidence. The complaint of the Oregon State Bar is dismissed. Judgment for costs and disbursements is not awarded. ORS 9.535(4). In re Ainsworth, supra. ROBERTS, Justice, dissenting. The majority holds that DR 5-102(A) requires that it be shown that the accused actually learned or that it was obvious to the accused that his partner ought to be called in the trial of Client. At 1115, December 7, 1982. The majority then concludes that the evidence in this record does not allow this court to say "that it is highly probable that the accused either learned or that it became obvious to him prior to the middle of the trial that Burt ought to be called." I disagree and, therefore, dissent. The facts as set out in the majority's findings establishes that there were at least three times before trial in which the accused was informed or reminded that Burt had some involvement with Client shortly after her arrest. The first was during a telephone conversation between Client and the accused a few days after Client's arrest when Client mentioned that Burt had picked her up at the jail. Findings of Fact 5. The second was in July, 1980, when Client related to the accused in his office that she had asked the police to call Burt to come get her and he had done so. Findings of Fact 6. The third time was two days before trial when Client again reminded the accused that Burt had picked her up at the jail. Findings of Fact 7. Thereafter, on the same day, the accused provided to the city attorney's office a list of names of defense witnesses, including the name of Burt. Findings of Fact 8. On that same day the accused asked Burt's secretary if he would be available as a witness at the trial. When informed by the secretary that Burt had a case to try in another county the accused replied, if Burt "can spring himself, and agree to come up, send him up." Findings of Fact 9. The majority opinion describes how the accused prepares for trial. He does not consider who the witnesses are until "two sometimes three days before the trial." At 1115. That is consistent with what happened in this case. Two days before trial Client had a conversation with the accused and reminded him that Burt had picked her up, the accused wrote down Burt's name and spoke to Burt's secretary indicating Burt should be at the trial if he could. The majority states that there is evidence in the record that the accused is regarded as an outstanding trial counsel for defense of DUII cases. It is inconceivable that such a lawyer would not comprehend the importance of a witness who had actually observed and interacted with a DUII defendant for a period of time immediately following her arrest and release. It is also unlikely that Client's reminders to the accused that Burt had picked her up at the jail were based upon anything other than that Burt would be a favorable witness for Client. The accused may have been confident that he could win Client's case without Burt but that if Burt was available it would simply be another arrow in his quiver. The evidence establishes that it appeared highly probable to the accused two days before trial that Burt's testimony would be useful to his Client. Under these circumstances that is sufficient to show that this lawyer knew he ought to call Burt as a witness. Had he acted at that time to withdraw from the case the problem of whether to continue the trial when the ethical question was presented to the court would never have occurred. It is apparent, when presented with a situation such as this, a trial court will ordinarily order the trial to continue because of the hardships to the defendant. Such an order would not have been necessary, however, if the lawyer's pre-trial non-compliance with DR 5-102(A) had not created the situation which the rule is intended to avoid. Thus, the trial court's mid-trial order that the lawyer continue *1117 does not, as the majority holds, excuse it. I would reject the Disciplinary Review Board's recommendation to dismiss this case and accept the Trial Board's recommendation of a public reprimand. TANZER, J., joins in this dissent. [1] It appears that Marge had been with Client during the hours before the accident and would testify that Client had had only two drinks. Marge was also to be a witness that Client's demeanor at the time of the accident and her arrest was because of emotional trauma rather than the influence of intoxicants. [2] The prosecutor's testimony before the Trial Board that she did not, as a matter of strategy, wait until that time to raise the ethical question to gain an advantage is not contradicted by any direct evidence. [3] There is nothing in the record to indicate that the accused relied upon any of the identified committee opinions or was even aware the opinions existed at the time of the DUII trial. [4] Oregon Rule of Evidence 606-1 provides: "An attorney representing a party litigant at trial shall not * * * offer a member of the attorney's firm as a witness at that trial unless: "* * * "(5) The court finds that the interests of justice require the testimony." [5] Disposition of this case does not require us to determine whether the rule depends upon it being obvious to the particular lawyer or if it would be enough that it be obvious to a reasonable person in all the circumstances.

78cc04c5b3ddddfb831776bad53ce81841f337a7c31286b18d39f7f280f29792

1982-12-07T00:00:00Z

699a49c5-69c1-42ac-8d00-48e6d3fbe87c

State v. Russell

293 Or. 469, 650 P.2d 79

oregon

Oregon Supreme Court

650 P.2d 79 (1982) 293 Or. 469 STATE of Oregon, Petitioner On Review, v. Leland P. RUSSELL, Respondent On Review. CA A20189; SC 28331. Supreme Court of Oregon. Argued and Submitted April 7, 1982. Decided August 24, 1982. *80 Charles Lee, Deputy Dist. Atty., Roseburg, argued the cause and filed the petition and brief for petitioner on review. Dean Heiling, Roseburg, argued the cause for respondent on review. On the brief was Jack L. Banta, Roseburg. Before DENECKE, C.J.[*] and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. TANZER, Judge. The state appeals an order suppressing evidence found in the execution of two search warrants.[1] The Court of Appeals, in banc, 55 Or. App. 201, 636 P.2d 967, affirmed without opinion by an evenly divided court. The issue is whether an informant's credibility was established in a legally acceptable manner. We conclude that it was not. The search warrant commanded the sheriff's office to search certain described property for marijuana and implements of cultivation. It was based upon an affidavit in which this was the allegation to establish probable cause. Among the grounds stated in defendant's motion to suppress is: Preliminarily, it is necessary to sort out what is constitutional and what is statutory in order to address the statutory issues first. The Oregon code of criminal procedure specifies both the content of the information to be presented to the magistrate and the form in which that information is to be presented or recorded. ORS 133.545(1) and (2) provide that a search warrant may be issued by a judge upon application of a district attorney or police officer. Subsection (3) requires that applications be accompanied by affidavits which establish probable cause: An alternative or supplemental means of establishing probable cause is provided by *81 ORS 133.555(1) which authorizes an issuing magistrate to hear and record the testimony of witnesses: Another subsection of ORS 133.545, not directly involved in this case, is nevertheless pertinent as it reflects the legislative design. ORS 133.545(4) provides: Each of these sections requires that the sworn information submitted to the magistrate be made in or reduced to recorded form. The drafters of ORS 133.545 intended that the statutory requirement as to content of the allegations reflect the Fourth Amendment requirements as expressed in existing and foreseeable decisions of the United States Supreme Court. See, Commentary to Proposed Criminal Procedure Code at 73. Requirements as to the form of the information, however, are distinct from requirements as to its content. The United States Supreme Court has apparently never held that any particular form of sworn information is constitutionally required. 2 LaFave, Search and Seizure, § 4.3(b), p. 45.[2] Professor LaFave states that those jurisdictions which require recordation of sworn information provided to the magistrate do so by rule or statute. The Commentary to the Proposed Code indicates no recognition of constitutional mandates as to the form in which the information must be presented. Therefore, at least for purposes of this case, we consider ORS 133.545(3) and 133.555(1) as presenting purely statutory requirements as to the form and recordation of probable cause allegations made in support of search warrants, free from any constitutional context. We find little in the literature about the purpose of rules and statutes requiring recordation of information on oath submitted to the magistrate except that such rules and statutes exist. The apparent purposes for such statutory requirements are to facilitate subsequent review for the existence of probable cause and to avoid the possibility of justification for a search or an arrest based upon facts or evidence discovered in the course of the execution of the warrant. See, LaFave, ibid. 46-47. These considerations are particularly appropriate for the review of ex parte proceedings involving the valued personal right of privacy. They also serve to minimize the necessity of calling issuing magistrates or other witnesses at a later hearing to prove what can easily be documented. These purposes are implicit in ORS 133.545(3) and (4) and express in ORS 133.555(1), which concludes: Motions to suppress evidence are provided for by statute. Statutory grounds for a suppression include noncompliance *82 with ORS 133.545 and 133.555.[3] Also, ORS 133.693 provides procedures whereby one who moves to suppress may "contest, by cross-examination or offering evidence, the good faith, accuracy and truthfulness of the affiant with respect to the evidence presented to establish probable cause for search or seizure." Thus the design of the code of criminal procedure is to enable a defendant to challenge by a motion to suppress evidence either the legal sufficiency or truthfulness of the sworn information upon which the magistrate acted. In doing so, he is entitled to the benefit of the statutory requirement that the information before the magistrate be presented or recorded in a form which will be available for review at a suppression hearing, usually before a different judge. Here, the challenge is to the legal sufficiency of the affidavit rather than to its truthfulness. To determine its sufficiency, we look within the four corners of the affidavit. The allegation does not, in the words of ORS 133.545(3), "set forth facts bearing on any unnamed informant's reliability." That statutory phrase refers to facts from which a magistrate, looking only to the allegations of the affidavit, can make a determination regarding credibility. The informational content of this allegation provides no basis for a magisterial determination of probable cause. In form, it is insufficient to enable a reviewing court to determine whether a factual basis existed for a magisterial determination of the credibility of the informant. The allegation merely describes (incompletely) an event at which credibility might have been assessed. If an event in the presence of a magistrate is to be considered by that magistrate and preserved for subsequent judicial review, then it must be submitted and preserved in a form prescribed by statute. For example, if the judge had examined the informant as a witness, he would have been required by ORS 133.555(1) to "make and keep a record of any testimony taken before him" which would "be admissible as evidence on any motion to suppress." Such a record would supplement the affidavit and together they could be reviewed for the existence of probable cause. Here, however, there is no such record and the affidavit stands alone. The unrecorded event before the magistrate provides no cognizable basis from which to review a determination of the credibility of the informant. Because the validity of the search warrant is challenged and because the documentary basis for the warrant is insufficient to comply with the requirements of ORS 133.545(3), we conclude that there is not adequate cognizable evidence for a conclusion that issuance of the search warrant was based upon the existence of sufficient allegations to establish probable cause. The state asserts under ORS 133.703 that there is no statutory basis for suppression. That statute provides: Particularly, the state argues that there should be no suppression because here "the informant testified in person before the issuing authority." There are several flaws to the state's argument. First, because this is not a suppression proceeding contesting the good faith of the probable cause testimony, ORS 133.703 does not apply. Second, the affidavit does not disclose that the informant testified before the magistrate. It alleges only that the informant was taken before the judge. Therefore, the affidavit does not establish grounds for the exception created by subsection (1)(a). Another flaw is that the testimony referred to in ORS 133.703(1)(a) is required by ORS 133.555(1) to have been the subject of a record made by the magistrate and admissible at the suppression hearing. ORS 133.555(1) was not complied with and thus, even if the informant did testify before the magistrate, it was not in a form which is cognizable at the suppression hearing. The state's reliance on ORS 133.703 reflects an error in approach. The point of this case is not whether an exclusionary rule applies. Rather, it is a review for compliance with statutory requisites for the form of evidence presented to or recorded by the issuing magistrate for cognizance at a subsequent suppression hearing. We do not necessarily exclude the possibility of permissible alternative forms of substantial compliance with the statutes, particularly those which may evolve in an era of burgeoning technology, but no such issue is presented in this case. Here, the informational basis of the issuing magistrate's action was neither presented nor recorded in a form sufficient to satisfy the requirements or the purposes of the code. Thus, the order of suppression was correct. The Court of Appeals is affirmed. [*] Denecke, C.J., retired June 30, 1982. [1] Evidence was seized pursuant to two search warrants. The second warrant issued based upon observations made during the execution of the search warrant in issue. Our decision regarding the first warrant is dispositive as to the second. [2] LaFave notes dicta in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), indicating that the United States Supreme Court might not require recordation of the information provided to the magistrate. It has also been argued that although recordation has not been held to be a constitutional requirement, it should be. McGinley, The "Four Corners" Requirement: A Constitutional Prerequisite to Search Warrant Validity, 31 Okla.L.Rev. 289 (1978). [3] ORS 133.673(1) provides: "Objections to use in evidence of things seized in violation of any of the provisions of ORS 133.525 to 133.703 shall be made by a motion to suppress which shall be heard and determined by any department of the trial court in advance of trial."

a663b93146e1599d5bb4a18998a0f5d4a950ecd3b8b45f611cfb4140fd1f2c60

1982-08-24T00:00:00Z

d45e98d4-74db-4367-b316-8828a5aad8d9

Mullenaux v. STATE, BY AND THROUGH OR., ETC.

293 Or. 536, 651 P.2d 724

oregon

Oregon Supreme Court

651 P.2d 724 (1982) 293 Or. 536 Ben M. MULLENAUX and Arlene R. Mullenaux, Appellants, v. THE STATE OF OREGON, BY AND THROUGH the Oregon Department of Revenue, Respondent. TC 1591; SC 28349. Supreme Court of Oregon, In Banc. Argued and Submitted September 9, 1982. Decided October 5, 1982. *725 Barbara J. Rose, Portland, argued the cause and filed the briefs for appellants. Ted E. Barbera, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem. LENT, Chief Justice. Plaintiff-taxpayers' complaint challenging an assessment was dismissed by the Oregon Tax Court for failure to exhaust administrative remedies. Plaintiffs appeal from this judgment of dismissal. We try the cause "anew upon the record." ORS 305.445 and 19.125. From the record we find that defendant Department of Revenue (department) reviewed plaintiffs' Oregon personal income tax returns and their fiduciary returns on behalf of the "Ben Mullenaux Equity Trust" for the tax years 1975 through 1977 and concluded that income which was legally the income of the plaintiffs had been improperly attributed to the trust. It readjusted the returns, assessed the taxes and interest owing, and sent plaintiffs a tax deficiency notice. ORS 305.265. Plaintiffs requested a hearing to challenge the assessment. The department mailed a notice of hearing to plaintiffs' address; the letter, in addition to setting forth the time and location of the hearing, stated: Plaintiffs did not appear at the hearing; they had neither requested a postponement nor notified the hearings officer that they would be unable to attend. Upon motion of the department, the hearings officer dismissed the appeal. Without seeking any further relief in the department, plaintiffs then procured counsel and filed a complaint challenging the assessment in the Oregon Tax Court. In its answer, the department asserted as an affirmative defense that plaintiffs' had failed to exhaust their administrative remedies. At a hearing on the issue before the tax court, Mr. Mullenaux admitted having been informed of the hearing date but testified, as his only excuse for failure to appear, that the hearing had "slipped my mind." Plaintiffs argued that this was sufficient "inadvertence" to justify relief from the dismissal and that the court should either decide the case on the merits or remand to the department for another hearing. The tax court found the plaintiffs' excuse "quite unsatisfactory and unbelievable" and held that it was without jurisdiction to hear the case on the merits because of their failure to exhaust the available remedies. It thereupon dismissed plaintiffs' complaint with prejudice. Where a taxpayer challenges an assessment and a hearing before the department is granted, the burden of going forward with the evidence and the burden of persuasion are upon the taxpayer. OAR 105-305.115-(B)(3). Accordingly, plaintiffs' failure to either appear at their requested hearing or submit any evidence on their own behalf justified the department's dismissal of their appeal. Although the Oregon Tax Court is a court of general, rather than limited, jurisdiction (ORS 305.405), it only has authority to adjudicate those cases and issues properly before it. Under ORS 305.275(4): This statute makes explicit the general rule of administrative law that as to matters within the jurisdiction of an administrative agency "[j]udicial review is only available after the procedure for relief within the administrative body itself has been followed without success." Miller v. Schrunk, 232 Or. 383, 388, 375 P.2d 823 (1962); Johnson v. State Tax Comm., 218 Or. 110, 342 P.2d 799 (1959). Plaintiffs contend that they have sufficiently exhausted the remedies available within the department. Proper analysis of this argument necessitates splitting this case into its two parts, i.e., the procedural issue of whether the default dismissal was proper and the substantive issue of whether the assessment was correct. With regard to the former issue, the dismissal of plaintiffs' appeal was a final order of the department, and there does not appear to be any established procedure within the department for setting aside dismissals and reinstating appeals. We assume, without deciding, that the dismissal was subject to immediate appeal to the tax court under ORS 305.560(1). The question before the tax court on this issue, however, was very limited: Did the department act properly in dismissing plaintiffs' appeal for failure to appear at the hearing? Under ORS 305.435, the tax court has broad powers in reviewing department orders: Plaintiffs' argument that this statute empowers the court to reverse and remand orders of dismissal where the taxpayer is able to establish good cause for failure to *727 appear is not without force.[1] The tax court, however, found plaintiffs' excuse "quite unsatisfactory and unbelievable," and we concur. Simply forgetting a hearing date is not a sufficient excuse to justify relief from the consequent dismissal of the action regardless of whether the party is proceeding pro se or through counsel. Thus, the tax court did not err in refusing to remand the case for a new hearing. The second issue is whether the tax court erred in refusing to reach the merits of plaintiffs' appeal. To be entitled to judicial review of an aspect of an agency action, ORS 305.275(4) requires that the party must have exhausted his administrative remedies. Without deciding whether the statute requires something more than the general rule of exhaustion of administrative remedies, we hold that the statute requires at least as much as the rule. This requires that a party must have properly raised the issue before the agency. Marbet v. Portland General Electric Co., 277 Or. 447, 456, 561 P.2d 154 (1977); Neeley v. State Compensation Dept., 246 Or. 522, 426 P.2d 460 (1967). Plaintiffs here had expressed their displeasure with the assessment by requesting a hearing, but their failure to appear at the hearing or to offer any evidence or argument at all on their own behalf before the department precludes them from arguing the merits on review, i.e., their failure to preserve the allegation of error by timely and adequately addressing the merits before the agency forfeited their right of judicial review on the merits. In this sense, as we noted in Marbet: 277 Or. at 456, 561 P.2d 154. See 3 K.C. Davis, Administrative Law Treatise § 20.06 (1958). A party does not exhaust his administrative remedies simply by stepping through the motions of the administrative process without affording the agency an opportunity to rule on the substance of the dispute. Exhaustion of administrative remedies is not accomplished through the expedience of default.[2] Plaintiffs are correct in noting the exhaustion doctrine is generally one of timing and deference and that the usual consequence for failing to exhaust the administrative process is that the reviewing court will remand the case to the agency for further proceedings there. Where, however, the party seeking judicial review has foreclosed through his own inaction completion of the administrative process, remand is inappropriate. An appeal that has died within the agency cannot be resurrected by appealing outside of it. In such a case, the doctrine serves as a bar to further relief. In summary, the tax court acted properly in accepting plaintiffs' appeal for the purpose of determining whether it should grant relief from the default dismissal and whether it had jurisdiction to rule on the merits. Further, we hold that the court was correct in ruling against plaintiffs on both issues and in dismissing their complaint. The judgment of the tax court is affirmed. [1] Plaintiffs also cite former ORS 18.160 (now ORCP 71 B.(1)(a)), which empowers a court to grant relief from a judgment obtained as a result of "mistake, inadvertence, surprise, or excusable neglect." This statute is inapposite here inasmuch as it relates to a court granting relief from its own judgment and does not address the issue of when and how a court can grant relief from an agency order issued because of a party's default. [2] Several courts in other jurisdictions have held that the invocation of an administrative appeal, either improperly or followed by a failure of that party to appear at the hearing set without sufficient excuse, amounts to a failure to exhaust administrative remedies and is fatal to that party's judicial appeal. See, e.g., Stephens v. Postmaster General, 623 F.2d 594 (9th Cir.1980); Olinger v. Partridge, 196 F.2d 986 (9th Cir.1952); Curtis v. Schaffer, 137 F. Supp. 683 (D.N.Y. 1955); Malcom Price, Inc. v. District Unemployment Comp. Brd., 350 A.2d 730, 733-734 (D.C.Ct.App. 1976); City of Los Angeles v. California Towel & Linen Supply Co., 217 Cal. App. 2d 410, 31 Cal. Rptr. 832, 838-839 (1963).

59727ea4f15d25853be61421b65e36a63a324041b09dcb099ab97bbc1ae572e6

1982-10-05T00:00:00Z

05bd960a-d7c8-45a8-ae5d-8d3c52806fef

In Re Conduct of Paauwe

294 Or. 171, 654 P.2d 1117

oregon

Oregon Supreme Court

654 P.2d 1117 (1982) 294 Or. 171 In re Complaint As to the CONDUCT OF Jon H. PAAUWE, Accused. OSB No. 81-9; SC 28959. Supreme Court of Oregon, In Banc. Submitted on Record November 2, 1982. Decided December 7, 1982. Alan B. Holmes of Holmes, James, Galpern & McCollum, P.C., Medford, for accused. E.R. Bashaw, Medford, for Oregon State Bar. PER CURIAM. The accused was charged with violation of disciplinary rules of the Code of Professional Conduct in four respects arising out of his representation of certain clients regarding one legal matter. The matter comes before us in an unusual way. The Oregon State Bar and the accused have recommended to us that we adopt the opinion and recommendation of the Disciplinary Review Board. Prior to examination of the record, we advised them that we would treat the matter as having been submitted on the record and would make our own findings of fact and conclusions of law. The uncontested facts are that the accused undertook to represent the clients in January, 1977, concerning problems they were having with the purchase of a home. When the clients first came to the accused on a Monday, they had already closed the sale on the previous Friday. They had discovered what they believed to have been defects and injury to the premises, concealed by the sellers. The accused immediately explored the possibility of halting the transaction but found that the deed had been delivered for recording and the money of the clients had been disbursed according to the escrow instructions. The accused agreed to go ahead with a claim for damages on the part of the clients. It was anticipated that litigation would be necessary because the sellers had moved out of the state. The accused had little communication with his clients over the next several months, but in September, 1977, he had prepared a complaint in deceit *1118 for their consideration, and in October, 1977, he filed the complaint. After the defendants in April, 1978, had answered, asserting affirmative matter, the accused took four months to file a reply that was nothing more than a general denial of the affirmative matter. Following certain procedural motions, the accused in July, 1979, filed an amended complaint, changing the theory of recovery from tort to contract. Defendants' motion against the amended complaint was filed, heard and partially allowed in October, 1979. In January, 1980, the accused complied with the order to make certain allegations more definite and certain and filed a second amended complaint. Trial finally commenced on February 13, 1980. At the end of the first day of trial, the accused was too ill to continue trial on the following day, and the trial concluded on March 7, 1980. The Bar's complaint charged that the accused's conduct in those respects violated the following disciplinary rules: The Trial Board found that the accused's conduct violated DR 1-102(A)(5) and 6-101(A)(3) but that he had not intentionally prejudiced or damaged the clients. The Disciplinary Review Board agreed. We agree. The accused not only neglected the legal matter entrusted to him, but since litigation was involved, the delays in moving the case along, once it was commenced, were prejudicial to the administration of justice. The facts do not, however, support a finding that he intended to prejudice or damage the clients. The second charge was that during the course of events above outlined the accused received an offer of settlement from counsel for the sellers, that the accused did not accept the settlement offer from the opposing party and did not consult with or even advise his clients that an offer had been made and rejected until just before trial. It was alleged that this conduct violated DR 1-102(A)(5) and 7-101(A)(3), both quoted above. The facts we find from the evidence are that counsel for the sellers, in late January, 1980, stopped by the accused's office one Saturday morning and in counsel's words, "put out a feeler, if you will, with regard to settlement" and indicated that he believed the sellers would be willing to settle the case for "somewhere in the area of" $2,500. The accused indicated that he didn't think his clients would be interested in anything less than $6,000 to $6,500, which was about two-thirds of the amount of claimed damages in the case. After that conversation, counsel for the sellers did obtain authorization to settle the case by payment of $2,500, but only if the money could be paid in installments. Shortly thereafter, in the early part of February, 1980, counsel for the sellers communicated to the accused that the sellers were nearly insolvent but would be willing to pay $2,500 over some indefinite period of time. The accused asked for a sworn financial statement from the sellers, and their counsel sought one from them. They did not submit such a statement; rather, they submitted an unsworn statement purporting to represent their general financial condition. That information was not supplied to the accused. On the eve of trial, the accused and his clients had some discussion concerning the figure of $2,500. The clients recollected that the accused told them that the sellers had made an offer of settlement in that amount and that the accused told them that he had rejected it without consulting them. The accused testified that he had mentioned the sum of $2,500 as having been discussed by himself and counsel for the sellers but that he did not tell them that he had rejected an offer in that amount and would not have done so because there was actually no firm offer ever made. *1119 The Trial Board found that sellers' counsel never presented the $2,500 figure in the form of an offer that would bind his clients if accepted and "that no valid offer was made at that time." The Disciplinary Review Board agreed. We find that there was no firm offer made in that amount. In a disciplinary proceeding, the evidence must be clear and convincing to establish a charge. In re Lathen, 294 Or. 157, 654 P.2d 1110 (1982). The evidence here is not up to that quantum to establish that he rejected an offer of $2,500 without consultation with his clients. Prior to the day trial commenced, sellers authorized their counsel to go as high as $4,500 to settle the case. On that day the parties and their counsel were all on the third floor of the courthouse awaiting commencement of the trial. The parties were at opposite ends of the hallway from each other. Counsel had several meetings at a point out of earshot of the parties, and settlement was discussed. Sellers' counsel testified that he believed that he finally did get up to the figure of $4,500 during those discussions with the accused. His recollection, admittedly vague, was that the accused never mentioned any figure less than $6,000 to $6,500 as being authorized by the plaintiffs for settlement. The accused testified that he did discuss with his clients the offer of $4,500 made in the courthouse and that they discussed that a part of that would have to go to the accused for attorney fees and expenses. He testified that he and the clients discussed the matter "extensively" and that they rejected the offer. One of the accused's clients testified that on the day before the trial commenced, the clients and the accused were at the accused's office preparing for trial and that the accused advised them that they should seriously consider an offer of $4,000 to $5,000 if one could be obtained from the defendants. That client testified that he agreed that such an offer, if made, "would have to be considered." He testified that the clients did not authorize the accused to settle for any given figure. He flatly denied that there was any discussion of an offer of settlement on the day of trial at the courthouse among the clients and the accused. The other of the accused's clients also testified that the accused did not communicate to them any offer of settlement at the courthouse while they were awaiting trial to commence. The Trial Board found that the Bar had "failed to prove that the subsequent offer of $4,000.00-$4,500.00 was not transmitted to his clients by the Accused." The Disciplinary Review Board agreed. The testimony of the accused is directly contradictory to that of the clients on this issue of fact. No one has offered any motive to explain why the accused would not have communicated such an offer. We think it most reasonable to infer that, given the clients' position that there was a discussion with the accused that an offer in that range should be seriously considered, and the testimony of sellers' counsel that he made such an offer in the courthouse, the offer was communicated to the clients. We so find. The third charge was that the accused failed to prepare and try the case properly. It was alleged that he failed properly to plead the case, failed to conduct adequate pretrial discovery, and failed to subpoena witnesses that should have been called, all in violation of DR 6-101(A)(2): The Trial Board found there was no evidence of inadequate preparation, and the Disciplinary Review Board agreed. There was evidence of inadequate preparation, but there was also contradictory evidence. There is nothing to be gained by reviewing all of this evidence in detail because we do not conclude from all of the evidence that it is "highly probable" that the charge of inadequate preparation is true. See In re Lathen, supra, and Cook v. Michael, 214 Or. 513, 527, 330 P.2d 1026 (1958), for the proposition that clear and convincing evidence is that from which the trier of fact can find it "highly probable that the matter asserted is true." *1120 The trial judge in the circuit court case found in favor of the defendant sellers. He entered judgment in their favor for attorney fees and costs and disbursements. The accused did not communicate that fact to the clients. He filed a notice of appeal on their behalf without consulting with them as to his intention to do so. Eventually, the appeal was dismissed upon motion of the sellers for want of a necessary undertaking, and the Court of Appeals ordered that they should recover an additional $330 for costs and disbursements upon appeal. The accused did not advise his clients of that fact. The clients first learned of the trial court result and the subsequent events when they received written communications from sellers' counsel, demanding payment of the amounts due under the respective court decisions. They satisfied the judgments in the total amount of almost $2,000. The Bar charged that the accused violated disciplinary rules by filing the appeal without advising his clients and without obtaining their consent, and that he did not take necessary steps to protect his clients' appeal rights. The rules allegedly violated were DR 1-102(A)(5) and 7-101(A)(3). The Trial Board found that this conduct concerning the post-trial conduct was prejudicial to the administration of justice but that he did not intentionally damage or prejudice his clients. The Trial Board found there was no evidence that there was any merit to the appeal. The Disciplinary Review Board agreed with the Trial Board. While it is true that the accused intentionally performed an act, i.e., the filing of the notice of appeal, that resulted in damage to his clients, we agree that the accused did not violate DR 7-101(A)(3). We accept his evidence that he was so deeply disappointed in the result in the trial court that he could not emotionally bring himself to accept that he had lost. He filed the notice of appeal, hoping that the day could yet be saved. Upon mature thought, he realized that the case had been tried on the law side, that there was evidence to support the trial judge's result, and that there was virtually no hope of success of the appeal. When he had filed the notice of appeal, he had not anticipated that the sellers would designate a transcript of testimony as part of the record on appeal and that the accused's clients would become liable for that item of disbursements. In these circumstances, we conclude that he did not intentionally damage or prejudice his clients in the sense of DR 7-101(A)(3). ORS 9.460 enjoins an attorney to maintain only such actions as may appear to him to be "legal and just" and not to encourage the continuance of any action from any "motives of passion or interest." A purpose of ORS 9.460 is furtherance of the administration of justice by discouraging the maintaining of meritless litigation. The filing of this unauthorized and meritless appeal was prejudicial to the administration of justice. The Trial Board recommended that this court administer to the accused a public reprimand. The Disciplinary Review Board was of the opinion that the post-trial conduct of the accused with respect to failure to apprise his clients of what had happened and subjecting them to the liability for costs and disbursements on appeal was so serious as to warrant a suspension for a period of thirty days. As noted at the outset of this opinion, both the accused and the Bar have recommended to this court that we adopt the opinion and recommendation of a thirty-day suspension. We do not adopt them, but we are in agreement with the findings of the Trial and Disciplinary Review Boards upon the basis of our own examination of the record. Further, we find that a thirty-day suspension from the practice of law is the proper sanction. The accused is suspended from the practice of law for a period of thirty days. The Oregon State Bar is the prevailing party, and we award the Bar its actual and necessary costs and disbursements. ORS 9.535(4).

f25037b870b978d2c34435d8045973776ee0a8e6fef756593d9f98fbaaabcaec

1982-12-07T00:00:00Z

3eca029a-1e61-4cac-a8d2-b74335ca770c

Matter of Marriage of Pierson

294 Or. 117, 653 P.2d 1258

oregon

Oregon Supreme Court

653 P.2d 1258 (1982) 294 Or. 117 In the matter of the Marriage of Neil A. PIERSON, Respondent On Review, AND Karen L. Pierson, Petitioner On Review. CA A22023; SC 28418. Supreme Court of Oregon, In Banc.[*] Argued and Submitted May 4, 1982. Decided November 23, 1982. *1259 William C. Crothers, Jr., of Crothers & Crandall, Salem, argued the cause and filed the petition for petitioner on review. Mark L.B. Wheeler, Salem, argued the cause and filed a response to the petition for respondent on review. TANZER, Justice. We allowed review in this dissolution of marriage case to consider the disposition of property inherited by a spouse near the end of the marriage. This dissolution ends a 24-year marriage. The parties are in their early forties. Wife earns $30,000 per year as a public administrator; husband earns $20,000 as a teacher. Their children are grown. Neither party seeks support. The parties have divided their personal property. They have agreed to bear their own attorney fees. The sole task of the court is to equitably divide four items of real property. The parties bought their family home and accompanying acreage in the 1960's. Two years before this proceeding, wife moved out and husband remained. It now has a value of $90,000. When wife moved out, she withdrew the family savings of $13,000, added $3,000 or $4,000 of her own and purchased a house on Kathy Street. This was done with the cooperation of husband. The Kathy Street residence has an equity valued at $24,310. Wife then purchased a condominium. She moved out of the Kathy Street house and into the condominium. The equity in the condominium is valued at $2,500. Wife's father died intestate in April, 1975. The parties separated in August, 1978. The father's estate was distributed in April, 1979, one year before the filing of this proceeding in April, 1980. Wife's inheritance is a plot of farm land. Husband evaluates wife's equity in her share of the inheritance at $181,200; wife evaluates it as $131,200. Neither previous court made a specific finding as to its value. The parties agreed that the Kathy Street house should be sold and the proceeds divided evenly between them. Husband agreed that wife should receive the condominium. The parties disagreed as to the disposition of the property inherited by the wife. The wife contended that she was entitled to an award of one-half of the non-inherited property and that her inheritance should be awarded to her outside of the property division equation. Husband asserted that the inheritance should be considered as part of the marital assets, one-half of which should be awarded to him. The trial court awarded the family home to husband, ordered the Kathy Street residence sold and the proceeds divided evenly, and awarded the condominium and the inheritance *1260 to the wife. The valuations are reflected in this table: The wife appealed, contending that the trial court should have awarded equal shares in the "marital assets," exclusive of her inheritance. The Court of Appeals affirmed without opinion. 55 Or. App. 534, 643 P.2d 422. Only the property division is in issue. The court is called upon to divide the property in a manner which is "just and proper in all the circumstances," ORS 107.105(1)(e). We extensively discussed our review function over equitable dissolution awards in Haguewood and Haguewood, 292 Or. 197, 199-204, 638 P.2d 1135 (1981), and we do not repeat it here. In summary, we review the exercise of equitable discretion in the property division in an attempt to identify the principles which should guide the court's discretion. Property division is guided by ORS 107.105(1)(e) which was amended by the legislature effective after the trial of this case and before de novo review on appeal. Because we are reviewing de novo, and absent any suggestion it would be unfair, we shall follow the current version of that statute: ORS 107.105(1)(e) contains two terms which describe classes of property. The first term appears in the first sentence and describes the entire class of property within the dispositional authority of the court in a dissolution case: "the real or personal property, or both, of either or both of the parties." That term includes the wife's inherited property, even though her interest is individually held, by sole virtue of her ownership at the time of the decree of dissolution. Her inherited property is therefore available for equitable distribution by the court. See, Dietz and Dietz, 271 Or. 445, 533 P.2d 783 (1975). This conclusion, however, says nothing about how the distribution should be made. The other term, "marital assets," appears later in the statute. It is not further defined, but the reference to "acquisition of property during the marriage" indicates that it includes neither assets brought into the marriage by either spouse nor assets acquired by them after dissolution. The term "real or personal property, or both, of either or both of the parties" in the first sentence describes a larger class of property than the term "marital assets" because it *1261 can include property owned prior to the marriage. The upshot is that property may be subject to the authority of the court to divide property, yet not be a marital asset. This reading is consistent with the purpose as well as the words of the statute, a subject we discussed in Engle and Engle, 293 Or. 207, 213-15, 646 P.2d 20 (1982).[1] The statute has a twofold purpose. First, the statutory presumption of equal contribution is based upon a legislative recognition that a nonemployed, non-earning spouse contributes in other ways to the financial situation of the family and should be given the benefit of that contribution if a property division becomes necessary. As we said in Grove and Grove, 280 Or. 341, 346, 571 P.2d 477, reh. den. and modified 280 Or. 769, 572 P.2d 1320 (1977), the statute "indicates a legislative intent that the homemaker spouse who is most likely to seek spousal support, be recognized as an economic contributor to the marriage rather than as a passive recipient of economic benefits provided by the breadwinner." Second, the ownership provisions were intended to obviate burdensome tax consequences which attach upon the transfer of an asset or a part of an asset from the legal owner to the other spouse pursuant to a property division. We conclude that the legislature intended to give the benefits of the presumption of contribution and tax avoidance to all property acquired during the marriage, regardless of the source of the acquisition. Hence, we conclude that property acquired by either spouse during the marriage is within the term "marital assets," even though it is acquired by gift or inheritance. As this opinion will demonstrate, however, the statute may often affect the court's analytical approach more than it affects the results. Here, wife received the inherited property prior to the dissolution of the marriage. Having been acquired during the marriage, it is a marital asset. By virtue of that status, it is subject to the statutory rebuttable presumption of equality of contribution and to the ownership provisions of the statute. The presumption of the husband's equal contribution by non-financial means is rebutted because wife's acquisition was by sole inheritance after the parties separated, cf. Lemke and Lemke, 289 Or. 145, 611 P.2d 295 (1980), unaffected by efforts of the husband.[2] We therefore consider the inherited property to be free from any claim of husband arising from real or presumed contribution to its acquisition. That does not mean, however, that we accept the wife's contention that she should receive her inherited property entirely plus exactly one-half of the remaining property. Property division is not a function solely of arithmetic. Absent overriding considerations, marital assets should be divided as equally as practical. Where, as here, one spouse is equitably entitled to receive a marital asset because he or she acquired it free from any contribution of the other spouse, the asset can initially be removed from the equation. Cf., McCraw v. McCraw, 231 Or. 638, 373 P.2d 667 (1962). Thus, unless additional considerations dictate otherwise, wife should retain her inheritance. The equation of property division and the entitlement of a party to individually acquired property may be disturbed in order to accomplish broader purposes of a dissolution. There are social objectives as well as financial ones to be achieved and *1262 that may result in an uneven financial division. As we said in Haguewood, 292 Or. at 206-207, 638 P.2d 1135: Where a decree cannot achieve all the objectives of a dissolution and at the same time divide property exactly evenly, the court should order a division of assets which is out of balance to the extent required for the accomplishment of the other purposes of the decree, whether that be to preserve assets, see Haguewood, to enable a party to pay support, see Grove and Grove, 280 Or. at 344, 571 P.2d 477, or, as here, to enable both parties to begin post-marital life with a degree of economic self-sufficiency, or to satisfy other subsections of ORS 107.105. Here, our task is simplified because there is no need for child or spousal support. The need in this case is to enable both spouses to emerge from the marriage and recommence life on a sufficient economic footing. Fortunately, there is sufficient property and income to serve that need. Where the income and property of one spouse is greater, the achievement of economic self-sufficiency of both parties is not necessarily best served by an equal division of the marital assets. In dividing the non-inherited marital assets, we therefore take into account that the wife has greater income and, because of the inheritance, greater financial resources. We are also influenced by two practical considerations: a forced sale can cost much of the value of property, and imposition of a judgment lien on property tends to drain income and to continue, rather than sever, the financial relationship of the parties. Where economic self-sufficiency, a fair division, and other purposes of a decree can be achieved without ordering a sale or imposing a lien, it is preferable to avoid those divisional devices. That means that a division with a slight imbalance may be preferable to one which is exactly even. These considerations all suggest that the non-inherited property be divided as cleanly as possible. Because the husband has less income and less property, he should receive the greater share of the non-inherited property, but the imbalance should be reduced to avoid unreasonable disproportionality. We therefore modify the decree to award the entire Kathy Street house to wife. This lessens the imbalance, avoids the necessity of sale and gives wife more flexibility. We acknowledge that the parties agreed to the sale of the Kathy Street house and division of the proceeds, but the husband did so in conjunction with his unsuccessful claim upon the inheritance and the wife did so in conjunction with her unsuccessful demand for one-half of the non-inherited property. The resulting imbalance ($90,000 to $26,810) is so disproportionate that a judgment lien against the house, consistent with husband's ability to pay or refinance, although an undesirable device, seems the only equitable way to transfer some value to wife. We therefore also modify the decree to provide for a $20,000 judgment lien against the family home in favor of the wife, payable in equal monthly payments at the statutory rate of interest over 10 years from the effective date of this decision. The modified schedule of distribution of the non-inherited assets would then be as follows: *1263 Affirmed as modified. No costs to either party. PETERSON, J., filed a dissenting opinion in which CAMPBELL, J., joined. PETERSON, Justice, dissenting. I dissent. In my opinion the wife should receive the inherited property. The other assets should be divided evenly between the husband and the wife. CAMPBELL, J., joins in this dissent. [*] Denecke, C.J., retired June 30, 1982. [1] In Engle and Engle we expressly reserved for this case the question of "whether property received during the marriage by a spouse by way of gift or inheritance is intended to be included within" the term "marital assets." 293 Or. at 214 n. 6, 646 P.2d 20. [2] Husband contended in the trial court that he worked on the father's farm, that he was close to the father, and that he was equitably entitled to share in the inheritance. The trial court found that he was compensated for his labor. Husband does not challenge that finding on review and we therefore do not re-examine it.

5b04be51601856f51afd33ed17b6146db138d1de61f7c6c1b0f7f3a95136885a

1982-11-23T00:00:00Z

841fab30-a87e-4e84-8165-245603baa06d

Janowski/Fleming v. Board of Parole

S057120

oregon

Oregon Supreme Court

FILED: December 23, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON KENNETH FREDERICK JANOWSKI, Petitioner on Review/ Cross-Respondent on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review/ Cross-Petitioner on Review. (CA A130409; SC S057120, S057276) RIDGE WAYNE FLEMING, Respondent on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Petitioner on Review. (CA A133967; SC S057245) (Consolidated for argument and opinion) En Banc On review from the Court of Appeals.* Argued and submitted January 5, 2010. Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review/cross-petitioner on review and petitioner on review.  With her on the brief was John R. Kroger, Attorney General. Ryan T. O'Connor, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review/cross-respondent on review Janowski.  With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Ridge Wayne Fleming filed the brief for himself. Ryan T. O'Connor, Deputy Public Defender, Salem, argued the cause and filed the brief for amicus curiae Office of Public Defense Services, Appellate Division.  With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Dennis N. Balske, Portland, filed the brief for amicus curiae Keven Roper. GILLETTE, J. The decision of the Court of Appeals in both cases is affirmed in part and reversed in part.  The orders of the Board of Parole and Post-Prison Supervision are affirmed in part and reversed in part, and the cases are remanded to the Board of Parole and Post-Prison Supervision for further proceedings. *On judicial review of Final Orders of the Board of Parole and Post-Prison Supervision. 226 Or App 82, 202 P3d 920 (2009).  225 Or App 578, 202 P3d 209 (2009). GILLETTE, J. These two cases, which we have consolidated for purposes of opinion, present two issues, both of which concern the proper interpretation and applicability of statutes and administrative rules that have long since been amended, but which continue to govern the treatment of prisoners who committed their crimes while those statutes and rules were in effect.(1)  The first issue is whether the Board of Parole and Post-Prison Supervision (the board) has the authority effectively to override a prisoner's 30-year mandatory minimum sentence for aggravated murder and to release the prisoner after 20 years in prison, if the board finds that the prisoner is capable of rehabilitation within a reasonable period of time.  If the answer to that first question is "yes," the second issue is:  Which rules or statutes govern the board's release decision?  The Court of Appeals concluded that the board does have the authority to override the mandatory minimum sentence and to release prisoners after 20 years if the board has made certain findings.  However, the court concluded that the prisoners' cases should be remanded to the board to permit the board to determine in the first instance what rules and statutes govern the board's release decisions.  Fleming v. Board of Parole, 225 Or App 578, 202 P3d 209 (2009); Janowski v. Board of Parole, 226 Or App 82, 202 P3d 920 (2009) (reversing and remanding per curiam in light of Fleming).  We allowed the board's and the prisoners' petitions for review in both cases and now affirm the Court of Appeals' conclusion that the board has the authority to override the prisoners' 30-year mandatory minimum sentences for aggravated murder and to release the prisoners after 20 years.  However, because we further conclude that the legislature intended the board to apply the parole matrix (discussed in detail below) to determine when to release prisoners in this situation, we reverse that part of the Court of Appeals decisions remanding the cases to the board for a determination of applicable law.  The relevant facts of each case are procedural and are not in dispute.  Prisoner Janowski murdered his parents in February 1985.  In July 1985, after Janowski pleaded guilty to those murders, a trial court convicted Janowski of two counts of aggravated murder and merged those counts into one conviction.  Prisoner Fleming murdered a man during a robbery in November 1985 and a trial court convicted Fleming of aggravated murder in 1986.  At the time that Janowski and Fleming committed their crimes, ORS 163.105(1) (1985)(2) provided that a person convicted of aggravated murder "shall be sentenced to death or life imprisonment * * *.  If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without the possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp."  Both Janowski and Fleming were sentenced to life imprisonment.  Pursuant to the directive in ORS 163.105(1) (1985), the trial courts ordered each of them to serve a mandatory minimum term of imprisonment of 30 years.  Both Janowski and Fleming were incarcerated in due course.  In January 1986, the board issued an order with respect to Janowski establishing Janowski's matrix range(3) as 120 to 168 months but, at the same time, sustaining Janowski's 30-year (360-month) mandatory minimum sentence.  In February 1987, the board made a similar determination concerning Fleming, concluding that the applicable matrix range for Fleming's crimes was 228 to 288 months.  In the board's order establishing that matrix range for Fleming, the board also concluded that it did not have the statutory authority to override the 30-year (360-month) mandatory minimum sentence that the trial court had imposed.(4)  On November 22, 1995, the board issued orders retracting its crime classification and matrix range calculations for both Janowski and Fleming, because it concluded that "aggravated murder is an unclassified felony; therefore, there is no crime severity rating or matrix range."(5) After Janowski and Fleming had been incarcerated for 20 years, they each sought a hearing under ORS 163.105 (1985), which, in addition to requiring the trial court in subsection (1) of the statute to impose a 30-year mandatory minimum sentence for persons sentenced to life imprisonment for aggravated murder, also provided that "(2)  At any time after 20 years from the date of imposition of a minimum period of confinement pursuant to subsection (1) of this section, the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time.  The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time.  * * *. "* * * * * "(3) If, upon hearing all the evidence, the board, upon a unanimous vote of all five members, finds that the prisoner is capable of rehabilitation and that the terms of the prisoner's confinement should be changed to life imprisonment with the possibility of parole, or work release, it shall enter an order to that effect and the order shall convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release.  Otherwise, the board shall deny the relief sought in the petition." Pursuant to that statute, in May 2005, the board conducted a hearing concerning Janowski and, in May 2006, a hearing concerning Fleming, to determine whether either man was likely to be rehabilitated within a reasonable period of time.(6)  At the conclusion of each hearing, the board unanimously found that each man had made the requisite showing and that the terms of confinement of each should be converted to life imprisonment with the possibility of parole, as provided in ORS 163.105(3) (1985).  Accordingly, the board entered orders to that effect.  In each case, however, the board set a release date for the prisoner at the conclusion of his 30-year mandatory minimum sentence.  That is, the board set Janowski's release date for May 2015 and Fleming's for April 2016.  Each prisoner requested administrative review, arguing, among other things, that ORS 163.105(3) (1985) gave the board authority to override the statutorily mandated 30-year minimum sentence for aggravated murder upon a finding that a prisoner is likely to be rehabilitated within a reasonable period of time and, therefore, gave the board concomitant authority to release a prisoner before the 30-year mandatory minimum sentence had expired.  They also argued that the laws in effect when they committed their crimes required the board to set a release date in accordance with the matrix ranges in effect on the date that they committed their crimes.  In addition, Janowski argued that he was entitled to immediate release because, at the time of the board's finding of likelihood of rehabilitation and the consequent conversion of the terms of his imprisonment, he already had been incarcerated longer than the matrix range for his crime.  In each case, the board rejected the prisoner's claims and denied relief.  Janowski and Fleming each sought judicial review of the board's rulings in the Court of Appeals, which, as noted, held that the board did have authority to override the 30-year mandatory minimum sentences in these cases and to release the prisoner after 20 years of imprisonment, but remanded the cases to the board for a determination of which laws or rules govern the board's actual release decisions.   The board seeks review of that part of the Court of Appeals decisions concluding that it has authority to override a 30-year mandatory minimum sentence for aggravated murder.  Janowski and Fleming seek review of that part of those decisions remanding the cases to the board to determine which rules govern release decisions.  We turn first to the issue concerning the scope of the board's authority under ORS 163.105 (1985).  As did the Court of Appeals, we review the board's conclusion that it did not have authority under ORS 163.105 (1985) to override the 30-year mandatory minimum sentence for aggravated murder to determine whether the board erroneously interpreted that provision of law.  We examine the terms of ORS 163.105 (1985) in an effort to discern the intent of the legislature in enacting it, using the methodology for statutory interpretation that this court explained in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). As noted above, at the time that Fleming and Janowski committed their offenses, ORS 163.105 (1985) provided, in relevant part, as follows:  "Notwithstanding the provisions of ORS chapter 144 [relating to parole and work release], ORS 421.165 [(1985) relating to temporary leave] and ORS 421.450 to 421.490 [(1985) relating to forest and work camps]: "(1) When a defendant is convicted of aggravated murder as defined by ORS 163.095, the defendant shall be sentenced to death or life imprisonment pursuant to ORS 163.150.  If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without the possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp. "(2) At any time after 20 years from the date of imposition of a minimum period of confinement pursuant to subsection (1) of this section, the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time.  The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time.  * * *. "* * * * * "(3) If, upon hearing all of the evidence, the board, upon a unanimous vote of all five members, finds that the prisoner is capable of rehabilitation and that the terms of the prisoner's confinement should be changed to life imprisonment with the possibility of parole, or work release, it shall enter an order to that effect and the order shall convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release.  Otherwise, the board shall deny the relief sought in the petition." We begin our analysis of the text of ORS 163.105 (1985) by observing that subsection (1) requires the trial court to order a defendant who was convicted of aggravated murder and sentenced to life imprisonment to serve a mandatory minimum sentence of 30 years' imprisonment without the possibility of parole or work release.  The trial court has no discretion in the matter, and it is undisputed that that the trial court entered such an order in both Fleming's and Janowski's cases.  We also observe, preliminarily, that subsection (1) does not refer in any way to the board or the board's authority. Subsection (2) gives prisoners a right to a hearing after 20 years to determine whether they are likely to be rehabilitated within a reasonable period of time.  The timing of that hearing -- the fact that such a hearing is to occur 10 years before the expiration of the 30-year minimum term -- indicates that the legislature thought that some legal consequence would flow from a "likely to be rehabilitated" determination.  That impression is bolstered by the reference to rehabilitation in a "reasonable time."  That is, the legislature could have referred to rehabilitation in the 10 years that would remain before expiration of the minimum term, rather than to "a reasonable time," if it intended that the inmate's status remain unchanged for the remainder of the 30-year minimum term.(7)  We conclude that the reference to a "reasonable time" in subsection (2) indicates that the legislature intended a likely-to-be-rehabilitated finding to have a substantive and practical legal effect at the time that it was made.  If doubt remains, subsection (3) settles it.  That subsection states that the board, if it finds that the prisoner is "capable of rehabilitation," "shall" enter an order that "convert[s] the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release."  "Shall" is directory.  The plain, ordinary, and natural meaning of the word "convert" is to "change or turn from one state to another: alter in form, substance, or quality."  Webster's Third New Int'l Dictionary 499 (unabridged ed 2002).  The "terms of the prisoner's confinement" are the conditions under which the trial court sentenced the defendant to life in prison, viz., incarceration without possibility of parole for 30 years.(8)  Severy/Wilson, __ Or __, __, __ P3d __ (decided this date) (slip op at 17-18).   Thus, ORS 163.105(3) (1985), in requiring conversion of the prohibition on parole to the possibility of parole, necessarily eliminates the 30-year mandatory minimum sentence.  ORS 163.105(3) (1985) states that, if the board finds the prisoner to be capable of rehabilitation, "it shall enter an order to that effect and the order shall convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release."  (Emphasis added.)  That mandatory directive to the board implies that the conversion is to take place immediately, rather than 10 years in the future.(9)  Our examination of the text of ORS 163.105(3) thus further establishes that, once the conversion described in the statute occurs, the prisoner henceforth is serving a term of life in prison with the possibility of parole.  He no longer is subject to the mandatory minimum term that the trial court set, and he is eligible for parole at that point.(10) In interpreting a statute, a court also looks at relevant context, which includes related statutes and the "statutory framework within which the law was enacted."  State v. Dahl, 336 Or 481, 487, 87 P3d 650 (2004) (internal quotation marks omitted).  In this case, context also supports our initial conclusion that ORS 163.105 (1985) gave the board authority to override the court-imposed 30-year mandatory minimum sentence for aggravated murder and to release a prisoner on parole before the expiration of that term.  ORS 144.110, which deals with restrictions on paroling persons who have been sentenced to minimum terms, provides the most relevant context for our analysis, because it cross-references ORS 163.105 and because it was enacted at the same time that the legislature enacted ORS 163.105.  See Or Laws 1977, ch 370, § 2 (enacting ORS 163.105), and Or Laws 1977, ch 372, § 4 (enacting ORS 144.110).  When it was enacted, and at the time that Janowski and Fleming committed their crimes, ORS 144.110 provided:  "(1) In any felony case, the court may impose a minimum term of imprisonment of up to one-half of the sentence it imposes. "(2) Notwithstanding the provisions of ORS 144.120 and 144.780: "(a) The board shall not release a prisoner on parole who has been sentenced under subsection (1) of this section until the minimum term has been served, except upon affirmative vote of at least four members of the board. "(b) The board shall not release a prisoner on parole who has been convicted of murder defined as aggravated murder under the provisions of ORS 163.095, except as provided in ORS 163.105."  In subsection (1), the legislature granted trial courts discretion to impose a minimum period of imprisonment with respect to felonies other than aggravated murder.  As noted, the trial court had no similar discretion with respect to aggravated murder; ORS 163.105(1) required trial courts to impose a 30-year minimum period of imprisonment for aggravated murder (if the defendant was not given the death penalty).  Next, subsection (2) set out two processes for effectively overriding those mandatory minimum sentences.  The processes were parallel, a fact demonstrated by their use of identical wording in paragraphs (2)(a) and (2)(b), viz., "The board shall not release a prisoner on parole * * * except * * *."  Under paragraph (2)(a), in cases in which the court had imposed mandatory minimum sentences for felonies other than aggravated murder, the board had the authority to override those mandatory minimum sentences if four of the five board members(11) agreed.  Paragraph (2)(b), which prohibited the board from releasing on parole a prisoner who had been convicted of aggravated murder "except as provided in ORS 163.105," gave the board similar authority, albeit with more onerous preconditions:  In the case of prisoners convicted of aggravated murder, the prisoner was not permitted to seek a rehabilitation hearing that might lead to an override of the prisoner's judicially imposed sentence until he already had been incarcerated for 20 years, the burden was on the prisoner to convince the board that he was likely to be rehabilitated within a reasonable time, and the board was required to agree with the prisoner unanimously rather than by a four-of-five member vote.  ORS 163.105 (2), (3).  Additionally, we think that it is noteworthy that both ORS 144.110(2)(a) and (2)(b) referred to the release of a prisoner on parole.  That is, the legislature clearly contemplated that prisoners, even those who had been convicted of aggravated murder, could be released on parole if the conditions set out in paragraphs (a) and (b) were met.  The statute governing ordinary, nonaggravated murder, ORS 163.115 (1985), also provides relevant context.  At the time that Fleming committed his offense, that statute included a 10-year mandatory minimum sentence for murder, ORS 163.115(3)(b) (1985), and gave the trial court the authority to order the defendant to serve an additional 15 years in prison without the possibility of parole or work release or any other form of temporary leave, ORS 163.115(3)(c) (1985).  At the same time, however, ORS 163.115(3)(d) (1985) specifically provided that "[t]he minimum term set forth in paragraph (b) or (c) of this subsection may be set aside by a unanimous vote of the State Board of Parole."  Thus, and as ORS 144.110(2)(a) (1985) (discussed above) also shows, the legislature did not intend for a trial court's imposition of a mandatory minimum sentence to preclude the board from releasing a prisoner on parole before that sentence expired.  Based on the foregoing, we conclude, at this point in our analysis, that text and context indicate that the legislature intended the board to have the authority to override the 30-year mandatory minimum aggravated murder sentence and to release prisoners on parole before the expiration of that term. Our interpretive paradigm also directs us to consider this court's case law that construes pertinent statutes.  In its earlier cases, this court has made various observations concerning the meaning of ORS 163.105(3).  For example, in State v. Shumway, 291 Or 153, 164, 630 P2d 796 (1981), the court assumed that an inmate convicted of aggravated murder and given a mandatory minimum sentence of either 30 or 20 years would be eligible for parole after either 20 or 15 years (depending on the degree of aggravation under the aggravated murder statute then in effect, ORS 163.105 (1981)) -- that is, before the expiration of the prisoner's mandatory minimum sentence for aggravated murder.  Similarly, in State v. Wille, 317 Or 487, 503 n 12, 858 P2d 128 (1993), this court summarized the relevant wording in ORS 163.105 as providing a 30-year mandatory minimum sentence that "includes a possibility of parole after 20 years for prisoners who establish that they are likely to be rehabilitated within a reasonable period of time."  Those cases show that the court long has read ORS 163.105(3) in a way that is consistent with our analysis here.(12) To summarize, we conclude, based on our review of the text of ORS 163.105 (1985), its context, and our case law, that ORS 163.105 (1985) gave the board the authority to override the 30-year mandatory minimum sentence for aggravated murder, and to consider releasing a prisoner on parole after 20 years, upon a finding that the prisoner is likely to be rehabilitated within a reasonable time.  We therefore affirm the part of the decision of the Court of Appeals that so holds.  We turn now to consider what laws or rules govern the board's release decisions for those prisoners whom it has unanimously determined are capable of rehabilitation.  As noted, the Court of Appeals concluded that the board's rules provide no clear mechanism for determining when to release prisoners who have been convicted of aggravated murder, and it remanded the case to the board to "reevaluate which, if any, of its authorizing statutes properly apply to [the prisoners'] circumstances, in light of [its] interpretation of ORS 163.105 (1985)."  Fleming, 225 Or App at 601; see Janowski, 226 Or App at 83 (to same effect).  As we shall explain, we think that the relevant statutes suggest that the legislature intended that the board employ the matrix system to set release dates for those prisoners whom it has unanimously determined are capable of rehabilitation.  For that reason, we reverse the contrary conclusion of the Court of Appeals.  At the outset, we observe that ORS 163.105 (1985) was silent with respect to how the board was expected to determine a prisoner's actual duration of confinement, once the board had converted the prisoner's term to life in prison with the possibility of parole.  Furthermore, no other statute directly addressed that issue.  ORS 163.105 (1985) did, however, contain a reference to the statute governing the parole matrix system; the statute stated that its provisions applied "notwithstanding the provisions of ORS chapter 144," which govern parole and the parole matrix, among other things.  The "notwithstanding" clause means that, to the extent that ORS 163.105 and ORS chapter 144 contain conflicting provisions, the former prevails.  Severy v. Board of Parole, 318 Or 172, 178, 864 P2d 368 (1993) ("The function of the 'notwithstanding' clause that opened ORS 163.105 was to make the statute an exception to the provisions of law referenced in the clause.").  ORS 144.110(2)(b) (1985), in turn, contained an acknowledgement of the fact that the parole provisions in chapter 144 were subordinate to the provisions of ORS 163.105; that subsection, which dealt with restrictions on release on parole, provided that the "board shall not release a prisoner on parole who has been convicted of murder defined as aggravated murder under the provisions of ORS 163.095, except as provided in ORS 163.105."  As already discussed, however, we have concluded that the effect of those statutes, read together, is only to preclude the board from setting a parole release date for a prisoner who had been convicted of aggravated murder until the board has found the prisoner to be capable of rehabilitation and has converted the terms of his confinement to life in prison with the possibility of parole; they do not deny the board the authority to release a prisoner on parole before the expiration of the mandatory minimum sentence once the board has converted the mandatory term into a sentence that includes the possibility of parole.  Unfortunately, those statutes do not shed any light on the question of the applicability of the matrix to the board's parole release decision in the specific case of inmates whose 30-year mandatory minimum sentences for aggravated murder have been converted.  However, at the time that Janowski and Fleming committed their crimes, the only statutes that gave the board authority to determine the actual duration of incarceration for any offender or to release inmates on parole were the statutes governing the matrix system in ORS chapter 144.(13)  By its terms, that matrix applied even in the cases of those persons who had been convicted of "murder" under ORS 163.115 (that is, ordinary, nonaggravated murder),(14) and sentenced by a trial court to life in prison with the possibility of parole.(15) The question, then, is whether the legislature intended to treat prisoners like Janowski and Fleming, whose terms of confinement were converted by the board to life in prison with the possibility of parole, differently than it treated those prisoners whose sentences of life in prison with the possibility of parole were imposed by the trial court at the time of their convictions for murder.  The board has not pointed to any statutory provision or any other indication of a legislative intent to treat the two situations differently, and our research discloses none.  During the relevant time period, ORS 144.120 (1985)(16) provided:  "(1) Within six months of the admission of a prisoner to any state penal or correctional institution, the board shall conduct a parole hearing to interview the prisoner and set the initial date of release on parole pursuant to subsection (2) of this section.  Release shall be contingent upon the satisfaction of the requirements of ORS 144.125. "(2) In setting the initial parole release date for a prisoner pursuant to subsection (1) of this section, the board shall apply the appropriate range established pursuant to ORS 144.780.  Variations from the range shall be in accordance with ORS 144.785. "* * * * * "(4) Notwithstanding subsection (1) of this section, in the case of a prisoner whose offense included particularly violent or otherwise dangerous criminal conduct * * *, the board may choose not to set a parole date." In 1985, those provisions contained no exception for prisoners serving a mandatory minimum sentence or for prisoners who had been convicted of aggravated murder or murder:(17)  Under ORS 144.120, the board was required to determine a matrix range and to set an initial parole release date for both Janowski and Fleming within six months of their entry into prison, unless it invoked subsection (4) and chose not to set a release date because of the particularly violent nature of the prisoners' crimes.(18)  And, even if that were not decisive support for the proposition that the matrix applies after prisoners' terms of confinement are converted to life with the possibility of parole under ORS 163.105(3) (1985), a review of the legislative history of ORS 163.105 (1985) confirms that that is what the legislature had in mind. That legislative history is replete with comments by legislators that reflect their assumptions that the parole matrix would apply.  In 1977, when the bill that became ORS 163.105 first was considered, legislators made many such statements in connection with proposed amendments to the bill that added mandatory minimum sentences for aggravated murder and provided for rehabilitation hearings.  The early drafts of the amended bill permitted a prisoner to seek a rehabilitation hearing after two years of incarceration.  In discussing those drafts, members of the Senate Committee on the Judiciary focused on the absolute minimum length of time (the "floor") that a person convicted of aggravated murder would spend in prison, assuming that the board overrode the court-imposed minimum term.  Because the draft bill did not contain a floor at that time, the committee understood that "[i]t would depend on the parole matrix."  Tape Recording, Senate Committee on the Judiciary, HB 2011, June 2, 1977, Tape 38, Side 2 (statement of Sen Betty Roberts).  Eventually, the committee decided to add a 15-year floor before a prisoner would be permitted to seek a rehabilitation hearing.  In discussing the effect of that floor, Senator Wallace P. Carson, Jr., stated, in somewhat colloquial terms, that, "in this instance rather than delegating the matrix function to the board, the legislature would be setting a 15-year minimum.  And they can work their matrix all they want, they can amend it up or down but the guy is going to do 15 years in the slammer. "* * * * * "We've in effect just mandated in two aggravated murder situations, the matrix for the parole board.  They can't go below 15 [years].  The lower end of your matrix is 15 years. * * * In other words, if they find the matrix is 15 years, the matrix matches perfectly.  If they find 20, you're looking at 5 more [years]."  Id.   Additionally, when the amended bill was sent to the House of Representatives, Representative Hardy Myers explained to the House that the bill had been amended to allow the board to override the minimum term imposed at sentencing by adding "a procedure dealing with consideration by the parole board after a designated period of time, a consideration whether the person should, in effect, be taken out from under the minimum sentencing structure and placed in the matrix scheme. "* * * * * "The other portion of the conference committee report would retain the power of the parole board to, in effect, remove the person from the minimum sentencing structure at specified time intervals.  That is to consider petitions for, in effect, that removal." Tape Recording, House of Representatives, HB 2011, Tape 36, Track 1, June 29, 1977.  In addition, as the Court of Appeals explained below, Fleming, 225 Or App at 597, the legislature in 1981 amended the provision in ORS 163.105 requiring the board to convert a prisoner's terms of confinement to life in prison with the possibility of parole if it found that the prisoner was likely to be rehabilitated in a reasonable time.  At that time, the legislators again discussed the interplay between the mandatory minimum sentence for aggravated murder, the rehabilitation provisions, and the applicability of the matrix.  At a Senate hearing in July 1981, the chair of the Senate Committee on Justice, Jan Wyers, discussed the effect of the 30-year mandatory minimum sentence in that context with witness Jerry Cooper of the Oregon District Attorneys Association:  "[Wyers:]  Is there any way, under this bill, that a person who starts out with the 30-year aggravation could get less than a 20-year sentence? "[Cooper:]  No. "[Wyers:]  If it is reduced by unanimous vote to 20, how long would a person serve? "[Cooper:]  It would depend on the matrix.  Yes, it is like you received a life sentence at that point, and I think it states that in the bill." Tape Recording, Senate Committee on Justice, July 23, 1981, HB 3262A, Tape 315A.  A week later, legislators engaged in a colloquy that the Court of Appeals described as follows:  "At a conference committee hearing on the bill on August 1, 1981, in which the committee was reviewing the final changes in the bill, Senator Jan Wyers explained that, under the proposed revisions, the prisoner would not 'get to the parole board before the 15 or 20 years had been served,' and that 'at the end of the 15 or 20 years then they could set a date.'  Tape Recording, Senate Committee on Justice, Conference Committee on SB 526, Aug 1, 1981, Tape 329A (statement of Sen Jan Wyers) * * *.  Representative Dick Springer added that, after the board reached a decision that a prisoner was likely to be rehabilitated, 'then it would be treated as a regular homicide, not aggravated, in which the matrix would apply.  And we felt reasonably confident that the matrix guidelines were sufficient if the person had already served the minimum, which in any event, would be 15 years, then the matrix would provide additional guidelines to the parole board.'  Tape Recording, Senate Committee on Justice, Conference Committee on SB 526, Aug 1, 1981, Tape 329A (statement of Rep Dick Springer)." Fleming, 225 Or App at 598-99 (emphasis added; Court of Appeals' emphasis omitted).  In light of the facts that the matrix provided the only available mechanism for the board to make parole release decisions at the time that Janowski and Fleming committed their crimes, and that no other statutes offered the board a source of authority for making parole release decisions for prisoners whose aggravated murder sentences were converted to life in prison with the possibility of parole, we do not think that the legislature intended by its silence on the matter in ORS 163.105 (1985) to indicate that it meant the board to use some unidentified alternative to the matrix system to set parole release dates for prisoners whose terms of confinement were converted to life in prison with the possibility of parole.  Indeed, as noted, the legislative history demonstrates that the legislature understood that the matrix would apply in those cases.  For all those reasons, we conclude that the legislature intended the board, having converted the terms of a prisoner's confinement to life in prison with the possibility of parole, to set a release date in accordance with the parole matrix in place when the prisoner committed his offense.  Notwithstanding the foregoing statutory requirements, the board has noted that it had no rules applicable to prisoners whose terms of confinement had been converted in this way.  It has contended that it designated aggravated murder as an "unclassified" felony, for which no crime severity rating or matrix range applied, and it had no rules specifically governing release on parole for prisoners who were convicted of aggravated murder during the relevant time frame.  As noted, the Court of Appeals found that argument compelling.  The Court of Appeals pointed to this court's decision in Engweiler v. Board of Parole, 343 Or 536, 175 P3d 408 (2007), in which this court stated that, in 1985, the board had enacted rules that "did not provide for a proceeding in which a parole date would be determined until after the inmate had served the minimum term of confinement imposed pursuant to ORS 163.105(1) (1985).  In effect, the rules did not anticipate the need to do so for any person convicted of aggravated murder."  Id. at 540.  Based on that statement, the Court of Appeals held that the case should be remanded to the board for that agency to "reevaluate which, if any, of its authorizing statutes properly apply to petitioner's circumstance, in light of [the court's] interpretation of ORS 163.105 (1985)."  Fleming, 225 Or App at 599-601; see also Janowski, 226 Or at 83 (to same effect).  However, neither the absence of agency rules establishing procedures for setting release dates for inmates whose terms of confinement had been converted, nor the board's decision to designate aggravated murder as an "unclassified" felony, changes the board's obligations under the statute to establish a matrix range and set parole release dates for those prisoners.  In addition, and importantly, even though the board's rules did not prescribe a procedure for setting release dates after a prisoner's terms of confinement were converted pursuant to ORS 163.105(3) (1985), its rules did provide for the establishment of matrix ranges for both Janowski and Fleming.  First, as noted above, when Janowski committed his crimes, aggravated murder still was a "classified felony," and there was an assigned crime severity rating and matrix range for that crime.  See OAR ch 255, Exhibit A, Part I, Offense Severity Under Rule 255-35-010 (1982).  Moreover, board rules at that time specifically required it to set a matrix range for aggravated murder.  Former OAR 255-030-0012 (1982), repealed May 31, 1985, provided: "(1) Those persons sentenced under ORS 163.095 for aggravated murder shall be seen at a prison term hearing within six months of confinement at a state institution."  The phrase "prison term hearing" was defined in OAR 235-30-005(1) (1982) as "[t]he hearing given a prisoner within six months of admission to a correctional institution at which the Board establishes a prison term to be served according to the guidelines ranges."  And, in Janowski's case, as noted, the board held a prison term hearing within six months of his incarceration and established a matrix range according to the "guidelines ranges"(19) that were in effect when he committed his offense. In May 1985, after Janowski committed his crimes but before Fleming committed his, the board amended its rules to designate aggravated murder as "unclassified," but it continued to assign a crime severity rating to that crime.  OAR ch 255, Exhibit A, Crime Severity Ratings (1985).(20)  We think that the designation of aggravated murder as "unclassified" is irrelevant for our purposes here.  At that time, the board also designated ordinary murder (under ORS 163.115 (1985)) as "unclassified," but the board clearly was required in certain circumstances to apply the matrix for prisoners convicted of that crime.  See ORS 163.115(3)(d) (1985) (giving board authority to set aside mandatory minimum sentence for murder).  And, in fact, at Fleming's prison term hearing, the board established a matrix range for him.  Thus, we do not find the board's designation of aggravated murder as unclassified to be helpful to our analysis.  In addition, at the time that Fleming committed his crime, OAR 255-32-005 (1985) provided (similar to OAR 255-030-0012 (1982), repealed May 31, 1985): "A person convicted of Aggravated Murder under ORS 163.095 shall receive a prison term hearing under the provisions of Division 30 of these rules." Division 30, in turn, implemented ORS 144.120 and provided a definition of the phrase "prison term hearing": "The hearing given a prisoner within six (6) months of admission to a correctional institution at which the Board establishes a prison term to be served according to the guideline ranges."  OAR 255-30-005(1) (1985).(21) Taking all of the foregoing together, we are satisfied that the board's rules in effect when Janowski and Fleming committed their offenses did include rules for applying the matrix to persons convicted of aggravated murder, even if there was no specific, separate procedure in place under the board's rules for conducting a hearing to set a release date for them when the terms of their confinement were converted to life with the possibility of parole.  The contrary conclusion of the Court of Appeals was incorrect.  That does not end the matter, however.  The question remains what the board should do now with respect to those prisoners whose terms of confinement were converted to life imprisonment with the possibility of parole and, specifically, what it should do with prisoners such as Janowski, whose matrix ranges already have expired.  Janowski argues that he must be released immediately on parole. In general, as described above, under the matrix system, the board calculated a matrix range for inmates within six months of their incarceration.  ORS 144.120(1), (2) (1985).  ORS 144.120(1) also required the board to set a parole release date for all prisoners (although ORS 144.120(4) (1985) allowed the board to choose not to set a parole release date in certain specified circumstances).  However, under ORS 144.110(2), notwithstanding ORS 144.120, the board did not have authority to release a prisoner before the expiration of a mandatory minimum term of imprisonment, except under the specific conditions that we have described at length above.  In the present cases, the board initially set parole release dates for Janowski and Fleming at the end of their mandatory minimum terms, but it withdrew those release dates in later orders.  Accordingly, at this point, there is no set release date in place for either Janowski or Fleming.  It follows from our discussion and holdings above that the board must now conduct a hearing, using whatever procedures it deems appropriate, to set each prisoner's release date according to the matrix in effect when he committed his crime.  Because the matrix range in Janowski's case already has expired, we anticipate that the release date in his case will be set in the near future.  The obvious question that arises, however, is whether the board may choose not to set a release date as provided in ORS 144.120(4) (1985), on the theory that Janowski is "a prisoner whose offense included particularly violent or dangerous criminal conduct."  We express no opinion on the issue.  Once the date is set, it can be postponed only for three statutorily prescribed reasons.  First, under ORS 144.125(2) (1985), the board must postpone a prisoner's release date if it finds that the prisoner had engaged in serious misconduct during confinement.  The board also is permitted, but not required, to postpone a release date if the prisoner received a psychiatric or psychological diagnosis of a severe emotional disturbance that would make him a danger to the community, ORS 144.125(3) (1985), or if it deems the prisoner's release plan to be inadequate, ORS 144.125(4) (1985).(22) In 1985, the legislature added a provision to the applicable statutes that made it clear that a prisoner must be released on his or her parole release date: "When the State Board of Parole has set a date on which a prisoner is to be released upon parole, the prisoner shall be released on that date unless the prisoner on that date remains subject to an unexpired minimum term during which the prisoner is not eligible for parole, in which case the prisoner shall not be released until the expiration of the minimum term."  ORS 144.245(1) (1985).  Under that statute, "if a prisoner does not have an unexpired minimum term, then the prisoner must be released on the scheduled release date" unless one of the grounds for postponement of a release date set out in ORS 144.125 is present.  Hamel, 330 Or at 187 (emphasis in original).     That statute applies to Fleming, but not to Janowski.  Nonetheless, we think that that statute represents a clarification of existing law rather than a change in the law.  That is so because, other than ORS 144.110(2) (1983) (proscribing the board's authority to release a prisoner subject to a minimum term of imprisonment) and ORS 144.125(2), (3), (4) (1983) (setting out three grounds for postponing a prisoner's parole release date), the parole and matrix statutes provided the board with no authority to continue to imprison an inmate after the expiration of the parole matrix range.  See also ORS 144.120(1) (1983) ("Release shall be contingent upon satisfaction of the requirements of ORS 144.125.").  Board rules applicable to Janowski are consistent with that understanding.  Under former OAR 255-035-005(5) (1982), a "'[p]arole release date' [is a] fixed date, by month and year, assigned to a prisoner for parole release based on the guideline range for his/her particular offense severity rating and history/risk score.  A parole release date can only be changed following a hearing for reasons specified in Division 60 and ORS 144.126 [sic(23)].  The parole release date ends on the last day of the designated month and year." In this case, we have held, under ORS 163.105(3) (1985), that the board's conversion of Janowski's and Fleming's terms of confinement to life in prison with the possibility of parole, based on its findings that each was likely to be rehabilitated in a reasonable time, overrode their 30-year mandatory minimum sentences.  Thus, neither continues to be subject to an unexpired minimum term.  It follows that the only statutory authority for continuing to incarcerate Janowski or Fleming after a parole release date is ORS 144.125 (1985).(24) Janowski states that, under ORS 144.125(1) (1985), the board may conduct an exit interview to determine if any of the circumstances warranting postponement of the release date are present, and, he argues, that exit interview must occur, if at all, before the expiration of his matrix range.  Because his matrix range had expired before the board found him to be capable of rehabilitation, he argues, the scheduled release date was the date of that board finding, at the latest.  Because the board did not hold such an interview at that time, he reasons, it cannot hold one at all, and he is entitled to be released immediately.    Janowski's argument misreads the statute and fails to take into account that the board has not yet set his parole release date; rather, the board must conduct a hearing in the immediate future to do so.  And, in any event, ORS 144.125(1) (1985) provides that, "prior to the scheduled release of any prisoner," the board may interview the prisoner to determine if any of the statutory grounds for postponement of a parole release date are present.  The phrase "scheduled release" is not defined in the statute or in the applicable regulations.  However, the plain and natural meaning of that phrase is the date that the board ultimately schedules for the prisoner's release.  Again, in this case, Janowski still is incarcerated; the board has not yet scheduled his release.(25)  Once the board sets Janowski's release date, it will have an opportunity to interview him to determine whether any of the grounds for postponement of his release are present.  However, if, after conducting such an interview, the board concludes that none of the statutory grounds for postponement is present, the board must release Janowski on parole on his release date.(26) The decision of the Court of Appeals in both cases is affirmed in part and reversed in part.  The orders of the Board of Parole and Post-Prison Supervision are affirmed in part and reversed in part, and the cases are remanded to the Board of Parole and Post-Prison Supervision for further proceedings. 1. The record does not reflect precisely how many inmates will be affected by our decision in this case, but one party has estimated that that number is at least 75.  2. In November 1984, the voters passed an initiative measure amending ORS 163.105, among other things, to include the death penalty as a possible sanction for aggravated murder.  By proclamation of the governor, that measure took effect on December 6, 1984; accordingly, the 1985 version of ORS 163.105 applies with respect to crimes committed after December 6, 1984, including the aggravated murders committed in these cases.  3. As will be discussed in more detail later in this opinion, the legislature established the parole matrix system in 1977.  Or Laws 1977, ch 372, §§ 1-18.  Under that system, the trial court imposed a sentence that was the maximum term that an offender could serve for his or her crime, but the board determined the actual duration of an inmate's imprisonment according to a matrix that the legislature directed the board to create.  See Hamel v. Johnson, 330 Or 180, 185-86, 998 P2d 661 (2000) (so explaining); Or Laws 1977, ch 372, § 2 (directing board to create matrix).  The matrix established ranges of duration of imprisonment for various crimes according to the seriousness of the offense and the offender's criminal history.  Or Laws 1977, ch 372, § 2.  The matrix system remained in effect until 1989, when the legislature adopted a new sentencing system that required judges to use defined presumptive punishments, set out in sentencing "guidelines" created by the State Sentencing Guidelines Board and later approved by the state legislature, for most felony convictions.  Or Laws 1989, ch 790, § 87.  4. The board held the hearing in each case and established a matrix range for each prisoner pursuant to ORS 144.120 (1985), which required the board to hold a hearing "[w]ithin six months of the admission of a prisoner to any state penal or correctional institution."  However, at the same time, the board upheld each inmate's 30-year mandatory minimum sentence because ORS 144.110(2)(b) (1985) provided that, notwithstanding the directive to the board to establish a matrix range for each prisoner, the board "shall not release a prisoner on parole who has been convicted of murder defined as aggravated murder under the provisions of ORS 163.095, except as provided in ORS 163.105."  5. In fact, the board was incorrect on that point, at least with respect to Janowski.  As we discuss below, at the time that Janowski committed his crimes, aggravated murder still was a "classified felony" and the board's rules required it to set a matrix range for aggravated murder.  However, as we explain below, whether the board "classified" aggravated murder for matrix purposes and whether its rules specifically required it to set a matrix range for persons convicted of aggravated murder is of limited relevance to our decision in this case.  6. Under ORS 163.105(2)(a) (1985), the burden of proof was on the prisoner to prove by a preponderance of the evidence that he was likely to be rehabilitated within a reasonable period of time.  7. The board argues that, on the contrary, subsection (2) does not imply anything respecting the board's authority to override the 30-year mandatory minimum sentence; rather, the board asserts, subsection (2) merely gives both the board and the prisoner time to come to an agreement that the inmate actually has been rehabilitated and to prepare for his eventual release after 30 years.  Interestingly, however, the way that the board chose to conduct the hearings on the inmates' rehabilitation is inconsistent with that interpretation.  Specifically, at both Janowski's and Fleming's hearings in 2005 and 2006 respectively, the board required the inmates to make the showing set out in OAR 255-032-0020.  Among other things, that rule required (and still requires) a prisoner to present a viable release plan and to establish his suitability for parole on the date of the rehabilitation hearing.  OAR 255-032-0020(1)(i) and (j) (2003); OAR 255-032-0020(9), (10).  Such evidence relating to any proposed release plan would be crucial to the board's determination whether to release a prisoner imminently, but that evidence could -- indeed likely would -- be stale 10 years later.  8. In Norris v. Board of Parole, 331 Or 194, 13 P3d 104 (2000), cert den, 534 US 1028, 122 S Ct 562, 151 L Ed 2d 437 (2001), this court acknowledged that the word "terms" in ORS 163.105(3) (1985) could refer to the conditions of confinement, but held that the phrase "terms of confinement" refers to the sentence imposed by the trial court for aggravated murder under ORS 163.105.  Id. at 207.  However, as we explain in Severy/Wilson, __ Or__, __, __ P3d __ (decided this date) (slip op at 13-14), the court's stated bases for its decision in Norris respecting the part of the decision concerning the timing of rehabilitation hearings do not provide support for its conclusions, are internally inconsistent, and ignore the words of the statute; for those reasons, we declined to follow Norris.  Instead, as pertinent here, we interpret the phrase "terms of confinement" to mean the conditions under which a defendant is required to serve his life sentence.  Severy/Wilson, ___ Or at ___ (slip op at 17-18).    9. In fact, as noted above, the board did purport to "convert the terms" of Janowski's and Fleming's confinement by order immediately after it found them to be capable of rehabilitation.  However, any such "conversion" would have had no practical effect on the term of confinement for either inmate, because the board set parole release dates for each of them 10 years in the future.  10. The Court of Appeals found this construction of ORS 163.105(3) implausible because, in its view, it renders the 30-year mandatory minimum sentence required in subsection (1) surplusage.  That is, according to that court, "[i]f * * * subsection (3) permits the board to parole [a prisoner] after 20 years based on a finding that he is likely to be rehabilitated within a reasonable period of time[,] then the phrase '30 years' as used in subsection (1) means, in effect, the same thing as the phrase '20 years' as used in subsection (2).  That is, if [that view] is correct, there is no obvious reason why subsection (1) should not have said 'minimum of 20 years without the possibility of parole' rather than 'minimum of 30 years without the possibility of parole.'" Fleming, 225 Or App at 585 n 3.  That analysis overlooks the fact that subsection (1) of ORS 163.105 is a directive to the trial court; it sets the mandatory minimum sentence that the trial court must impose in certain circumstances for the crime of aggravated murder.  As discussed above, it does not purport to describe or proscribe the board's authority in any way.  And, as other, related statutes -- which we describe in detail below -- show, the legislature did not view a trial court's imposition of a mandatory minimum sentence as inherently inconsistent with the board's authority to later set a parole release date that would be reached before the expiration of the mandatory minimum sentence originally imposed.  11. See ORS 144.005(1) (1985) (Board of Parole composed of five members). 12. We also note that, as the Court of Appeals concluded after an able and thorough examination of the record, Fleming, 225 Or App at 596-99, "the legislative history supports [the] contention that the legislature intended, in cases such as [these], for the board to be able to override the 30-year sentence upon a finding that [the prisoner] was likely to be rehabilitated within a reasonable time."  Id. at 599.  13. This court explained the operation of the matrix system in Hamel.  Under that system, "a trial court imposed an indeterminate sentence of a specified duration on a defendant who had been convicted of a crime.  An indeterminate sentence stated only a maximum term to be served under the jurisdiction of the Department of Corrections.  Such a sentence did not establish the length of time that a defendant was to be incarcerated.  * * *.  Regardless of the length of an indeterminate sentence, under ORS 144.780 and ORS 144.785, 'it is the [Board] that determines the actual duration of imprisonment.'  * * *.  In other words, for prisoners sentenced under the matrix system, the Board, not the court, determines the actual duration of imprisonment.  * * *. "In sum, under the matrix system, the parole release date that is set by the Board, not the indeterminate sentence, establishes how long a prisoner will be incarcerated.  The indeterminate sentence merely provides the outermost limit of the Board's authority over the length of a prisoner's term of incarceration. "* * * ORS 144.120(1) directs the Board to conduct a hearing within six months to a year after the prisoner has arrived in a correctional facility and to set an initial parole release date 'pursuant to ORS 144.780.'  ORS 144.780, in turn, directs the Board to adopt rules establishing 'ranges of duration of imprisonment to be served for felony offenses prior to release on parole.'  Under the Board's rules, the 'ranges of duration' referred to in ORS 144.780 are known as the 'matrix ranges.'  OAR 255-005-0005(28) (1998).  The matrix ranges identify the ranges of months within which the Board has discretion to set a prison term."  Hamel, 330 Or at 185-87 (citations omitted).  14. Ordinary, nonaggravated, murder was and is defined in ORS 163.115.  When Janowski committed his crimes, that statute required that a person convicted of murder under that statute be "punished by imprisonment for life."  ORS 163.115(3) (1983).  At that time, there was no mandatory minimum sentence for murder, and the board determined the duration of the defendant's actual imprisonment under the matrix.  See Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 88 (July 1971) (under the new sentencing scheme for murder in ORS 163.115, under which the sentence for murder would be life in prison, "parole eligibility * * * would be determined by the State Board of Parole and Probation in the same manner as for any other convicted offender"); ORS 144.120 (1983) (directing board to make parole decision under matrix).  As discussed above, by the time that Fleming committed his crime, the legislature had amended ORS 163.115 to include a 10-year mandatory minimum sentence for murder, ORS 163.115(3)(a) (1985), and to give the trial court the authority to order the defendant to serve an additional 15 years in prison without the possibility of parole or work release or any other form of temporary leave, ORS 163.115(3)(b) (1985), but it permitted the board to "set aside" the court-imposed mandatory minimums with a unanimous vote of its members.  ORS 163.115(3)(d) (1985).  If the board set aside the minimum term that the trial court had imposed, then the term of confinement would revert to life in prison with the possibility of parole and the board would determine the duration of the defendant's actual imprisonment under the matrix. 15. See ORS 144.120 (1985) (requiring board to set parole release dates for all prisoners within six months of their admission to any state penal or correctional institution); see generally State v. Macy, 320 Or 408, 886 P2d 1010 (1994) (discussing matrix ranges for prisoner convicted of multiple murders and given consecutive life sentences).  16. We have set out the 1985 version of ORS 144.120, which was effective when Fleming committed his offense.  However, that statute was identical in all material respects to the version in effect when Janowski committed his offenses.  In addition, with one important exception, the 1985 and 1983 versions of all parts of ORS chapter 144 that we discuss in this opinion are identical in all material respects.  Accordingly, for convenience, we cite only to the 1985 version except when a specific reference to a particular version is required. 17. ORS 144.120 eventually was amended to provide certain exceptions to the requirement that the board set release dates within certain time frames for a prisoner entering a penal institution.  In 1991, the legislature amended the statute to create an exception for prisoners who had been convicted of aggravated murder.  Or Laws 1991, ch 126, § 6.  In 1999, the statute was amended again to create an exception for those prisoners who had been convicted of murder.  Or Laws 1999, ch 782, § 3.  18. In this case, as noted, the board did initially determine a matrix range and set a release date for each prisoner at a hearing conducted six months after his incarceration.  Even when the board later withdrew those orders, however, it did not invoke subsection (4) as the reason for doing so.  19. The phrase "guidelines ranges" was defined as "[r]anges of months to be served as a prison term before parole release for each offense severity rating and history/risk score."  OAR 255-35-005(3) (1982); see OAR 255-35-005(3) (1985) (same, except for use of term "crime severity" rating).  The ranges themselves were set out in Exhibit C to those rules.  The ranges set out in Exhibit C were based on the crime severity rating for the particular offense as set out in Exhibit A to the same rules. 20. In fact, all the versions of the Crime Severity Ratings (Exhibit A) in effect from 1985 through 1991 designate aggravated murder as "unclassified" but set out a crime severity rating for that crime.  In 1992, the last year that the board's rules included Exhibit A, aggravated murder was designated as "unclassified," but no crime severity rating was set out for that crime.  21. Division 30 of OAR chapter 255 did not contain any exceptions for prisoners who had been convicted of aggravated murder, nor could it, given that ORS 144.120 (1985) contained no such exception.  See ORS 183.400(4)(b) (court shall declare rule invalid if it exceeds the statutory authority of the agency). 22. ORS 144.125 (1985) provided, in relevant part: "(2)  The board shall postpone a prisoner's scheduled release date if it finds, after a hearing, that the prisoner engaged in serious misconduct during confinement.  * * *. "(3)  If a psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner, the board may order the postponement of the scheduled parole release until a specified future date. "(4)  Each prisoner shall furnish the board with a parole plan prior to the scheduled release of the prisoner on parole.  The board * * * may defer release of the prisoner for not more than three months if it finds that the parole plan is inadequate." 23. We presume that the board meant ORS 144.125.  Division 60 implemented the release deferral provisions of ORS 144.125 (2), (3), and (4).  The reference to ORS 144.126 was a typographical error, apparently.  No section 126 ever has existed.  24. It could be argued that, because ORS 163.105(2) and (3) refer to a finding that a prisoner is "likely to be rehabilitated" or "capable of rehabilitation," the prisoners cannot be released until the board actually finds that they are rehabilitated.  The trouble with that notion, however, is that ORS 163.105(3) conditions the conversion of the terms of the prisoner's confinement only on the board's inchoate "likely" or "capable" finding:  Once the board makes that specific finding, it "shall" convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole.  And once the terms of confinement are so converted, the prisoner immediately begins serving that term and the matrix rules begin to apply.  There is no statutory or regulatory authority for any further procedure to determine actual rehabilitation or for conditioning parole release on such a determination, and neither we nor the board are permitted to add any such procedure to the statutes or rules.  25. Indeed, given its previous interpretation of the applicable statutes, it would not have been possible for the board to schedule Janowski's release before the issuance of this opinion.  26. This court's decision in Roy v. Palmeteer, 339 Or 533, 124 P3d 603 (2005), is not to the contrary.  In that case, this court held that the petitioner was not entitled to immediate release on habeas corpus simply because the board had determined that he was likely to be rehabilitated in a reasonable time under ORS 163.105(3).  The petitioner had argued that that result was compelled by this court's earlier decision in Norris, 331 Or at 196-208 (holding that prisoner who was serving two consecutive 30-year mandatory minimum sentences began serving second one on day board found him to be capable of rehabilitation in first).  This court rejected that argument in Roy, holding only that Norris did not purport to establish any rule that a finding of rehabilitation automatically required immediate release of the prisoner.  The court did not discuss whether the board's finding of likelihood of rehabilitation would override the prisoner's 30-year mandatory minimum sentence, whether the matrix would be applicable to the board's parole release decision for the prisoner in Roy, or whether the matrix range for the prisoner in Roy had expired.  We therefore do not find Roy to be controlling.

674437a93696ebf028d6994e8bc2fa8bbbdc7c7a94bea50bcb13fe22d2f4c66e

2010-12-23T00:00:00Z

d8838717-8137-4334-9c0c-0a76459d1aa0

State v. Buttrey

293 Or. 575, 651 P.2d 1075

oregon

Oregon Supreme Court

651 P.2d 1075 (1982) 293 Or. 575 STATE of Oregon, Respondent On Review, v. Donna Jean BUTTREY, Appellant On Review. Nos. C80-10-33782, CC78-424; CA A20616; SC 28155. Supreme Court of Oregon, In Banc. Argued and Submitted February 10, 1982. Decided October 5, 1982. Reargued September 7, 1982. John Daugirda, Deputy Public Defender, Salem, argued and reargued the cause for appellant on review. With him on the brief was Gary D. Babcock, Public Defender, Salem. David B. Frohnmayer, Atty. Gen., Salem, argued and reargued the cause for respondent on review. With him on the brief were William F. Gary, Sol. Gen., and Rudolph S. Westerband, Asst. Atty. Gen., Salem. PETERSON, Justice. In State v. Stroup, 290 Or. 185, 620 P.2d 1359 (1980), we held that in a prosecution for driving while suspended, ORS 487.560, where the suspension is for failure to appear in court, the state is not required to prove, as an element of the offense, that the order of suspension was mailed to defendant. We also held that procedural due process did not require, as an element of the offense, proof of mailing of the notice of suspension, because the defendant, before the suspension, was provided an opportunity for a hearing and given notice that failure to appear at the hearing might result in the suspension of driving privileges. 290 Or. at 197-202, 620 P.2d 1359. Anticipating the present case, we stated: We noted: This is a case in which the defendant's driver's license was suspended for one of the "other reasons" referred to in Stroup and we are squarely faced with the two "open" questions from Stroup: 1. In a prosecution for driving while suspended, do Oregon statutes require the state to prove a culpable mental state, i.e., that the defendant, at the time of the offense, had actual or constructive knowledge that her license had been suspended? 2. Was defendant denied Fourteenth Amendment due process either because she was convicted absent any showing of mens rea or because ORS 482.560 unconstitutionally shifts the burden of disproving an element of the crime, knowledge, to the defendant? The defendant was charged with violating ORS 487.560. The information alleged: The case was tried to the court without a jury. The defendant stipulated that she was driving upon a highway. A copy of the order suspending her driver's license was received in evidence. The driving occurred during the suspension period. Appended to the suspension order was a certificate that the copy of the suspension order was correct and that the order "was mailed to the official address of record as recorded on the Motor Vehicles Division record."[2] No return receipt was offered in evidence and there was no evidence, other than the suspension order itself and the certificate thereon, that the defendant had received the notice of suspension. The exhibit was received without objection.[3] *1077 The defendant moved for acquittal asserting that there was no proof of mens rea and that the "shifting of the burden" under ORS 487.560(2) (set forth below) was unconstitutional. The trial court denied the motion and found the defendant guilty of a class C felony, stating: The court suspended imposition of sentence and placed the defendant on five years' probation and required her to serve one year in the county jail. The Court of Appeals affirmed the conviction from the bench. 54 Or. App. 40, 642 P.2d 704 (1981). Historically, criminal liability has required both an act and a culpable mental state. In the past century, legislatures have passed numerous statutes which have imposed criminal liability unaccompanied by fault. Strict liability statutes have been passed because of the difficulty in proving intent, knowledge, recklessness or negligence, and because of a legislative perception that evil should be eradicated, even at the risk of convicting blameless defendants. W. LaFave and A. Scott, Handbook on Criminal Law 218 (1972). Oregon has enacted such statutes.[4] The defendant claims that there are three elements to the crime of driving while suspended, (1) driving a vehicle upon a highway, (2) with a suspended license, (3) with knowledge of the suspension. For the purposes of this opinion we will assume that there is no evidence that the defendant had actual or constructive knowledge that her license had been suspended. The decision turns on an analysis of the statute defining the crime, ORS 487.560 (which was enacted in 1975 as part of a comprehensive motor vehicle code reform), and general provisions in the Oregon Criminal Code of 1971, ORS chapter 161. The Oregon Criminal Code was revised in 1971. The drafters of the law and the legislature were very much aware of "strict liability" crimes. In the "purposes" section of the code, ORS 161.025(1)(d), this legislative purpose is stated: The Criminal Code sought to create a uniform system for determining offense classifications and culpability requirements. See Comment, Strict Liability and Criminal Sanctions: The 1971 Revisions to the Oregon Criminal Code, 13 Willamette L.Rev. 365, 366-67 nn. 9, 10 (1977). The Criminal Code includes provisions defining a "culpable mental state," ORS 161.085, and describing when a culpable mental state must be proved, ORS 161.095, ORS 161.115, and ORS 161.105. ORS 161.085 lists and defines four culpable mental states intentionally, knowingly, recklessly and criminal negligence each of which require a form of awareness or failure to be aware as a requirement of criminal liability. A culpable mental state is generally required for criminal liability to be imposed. ORS 161.095(2) provides: ORS 161.115(2) provides: ORS 161.105(1)(b), the "exception" statute referred to in ORS 161.095(2) and ORS 161.115(2), states: The criminal statute under which the defendant was charged and convicted, ORS 487.560, is outside the Criminal Code. It provided: Although the parties agree that ORS 487.560 is "an offense defined by a statute outside the Oregon Criminal Code," they do not agree that the statute "clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof." Our conclusion is that the language of ORS 487.560 itself clearly indicates a legislative intent to dispense with a culpable mental state requirement, and the legislative history puts the matter beyond question. The key provisions, insofar as the question before us is concerned, are subsections (1), (2) and (3). Subsection (1) defines the crime. Two elements are stated. Driving a motor vehicle upon a highway. During a period when the license has been suspended. *1079 Subsection (1) does not prescribe a culpable mental state, but suggests that if the two elements are shown, proof of those elements alone is sufficient to convict. Subsection (1), by itself, does not "clearly [indicate] a legislative intent to dispense with any culpable mental state requirement." Doubt is dispelled, however, by subsections (2) and (3). Subsection (2) lists two possible "affirmative defenses," one in the nature of a choice of evils defense, section (2)(a), the other relating to the lack of receipt of notice of the suspension, section (2)(b). The term "affirmative defense" is defined in the Criminal Code as follows: The legislative intent is clear: The state makes a prima facie case upon proof of the two elements in ORS 487.560(1), without proof of a culpable mental state, i.e., without proof of any knowledge by the defendant of the license suspension. The defendant can avoid liability by establishing the affirmative defense by a preponderance of the evidence. ORS 161.055(2). The state, in turn, can avoid the effect of the notice defense afforded by ORS 487.560(2)(b) by establishing beyond any reasonable doubt that the defendant "refused to sign a receipt for the certified mail containing the notice," ORS 487.560(3)(a), or that "[t]he notice could not be delivered * * * because he had not notified the division of his address or a change in his residence as required by subsection (3) of ORS 482.290,"[5] ORS 487.560(3)(b), or that the defendant had been informed by a trial judge that the judge was ordering a suspension of the license, ORS 487.560(3)(c), or that the defendant had actual knowledge of the suspension, ORS 487.560(3)(d). Subsections (1), (2) and (3) of ORS 487.560, considered together and with ORS 161.055(2) (which defines an affirmative defense), set forth a procedure for the blameless defendant to establish a defense. The statutes clearly indicate that the legislature intended that the state, in its case in chief, need not prove any culpable mental state, but that the defendant might avoid conviction for conduct which is otherwise criminal by establishing one of the defenses enumerated in ORS 487.560(2)(b).[6] As discussed below, if the state is required to prove a culpable mental state as an element of the crime, then subsections (2)(b) and (3)(d) of the statute are surplusage. The legislative history confirms this analysis. It reveals that the legislature was concerned with a massive social problem. Suspended drivers constituted a dangerous class of drivers, causing carnage on the highway and clogged courts. Prosecutions were difficult. The legislature believed that this class of drivers caused unnecessary human suffering and constituted, as a class, a disproportionate danger. The legislature was so concerned with the risk to person and property that it wanted to make certain conduct punishable as a crime, without fault. Donald Paillette, Project Director of the Interim Committee on Judiciary, testified at a House Judiciary Committee meeting on May 5, 1975. The Minutes summarize his testimony as follows: In State v. Stroup, 290 Or. 185, 195, 620 P.2d 1359 (1980), we also relied upon the legislative history. Our comments there are apposite here: The statute and the legislative history convince us that the legislature was so concerned with the societal injury arising from the operation of automobiles by drivers whose licenses had been suspended that it intended to create a strict liability crime, a crime which would require no proof of knowledge as an element of the offense. However, to ameliorate the potential unfairness to a driver who had not received notice of the suspension as required by ORS 482.570, or who had not received notice in the manner provided in ORS 487.560(3)(c), the legislature allowed such a defendant to establish a limited defense of lack of notice. But the limited defense was unavailable if the state could establish that the defendant, "by any means," had actual knowledge of the suspension. ORS 487.560(3)(d). The legislature intended that the defendant could avoid criminal liability only if he or she could prove lack of notice, as provided by subsection (2)(b), and that even that limited exception would not be available if the defendant had actual knowledge of the suspension. ORS 487.560(3)(d). The dissenters assert that knowledge of the suspension is an element of the crime; that the defendant can establish a defense if he or she can prove that he or she had not received proper notice; and that the driver loses this affirmative defense if the state proves that he or she had knowledge of the suspension. If, as claimed by the dissent, some form of knowledge is an element of the crime, then the application of the notice subsections, (2)(b) and (3)(d), results in a circuity. Under the dissenters' analysis the state would have to prove knowledge as part of its case-in-chief. If the defendant could establish either of the limited notice defenses permitted under subsection (2)(b), he or she could be acquitted unless the state established (under subsection (3)(d)) the very fact already proved by the state that the defendant "had knowledge of the suspension." The very evidence offered by the *1081 state to prove its case would also (1) disprove the defendant's evidence offered to support a (2)(b) affirmative defense and (2) establish the state's (3)(d) rebuttal to the defendant's affirmative defense. The fallacy of the dissent's analysis is apparent. The legislature could not have intended that the very proof of the element of knowledge would at the same time disestablish the affirmative defense referred to in subsection (2)(b) and establish the existence of subsection (3)(d) knowledge.[8] If knowledge need be proved, then the notice provisions, subsections (2)(b) and (3)(d), are surplusage. The legislature intended that the statute be given effect as it was written. ORS 487.560 and the legislative history clearly indicate a legislative intent to dispense with any requirement that a culpable mental state be shown. The defendant was properly convicted under Oregon law. We turn, therefore, to the defendant's claim that the statutory imposition of the burden of proving nonreceipt of the notice of suspension violates the Due Process Clause of the Fourteenth Amendment. Defendant makes two Fourteenth Amendment contentions. First, she cites Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), asserting that "as a matter of due process * * * proof of knowledge is a necessary element of the crime." In Lambert, the court held that a city ordinance which, inter alia, made it a crime for any convicted felon to be or remain in Los Angeles for more than five days without registering with the police department, was invalid under the Fourteenth Amendment. The opinion contains little explanation of the holding, and other Supreme Court opinions, some of which are referred to below, make it clear that the holding is limited to the facts there presented. The Supreme Court of the United States, in applying the federal constitution, has generally refused to interfere with the historical state power to create strict liability crimes. See United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604 (1922) (affirming conviction for selling narcotics with no evidence that defendants knew they were selling narcotics); United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48 (1943) (affirming conviction for shipping misbranded and adulterated drugs absent any showing that he intentionally or negligently engaged in the proscribed conduct). See also Smith v. California, 361 U.S. 147, 150, 80 S. Ct. 215, 217, 4 L. Ed. 2d 205, 209 (1959). Other post-Lambert decisions have upheld convictions based upon strict liability statutes. In United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356 *1082 (1971), the court upheld the constitutionality of a statute which made it unlawful for any person to possess a firearm that has not been registered to him by the transferor. Observing that Lambert represented an "extreme" view, the court upheld the statute as "a regulatory measure in the interest of the public safety," 401 U.S. at 609, 91 S. Ct. at 1118 (citing Dotterweich). In January, 1982, the court indicated that Lambert's application had been "limited." In Texaco, Inc. v. Short, ___ U.S. ___, ___, 102 S. Ct. 781, 796, 70 L. Ed. 2d 738, 756 (1982), the court stated: Given the legislative power to create crimes in which a culpable mental state need not be shown, Powell, Dotterweich, Smith, and Balint indicate that the creation of criminal strict liability for driving while suspended is constitutionally permitted.[9] Defendant's second Fourteenth Amendment contention is that the affirmative defense provisions of ORS 487.560(2)(b) unconstitutionally shift to her the burden to produce, as part of her affirmative defense, an element of the state's case. This case does not involve the shifting of proof of any element of the crime, for as we held above, knowledge of the suspension is not an element of the crime. In State v. Stroup, supra, this court rejected a similar claim. Quoting from Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), we stated: There is no constitutional bar to the creation of a strict liability offense while at the same time providing for excuse or mitigating factor by way of an affirmative defense. It was within the legislature's power to create this strict liability crime with no affirmative defense.[10] The inclusion of the ORS 487.560(2) affirmative defense does not operate to thwart the goal the legislature clearly sought to achieve. We therefore affirm. The Court of Appeals is affirmed. LINDE, J., filed a dissenting opinion in which LENT, C.J., and ROBERTS, J., joined. LINDE, Justice, dissenting. The majority holds that the Oregon legislature made a felon of a person who drives a motor vehicle on an Oregon highway when his or her license to do so has been suspended, whether the driver knows of the suspension or not. According to the majority, if unknown to Mrs. Buttrey someone in the Motor Vehicles Division suspended or revoked her driver's license, even by an error, she nevertheless engaged in a crime that might send her to a prison if she drove her car in the good faith belief that she had a valid license. The legislature did no such thing. The legislature did something very different: It rearranged the burdens of litigating in a subsequent trial whether the driver had notice or otherwise knew of the suspension. The statutes do not say that the driver's knowledge of the suspension is not material to her guilt at the time she actually drives the car, in other words when the alleged crime is committed. The rearrangement of the burden at trial does not make the act of driving under such circumstances a crime that involves no culpable mental state, a crime that is committed in ignorance of a license suspension. Yet this is what the majority would have us believe. It is crucial not to confuse two different questions: one, whether knowledge of the suspension is an element of the crime at the time of its commission, and the other, whether this knowledge is an element of the state's proof at the time of trial. The majority opinion goes to elaborate lengths to show that the legislature intended to free the prosecution from having to prove that a defendant knew of the suspension. The demonstration is misdirected; it is not disputed that the state wished to free itself from that burden in prosecutions for "driving while suspended" and persuaded the legislature to shift the burden by making failure to notify the defendant an affirmative defense. The only issue is what retaining ignorance of the suspension as a defense, in other words, retaining the material element of knowledge at the time of driving, means for the application of the Oregon Criminal Code of 1971 and its constitutionality. As the majority recognizes, the 1971 code took great pains to spell out its commitment to the principle that criminal guilt and serious criminal penalties should not be imposed for conduct that is entirely free from any blameworthy mental state. The code expressly states its purpose to define the act or omission "and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault." ORS 161.025(1)(d). The report of the Oregon Criminal Law Revision Commission (July 1970) at page 11, stated with respect to the culpability provisions: This policy against strict liability crimes was enacted in exceptionally explicit and systematic provisions of the criminal code, ORS 161.095-161.115. Their object was to limit criminal offenses to those committed with a culpable mental state, and to reduce misconduct without culpability to the level of noncriminal "violations" which would be punishable only by fines and which would require a culpable mental state only if a statute so prescribed.[2] The code recognized, however, that the legislature might expressly provide for strict liability for some among the many offenses created by penalty provisions of statutes outside the criminal code. It therefore provided in ORS 161.105(1)(b) for an exception from the policies prescribed in ORS 161.095 and 161.115 when "[a]n offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof." It is this exception that the state invokes here. Two things should be noted about this provision for overriding the code's strong policy against strict liability crimes. First, it requires a legislative intent to dispense with any requirement of culpability in committing the crime in question. ORS 161.105(1)(b) refers to such a requirement "for the offense," not "for proof of the offense." It refers to the elements of guilt, not of procedure. It is at the time of the accused's act that an offense either does or does not require a culpable mental state, not at the time of trial. Second, ORS 161.105(1)(b) requires that this legislative intent to dispense with any culpability in making one guilty of a crime must be "clearly" indicated. It is not to be implied. The statutory presumption is against such an intent. If the legislature means to create a genuine strict liability crime, not merely to lighten *1085 the state's burden of proof, it needs to say so "clearly." If the statute outside the criminal code does not clearly dispense with a culpable mental state in defining an offense, one of two consequences follows: The offense either constitutes a violation by virtue of ORS 161.105(2), or if a statute enacted after January 1, 1972, makes the offense a crime, then it nevertheless requires a culpable mental state by virtue of ORS 161.115(2). Those are the purposes and the principles of construction prescribed by the criminal code with respect to culpability. In the light of these purposes and principles, does ORS 487.560 clearly show a legislative intent to dispense with requiring any culpable mental state for criminal guilt of driving when one's license has been suspended or revoked? The majority cannot say that ORS 487.560 dispenses with the requirement in so many words, because it does not. So the opinion merely notes that the statute does not expressly prescribe a culpable mental state. That alone proves nothing, because this is exactly the situation for which the authors of the code, in the cited sections, prescribed such a requirement unless the offense is to be a noncriminal violation. Next the majority opinion turns to the fact that subsection (2)(b) of ORS 487.560 provides an affirmative defense if the defendant had not received notice of the license suspension or revocation either in a court appearance or by certified mail as prescribed in the Motor Vehicle Code.[3] Subsection (3) of the statute, in turn, negates this affirmative defense if the state can show that the defendant nevertheless had actual knowledge of the suspension or revocation or had himself prevented the delivery of notice of it. But far from supporting the conclusion that knowledge is immaterial to guilt of "driving while suspended," these provisions contradict it. First, what the legislature made an affirmative defense in subsection 2(b) is a showing that defendant had not received proper notice. It is not the defendant's lack of actual knowledge. Second, however, the driver loses this affirmative defense and his guilt is established if the state proves that he knew that his license was suspended. Why would the legislature establish this elaborate scheme of affirmative defense and rebuttal if the driver's knowledge of the license suspension at the time of the alleged offense is immaterial to his guilt? The obvious answer is that it would not do so. The legislature did not consider the driver's knowledge immaterial to his guilt. It wanted the accused to shoulder the burden of showing his lack of knowledge, and thereby his blamelessness, by proving that he was not notified of the suspension, though the defense would fail if he knew of the suspension apart from official notice.[4] Proper notification of the driver is not itself *1086 an element of the offense, and we so held in State v. Stroup, 290 Or. 185, 620 P.2d 1359 (1980). The reason for making it a potential defense, unless overcome by proof of actual knowledge (or frustration of notice by the accused), is that the driver's knowledge of the suspension remains material to the substantive issue: whether the driver was guilty of a crime when he drove the vehicle.[5] The state argued, and the majority opinion repeats, that the legislature wished to deal with a "massive social problem" of controlling dangerous drivers whose licenses had been suspended. That is not in doubt, but it does not answer the question whether the legislature decided to do so by convicting nonculpable persons or by shifting to the driver the burden to show lack of culpability by proving failure of notice. Despite all the assertions about legislative history, the only relevant statement quoted by the state and by the majority opinion, that of Mr. Paillette to the House Judiciary Committee, did not say that a driver's knowledge of his license suspension was not an element of the offense. It explained that proof of knowledge was not an element. This merely identifies, it does not resolve, the ambiguity which renders ORS 487.560 less than "clearly" a decision to create a strict liability offense. The majority opinion emphasizes the intent of the legislature to free the state from the burden of proving that the driver was aware that he or she no longer had a valid license to do so. An intent to shift the burden of proof does not bring a statute within the exception of ORS 161.105(1)(b) so as to escape the principles of culpability stated in ORS 161.095 and 161.115(2). If the intended shift were otherwise effective, it would raise serious questions of due process to make a defendant disprove a mental element that remains material to guilt of the offense. But it is our obligation to avoid interpreting statutes in a way that creates serious doubts of their constitutionality. State v. Blake, 292 Or. 486, 640 P.2d 605 (1982); Tharalson v. State Department of Revenue, 281 Or. 9, 13, 573 P.2d 298 (1978). Fortunately that is not difficult here. There is no need to reach a constitutional issue, for ORS 161.115(2) itself continues to require proof of the driver's culpable mental state in this case, the intent to drive a vehicle and the knowledge that her license to do so was suspended. ORS 161.115(2) applies "[e]xcept as provided in ORS 161.105." And ORS 161.105 does not apply here. ORS 487.560 does not "clearly" or otherwise show that the legislature intended to dispense with a culpable mental state, knowledge of the suspension, in committing the crime of "driving while suspended." It intended to dispense with proof of that knowledge, unless the accused first proved that she did not receive official notice of the suspension. That is a very different thing. Both the defense of lack of notice and the state's opportunity to override that defense by showing actual knowledge prove that the legislature thought the driver's awareness of the license suspension very much a factor in her guilt or innocence. Much more is at stake here than a technical parsing of statutes. The principle that no one who is innocent of blameworthy conduct should be punished for a serious crime is central to modern criminal law. It is expressly recognized in the Oregon Criminal Code of 1971. The legislature did not abandon this familiar principle of guilt in ORS 487.560 and make "driving while suspended" a crime even without knowledge of the suspension. There is a great temptation in drafting laws, as elsewhere, to try to achieve two incompatible goals at the same time. Here *1087 that temptation is to meet the state's difficulty in prosecuting drivers with suspended licenses by freeing the state from having to prove a driver's knowledge of the suspension, while continuing to make guilt depend on the driver's actual knowledge by proper notification or otherwise. But the state cannot have it both ways. Perhaps, if it came to a choice, a legislature might be induced to say that a person becomes a felon when she drives in reliance on a license which, unknown to her, has been suspended. I am inclined to doubt it. In any event, that was not what legislators were asked to vote for in enacting ORS 487.560, and it is not what that statute says. They were offered a way to escape the choice by shifting the burden of proof. When the legislature decides to create a crime without any culpable mental element, it must make that decision unambiguously and "clearly," ORS 161.105(1)(b), or the appropriate mental element must be supplied, ORS 161.105(2), unless the offense is to be a violation punishable by no more than a fine, ORS 161.105(1)(a). Far from "clearly" dispensing with the driver's knowledge as an element of guilt, ORS 487.560 reaffirmed it in subsections (2)(b) and (3). Knowledge that one's license is suspended, by notification or otherwise, thus remains material to guilt of "driving while suspended," and the case should have been tried accordingly. As it was not, the conviction should be reversed. LENT, C.J., and ROBERTS, J., join in this dissenting opinion. [1] In State v. Stroup, 290 Or. 185, 620 P.2d 1359 (1980), we also observed: "Other Supreme Court cases on related issues have language strongly supporting the constitutionality of strict liability crimes, at least where `public welfare offenses,' such as traffic violations, are involved. See Lambert v. California, 355 U.S. 225, 228 [78 S. Ct. 240, 242, 2 L. Ed. 2d 228] (1957); Morisette [Morissette] v. United States, 342 U.S. 246, 262 and n. 20 [72 S. Ct. 240, 249 and n. 20, 96 L. Ed. 288] (1952). This is in contrast to the recognition of a strong presumption that crimes having their origin in the common law must have a mens rea element. See United States v. United States Gypsum Co., 438 U.S. 422, 436-38 [98 S. Ct. 2864, 2873-74, 57 L. Ed. 2d 854] (1978)." 290 Or. at 202, 620 P.2d 1359. [2] ORS 482.570 provides for mailing: "When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail restricted delivery, return receipt requested, to the person's address as shown by division records, or, by personal service in the same manner as a summons is served in an action at law." [3] Cf. State v. Harris, 288 Or. 703, 609 P.2d 798 (1980) (certificate that suspension order "was in full effect" held inadmissible hearsay). We need not consider the inferences, if any, which arise from the DMV certification appended to the suspension order. [4] See generally Comment, Strict Liability and Criminal Sanctions: The 1971 Revisions to the Oregon Criminal Code, 13 Willamette LJ 365 (1977). [5] ORS 482.290(3) provides: "(3) Persons licensed as operators or combined operator-chauffeurs under this chapter shall notify the division of any change of residence from that noted on their license as issued by the division. Notice shall be given by mail or in person within 30 days after the date of the change. The notice shall be written and shall indicate the old and new residence address and the number of the license held. Upon receiving the notice, the division shall note the change of address on its records. * * *" [6] This conclusion is consistent with the decision of the Court of Appeals in State v. Taylor, 28 Or. App. 815, 816-17, 561 P.2d 662 (1977). But see State v. Monaco, 55 Or. App. 122, 126 n. 5, 637 P.2d 221 (1981). [7] The dissent would hold that the very action of creating an affirmative defense based upon a lack of notice (which, under ORS 161.055(2) imposes upon the defendant "the burden of proving the defense by a preponderance of the evidence") creates an opposite result the creation of a third element the state must prove beyond a reasonable doubt, as part of its case in chief. Although the legislature sought to generally "limit the condemnation of conduct as criminal when it is without fault," ORS 161.025(1)(d), the legislature reserved the power to make conduct criminally punishable, absent fault, by expressly providing for offenses outside the Oregon Criminal Code which were punishable as crimes without any showing of a culpable mental state, ORS 161.105(1)(b). The legislature knew the difference between the types of crimes that were being created. [8] Consider the instructions which the trial court would give to the jury, if the dissent is correct. (The instructions in this example are greatly shortened to illustrate the point.) "The state must prove, beyond any reasonable doubt, that the defendant had knowledge of the license suspension. "But if the defendant proves, by a preponderance of the evidence, that she had not received notice of the suspension as required by ORS 482.570 or in the manner provided in ORS 487.560(3)(c), she should be acquitted unless you find, beyond any reasonable doubt, that the defendant had knowledge of the license suspension." [9] There is considerable criticism of strict liability crimes among commentators. See J. Hall, General Principles of Criminal Law (2d ed. 1960); Hall, Negligent Behavior Should Be Excluded from Penal Liability, 63 Colum.L.Rev. 632 (1963); Hart, The Aims of the Criminal Law, 23 Law & Contemp Probs 401 (1958); Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea, 10 Hous. L.Rev. 1039 (1973); Packer, The Model Penal Code and Beyond, 63 Colum.L.Rev. 594 (1963); Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107; Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); Stuart, The Need To Codify Clear, Realistic, and Honest Measures of Mens Rea and Negligence, 15 Crim.L.Q. 160 (1973). But see J. Hall, General Principles of Criminal Law ch. X (2d ed. 1960); Harring, Liability Without Fault: Logic and Potential of a Developing Concept, 1970 Wis.L.Rev. 1202, 1207; Nemerson, Criminal Liability Without Fault: A Philosophical Perspective, 75 Colum.L.Rev. 1517 (1975); Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 731 (1960). [10] On the matter of burden of proof, affirmative defenses and presumptions in a due process context, see Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969); Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880 (1968); Note, Affirmative Defenses and Due Process: The Constitutionality of Placing a Burden of Persuasion on a Criminal Defendant, 64 Geo.L.J. 871 (1976). [1] The report continues with this reference to the Model Penal Code: "As noted by the Model Penal Code commentators, in the absence of minimal culpability, the law has neither a deterrent nor corrective nor an incapacitative function to perform. They support this approach by stating: "`It has been argued and the argument undoubtedly will be repeated, that absolute liability is necessary for enforcement in a number of areas where it obtains. But if practical enforcement cannot undertake to litigate the culpability of alleged derivation from legal requirements, we do not see how the enforcers rightly can demand the use of penal sanctions for the purpose. Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant's act was wrong. This is too fundamental to be compromised. The law goes far enough if it permits the imposition of a monetary penalty in cases where strict liability has been imposed.' (Tent. Draft No. 4, at 140 (1955))." Certainly this policy is more consonant than strict liability with the command that criminal laws "shall be founded on the principles of reformation," Or.Const. art. I, § 15. [2] ORS 161.095(2) provides: "Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." ORS 161.105 provides in part: "(1) Notwithstanding ORS 161.095, a culpable mental state is not required if: "(a) The offense constitutes a violation, unless a culpable mental state is expressly included in the definition of the offense; ".... "(2) Notwithstanding any other existing law, and unless a statute enacted after January 1, 1972, otherwise provides, an offense defined by a statute outside the Oregon Criminal Code that requires no culpable mental state constitutes a violation." ORS 161.115, so far as relevant here, provides: "(2) Except as provided in ORS 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence." [3] ORS 482.570 prescribes: "When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail restricted delivery, return receipt requested, to the person's address as shown by division records, or, by personal service in the same manner as a summons is served in an action at law." In the Oregon code, unlike the Model Penal Code, an affirmative defense must be proved by the defendant by a preponderance of the evidence. ORS 161.055(2). Compare Model Penal Code § 112(2)(a), which provides that when there is evidence supporting an affirmative defense (whether presented by the prosecution or defendant) that the prosecution carries the burden of disproving the defense beyond a reasonable doubt. See Model Penal Code § 1.13 (Tentative Draft No. 4) at 110 for commentary. [4] The majority says that if evidence of defendant's knowledge remains part of the state's affirmative case, subsection (3)(b) becomes a "circuity." The answer is that (3)(b) shows that knowledge remains relevant to guilt or innocence; placing it procedurally after rather than before the defendant has shown lack of notification merely demonstrates that what the drafters of ORS 487.560 did was to manipulate the order of proof, not to create a strict liability crime. [5] The state was unable to offer this court any other explanation why lack of proper notice of the suspension should be a defense if the driver's knowledge is immaterial to his guilt, except a suggestion that maybe acquittals for lack of proper notice were meant to encourage the Motor Vehicles Division to give such notice. Unrealistic as this suggestion is, it is completely contradicted by the fact that the statute continues by letting the state establish guilt by proof of actual knowledge irrespective of defective notice. This has nothing to do with policing effective notice by the Motor Vehicles Division.

3b883db4adbba9903f130ebb4e08000706b5a6ee2651039dc21abfb1f1d1ff96

1982-10-05T00:00:00Z

2f632d36-3440-4e1e-9e13-996629acdbb8

State v. Brock

294 Or. 15, 653 P.2d 543

oregon

Oregon Supreme Court

653 P.2d 543 (1982) 294 Or. 15 STATE of Oregon, Respondent On Review, v. Dale Lavonne BROCK, Petitioner On Review. CA 17453; SC 28135. Supreme Court of Oregon. Argued and Submitted March 4, 1982. Decided November 16, 1982. *544 Diane L. Alessi of Ransom, Blackman & Simson, Portland, argued the cause for petitioner on review. On the brief was John S. Ransom of Ransom, Rogers & Blackman, Portland. Stephen Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review. On the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and Robert C. Cannon, Asst. Atty. Gen., Salem. Before DENECKE, C.J.,[*] and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. TANZER, Judge. Defendant appeals a conviction of theft of a washer, a dryer, a roll of carpet and a full-length mirror. Those items were seized in his home at night pursuant to a search warrant which was indorsed for daytime or nighttime execution. The trial court denied his motion to suppress the evidence. The Court of Appeals affirmed in banc by a fragmented court. We allowed review to consider the application of ORS 133.565(3) which restricts execution of search warrants to daytime hours unless the warrant is otherwise indorsed. The affidavit in support of the search warrant contained ample allegations to establish probable cause to believe that the stolen items had been in defendant's house for some two months. It contains no allegation to establish a need or desirability of nighttime execution. The warrant was issued at 9:36 p.m. It contained an indorsement allowing execution "at any time of the day or night." The police executed the warrant shortly after 10 p.m. The defendant had earlier been taken into custody. ORS 133.565(3) provides that a judge "may" indorse a warrant for nighttime search, but it does not state any prerequisites for that authorization. Three members of the Court of Appeals, in a lead opinion by Richardson, J., held that ORS 133.565(3) was violated because such an indorsement is valid only if there is a showing of special circumstances and here there was none. They held, however, that suppression was not required. Judge Buttler and two colleagues concurred on the theory that the statute, literally read, authorizes nighttime searches as long as the judge has made such an indorsement, regardless of whether a special showing has been made. Four members of the Court of Appeals, in an opinion by Gillette, J., agreed with Richardson, J., that a showing of special circumstances was required, but concluded that exclusion was a necessary remedy where no such showing has been made. It is our purpose on review to give more definitive meaning to the statute. Although there is no express requirement of a showing of special circumstances for a nighttime search indorsement,[1] we conclude that such a requirement is implicit in ORS 133.565(3).[2] Prior to the *545 enactment of the statute, there was no restriction upon the time during which search warrants could be executed. ORS 133.565(3) was enacted as part of a comprehensive revision of the Oregon Criminal Procedure Code. Or. Laws 1973, ch. 836, § 85. It requires that any search warrant be executed during the daytime unless the issuing judge authorizes a nighttime search. The statute provides: In construing and applying ORS 133.565(3), we attempt to discern and effectuate the legislative intent which underlies its enactment. The most obvious and fundamental policy of the statute is a legislative determination that execution of search warrants during the day is to be normal and that nighttime searches are to be exceptional. It is unlikely that the legislative intent in granting to judges the power to authorize exceptional searches was a grant of unbridled judicial discretion. Rather it appears to be a grant of judicial authority to permit exceptions only in accordance with the policy objectives of the legislation. Otherwise, one judge might authorize nighttime execution unless there is a reason not to, another only for certain applicants, and another never. It is the legislative policy which must guide issuing judges. The commentary to the proposal for ORS 133.565, after acknowledging that the statute modifies existing law, states the legislative policy underlying the statute: This passage of the Commentary clarifies somewhat that the purpose of the statute is to avoid the possibility of terror and gunplay which may arise from forcible nighttime entries unless that consideration is outweighed by circumstances indicating it is "imperative" to search at night. That purpose is consistent with the general purpose historically associated with statutes restricting nighttime searches. The earliest statement we find is that in Lord Hale's treatise, Pleas of the Crown (1865): The avoidance of potential violence arising from non-recognition of the official identity of the executing officer also underlies the federal rule restricting authorization of nighttime searches, FRCrP 41(c). Accordingly, opinions determining what is not "daytime" under the federal rule (before the rule was amended to be time-specific), *546 focused on whether there was enough natural light by which a householder could distinguish the features of the executing officer, see, e.g., United States v. Gosser, 339 F.2d 102 (6th Cir.1964); Moore v. United States, 57 F.2d 840 (5th Cir.1932); Atlanta Enterprises v. Crawford, 22 F.2d 834 (ND Ga, 1927). See also, Linnen v. Banfield, 114 Mich. 93, 72 N.W. 1 (1897), and Petit v. Colmary, 55 A. 344 (Del. 1903).[3] The affirmative aspect of the legislative purpose is that police should be authorized to search at night when it is imperative to do so. In light of both the preventive and the affirmative aspects of the legislative purpose, we take the statute to allow nighttime searches in circumstances in which restriction to daytime (by which we mean 7 a.m. to 10 p.m.) would reduce the likelihood that a search would be successful. Such circumstances would exist where there is a reasonable possibility that the fruits, instrumentalities or evidence of crime sought would not be expected to be at the searched premises during the day or might be removed or dissipated if the search is delayed. Nighttime searches would also be permissible in circumstances where the safety of the executing officers, occupants of premises or possessors of property would not be affected by a nighttime search. Examples of these circumstances might include searches of permanently lit areas (e.g., airport baggage locker areas), places where people congregate during the day, but not at night (e.g., supermarkets), or closed containers in police custody. We construe ORS 133.565(3) to authorize a judge to warrant a search at any hour only upon allegation of special circumstances from which the judge can determine that an unrestricted warrant is reasonable in light of the statutory objectives. The statutes do not require that the showing be in any particular form beyond the requirements of ORS 133.545. The requisite circumstances need only be evident from the allegations supporting the application for a warrant. Nor must the issuing judge make express findings, as long as the allegations are sufficient and the indorsement is in proper form.[4] *547 In this case, no such showing was made. The property to be seized (large household appliances and furnishings alleged to have been in place for two months) were not easily movable or disposable and the premises were not shown to be free of search-related hazards. Therefore the authorization for a nighttime execution of the search warrant was forbidden by ORS 133.565(3). The next question is whether to suppress as evidence property seized in execution of a search warrant which is constitutionally sound, but issued after procedures which are insufficient to comply with ORS 133.565(3). It does not follow that evidence seized in execution of the search warrant must be suppressed. The criminal code itself does not so provide. A proposed section that specifically would have included unwarranted nighttime searches among the reasons for suppressing evidence was considered but not adopted by the Criminal Law Revision Commission.[5] Nor is the rule against nighttime searches except upon special authorization one that is designed to protect the individual against the unwarranted seizure of his property or effects as such. The evidence could validly be seized in the daytime, and it could validly have been seized at night if the judge had found the kind of circumstances for authorizing a nighttime seizure that we have discussed above. In requiring such special circumstances, the law is concerned with minimizing the heightened risks and apprehensions associated with a nighttime intrusion into the home, not with overall protection against unjustified searches and seizure of persons or property. In this respect, ORS 133.565(3) is analogous to the "knock and announce" rule of former ORS 133.290 (now ORS 135.575(2)), violation of which was held not to require suppression of the seized evidence in State v. Valentine/Darroch, 264 Or. 54, 504 P.2d 84 (1972), cert. den. 412 U.S. 948, 93 S. Ct. 3001, 37 L. Ed. 2d 1000 (1973), and in State v. Bishop, 288 Or. 349, 605 P.2d 642 (1980). We conclude from the absence of a statutory directive and from the character of ORS 133.565(3) as a statutory protection against potential violence and needless apprehension from nighttime intrusions that non-compliance with the statute does not give rise to any implications that the state's use of the evidence would vitiate the interest that the statute is intended to protect. The evidence therefore is admissible. Of course, this evidentiary holding does not relieve judges of their substantive obligation under ORS 133.565(3) to refrain from endorsing search warrants for nighttime execution absent allegations of special circumstances consistent with statutory policy. Affirmed. [*] Denecke, C.J., retired June 30, 1982. [1] Cf. FRCrP 41(c), which provides: "* * * The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. * * *" The history of this rule is set out in Gooding v. United States, 416 U.S. 430, 438-39, 94 S. Ct. 1780, 1784-1785, 40 L. Ed. 2d 250 (1974). [2] Passing comments during the Criminal Law Revision Commission deliberations are not conclusive, but indicate that the Commission regarded this requirement as implicit. See Minutes: Criminal Law Rev.Comm. 46-47 (June 16, 1972), Subcomm No. 2, p. 5 (June 5, 1972), and p. 10 (January 18, 1972). [3] It has been suggested in dicta in Jones v. United States, 357 U.S. 493, 498-499, 78 S. Ct. 1253, 1256-1257, 2 L. Ed. 2d 1514 (1958), that another purpose of the rule is protection of privacy. See also, Gooding v. United States, supra, 416 U.S. at 462, 94 S. Ct. at 1796 (dissent of Marshall, J.). Professor LaFave also asserts this, but offers no holdings to support his assertion. See 2 LaFave, Searches and Seizure, § 416. The suggestion is more rhetorical than real, however, because such statutes restrict merely the timing of official invasions of privacy, not their permissibility, scope or intensity. The statutory device to avoid terror and potential violence imposes a degree of civility upon an essentially uncivil process, but it does not protect any place or anybody from official intrusion and scrutiny. This observation does not diminish the importance of ORS 133.565(3) or the degree of judicial vigor with which it is to be enforced. Avoidance of terror and violence is reason enough for legislative action. [4] As Judge Buttler correctly pointed out in his specially concurring opinion, the Criminal Law Revision Commission preliminary draft included a requirement of specific findings before an unrestricted warrant could issue. The draft read as follows: "(3) Time of execution. Except upon finding as hereinafter provided, the search warrant shall provide that it be executed during the daytime, and within five days from the date of issuance. Upon a finding by the judge of probable cause to believe that the place to be searched is not readily accessible, or that the objects to be seized are in danger of imminent removal, or that the warrant can only be safely or successfully executed at nighttime, or under circumstances the occurrence of which is difficult to predict with accuracy, the judge may, by appropriate provision in the warrant, authorize its execution at other times but not more than 10 days from the date of issuance." See Criminal Law Revision Commission 1969, Preliminary Draft No. 3, § 6. This draft provision was deleted by the Commission and did not appear in the revision as proposed or enacted. See Or. Laws 1973, ch. 836, § 85. Judge Buttler concluded that this deletion evidenced a legislative intent that reviewing courts not look behind an indorsement. We prefer the inference that the section was deleted to simplify procedures and to eliminate a technical requirement which might jeopardize the validity of search warrants. We do not infer that the commission intended to allow indorsement without a factual basis related to the policies of ORS 133.565(3). [5] Section 27 of the preliminary draft provided: "A motion to suppress evidence may be based upon a violation of any of the provisions of this Code, including that: * * * * * * (2) In the case of a seizure based on the authority of a search warrant: * * * * * * (d) The warrant was executed at a time not authorized herein, or was executed at nighttime or more than five days from the date of issuance without there having been made the findings required by subsection 3 of this Article * * *."

10e3f2885143031a5aa65c9d6ec828494320465525b22bfd513f1090bb310eb3

1982-11-16T00:00:00Z

ce079fbd-938f-41e7-9f51-d493e9025fc1

Brown v. Oregon State Bar

293 Or. 446, 648 P.2d 1289

oregon

Oregon Supreme Court

648 P.2d 1289 (1982) 293 Or. 446 James M. BROWN, Attorney General of Oregon, Respondent On Review, v. OREGON STATE BAR, a Public Corporation, Petitioner On Review. CA 18935; SC 28132. Supreme Court of Oregon. Argued and Submitted March 4, 1982. Decided August 3, 1982. *1291 Barnes H. Ellis, Portland, argued the cause and filed the brief for petitioner on review. With him on the brief was Andrew R. Gardner, Portland. Dave Frohnmayer, present Atty. Gen., argued the cause for respondent on review. On the briefs were James M. Brown, Atty. Gen., John R. MuCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., Peter S. Herman, Senior Asst. Atty. Gen. Counsel, and Norman W. Legerness, Asst. Atty. Gen., Salem. Before DENECKE,[*] C.J., and LENT, LINDE, TANZER, PETERSON and CAMPBELL, JJ. CAMPBELL, Justice. Plaintiff brings this suit in his official capacity as Attorney General of Oregon to obtain a declaration of his responsibilities under state law and the disciplinary rules of this court. The only issue on appeal is whether declaratory relief is proper. The demand for declaratory relief was precipitated by the following facts. The plaintiff received a request for legal advice from the Director of the Department of Land Conservation and Development concerning a draft opinion in a contested case before the Land Conservation and Development Commission (LCDC). Two assistant attorneys general met with the director and the hearings officer without notice to the litigants and in private. The hearings officer felt that he had been subjected to undue pressure and filed a complaint with defendant, the Oregon State Bar. The president of the Bar requested an attorney general opinion on two questions whether the attorney general must render legal advice on request to state agencies concerning a contested case, and whether the advice may be rendered ex parte and in private. In response, plaintiff issued an opinion concluding that he had the statutory duty to give requested legal advice to any agency or its hearings officers in a contested case proceeding and that such advice could be given ex parte and in private if (1) the plaintiff was not a party and *1292 did not represent a party, (2) agency rules did not prohibit such contact and (3) the hearings officer was an employe or agent of the agency without independent status and authority to issue final and binding orders. 39 Op.Atty.Gen. 431 (1978); ORS 180.060, 180.220. The defendant, through its legal ethics committee, considered whether such ex parte advice was unethical under the disciplinary rules of this court. It issued an opinion, approved by the Board of Governors, which stated that the meeting with the director and hearings officer of LCDC violated DR 7-110(B) and DR 9-101, Oregon State Bar, Code of Professional Responsibility. Plaintiff filed an action for declaratory relief in the circuit court requesting a declaration as to his rights and responsibilities under statutory law and the rules of this court. Defendant moved for summary judgment, which the court granted on the following grounds: that the complaint did not allege a justiciable controversy, and that even if it did, the court would exercise its discretion and deny jurisdiction. The Court of Appeals reversed and remanded. 53 Or. App. 759, 632 P.2d 1338 (1980). We accepted review to decide whether declaratory relief is proper. The defendant asserts three grounds for reversing the Court of Appeals and affirming the summary judgment: (1) the circuit court lacked subject matter jurisdiction to interpret disciplinary rules; (2) there is no justiciable controversy, and (3) even if a justiciable controversy exists, refusing declaratory relief is a discretionary act which should not be reversed absent an abuse of discretion. This Uniform Declaratory Judgment Act, ORS 28.010 et seq., confers on Oregon courts of record the "power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. * * * The declaration ... shall have the force and effect of a final judgment or decree." ORS 28.010. In order for a court to entertain an action for declaratory relief, the complaint must present a justiciable controversy. Justiciability is a vague standard but entails several definite considerations. A controversy is justiciable, as opposed to abstract, where there is an actual and substantial controversy between parties having adverse legal interests. Cummings Constr. v. School Distr. No. 9, 242 Or. 106, 408 P.2d 80 (1965). The controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue. Id. A justiciable controversy results in specific relief through a binding decree as opposed to an advisory opinion which is binding on no one. Id. The court cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions. Oregon Cty. Mfgs. Ass'n.v. White, 159 Or. 99, 109, 78 P.2d 572, 576 (1938). To issue declaratory relief, the court must also have jurisdiction over the subject matter of the controversy. The Uniform Declaratory Judgment Act is not an independent grant of jurisdiction. Lokey v. Texas Methodist Foundation, 468 S.W.2d 945 (Tex.Civ.App. 1971). The circuit court is described by the Oregon Constitution as a court of general jurisdiction having all power not otherwise vested. Or.Const.Art. VII (Original) 9. Bearing in mind these two jurisdictional requisites for entertaining an action for declaratory relief, we look to whether the circuit court may declare the plaintiff's rights under the Oregon statutes and the disciplinary rules. Plaintiff contends that he has the right pursuant to ORS 180.220, to give advice to agencies upon request, with specific qualifications. Defendant, on the other hand, takes the position that plaintiff may not engage in such conduct because it violates the disciplinary rules. Although the pleadings *1293 indicate a substantial controversy, the defendant asserts that it is not justiciable because it involves only advisory ethics opinions, does not involve present facts and is moot because of a recent LCDC rule prohibiting the conduct. We find, however, that the controversy is justiciable. While the controversy arises from advisory opinions, the substance of the controversy concerns the interpretation of a statute. The court is requested to consider a specific set of facts whether plaintiff may give advice upon request to agencies in contested cases where plaintiff's office is not involved in the case, agency rules do not prohibit the conduct and the recipient does not have authority to issue binding orders. The controversy involves present facts, the plaintiff's existing statutory duty. The fact that LCDC promulgated a rule prohibiting such conduct does not, as defendant asserts, render the controversy moot. The controversy does not concern the specific conduct of having given advice to the director of LCDC but concerns the plaintiff's continuing state-wide official conduct under the statutes. Defendant contends that even if the controversy is justiciable, the court did not abuse its discretion in refusing to grant declaratory relief. The trial court stated that were the controversy justiciable, it would exercise its discretion to deny review because of the specialized competence to the Bar to investigate and monitor the conduct of attorneys and the exclusive disciplinary authority of this court. While the courts do have some discretion in granting declaratory relief, Cf. ORS 28.060, where a justiciable controversy exists and the trial court has jurisdiction over the subject matter of the controversy, the court should afford relief absent valid countervailing reasons. Cf. Brooks v. Dierkes, 275 Or. 619, 624, 552 P.2d 533 (1976) (another remedy will be more appropriate). In this case, declaratory relief is particularly appropriate to determine the statutory duties of a public officer. Recall Bennett Comm. v. Bennett et al., 196 Or. 299, 249 P.2d 479 (1952); State ex rel Dental Ass'n.v. Smith, 201 Or. 288, 270 P.2d 142 (1954). Having decided that the circuit court erred in refusing to resolve the controversy concerning plaintiff's statutory responsibilities, we proceed to consider whether the court also should determine plaintiff's ethical responsibilities. The second question concerns the trial court's authority to determine whether plaintiff's conduct is unethical under this court's disciplinary rules. This controversy is not justiciable under ORS ch. 28 because an interpretation of a disciplinary rule by the circuit court cannot be a binding determination. A circuit court opinion would be advisory only. The disciplinary rules are standards adopted by this court to govern the supervision and discipline of attorneys. The professional discipline of attorneys is within the exclusive jurisdiction of this court. The Oregon State Bar is charged with enforcing the rules, ORS 9.490, to the extent of investigating possible occurrence of professional misconduct and making recommendations to this court. The recommendations and the ethics opinions which they publish are advisory and are not binding on this court. Were an interpretation of the rules by the circuit court considered to be binding, the decision would infringe on this court's exclusive jurisdiction to discipline attorneys and establish standards of ethical conduct because the circuit court would be establishing patterns of conduct to which attorneys should adhere.[1] *1294 Affirmed in part and reversed in part and remanded[2] for a decision as to plaintiff's statutory duties. [*] Denecke, C.J., retired June 30, 1982. [1] Having decided that the controversy concerning plaintiff's ethical responsibilities under the disciplinary rules is not justiciable under ORS ch. 28, we need not decide whether the controversy is within the trial court's subject matter jurisdiction. [2] On remand we call the parties' attention to Oregon Rules of Civil Procedure, Rule 34 F, as to the proper party plaintiff.

1e3cc0a415bf1ecd312b6cb059fdde71c3fef7a57136ae87e1af148cd7a6f115

1982-08-03T00:00:00Z

1320071c-491a-4071-8c21-16d308c81d55

Koos v. Roth

293 Or. 670, 652 P.2d 1255

oregon

Oregon Supreme Court

652 P.2d 1255 (1982) 293 Or. 670 George KOOS and Agnes V. Koos, Respondents On Review, v. Kenneth ROTH, Petitioner On Review. TC 50967; CA 18924; SC 28356. Supreme Court of Oregon. Argued and Submitted May 5, 1982. Decided October 26, 1982. Reconsideration Denied November 30, 1982. *1257 Paul D. Clayton, Eugene, argued the cause for petitioner on review. With him on the briefs was Luvaas, Cobb, Richards & Fraser, P.C., Eugene. Dean M. Quick, Albany, argued the cause for respondents on review. With him on the brief was Weatherford, Thompson, Brickey & Powers, P.C., Albany. Charles F. Adams and Richard S. Gleason, Portland, filed a brief for amicus curiae Industrial Forestry Ass'n. With them on the brief was Stoel, Rives, Boley, Fraser and Wyse, Portland. Donald A. Haagensen and Mildred J. Carmack, Portland, filed a brief for amici curiae Oregon Seed Council, Oregon Seed Trade Ass'n, and Oregon Ryegrass Growers Ass'n. With them on the brief were Ridgway K. Foley, Jr. and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland. John R. Miller, Salem, filed a brief for amicus curiae Oregon Farm Bureau Federation. Michael F. McClain, Corvallis, filed a brief for amicus curiae Field Burning Defense Committee in the Court of Appeals. With him on the brief was McClain & Brown, Corvallis. Before DENECKE, C.J.,[*] LENT, LINDE, TANZER, PETERSON and CAMPBELL, JJ. LINDE, Justice. We are called upon to decide whether a farmer who employs field burning as an agricultural technique is strictly liable to pay damages when the fire enters upon and destroys a neighbor's property, without any need to show that the field burning was conducted negligently. The Court of Appeals so held in a decision in banc, three judges dissenting, 55 Or. App. 12, 637 P.2d 167 (1982), and the theoretical and practical importance of the issue led us to allow review. The course of events is essentially undisputed. Defendant was engaged in the commercial production of grass seed on 55 leased acres in Linn County, near the I-5 interstate highway. After the grass seed was harvested, defendant and a crew of men equipped with mobile water tanks burned the field by setting fire to dry straw, having first plowed a protective strip around the perimeter. While defendant's field was being burned, plaintiffs' adjoining field caught fire, causing damage to real and personal property stipulated at $8,017. Although no one testified to seeing how the fire on plaintiffs' property started, the witnesses, mostly members of defendant's crew, agreed that probably a whirlwind carried burning material from defendant's field. The record shows that the fire also spread to other nearby property of persons not involved in this action. Plaintiffs sued for damages on theories of trespass, negligence, and strict liability. At the conclusion of the trial, defendant moved for a directed verdict on the grounds that he would not be liable for an unintentional trespass unless his actions were either negligent or abnormally dangerous, that there was no evidence of negligence, and that agricultural field burning as conducted by defendant is not an abnormally dangerous activity. Plaintiffs moved for a directed verdict on their strict liability claim. The trial court denied plaintiffs' motion and directed a verdict for defendant on all counts. *1258 On appeal, 43 Or. App. 383, 602 P.2d 1128 plaintiffs abandoned the negligence count and assigned as error only the denial of their motion for a directed verdict based on their strict liability theories of trespass and abnormally dangerous activity. Although technically the assignment of error did not include the allowance of a directed verdict for defendant, the parties and the Court of Appeals treated the trial court's rulings as "two sides of one coin." 55 Or. App. at 14 n. 3, 637 P.2d 167. This follows when the decision whether an activity is abnormally dangerous or otherwise subject to strict liability is a legal characterization to be made by the judge, as was stated in Loe v. Lenhardt, 227 Or. 242, 249, 362 P.2d 312 (1961). It is not contended in this case that the determination depends on disputed evidence of specific events or circumstances requiring jury adjudication. The Court of Appeals proceeded to reject plaintiff's claim for strict liability for trespass as such, relying on statements in Loe and in Hudson v. Peavey Oil Co., 279 Or. 3, 566 P.2d 175 (1977) that negated this theory at least with respect to substances released from defendant's land.[1] The court concluded, however, that the trespass resulted from an "ultrahazardous" activity, defendant's field burning, and that therefore plaintiffs were entitled to a directed verdict for the stipulated damages. 55 Or. App. at 18, 637 P.2d 167. The modern evolution of this form of strict liability in Oregon can be traced from Bedell v. Goulter, 199 Or. 344, 361, 261 P.2d 842 (1953), which took as its starting point that this state followed the rule of Rylands v. Fletcher, (1868) L.R., 3 H.L. 330, 1 Eng. Rul.Cas. 236, with respect to damage done by the escape of stored water.[2]Bedell applied the rule to explosives, holding defendants strictly liable for a trespass when their blasting operations damaged a dwelling about 1500 feet away. Liability later was denied, however, when explosives caused harm uncharacteristic of their dangerousness, the death of mink frightened by the noise. Gronn v. Rogers Construction, Inc., 221 Or. 226, 350 P.2d 1086 (1960). The blasting in those cases was intentional, but the mere storage of highly explosive gas vapors in a populated area sufficed to impose strict liability for wrongful death from a nonnegligent explosion. McLane v. Northwest Natural Gas, 255 Or. 324, 467 P.2d 635 (1970). In 1961, Loe v. Lenhardt, supra, found an "extra hazardous" activity in aerial cropdusting with a chemical defoliant which damaged a neighbor's crops, a *1259 decision followed in Bella v. Aurora Air, Inc., 279 Or. 13, 566 P.2d 489 (1977). Thus, after the acceptance of Rylands v. Fletcher, the activities giving rise to strict liability in modern Oregon cases have been the storage or use of explosive material and aerial spraying of destructive chemicals. How have the holdings been explained? In Bedell v. Goulter, supra, the court adopted the reasoning of Exner v. Sherman Power Co., 54 F.2d 510 (2nd Cir.1931), quoting extensively from the opinion of Judge Augustus Hand in that case. The chief issue was not so much whether an explosion of dynamite, intentional or accidental, results in strict liability but whether the harm must result from the tangible impact of debris scattered by the explosion, and this court followed Exner to reject that distinction. Strict liability followed simply from the intrinsic dangerousness of explosives. Justice Lusk's extensive review of the cases quoted from Exner: 199 Or. at 352, 261 P.2d 842. The opinion then quoted, though it did not particularly rely on, Restatement of Torts § 520, which at that time defined an activity as "ultrahazardous" if it "(a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage." Only "common usage," but neither the particular location of the dangerous activity nor its social usefulness were factors in the rule: 199 Or. at 363, 261 P.2d 842. Loe v. Lenhardt, supra, followed the reasoning of Bedell to impose strict liability on aerial spraying of crops with destructive chemicals. It added to the analysis a substantive element of attention to legislative determinations concerning the dangerous activity and the procedural rule that the legal question of strict liability must be decided by the court. 227 Or. at 250-253, 362 P.2d 312. McLane v. Northwest Natural Gas, supra, in turn, amended the preceding explanations in three respects. Justice Holman's opinion made clear that the danger of an activity did not depend on the frequency with which it miscarries, though this could be an important indicator, and that the destructive effects of the activity need not occur beyond the defendant's premises. Also, McLane disavowed the statement in Bedell, quoted above, that would disregard the place in which the activity is carried on, citing a proposed change in Restatement (Second) § 520 that "makes the locality in which the activity is carried on a relevant factor." The locality was said to be relevant to determining whether an activity is "extraordinary, exceptional, or unusual," 255 Or. at 328-329, 467 P.2d 635. This was reaffirmed in Reter v. Talent Irrigation District, supra note 1, which denied strict liability under Rylands for underground seepage from an irrigation ditch. The court found that the activity of irrigation "can *1260 hardly be called `exceptional, or unusual, considering the locality in which it is carried on.'" As a separate point, not tied to the locality, the court noted that the canals were relatively modest in size and that "the risk of serious harm created by the activity is minimal." 258 Or. at 145, 482 P.2d 170. In a subsequent case, Nicolai v. Day, 264 Or. 354, 506 P.2d 483 (1973), the court equated the older terms "extra hazardous" or "ultrahazardous" with the phrase "abnormally dangerous" employed in § 520 of the second Restatement of Torts, and it referred to the "factors" there proposed for determining whether an activity is "abnormally dangerous."[3] The holding was that the slide of a landfill from defendant's land upon plaintiff's land did not qualify for strict liability because the risk could have been eliminated by the exercise of reasonable care. 264 Or. at 359, 506 P.2d 483. The reference to the revised Restatement formulation, however, in some respects diverged from this court's decisions. The change of phrasing from "extra hazardous" or "ultrahazardous" to "abnormally dangerous," though subtle, created an ambiguity. To what norm does "abnormally" refer? The older phrases kept the focus on the hazardous character of the activity, on its essentially irreducible potential for causing substantial harm. Like them, "abnormally dangerous" literally means extraordinarily dangerous, much more dangerous than other activities. But the newer phrase lends itself to invoking social as well as physical norms, as if it read "abnormal and dangerous activities," thereby mixing questions of cause and effect, or probabilities and magnitudes of harm in the natural world, with what may be called societal considerations, like the "factors" listed but not further discussed in Nicolai v. Day, supra. The very concept of danger, risk, or hazard, as we observed in Bella v. Aurora Air, Inc., supra, combines the factual judgment that an act or event chances a particular result with the value judgment that this result is in some important degree harmful. No one speaks of a "danger" of desirable or neutral consequences. The probability of the harm is a fact in the natural world. The harm may or may not have an economic measure; the practice of compensating for personal injuries in money does not mean that the law tests the danger of such injury by the estimated compensation. While the physical probabilities may lend themselves to objective or "scientific" assessment, people may deeply disagree how much, if any, "harm" is represented even by a loss measurable in the marketplace, as many contemporary disputes over management of the natural environment show. But the nature of harm is not ordinarily an issue in the kind of injury to person or property for which one party seeks to recover damages from another, and it is not an issue here. The destruction of plaintiff's property was an actionable trespass, though unintended, if it resulted from an activity so dangerous as to give rise to strict liability, see Hudson, supra, Martin v. Union Pacific Railroad, supra note 1, and if the harm was of the kind whose potential occurrence made the activity dangerous, Gronn v. Rogers Construction Co., supra. Whether the danger is so great as to give rise to strict liability depends both on the probability and on the magnitude of the threatened harm. If the consequences of a mishap are potentially lethal or highly destructive of health or property, a slight likelihood that they will occur suffices, see McLane v. Northwest Natural Gas, supra, 255 Or. at 329, 467 P.2d 635, even if the *1261 harm in the actual occurrence is less severe. Conversely, we have held that even when the risk "only moderately threatens economic activities rather than harm to life, health, or property or environment," the activity may carry strict liability if the consequences are highly probable or, as stated in Bella, if the activity can be carried on "only with a substantially uncontrollable likelihood that the damage will sometimes occur." 279 Or. at 24, 566 P.2d 489. Willingness to conduct an activity carrying a high probability of harm to others, however undesired, is what the Loe opinion described as "intentional" in explaining Martin v. Reynolds Metals Co., see supra note 1, where the likely harm to any person from the aerial dissemination of chemicals was moderately severe but substantially uncontrollable. The assessment of extraordinary danger thus has been based on the magnitude of harmful events and their probability despite all reasonable precautions, as stated in the first three of the "factors" quoted in Nicolai v. Day, supra note 3. The role of societal criteria in our decisions is more doubtful. The opinions have made no clear distinction between the notions of "common usage" and of appropriateness of an activity to the location, nor whether "common usage" and "appropriate location" are identical, overlapping, or cumulative tests for escaping strict liability for highly dangerous activities. The test of common or uncommon usage has been recited to mean not only an activity that is widely carried on by many persons but also one that is accepted as natural or necessary by the inhabitants of the locality, like the irrigation ditches in Reter v. Talent Irrigation District, supra note 1, or the urban piping of gas mentioned in McLane v. Northwest Natural Gas, supra, 255 Or. at 330-331, 467 P.2d 635. Likewise, a location may sometimes be called "appropriate" because the dangerous activity is useful or necessary, and sometimes because it is less likely to cause extreme harm in that location.[4] The second meaning clarifies but adds nothing to the initial equation of danger. The greater divergence from the "factors" quoted in Nicolai v. Day, concerns the value of the dangerous activity to the community. In the present case, defendant and amici curiae press upon us the economic importance of the grass seed industry, which makes extensive use of field burning, and of the forest products industry, which is concerned about the potential implications for its practices of burning slash and debris. This consideration, however, has not been a factor in this court's assessment of strict liability for abnormally dangerous activities. Instead, the court has looked to determinations and policies that may be found in legislative enactments. There are at least two reasons not to judge civil liability for unintended harm by a court's views of the utility or value of the harmful activity. One reason lies in the nature of the judgment. Utility and value often are subjective and controversial. They will be judged differently by those who profit from an activity and those who are endangered by it, and between one locality and another. The use of explosives to remove old buildings for a new highway or shopping center may be described as slum clearance or as the destruction of historic landmarks and neighborhoods. On a smaller scale, it may celebrate a traditional holiday which some may value more highly than either buildings or roads. Highly toxic materials may be necessary to the production of agricultural pesticides, or of drugs, or of chemical or bacteriological weapons, or of industrial products of all sorts; does liability for injury from their storage or movement depend on the utility of these products? Judges, like others, may differ about such values; they can hardly be described as conclusions of law. *1262 To rely on the evidence of the market place may show rather different societal values from those probably contemplated by Dean Prosser and the Restatement. While some small airplanes enhance the production of food crops, others perhaps earn a larger return flying passengers or stunt exhibitions at the county fair. Entrepreneurs may bring more money into the local economy by racing automobiles or driving them to deliberate destruction than by operating a public transit system with a comparable incidence of actual injuries. If high risk itself has market value, does this count against strict liability for a resulting calamity? The addition of this "factor" in the second Restatement was the subject of some doubt and criticism during the debate of § 520 in the American Law Institute.[5] Our cases have not required courts and counsel to enter upon such philosophical issues in deciding whether a defendant is strictly liable for harm from a hazardous activity.[6] The second reason why the value of a hazardous activity does not preclude strict liability for its consequences is that the conclusion does not follow from the premise. In the prior cases, the court did not question the economic value of blasting, cropdusting, or storing natural gas. In an action for damages, the question is not whether the activity threatens such harm that it should not be continued.[7] The question is who shall pay for harm that has been done. The loss has occurred. It is a cost of the activity whoever bears it. To say that when the activity has great economic value the cost should be borne by others is no more or less logical than to say that when the costs of an activity are borne by others it gains in value. This, in effect, is postulated in the argument that the industry which relies on field burning is highly valuable but could not survive the cost difference of insurance against strict liability instead of negligence. Sometimes, moreover, the cost is borne by others engaged in the same or similar activity. That is true in this case, where plaintiffs and defendant farmed adjoining fields. The same can occur in cropdusting, in burning forest debris, or in the escape of stored water. If the accidentally impoverished neighbor is told that in the long run the losses will balance out, he may answer, like one economist, that in the long run we are all dead.[8] Society has other ways to lighten the burdens of costly but unavoidable accidents on a valued industry than to let them fall haphazardly on the industry's neighbors. That, at least, has been this court's view of the common law in the absence of relevant legislation. We have already referred to the quotation in Bedell that one who engaged in the use of explosives, "useful though it be ... becomes an insurer," and "that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss." 199 Or. at 352, 261 P.2d 842, quoting Exner. The person conducting the activity can choose whether or not to chance the potentially costly consequences. If he also owned the adjoining property, he might choose not to take the risk of fire, or blasting, or aerial spraying of toxic chemicals, with any degree of care. *1263 The potential victim cannot make that choice. Thus, as Justice Holman wrote in McLane, "where one of two innocent persons must suffer, the loss should fall upon the one who created the risk causing the harm." 255 Or. at 330, 467 P.2d 635. Strict liability accompanies the decision to undertake the hazardous activity: "The element of fault, if it can be called that, lies in the deliberate choice by the defendant to inflict a high degree of risk upon his neighbor, even though utmost care is observed in so doing." Loe v. Lenhardt, supra, 227 Or. at 251, 362 P.2d 312. In sum, the focus in our cases has been on assessing abnormal hazards by their potential for harm of exceptional magnitude or probability despite the utmost care. This potential may, of course, differ with the place where the activity is conducted; but an activity is not otherwise immune from strict liability because it is "appropriate" in its place. If there is an appropriate location for aerial cropdusting, it is over open agricultural fields, as in Loe and Bella. As stated in Loe, however, "mere frequency of usage by specialists in a particular field [does not] determine whether or not the activity should pay its own way." 227 Or. at 251, 362 P.2d 312. A danger that is only ordinary in an appropriate location may be abnormal where it exposes others to an extraordinary risk or magnitude of harm, but an extraordinary risk does not become ordinary because it occurs in its own appropriate place. The societal qualification, rather, is that a dangerous activity is not an abnormal hazard, even though its intrinsic dangers cannot be prevented, if it is a "common usage." That term has been extended beyond its original meaning of widespread and accepted individual practice to embrace also essential service activities like the distribution of gas or electricity, see McLane, or irrigation water, as in Reter, though in the latter case there was the alternative ground that the court found small risk of serious harm. In other words, a dangerous activity is not extraordinarily so if nearly everyone routinely does it or expects to have it done for him. Finally, the abnormally dangerous nature of an activity need not be proved by evidence if this danger is recognized by stringent legislative or administrative safety regulations, although it may be an issue what degree of danger a regulation recognizes. In Loe, the court noted that many states, including Oregon, strictly regulated the aerial application of herbicides or pesticides, concluding that "the dangerous character of aerial spraying has been recognized by those legislative assemblies which have given attention to the matter." 227 Or. at 253, 362 P.2d 312. Bella, supra, likewise relied on a statute for the specific conclusion that spraying with the herbicide 2, 4-D was abnormally dangerous. 279 Or. at 24-25, 566 P.2d 489. The use of fire, of course, is the aboriginal "dangerous activity." Its relation to the rule of Rylands v. Fletcher, however, is more complicated. It is an interesting question what the "common law of England" was in 1843, when this was adopted as the law in Oregon.[9] It should not be assumed that the common law demanded a showing of negligence to recover for losses from the spread of a fire intentionally set on another's property. The common law decisions were to the contrary, although exactly what rule of liability they established is disputed. An early common law action for letting one's fire escape and injure his neighbor is traced to the 1401 report of Beaulieu v. Finglam, Y.B. 2 Hen. IV. fo. 18, pl. 5. It applied equally to a fire set outdoors, for burning stubble in a field, as to fire in one's house.[10] *1264 Wigmore treated this action as a form of absolute liability.[11] Winfield, upon more extensive investigation, disagreed, because the defendant was not liable if he showed that the fire was the act of a stranger, or an "act of God."[12] A modern study of the question agrees that negligence in the modern sense of the term was not required: In England, where Rylands v. Fletcher was decided soon after Oregon became a state, the doctrine of that case became another source of strict liability for escaping fire, in this case from a railway engine. Jones v. Festiniog Ry., (1868) L.R., 3 Q.B. 733. Thus the old common law action and that under Rylands v. Fletcher, though not identical, became a matter of choice and perhaps tended to merge. See Winfield on Torts § 144 at 608-10 (6th ed 1954), Fleming, The Law of Torts 336-337 (5th ed 1977). In Australia and New Zealand, agricultural burning under conditions perhaps more like Oregon's than England's has been tested by the standards of Rylands v. Fletcher, making cases turn on the concept of natural or unnatural uses of fire. See Sutton, Liability for Escape of Fire, 34 N Z L J 87 (1958), reviewing the cases.[14] Meanwhile, in the states where strict liability under the Rylands doctrine was not adopted or developed, liability for fire damage was litigated under conventional negligence law. Many cases of fires set to clear land or for other agricultural purposes are included in an annotation that asserts "the general rule" that a person who sets a fire for a lawful purpose is not liable for damage on another's property unless he was negligent in starting or in controlling the fire. Annot., Liability for Spread of Fire Purposely and Lawfully Kindled, 24 A.L.R.2d 241, 254, 295 (1952). The results then hinge on whether the fire was set under unreasonably dangerous conditions or with inadequate precautions against its spread. The prevalence of negligence liability for fire damage, however, does not settle the issue when a state's law includes strict liability for hazardous activities under Rylands v. Fletcher or equivalent concepts. No prior decision has settled it in this state.[15] Liability for harm caused by the spread of an intentionally set fire therefore must be judged by the principles of the decisions reviewed above. *1265 These principles do not lead to strict liability for the use of fire as such. The use must be abnormally dangerous, creating an effectively uncontrollable danger of serious harm beyond the ordinary risks associated with common uses of fire that are readily avoided by due care. It appears that field burning fits this description. It differs from other domestic and industrial uses of fire, including the spark-throwing steam locomotives whose incendiary propensities were a classic cost of industrial progress, because it is used specifically for destruction. Any fire means the destruction of raw material by oxidation, with attendant dangers; but in field burning, as in using explosives and herbicides, the same destruction that poses the danger to the user's neighbor is the user's very purpose. That alone does not make every backyard burner an abnormally dangerous activity. It is a matter of scale as well as location. When fire reaches the magnitude of burning essentially the whole surface of a large area open to the winds, the possibility that it will spread beyond its intended bounds cannot be excluded with any practical degree of care. In the trial court, witnesses gave varying testimony reflecting their personal experiences and estimates whether escape of a fire beyond the field intended to be burned is a highly unusual or a relatively common occurrence. The local fire chief testified that it occurred in perhaps one fire in eight, and he did not attribute this high percentage to lack of care. This uncontrollable potential of spreading is in principle like that of the aerial chemical sprays in Loe and Bella, as the Court of Appeals concluded.[16] Also, as in those cases, the abnormal character of the danger is not negated because the field burning occurs in its appropriate location. Perhaps field burning is not much more exceptional in the location of defendant's field than irrigation ditches were in the location involved in Reter, but that was equally true of cropdusting. Field burning is not a "common usage" in the sense that it is an ordinary activity that many people routinely expect to do for themselves, like domestic fires, or to have done for them, like the distribution of water, gas, electricity and other common goods, as McLane suggests. Even in farming, field burning is not a generalized use, though widely employed for certain kinds of crops. It is an instance of the "frequency of usage by specialists in a particular field" which, according to Loe, does not determine "whether or not the activity should pay its way." 227 Or. at 251, 362 P.2d 312. As already mentioned, a court need not determine whether an activity otherwise within the rule is exceptionally dangerous when legislators or their administrative delegates have recognized the danger by subjecting the activity to stringent safety regulations. Defendant and amici curiae make the opposite claim that statutory policy governing field burning precludes liability without fault for injuries caused by the burning. Field burning legislation is found in ORS 468.450-468.495. ORS chapter 468 as a whole is concerned with pollution control. It assigns certain responsibilities for air pollution control to state and local administrative agencies, including the regulation and licensing of open field burning of grass and cereal grain crops. ORS 468.455 contains a legislative declaration that "limitation or bar of the practice at this time, without having found reasonable and economically feasible alternatives to the practice could seriously impair the public welfare." The section, however, indisputably refers to field burning as a source of pollution. It *1266 declares the "public policy" to control the inevitable pollution by "smoke management" and research, "consistent with ORS 468.280." That section, in turn, states the general public policy to maintain air quality "as free from air pollution as is practicable, consistent with the overall public welfare of the state." These policy declarations have nothing to do with fire danger. They permit a polluting activity to continue, as far as state law is concerned, but they contain nothing to relieve it of the costs of harm to others. They do not preclude strict liability for injuries caused by field burning when this otherwise would apply. Nor does the field burner's possession of the required permit preclude strict liability. Licenses, certificates, or permits are common devices in the regulation of dangerous activities, including the handling and use of explosives, dangerous gas, or chemical spraying involved in our prior cases of strict liability. See ORS 478.920(4) and 480.200 to 480.280 (explosives); ORS 480.432 to 480.436 (liquid petroleum gas); ORS 634.106 to 634.146 and 634.306 (pesticide operators and applicators). About the same argument, the court stated in McLane: 255 Or. at 336, 467 P.2d 635.[17] The court continued with the observation that compliance with safety regulations would not foreclose liability without fault, even if the regulations fixed the standard of due care for liability based on negligence. Here, as in McLane, defendant's activity was legal and conducted with governmental approval, but that approval does not predetermine civil responsibility in case of a non-negligent miscarriage of the activity. Plaintiff, in turn, points to the extensive regulations that address the incendiary rather than the polluting propensities of fire to establish its hazardous character. We agree that these are the more pertinent laws to show how far lawmakers have treated open, outdoor fires as a source of exceptional risk. ORS chapters 476, 477, and 478 make extensive provisions for organizing and paying for the prevention, suppression, and investigation of fires. These are evidence of the importance that historically has been given to the communal defense against the dangers of fire generally, not of a determination that some uses of fire are exceptionally dangerous. Some statutes impose special obligations with respect to particular kinds or locations of fire. ORS chapter 477, for instance, is devoted to fire protection on forest, grazing, and rangeland and contains provisions for regulation, e.g. ORS 477.515, 477.575, 477.625, and liability for double damages for fire losses caused negligently, wilfully, or maliciously, ORS 477.090. The statutory regime for forest, grazing, and rangeland is not involved in this case, and there is no occasion here to examine its implications for tort liability. Three statutes not limited to such lands may, however, be relevant. Plaintiff cites ORS 477.740, which imposes criminal liability for unlawfully setting on fire "any grass, grain, stubble or other material being grown on any lands within the state" or failing to control the spread of fire from one's own land. The suggestion is not that the present defendant violated this *1267 statute but that the statute shows legislative recognition of the special danger of fires on open land. Two statutes, ORS 478.960, and ORS 476.380, place open burning, including field burning, within and outside rural fire protection districts under special controls. Subsection (1) of each statute forbids such burning without first securing permission respectively from the fire chief or from county officials and complying with the directions of the fire chief. ORS 478.960(2) directs the district fire chief to "prescribe conditions upon which permission is granted and which are necessary to be observed in setting the fire and preventing it from spreading and endangering life or property or endangering the air resources of this state." The subsection also makes it the responsibility of the fire chief, deputy, or State Fire Marshal to deny permission for field burning, even when allowed by the Environmental Quality Commission, if the fire official thinks it necessary "to prevent danger to life or property from fire." Subsection (3) holds the person starting the fire responsible for "providing adequate protection to prevent injury to the person or property of another," and it prescribes that any escape of the fire or injury to the person or property of another "constitutes prima facie evidence that the burning was not safe." ORS 476.380 makes similar provisions for property not within a rural fire protection district. The statute does not explain the relevance of this "prima facie evidence that the burning was not safe." One of the amici curiae suggests that it implies that a person starting the fire is liable only if "the burning was not safe," and that this negates strict liability. A clause about civil liability, however, more likely would have used a familiar word such as "negligent," referring to the conduct of the burner, than "safe," which refers to the burning. This fire obviously proved unsafe, though not for lack of care. A standard that burning be "safe" is equally compatible with either theory of liability. It appears that the clause was enacted with a view, not to civil liability, but to sanctions for violations of the section. It originally provided that "the escape of fire and injury to the property of another ... shall be prima facie evidence that the burning was not safe and was in violation of this section." ORS 478.960(2) (1955). This provision implies nothing about the standard for tort liability to the injured party in the absence of a violation. Moreover, in the later version governing open burning outside fire protection districts, ORS 476.380, the same provision is followed by the explicit statement that nothing in the section "(c) Relieves a person who has obtained permission to start a fire, or his agent, from legal liability for property damage resulting from the fire." In adopting these statutes the legislature did not undertake to define or alter tort liability for property damage, any more than in adopting the regulations of cropdusting and chemical herbicides cited in Loe v. Lenhardt and Bella v. Aurora Air, Inc. As in those cases, what the statutes establish is legislative recognition that certain kinds of open fires pose an exceptional danger of spreading and causing injuries. Governments, of course, require precautions against many routine risks that fall short of the extraordinary or abnormally dangerous. If safety regulations and licensing or other permit requirements alone implied a finding of exceptional danger, strict liability would be the rule and negligence liability the exception in wide areas of contemporary life. Not all fires, though regulated in the interests of safety, are abnormally dangerous; moreover, even hazardous activities do not carry strict liability for resulting harm if they are common usage. Whether a regulatory scheme reflects recognition of extraordinary danger must be judged for each particular scheme. We have described the exceptional controls imposed upon open field burning, with their requirement of individual permits in the light of daily conditions and of on-the-scene precautions to deal with a spread of the fire if it occurs. These statutory provisions reinforce the conclusion of the Court of Appeals that field burning fits this court's criteria of an abnormally dangerous activity. The spread of the fire *1268 from defendant's field to plaintiffs' land therefore was a trespass making defendant liable for the damage done to their property. The decision of the Court of Appeals is affirmed. [*] DENECKE, C.J. retired June 30, 1982. [1] Plaintiff relied on Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790, cert. den. 362 U.S. 918, 80 S. Ct. 672, 4 L. Ed. 2d 739 (1960), a decision imposing liability for harm caused by airborne chemical compounds, which stated: "Since we hold that the intrusion in this case constituted a trespass it is immaterial whether the defendant's conduct was careless, wanton and willful or entirely free from fault." 221 Or. at 102, 342 P.2d 790. In Loe v. Lenhardt, supra, 227 Or. at 248, 362 P.2d 312, which approved the less absolute view of liability for trespass stated in the Restatement of Torts, the court treated the trespass in Martin as "intentional," perhaps meaning that not only defendant's act but the intrusion into another's property was intended. This use of "intent" may not avoid or resolve classic problems of liability for conduct undertaken with knowledge of its undesired but near certain consequences. Cf. Furrer v. Talent Irrigation Dist., 258 Or. 494, 513, 466 P.2d 605 (1971), and Reter v. Talent Irrigation Dist., 258 Or. 140, 482 P.2d 170 (1971). Nevertheless, Hudson reaffirmed the rule stated in Loe. 279 Or. at 6-7, 566 P.2d 175. These decisions in effect treated "trespass" as describing the invasion of a landowner's interest rather than an actor's conduct giving rise to liability. Under the theory stated in those cases, it is undisputed that incursion by fire can be a trespass on another's property, see Martin v. Union Pacific Railroad, 256 Or. 563, 474 P.2d 739 (1970). But it is not actionable unless the defendant "intended" the incursion to occur, or "knew or should have known" of its occurrence and neglected to prevent it, Hudson, 279 Or. at 7, 566 P.2d 175, citing Furrer and Reter, or engaged in an abnormally hazardous activity. [2] Bedell relied on the assertion of that rule in Brown v. Gessler, 191 Or. 503, 512, 230 P.2d 541 (1951), which in turn only endorsed the same conclusion reached upon prior cases in Ure v. United States, 93 F. Supp. 779, 789-91 (D.Or. 1950), rev'd on other grounds 225 F.2d 709, 711 (9th Cir.1955), although Brown itself held the doctrine inapplicable to the facts in that case. [3] The factors are: "(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others; "(b) Whether the gravity of the harm which may result from it is likely to be great; "(c) Whether the risk cannot be eliminated by the exercise of reasonable care; "(d) Whether the activity is not a matter of common usage; "(e) Whether the activity is inappropriate to the place where it is carried on; and "(f) The value of the activity to the community." Restatement (Second) of Torts, § 520 (Tent. Draft No. 10, Apr. 20, 1964), quoted in Nicolai v. Day, 264 Or. at 358-59, 506 P.2d 483. [4] See Restatement (Second) of Torts § 520, Comment j (1977). After Rylands v. Fletcher, similar complications arose from the decision to limit its reach by distinguishing "natural" and "non-natural" uses of land. See Rickards v. Lothian, [1913] A.C. 263, 16 C.L.R. 387 (P.C.); Stallybrass, Dangerous Things and the Non-Natural User of Land, 3 Cam.L.J. 376 (1929). [5] See the remarks of Professors Fleming and Keeton and Mr. Buchanan in ALI, Proceedings 458-462 (1964). The Reporter, Dean Prosser, responded that he would like to "play this down" and "would be happy to throw it out, if I thought I could," but that in some cases, "Pennsylvania coal mines, western irrigation ditches, Texas oil wells are protected from strict liability ... simply because of their importance to the community." [6] Compare Furrer v. Talent Irrig. Dist., supra n. 1, 258 Or. at 508-510, 466 P.2d 605 (1971), for the role of utility in judging whether a defendant's conduct is negligent. [7] Contrast the considerations taken into account before protecting plaintiffs by enjoining the harmful activity altogether, York v. Stallings, 217 Or. 13, 341 P.2d 529 (1959), perhaps because the chancellor had broader responsibilities in ordering or forbidding an activity than to adjudge an injured party's right to damages inflicted by another. See also Phillips Ranch v. Banta, 273 Or. 784, 789, 543 P.2d 1035 (1975). [8] Attributed to Keynes. Pigou, John Maynard Keynes, 1883-1946, 32 Proc. Brit. Acad. 395, 407 (1946). [9] See Act of July 5, 1843, reprinted in Harris, History of the Oregon Code, 1 Or L Rev 129, 135 (1922); Act of June 27, 1844, Or.L. 1843-49 at 98, 100, art. III, § 1. The modern analysis of strict liability began by recognizing Oregon's adoption of the common law. Ure, supra n. 2, 93 F. Supp. at 788. [10] Tubervill v. Stamp, (1697) 1 Ld Raym. 264, 91 Eng Rep 1072, and I Salk, 91 Eng Rep 13. Beaulieu v. Finglam is translated in Fifoot, History and Sources of the Common Law: Tort and Contract 166 (1949). [11] Wigmore, Responsibility for Tortious Acts: Its History, III, 7 Harv L Rev 441, 448-449 (1894). [12] Winfield, The Myth of Absolute Liability, 42 LQR 37, 46 (1926); Winfield & Jolowicz on Tort 391-92 (9th ed. 1971). Liability of an owner on whose land a fire "accidentally" begins was excluded by a series of statutes beginning in 1707, Act 6 Anne ch. 31, § 6, leading to a large English and Commonwealth jurisprudence on what is meant by "accidentally." Clerk & Lindsell on Torts, §§ 24-32 to 24-35 (15th ed 1982). [13] Ogus, Vagaries in Liability for the Escape of Fire, 27 Camb LJ 104, 105-106 (1969). The quotation continues: "`Negligenter' can most helpfully be translated as `by neglect' or `by default.' As Holt C.J. is quoted as saying in one report of Turbeville v. Stamp, [supra n. 10] `he must at his peril take care that it does not, through his neglect, injure his neighbors.' If there is a duty on a person to prevent his fire escaping to his neighbor's land, and the fire does in fact escape, clearly he has been in `neglect' of his duty." (footnotes omitted.) [14] See also Shiels, New Zealand Forest Products Ltd. v. O'Sullivan, 3 Otago L.R. 418 (1975). While this appears not to be the general rule in Canada, it could have become the rule in so much of the disputed Oregon territory as might have become part of British Columbia. See Gogo v. Eureka Sawmills, Ltd. [1944] 3 WWR 268, [1944] 4 DLR 689 (Brit Col), rev'd in part, on other grounds 61 Brit Col 498, [1945] 4 DLR 127. But see Tahsis Co. v. Canadian Forest Products, Ltd. [1968] 65 WWR 641, 70 DLR2d 376, 389-92 (Brit Col); Canadian Forest Products, Ltd. v. Hudson Lbr. Co. [1959] 20 DLR2d 712, 727-31 (Brit Col). [15] When a fire has started as a result of defendant's negligence or spread as a result of defendant's careless handling of combustible materials, rather than being purposely set, negligence has been the test of liability. See Comfort v. Stadelman, 285 Or. 525, 592 P.2d 213 (1979), reviewing the cases. [16] Judge Richardson, dissenting, believed that field burning is potentially more controllable than aerial cropdusting by precautions such as plowing perimeter strips, wetting fence lines, and having adequate fire fighting personnel and equipment on the scene, all of which the defendant did. Perhaps one can imagine greater and costlier precautions that would effectively eliminate the risk, although when a few burning straws rising in the heat can be carried by the wind to ignite a distant field, it is not apparent what they would be. According to the testimony, defendant's precautions went beyond the customary standards and were found free from any negligence as a matter of law. [17] McLane quoted the distinction made in the Restatement between dangerous activities undertaken as a public duty or with special legislative sanction to conduct a hazardous but necessary task and merely authorized activities: "On the other hand, it is not every authorization or permission to engage in an activity which can be taken to confer immunity from strict liability, by giving such approval to the activity as to indicate an intent that the defendant shall not be liable. In the absence of special circumstances indicating such an intent, the normal interpretation of the act of the legislature in granting a franchise or authority to act in such a manner is that the defendant is authorized to proceed, but must be strictly responsible if the activity in fact results in harm to those in the vicinity." Restatement (Second) of Torts (Draft, supra n. 3) § 521, comment b, quoted in 255 Or at 335-36. See now Restatement (Second) of Torts § 517, comment d (1977).

a2ca336a5939c7512897b7ea41c4301de4b0ac656bc933e4ff905956435a04fe

1982-10-26T00:00:00Z

2a8f8dc3-ec70-4c3f-866e-e0483b95636c

City of Pendleton v. Kerns

294 Or. 126, 653 P.2d 992

oregon

Oregon Supreme Court

653 P.2d 992 (1982) 294 Or. 126 CITY OF PENDLETON, Frederick S. Hill and Mary Ann Hill, Petitioners On Review, v. F. Carter KERNS, Jean H. Kerns, Lou Levy and Clare Wagner, Respondents On Review. LUBA 80-138; CA A20422; SC 28659. Supreme Court of Oregon. Argued and Submitted September 9, 1982. Decided November 23, 1982. Rudy M. Murgo, Pendleton, filed the brief and argued the cause for petitioner, City of Pendleton. With him on the brief *993 was William J. Storie, Pendleton, who argued the cause for City of Pendleton; William J. Storie argued the cause of petitioners Hill. Thomas R. Page, Portland, argued the cause and filed the brief for respondents. Richard D. Rodeman, Corvallis, Michael Huston, Salem, Howard Rankin, Ruth M. Spetter and Kathryn S. Beaumont, Portland, filed a brief of amicus curiae for the City of Corvallis, League of Oregon Cities, and the City of Portland. Before LENT, C.J., and PETERSON, LINDE, TANZER, CAMPBELL and CARSON, JJ. CAMPBELL, Justice. The issue presented is whether the Land Use Board of Appeals (LUBA) has jurisdiction to review a city ordinance that authorizes the improvement of an already dedicated street and sets up a local improvement district (LID) to finance the construction. North Main Street in the City of Pendleton was first dedicated as a city street in 1915. The portion of the street at issue here, however, has never been improved. In 1958, the city rejected a request to vacate the unimproved segment, but it did permit property owners in the area to barricade the end of the improved street and use the remainder as a neighborhood park. The comprehensive plan for the city, adopted by the Pendleton City Council in 1965, designates this segment of North Main as a city street. This plan has yet to be acknowledged by the Land Conservation and Development Commission (LCDC). In September 1980, the city council, after notice to affected property owners and a public hearing, adopted Ordinance No. 3141; the ordinance authorizes improvement of the segment and creates a LID to finance the construction.[1] The improvement will involve extending the present street about 360 feet, grading and paving the segment, and the installation of storm sewers, drains, curbs, and sidewalks. The construction will necessitate removal of the barricade and destruction of the park. It will not, however, physically affect any property other than that already dedicated for city street purposes. Neither the ordinance nor any supplemental report contains any factual findings or legal conclusions regarding the street improvement's compliance with the city's comprehensive plan or with LCDC's statewide planning goals. The portion of North Main at issue is in a residential area near the Pendleton city limits. The area has recently been experiencing growth pressures and two large residential developments have been proposed which would abut the street as improved. One, a subdivision of about 75 to 85 lots, is within the city limits but cannot be developed due to lack of adequate access. The other, a tract which adjoins the city limits, has been the subject of annexation proceedings. See City of Pendleton v. Kerns, 58 Or. App. 641, 650 P.2d 101, rev. den., 293 Or. 653, 648 P.2d 852 (1982). The proposed improvement of North Main will facilitate development of both these areas. The street as improved, moreover, will be a major access route into the city for future residents of the developments. Respondents herein are property owners near the proposed improvement. They objected *994 to the street improvement before the city council and, after passage of the ordinance authorizing construction, they petitioned LUBA for review of the decision. Their challenge to the ordinance is based on their contention that the city council violated state statutory land use planning requirements by failing to address the issue of whether the street improvement is in compliance with the city's plan and the statewide goals. LUBA held, inter alia, that it had jurisdiction over the dispute and that the city council erred in not reviewing and discussing the compliance issue; LUBA remanded the ordinance to the council with instructions that it adopt adequate findings and conclusions on compliance. The Court of Appeals affirmed. 56 Or. App. 818, 642 P.2d 658 (1982). We accepted review to determine whether LUBA acted properly in exercising jurisdiction to review the ordinance. The statutory provisions governing administrative review of local government actions affecting land use have undergone significant change in the past several years. Particularly relevant here have been the shift of initial review authority for certain such actions from LCDC to LUBA and changes in the operative statutory language governing which actions are reviewable. See State Housing Council v. City of Lake Oswego, 291 Or. 878, 882-885, 635 P.2d 647 (1981). We have not yet addressed the extent of LUBA's jurisdiction. The statute which created and governs LUBA (Oregon Laws, 1979, chapter 772, as amended by Oregon Laws 1981, chapter 748)[2] provides in § 4(1) that, subject to the right of judicial review and except as otherwise provided by ORS 197.605 et seq.,[3] LUBA has "exclusive jurisdiction to review any land use decision of a local government * * *." A "land use decision" was defined by former § 3(1)(a)[4] as: The issue presented is whether Ordinance No. 3141 authorizing the street improvement work and setting up a LID is a "land use decision" within the contemplation of the statute, i.e., whether it is a final decision that concerns "adoption, amendment or application" of the goals, the city's plan, or an ordinance implementing the plan. As an initial matter, petitioners argue that the ordinance merely "improves" an already dedicated street and that it is essentially a taxation or financial decision of the city beyond LUBA's power to review. In support of their argument, petitioners rely on the Court of Appeals case of State Housing Council v. City of Lake Oswego, 48 Or. App. 525, 617 P.2d 655 (1980), pet dis 291 Or. 878, 635 P.2d 647 (1981). There the court held that a city ordinance imposing a general "systems development charge" on all new construction throughout the city was not a "land use decision" within LUBA's jurisdiction, notwithstanding the significant effect it might have on land use. The court concluded that local taxation, budget, and fiscal decisions were not intended by the legislature to be within the ambit of the state land use planning laws and regulations. 48 Or. App. at 537-538. See also Westside Neighborhood Quality Project, Inc. v. School District 4J, 58 Or. App. 154, 647 P.2d 962, rev. den. 294 Or. 78, 653 P.2d 999 (1982) (school district's decision to close school not a "land use decision" reviewable by LUBA). *995 Without reaching here the issue of whether those cases were rightly decided, we simply note that petitioners' reliance on them is misplaced. Respondents do not by this action challenge the validity of the fiscal aspect of the ordinance, i.e., that part imposing the LID; their challenge here is only with regard to the decision to construct the street. Even assuming arguendo that the decision to create the LID is not a "land use decision" reviewable by LUBA, it does not necessarily follow that other aspects of the ordinance are non-reviewable. A local government does not immunize a land use decision from LUBA review merely through the expedience of attaching financing provisions. To the extent the various aspects of an ordinance are severable, those which fall within the definition of "land use decision" are subject to LUBA review even though other aspects are not. Accordingly, the fact that Ordinance No. 3141 authorizing the street construction work has a concomitant LID financing provision does not, of itself, operate to divest LUBA of jurisdiction to review the decision to undertake the street construction. Petitioners, in addition, find it significant that the portion of North Main Street at issue was first dedicated and platted years ago and that it is designated as a city street on the city's comprehensive plan. Prior to the passage of Ordinance No. 3141 authorizing construction of the street, however, there had been no final and binding determination as to the use to which the land was to be put. The fact that the land had already been the subject of preliminary planning does not mean that the final determination years later to permanently commit the land to a particular use is necessarily exempt from LUBA review. See Columbia Hills Development Co. v. LCDC, 50 Or. App. 483, 490-491, 624 P.2d 157, rev. den. 291 Or. 9, 631 P.2d 340 (1981). The factual and legal environment may have so changed in the intervening years that even though it may have been a wise and proper action to have improved the street years ago, it may be improvident and improper now. Thus, the city council's decision to improve the street is not one which is exempt from LUBA review. The City of Pendleton's comprehensive planning duties are set out in ORS 197.175,[5] which provides in pertinent part: In Peterson v. Klamath Falls, 279 Or. 249, 566 P.2d 1193 (1977), we were called upon to determine whether a city ordinance annexing 141 acres of land to the city fell within *996 the ambit of ORS 197.175, i.e., whether a city's annexation must comply with the goals. We rejected the argument that only decisions that have an immediate impact on land use designations, such as the adoption of zoning ordinances, must comply: We went on to hold that since the city there had adopted the annexation ordinance without addressing the compliance issue, the ordinance had to be remanded to the city council for consideration of the applicable goals and entry of appropriate findings on compliance. 279 Or. at 256-257, 566 P.2d 1193. Admittedly, "significant impact on present or future land uses" is a nebulous standard, particularly in the context of a city's decision to undertake street improvement work. Whereas some decisions, such as to resurface a street or repair potholes, have only a de minimis impact on land use, and some, such as to construct a major arterial road or a bridge, have a substantial impact, a large number of a city's day-to-day decisions regarding public works and roads fall in between. Public works and road projects are an aspect of a city's "planning and zoning responsibilities"[6] and as such must be in compliance with the applicable goals and comprehensive plan provisions. A city's final decision authorizing a significant project of this nature is, as a result, reviewable by LUBA for goal and plan compliance. We do not believe, however, that the legislature intended the myriad of prosaic administrative decisions regarding routine maintenance and minor public works and road projects be subject to LUBA and judicial review for compliance. Consequently, we reiterate the standard set forth in Peterson and hold that Ordinance No. 3141 is subject to LUBA review if, but only if, it can be said that the street improvement work will have a "significant impact on present or future land uses" in the area. The remaining question is thus whether respondents have established that the improvement will have such a "significant impact on present and future land uses" that LUBA review is warranted.[7] Respondents point to two effects the street construction will have on land uses: (1) It will entail destruction of the neighborhood park, and (2) it will literally "pave the way" for substantial residential development in the area. LUBA's final opinion found the latter argument persuasive: Petitioners argue, with some merit, that the issue is the effect of the street, not the wisdom or propriety of allowing the proposed developments in the area to proceed. Construction of the street, though it may facilitate those developments, does not make them inevitable. If respondents have objections to the proposed developments, the appropriate time to raise them is when applications for development of those particular properties are considered. This is not to say, however, that the proposed developments are irrelevant to the decision to improve the street. The city's comprehensive plan designates North Main as a minor neighborhood street. The evident purpose of the ordinance is to transform it into a major access route for the residents of the proposed developments. The effect of Ordinance No. 3141 will therefore be to turn a neighborhood park in a quiet residential area on the outskirts of town into a major thoroughfare.[8] The ordinance, in other words, effects a significant change in the land use status quo of the area and is not simply the de minimis street improvement project petitioners suggest. Accordingly, we hold that Ordinance No. 3141 is a "land use decision" and that LUBA had jurisdiction to review the ordinance for compliance with the statewide goals and the city's comprehensive plan.[9] The decision of the Court of Appeals is affirmed. The decision of the Land Use Board of Appeals is affirmed. [1] Ordinance No. 3141, entitled "AN ORDINANCE CREATING STREET AND WATER LOCAL IMPROVEMENT DISTRICT NUMBER 393; AUTHORIZING CALL FOR BIDS; PROVIDING FOR LIENS; AND DECLARING AN EMERGENCY" provides in pertinent part: "SECTION 1. That the following described area in the City of Pendleton: [subject area described] in Improvement District Number 393 shall be and is hereby ordained to be improved by construction of a street with curbs, gutter, sidewalks, storm sewer and water in accordance with the preliminary plans and outline specifications thereof filed with the City Recorder of Pendleton, Oregon. "* * * "SECTION 9. The cost of making the improvement shall be a lien and a charge upon all lots specially benefited by the improvement proportionately as they are thereby benefited by such improvement. The owners of such lots shall be liable for the payment of the cost thereof proportionately as they are so benefited." [2] This statute has not been codified, but it has been reprinted in volume 2 of the Oregon Revised Statutes in the pages preceding ORS chapter 197. [3] ORS 197.605 et seq., which governs review of certain land use actions affecting acknowledged comprehensive plans, is not applicable here since Pendleton's comprehensive plan has not yet been acknowledged by LCDC. [4] Oregon Laws 1981, chapter 748, § 1 repealed this section and replaced it with a similar provision which is now codified in ORS 197.015(10). [5] This statute was recently amended by Oregon Laws 1981, chapter 748, § 15. ORS 197.175(2) formerly provided, in pertinent part: "(2) Pursuant to ORS 197.005 to 197.430 and 469.350, each city and county in this state shall: "(a) Prepare and adopt comprehensive plans consistent with state-wide planning goals approved by the commission [LCDC]; and "(b) Enact zoning, subdivision and other ordinances or regulations to implement their comprehensive plans." The amended version of ORS 197.175(2), quoted in the text, illustrates more clearly the circularity of the definition of "land use decision." Under subsection (2)(c), "land use decisions" must be made in compliance with the statewide goals; "land use decision" is, in turn, defined by both the former and the present statute as a decision that concerns inter alia application of the goals. [6] See, e.g., ORS 227.090(1)(a) and (b) dealing with the powers and duties of city planning commissions, and LCDC Goals 11 (Public Facilities and Services) and 12 (Transportation). [7] Respondents were the parties who sought to have LUBA review the ordinance. Accordingly, the burden was upon them to establish LUBA's jurisdiction, i.e., that the ordinance was a "land use decision." [8] Respondents have not contended that they have acquired any prescriptive or other rights in the segment as a park, nor is there any indication that the city ever had plans for the property other than as a street. Although the property was a park only at the city's sufferance, that does not mean that the decision to change its land use from a de facto park to a city street is not a land use decision. [9] Petitioners raise a number of other arguments, but these have been adequately dealt with in the Court of Appeals opinion and there is no need to elaborate on them further. See 56 Or. App. at 824-827, 643 P.2d 658.

6e680ac557fe839d9c25be5ead9c257ed4361601cea69ace0d131c6b2c79a9ff

1982-11-23T00:00:00Z

67bcc3c8-de6b-42c9-ab83-4c638b3f3cdb

Doe v. Corp. of Presiding Bishop (Alternative Writ)

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS CERTIFIED QUESTIONS, CERTIFIED APPEALS, MANDAMUS PROCEEDINGS, AND OTHER MATTERS August 9, 2010 Doe v. Corp. of Presiding Bishop (S058601)(S058634)(alternative writ of mandamus). This matter is before the court on a mandamus petition filed by Intervenors-Relators Oregonian, et al., in case number S058601 and a mandamus petition filed by Defendants-Relators Boy Scouts of America, et al., in case number S058634. The court has consolidated these cases for proceedings before this court. Both petitions for alternative writ of mandamus are allowed. The mandamus petitions each request relief that is in conflict with that sought in the other mandamus petition. Consequently, the court determines that the alternative writ of mandamus should be issued in a form that is intended to allow the circuit court to choose to grant the relief requested in one of the mandamus petitions and show cause for not granting the relief requested in the other mandamus petition or to show cause for not granting the relief requested in either of the mandamus petitions. Alternative writ issued.

e83b21aaf9964a1d6c8a7a7689e7631474b442da68f27157c43bd875b1a5e6b3

2010-08-09T00:00:00Z

96d150c3-381c-4dbd-92e3-60d3dd03a781

Ensley v. Fitzwater

293 Or. 158, 645 P.2d 1062

oregon

Oregon Supreme Court

645 P.2d 1062 (1982) 293 Or. 158 Clifford O. ENSLEY, Petitioner On Review, v. W. Dean FITZWATER, Respondent On Review. CA No. 19525; SC No. 28541. Supreme Court of Oregon, In Banc. Argued and Submitted May 4, 1982. Decided June 2, 1982. *1063 Gilah Tenenbaum, Portland, argued the cause and filed the brief for petitioner on review. Nancy S. Tauman, Oregon City, argued the cause and filed the brief for respondent on review. CAMPBELL, Justice. The issue in this case is: Does an appellate court have jurisdiction over an appeal where the notice of appeal describes a nonappealable order but also refers to a judgment and a copy of the judgment is attached? The trial court granted defendant's motion for summary judgment by an order dated October 27, 1980. The court denied plaintiff's motion for rehearing by an order dated November 3, 1980. The court entered judgment for defendant on November 3, 1980. Plaintiff filed a notice of appeal[1] providing as follows: Plaintiff designated the record of the trial court proceedings in their entirety in his notice of appeal, and then provided: Plaintiff attached a copy of the judgment to the notice of appeal. The Court of Appeals dismissed the appeal as being from a nonappealable order. 55 Or. App. 737, 639 P.2d 716 (1982). Orders granting summary judgment are not appealable. See Miller v. Grants Pass Irrigation District, 290 Or. 487, 622 P.2d 729 (1981). An appeal is taken to the Court of Appeals or to the Supreme Court by the filing of an notice of appeal, signed by the appellant, served on all parties and filed with the court together with proof of service. ORS 19.023. The notice must contain the following: The jurisdictional effect of filing the notice of of appeal is described in ORS 19.033: In Stahl v. Krasowski, 281 Or. 33, 573 P.2d 309 (1978), this court held that a description of the judgment appealed from is essential to appellate jurisdiction. We did not include a specification as to location of the description in the notice of appeal as a jurisdictional requisite. Although, as in Stahl, plaintiff's description is of a nonappealable order granting summary judgment and denying plaintiff's motions, see Miller v. Grants Pass Irrigation District, supra, plaintiff here attached a copy of the judgment to his notice and expressly referred to attachment of the "judgment order[2] appealed from." These additional steps were missing in Stahl. In this case the adverse party and an appellate court could easily determine from the face of the notice, documented by the judgment attached, that the judgment entry necessary to its jurisdiction was present and that the appeal was taken from that judgment. We therefore order reinstatement of plaintiff's appeal. Reversed and remanded to the Court of Appeals. [1] We recognize that plaintiff's counsel on appeal may not be the same attorney who represented plaintiff at trial. [2] The term "judgment order" has no meaning and should not be used. "Judgment" and "order" are two separate terms and have different meanings.

3e8f35168e9d37fd254ad5263fcd3fba28121074edc26071b2eca041d69d3085

1982-06-02T00:00:00Z

02fe02ec-df58-481a-83e3-2337348ab2d7

In Re Conduct of Roth

293 Or. 179, 645 P.2d 1064

oregon

Oregon Supreme Court

645 P.2d 1064 (1982) 293 Or. 179 In re Complaint As to the CONDUCT OF the Honorable Phillip J. ROTH, Accused. No. 9; SC 28223. Supreme Court of Oregon, In Banc. Argued and Submitted April 6, 1982. Decided June 2, 1982. *1065 Jack L. Kennedy, Portland, argued the cause for the accused. With him on the briefs were Kennedy, King & McClurg, Portland. Michael C. McClinton, Salem, argued the cause for the Commission on Judicial Fitness. With him on the brief were Clark, Marsh, Lindauer, McClinton & Vollmar, Salem. PER CURIAM. This is a proceeding pursuant to ORS 1.420 and 1.430 and Article VII, (Amended), Section 8 of the Oregon Constitution to inquire into the conduct of a circuit court judge. The Commission on Judicial Fitness found, after a hearing, that Judge Phillip J. Roth had willfully violated a canon of the Code of Judicial Conduct and recommended to this court that Judge Roth be censured. ORS 1.420 provides in part: ORS 1.430 provides in part: The permissible grounds for discipline of a judge by this court are found at Article VII, (Amended), Section 8(1) of the Oregon Constitution, as amended effective June 24, 1976: The basis of the commission's recommendation was that Judge Roth was guilty of a wilful violation of a rule of judicial conduct established by the Supreme Court, specifically Canon 2 A of the Code of Judicial Conduct adopted by this court March 11, 1975. Canon 2 A provides: Judge Roth admitted the following facts and the commission found them to be true: Based on the stipulated facts, exhibits, and sworn testimony by Judge Roth, the commission made the following additional findings: It then concluded: In his brief and at oral argument before us, Judge Roth makes three arguments against the commission's action: (1) It is constitutionally permissible to discipline a judge only for behavior which affects judicial fitness or ability to perform judicial duties; (2) If discipline for behavior other than that relating to official conduct is permissible, then Canon 2 A of the Code of Judicial Conduct is too vague to be enforced, and finally; (3) Before a disciplinary body can find that a judge has failed to "respect and comply with the law" in violation of Canon 2 A, it is necessary that the judge have been convicted of the underlying criminal behavior. We discuss these issues in the order we have presented them here. Article VII, (Amended), Section 8 of the Oregon Constitution provides the basis for discipline of a judge by this court. That constitutional provision includes six specific grounds for which a judge may be removed, suspended or censured. Of those six grounds, three deal explicitly with the performance of judicial duties, namely subsections (1)(b), (c) and (d): Subsections (1)(a), relating to conviction of a crime involving moral turpitude and (1)(f), relating to habitual drunkenness or illegal drug use, relate to the moral character *1068 of the judge rather than to performance of judicial duties per se.[1] Subsection (1)(e), at issue here, makes punishable "[w]ilful violation of any rule of judicial conduct as shall be established by the Supreme Court." We do not interpret the phrase "rule of judicial conduct" as limited to rules governing only the conduct of judges while on the bench. The phrase obviously refers to the Code of Judicial Conduct adopted by this court in 1975. The present code contains seven canons governing judicial behavior, some dealing directly with the conduct of a judge while conducting judicial duties,[2] and some regulating what is clearly off-the-bench behavior in terms of its effect upon judicial duties.[3] There are two canons which might be termed general canons mandating high standards of conduct for judges. These are Canon 1: and Canon 2, set forth here in its entirety: The language in Canons 1 and 2 calling upon judges to preserve the "integrity and independence" (Canon 1) or "integrity and impartiality" (Canon 2 A) of the judiciary does not lead to the conclusion that only conduct of an official judicial nature is involved. This point is made quite clear by the inclusion in Canon 2 A of the phrase "at all times." We noted in In the Matter of Sawyer, supra, note 1, at 371, 594 P.2d 805, a judicial disciplinary case also involving Canon 2 A, that this canon was adopted verbatim as prepared by the American Bar Association (ABA) Special Committee on Standards of Judicial Conduct and adopted by its House of Delegates in August, 1972, and we included the ABA commentary to the canon in our Sawyer opinion. That commentary notes that "A Judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny." 286 Or. at 380, 594 P.2d 805. (Emphasis supplied.) The purview of Canon 2 A, therefore, is conduct by a judge, on or off the bench, in an official or personal capacity, *1069 which has a detrimental effect upon the public's perception of the judiciary. For purposes of Canon 2 A the ability of the individual judge to perform his or her official duties is not the decisive issue. In opposition to the commission's conclusion, Judge Roth argues that the second part of Canon 2 A, concerning "public confidence in the integrity and impartiality of the judiciary," states a "code of conduct without definite standards" which should be understood to refer only to a judge's activities relating to the performance of judicial duties, because the disciplinary provisions of Article VII, (Amended), Section 8 of the Oregon Constitution are directed only to the proper administration of justice. He maintains that the canon reaches a judge's conduct in his private life only if the conduct affects his ability to perform judicial duties. We note, however, that Canon 2 A has two parts. In addition to its general admonition that a judge must conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2 A specifically requires a judge "to respect and comply with the law." Counsel for Judge Roth and the commission agreed at oral argument that the two clauses of Canon 2 A are independent of each other. Counsel for the commission stated the commission's position to be that Judge Roth's behavior violated both sections of Canon 2 A; for a violation of the canon to occur it is only necessary to find that a violation of one section or the other. We find that regardless of whether Judge Roth's behavior was such that it undermined "public confidence in the integrity and impartiality of the judiciary," it amounted to a wilful violation of the first half of the canon relating specifically to compliance with the law. By engaging in behavior which culminated in physical damage to Mr. Allen's automobile, Judge Roth failed to comply with the law of the state of Oregon.[4] Ignoring the ephemeral language in the second half of Canon 2 A, described in Sawyer as "hortatory," 286 Or. at 380, 387, we find Judge Roth's actions were specifically prohibited by the language in Canon 2 A requiring a judge "to respect and comply with the law." Certainly every judge of the state of Oregon is on notice that an act in violation of the law is behavior proscribed by the Code of Judicial Conduct. We turn now to the judge's remaining argument. Judge Roth contends that in order for this court to find that his actions in February, 1981, show a failure to comply with the law, these actions must have resulted in a criminal conviction. Because in this case the misdemeanor charges against Judge Roth were compromised and dismissed, he claims there is no evidence he failed to comply with the law. The canon, on its face, requires conformity to "the law." It is the duty of this court to determine whether a violation of the canon has occurred, whether there has been a proven violation of law or not, regardless of whether criminal charges have been filed. To do so, we review the evidence and make our own independent evaluation. ORS 1.430(1). The standard of proof is by clear and convincing evidence. In the Matter of Field, 281 Or. 623, 629, 576 P.2d 348, reh. denied, 281 Or. 638, 584 P.2d 1370 (1978). The undisputed facts of this case show that Judge Roth struck an automobile belonging to Mark Allen, causing damage to Mr. Allen and to the automobile. In addition, Judge Roth slapped his wife. The commission found this action "did not result in any injury to his estranged wife." The *1070 criminal charges initially filed, and then dismissed, were for recklessly endangering another person, ORS 163.195, and assault in the fourth degree, ORS 163.160. In determining whether Judge Roth failed to respect and comply with the law, it is not necessary for us to find that Judge Roth violated the law precisely in the manner with which he was charged. Had no criminal prosecution ever been instituted in connection with the judge's conduct brought to our attention by this record, we should still inquire whether he failed to comply with the criminal law. Based on the undisputed facts, we find clear and convincing evidence that Judge Roth's actions amounted to criminal mischief in the third degree. ORS 164.345.[5] We find, therefore, that Judge Roth wilfully failed in this instance to comply with the law and committed a wilful violation of Canon 2 A of the Oregon Code of Judicial Conduct. We do not imply that any violation of law, however trivial, harmless or isolated, would also be a violation of Canon 2 A. Someday we may be called upon to draw the difficult line between censurable and noncensurable violations of law, but this case does not require it. Here, Judge Roth's conduct was grave, intentional and threatening. It falls on the censurable side of the line. It is therefore the order of this court that Judge Roth be censured. Accused censured. [1] See In the Matter of Sawyer, 286 Or. 369, 386, 594 P.2d 805 (1979) (Linde, J. dissenting). [2] Canon 3, "A Judge Should Perform the Duties of His Office Impartially and Diligently." [3] Canon 4, "A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice" (this canon provides "* * * if in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him * * *"); Canon 5, "A Judge Should Regulate His Extra-Judicial Activities to Minimize the Risk of Conflict with His Judicial Duties"; Canon 6, "A Judge May Receive Reasonable Compensation and Reimbursement For Extra-Judicial Activity Permitted by This Code" "(* * * if the source of such payments does not give the appearance of influencing the judge in his judicial duties or otherwise give the appearance of impropriety * * *") and, at least arguably, Canon 7, "A Judge Should Refrain from Political Activity Inappropriate to His Judicial Office." [4] It is not necessary in this case to reach the question of whether the phrase "respect [for] the law" in Canon 2 A implies the inclusion of a lesser degree of wrongdoing than "compl[ying] with the law," or whether these terms are conjunctive. [5] ORS 164.345 provides: "(1) A person commits the crime of criminal mischief in the third degree if, with intent to cause substantial inconvenience to the owner or to another person, and having no right to do so nor reasonable ground to believe that he has such a right, he tampers or interferes with property of another."

3c8130483d6cf5ee048d655b3c65b5dbc5187eec36c98b4135aa9e37bda57b1f

1982-06-02T00:00:00Z

9841744f-ee75-4db2-910b-ddbc3a679f05

State v. Caraher

293 Or. 741, 653 P.2d 942

oregon

Oregon Supreme Court

653 P.2d 942 (1982) 293 Or. 741 STATE of Oregon, Respondent On Review, v. Lois Marie CARAHER, Petitioner On Review. CA A20330; SC 28360. Supreme Court of Oregon, In Banc. Argued and Submitted March 3, 1982. Reargued September 8, 1982. Decided November 2, 1982. Linda K. Eyerman, Metropolitan Public Defender, Portland, argued the cause and filed the brief for petitioner on review. Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. ROBERTS, Justice. The issue in this case is whether a search of defendant's purse, including the opening of the coin compartment of a wallet within that purse, conducted without a warrant, after defendant was arrested and placed in a police car and the purse had been taken from her, is a search incident to arrest and therefore an exception to the warrant requirement of the fourth amendment to the U.S. Constitution and article 1, section 9 of the Oregon Constitution.[1] *943 Defendant has no prior criminal record and, until the events discussed here, had never been arrested. She came to police attention following a report of a street altercation in Portland. Police arriving at the scene found defendant lying on the hood of a parked car in a semi-conscious state. An ambulance was called, and after defendant was revived, police questioned her.[2] Asked about her activity in the area, defendant told the officer she was selling "bunk."[3] At this point police determined that there was an arrest warrant out for defendant's companion; when police attempted to handcuff him, he "became upset," according to police, and said defendant had cocaine on her person. The police then placed defendant's companion in a police car for transport to jail and placed defendant in another police car for transport to a detoxification center. On the basis of defendant's statement that she was selling bunk and her companion's statement that defendant possessed cocaine, police had a female officer search defendant's person before handcuffing her and taking her into what one officer termed "protective custody" and another termed a "civil hold."[4] In a pocket of the jacket defendant was wearing the officer found paper "bindles" containing a white powder. The officer, suspecting the substance to be cocaine, placed defendant under arrest for possession of a controlled substance. A search of defendant's person uncovered no further contraband or weapons. Her purse was taken from her. She was handcuffed and placed in the back seat of a police car which had a barrier between the front and back seats. On the way to the booking facility, the police officer who had made the arrest and who held defendant's purse in the front seat of the police car opened the purse, found a wallet within, opened the coin compartment of the wallet and found a white piece of paper, inside of which was a white cross-top pill and chunks of a similar pill. Subsequent lab analysis revealed the pills were amphetamines. The state concedes the search of the wallet was not conducted for identification purposes. See State v. Florance, 270 Or. 169, 189, 527 P.2d 1202 (1974). The state made no attempt at trial to justify the search as a "booking" or "inventory" search, and put on no evidence of the normal practices which are part of the booking procedure at the jail to which defendant was taken. The trial court nevertheless upheld the search as an inventory search.[5] The Court of Appeals *944 upheld the search on the basis of State v. Brown, 291 Or. 642, 634 P.2d 212 (1981).[6] Before this court, the state argued only that the search was one incident to arrest. That is the single issue here. Defendant has challenged the search of her purse, and the wallet within the purse, as violating both state and federal constitutional prohibitions against unreasonable searches or seizures. Defendant argues that the purse was an "effect" for constitutional purposes, i.e., a "possession within an arrestee's immediate control," and that United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); State v. Groda, 285 Or. 321, 591 P.2d 1354 (1979); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); and State v. Keller, 265 Or. 622, 510 P.2d 568 (1973) are the applicable law invalidating the search. In State v. Keller, supra, this court addressed for the first time the subject of an "inventory search" of an automobile. The defendant in Keller was stopped while driving her automobile on suspicion of driving while suspended and was subsequently arrested for that offense. Defendant and her passenger, who was intoxicated, were placed in the police vehicle. Police then proceeded to inventory the contents of the car before towing it pursuant to administrative requirements to note, among other things, valuables and weapons present in the car. 265 Or. at 624, 510 P.2d 568. During the inventory police found a fishing tackle box on the floor of the back seat. The box was tied closed with a wire. Removing the wire and opening the box, the police found narcotics. We held that because the contents of the tackle box were not in plain view they could not be seized as part of an inventory search incident to a lawful arrest. We said Keller was decided before the U.S. Supreme Court had ruled directly on an inventory search of an automobile without a search warrant where the evidence is not in plain view. 265 Or. at 625, 510 P.2d 568. Relying on cases from other states we held the search of the closed box was unreasonable *945 under both the U.S. and Oregon Constitutions. We subsequently cited Keller and the U.S. Supreme Court case of United States v. Chadwick, supra, in ordering suppression of drugs found in a bag inside a flight bag contained in a closed trunk in a vehicle which had been taken into police custody. State v. Downes, supra, 285 Or. at 371-72, 591 P.2d 1352. We held that the search could not be justified as an inventory search, per Keller, nor under the "automobile exception" to the fourth amendment warrant requirement formulated in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). The state argues that a purse is an item "immediately associated with the person of an arrestee" and may be validly searched at the time of arrest or booking under the rule announced in State v. Florance, supra, which adopted the federal standard enunciated by the U.S. Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). The state urged at oral argument that the recent case of New York v. Belton, 50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420 (1980) rev'd 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) aff'd on other grounds 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982), is the new federal fourth amendment standard for searches incident to arrest, and justifies the opening of the purse in this case. Counsel for the state insisted the facts of this case "may or may not be Robinson, definitely are Belton, and are not Chadwick." In Belton, the U.S. Supreme Court held that once police have made a lawful custodial arrest of an occupant of an automobile they may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile, and open any containers found within the compartment. While the court apparently took pains not to decide the case under the "automobile exception" analysis formulated in Chambers v. Maroney, supra, and Carroll v. United States, supra, see Belton, supra, 453 U.S. at 462 n. 6, 101 S. Ct. at 2865 n. 6, and Rehnquist, J. concurring, 453 U.S. at 463, 101 S. Ct. at 2865, the opinion limits the holding to the permissible scope of a search incident to arrest when the person being arrested is the occupant of an automobile: Contrary to the state's position, in our reading all that Belton does is apply the "area of immediate control" test first enunciated in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) to an arrest of an occupant of an automobile. In the case before us, defendant was not present in an automobile but was a pedestrian. The placement of defendant and her effects within a police car presumably does not suddenly bring everything within an "auto exception." We do not believe that Belton allows police to open all containers within the immediate control of any arrestee, but only those within the passenger compartment of a car. See United States v. Monclavo-Cruz, 662 F.2d 1285, 1287-88 (9th Cir.1981) similarly limiting Belton. But see United States v. Brown, 671 F.2d 585 (D.C. Cir.1982), applying Belton to street arrest and United States v. Fleming, 677 *946 F.2d 602 (7th Cir.1982) applying Belton to street search following arrest in a private home. In Florance, we declined to interpret article I, section 9 of the Oregon Constitution differently than the United States Supreme Court had interpreted the federal fourth amendment. In subsequent cases the court has reaffirmed that it has independent responsibility to interpret article I, section 9, and has made the decision to follow fourth amendment precedents on a case by case basis. See State v. Holt, 291 Or. 343, 345 n. 1, 630 P.2d 854 (1981); State v. Kennedy, 290 Or. 493, 497, 624 P.2d 99 (1981); State v. Bishop, 288 Or. 349, 353-54, 605 P.2d 642 (1980); State v. Nettles, 287 Or. 131, 135 n. 2, 597 P.2d 1243 (1979); State v. Heintz, 286 Or. 239, 251 n. 4, 594 P.2d 385 (1979); State v. Greene, 285 Or. 337, 339, 591 P.2d 1362 (1979).[7] State v. Florance, however, does not make article I, section 9 of the Oregon Constitution the same as the federal fourth amendment for all times and purposes. It could not very well do so. When this court gives Oregon law an interpretation corresponding to a federal opinion, our decision remains the Oregon law even when federal doctrine later changes. We said in State v. Florance, supra and State v. Flores, 280 Or. 273, 570 P.2d 965 (1977) that uniformity between state and federal law is an important consideration in deciding whether to adopt a rule imposing the same analysis on article 1, section 9 of the Oregon Constitution as that used for the fourth amendment to the United States Constitution. In Florance, we noted that the law of search and seizure was, in 1974, "badly in need of simplification," and concluded that adopting a different rule for searches under the Oregon Constitution would only confuse things further. 270 Or. at 183, 527 P.2d 1202. This need for uniformity was again a factor in Flores, see 280 Or. at 281-82, 570 P.2d 965. See also State v. Hirsch, 267 Or. 613, 627, 518 P.2d 649 (1974) (Denecke, J., dissenting). Eight years of uniformity with U.S. Supreme Court decisions has not, however, brought simplification to the law of search and seizure in this state. This point is illustrated by the concurring opinion in this case. The concurrence applies Robinson because it resolves that a purse is more closely akin to property immediately associated with the person than not. This court could just as readily decide this case under Chadwick and State v. Newman, 292 Or. 216, 637 P.2d 143 (1981) cert. denied ___ U.S. ___, 102 S. Ct. 2915, 73 L. Ed. 2d 1321 (1982)[8] by finding that purses are not mere "substitute pockets" but are rather possessions separate from the person which may or may not be within the arrestee's immediate control. Either determination is defensible but neither serves to lessen the confusion surrounding search and seizure law. The resolution of this case under the federal analysis provides no guidance for the next. How will we later characterize diaper bags, backpacks, briefcases, gym bags, shopping bags, lunch buckets and all the other types of portable repositories in which people carry their possessions? Neither this court nor law enforcement personnel could divine *947 that answer. The goal of simplification is, in our view, better served by relying on article I, section 9 of our own Constitution to formulate an independent rule consistent with our past decisions than by hypothesizing how the U.S. Supreme Court would consider this case in light of its past decisions[9] and then deciding whether to adopt that rule. There have been recurring reminders from members of this court that we remain free, even after Florance, to interpret our own constitutional provision regarding search and seizure and to impose higher standards on searches and seizures under our own constitution than are required by the federal constitution. This is part of a state court's duty of independent constitutional analysis. State v. Brown, supra, 291 Or. at 659-61, 634 P.2d 212 (Linde, J. concurring); State v. Tourtillott, 289 Or. 845, 853-854, 618 P.2d 423 (1980) cert. denied 451 U.S. 972, 101 S. Ct. 2051, 68 L. Ed. 2d 352 (1981); State v. Greene, supra, 285 Or. at 345-60, 591 P.2d 1362 (Linde, J. specially concurring); State v. Groda, supra, 285 Or. at 335, 591 P.2d 1354 (Lent, J. specially concurring); State v. Flores, supra, 270 Or. at 282-89, 570 P.2d 965 (Linde, J. dissenting). See Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). That a state is free as a matter of its own law to impose greater restrictions on police activity than those that the United States Supreme Court holds to be necessary upon federal constitutional standards is beyond question. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 2040, 64 L. Ed. 2d 741 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975); State v. Evans, 258 Or. 437, 442, 483 P.2d 1300 (1971); State v. Flores, supra. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). Indeed, the states are "independently responsible for safeguarding the rights of their citizens." People v. Brisendine, 13 Cal. 3d 528, 551, 119 Cal. Rptr. 315, 531 P.2d 1099 (1975). Contrary to the concurring opinion, 294 Or. 77, 653 P.2d 959 (1982), an increasing number of state courts are relying on an analysis of the search and seizure provisions of their own constitutions to expand constitutional protection beyond those mandated by the fourth amendment, often directly avoiding applicable United States Supreme Court precedent. See e.g., State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); State v. Daniel, 589 P.2d 408 (Alaska 1979); State v. Glass, 583 P.2d 872 (Alaska 1978); Zehrung v. State, 569 P.2d 189 (1977) modified 573 P.2d 858 (Alaska 1978) (rejecting United States v. Robinson); People v. Brisendine, supra; Burrows v. Superior Court of San Bernardino County, 118 Cal. Rptr. 166, 13 Cal. 3d 238, 529 P.2d 590 (1974); People v. Clyne, 189 Colo. 412, 541 P.2d 71 (1975) (rejecting Robinson); Nealy v. State, 400 So. 2d 95 (Fla. Dist. Ct. App. 1981); People v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974) (rejecting Robinson); Wagner v. Commonwealth, 581 S.W.2d 352 (Ky. 1979); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 cert. denied 423 U.S. 878, 96 S. Ct. 152, 46 L. Ed. 2d 111 (1975); O'Connor v. Johnson, 287 N.W.2d 400 (Minn. 1979) (rejecting Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978)); State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978); State v. Osborne, 119 N.H. 427, 402 A.2d 493 (1979); State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975); State v. Benoit, 417 A.2d 895 (R.I. 1980); State v. Opperman, 247 N.W.2d 673, (S.D. 1976) rev'd 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Merchants Bank v. State Wildlife Resources, 567 S.W.2d 476 (Tenn. Ct. App. 1978); Gill v. State, 625 S.W.2d 307 (Tex.Cr.App. 1981). Not only have state courts made independent decisions in the first instance; sometimes they have declined to follow the United States Supreme Court's analysis on remand after that court reversed the state court's fourth amendment analysis. This happened on remand *948 in Belton, supra, and in South Dakota v. Opperman, supra. Other state opinions, like our own post Florance opinions, have noted that such an expansion is permissible, while declining in a given case to take such a step. State v. Texeira, 50 Haw. 138, 433 P.2d 593 (1967); Commonwealth v. Ortiz, 376 Mass. 349, 380 N.E.2d 669 (1978); Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 rev'd 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) rev'd on other grounds 477 Pa. 553, 559-62, 385 A.2d 334, 336-38 (1978) (Roberts, J. concurring); Thompson v. State, 83 Wis.2d 134, 149, 265 N.W.2d 467, 474 (1978) (Abrahamson, J. concurring).[10] This court's reliance upon our own constitutional provision began many years ago. As early as 1901 we began to build our own state body of law governing searches and seizures, State v. McDaniel, 39 Or. 161, 65 P. 520 (1901). Thirty-six years before the federal fourth amendment was made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), we adopted our own exclusionary rule in State v. McDaniel, 115 Or. 187, 231 P. 965, 237 P. 373, rev'd on rehearing, 115 Or. 234, 237 P. 373 (1925), Oregon decisions before Florance, as early as State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290 (1922), established that under Oregon law a reasonable search of the person is permissible incident to a valid arrest, a rule not adopted by the United States Supreme Court until Agnello v. United States, 269 U.S. 20, 30, 46 S. Ct. 4, 70 L. Ed. 145 (1925). In establishing the Oregon search-incident-to-arrest rule, this court relied upon opinions from courts in other states. See 103 Or. at 496-97, 204 P. 958, 206 P. 290. Similarly, in the present case we have reviewed decisions from other states and find them pertinent here. In Zehrung v. Alaska, supra, defendant was stopped by a state trooper while driving his employer's truck which was emitting excessive smoke. While investigating, the trooper discovered there were two bench warrants out for defendant, one because he had failed to appear on a misdemeanor and one because he had failed to pay a $25 fine. Defendant was arrested and taken to jail where his personal belongings were inventoried. While an officer was going through defendant's wallet he found a small white paper packet containing two credit cards which he noted did not have defendant's name on them. They were given to the arresting officer. Defendant was then released on bail. The arresting officer learned that the credit cards had been taken during an alleged rape and robbery for which defendant was then arrested. Defendant challenged the search and seizure on the ground that any preincarceration inventory of his effects was improper because he had made bail before he was booked. The court reasoned that the justification for a preincarceration inventory did not exist if the arrestee is not to be incarcerated and held the search to be impermissible under the Alaska Constitution. In rejecting the state's argument that the search was justified as a search incident to arrest the court restated from McCoy v. State, 491 P.2d 127 (Alaska 1971) the following requirements of a warrantless search incident to arrest. Defendant based his argument on the fourth requirement for a valid incidental search. The state asked the court to abandon the fourth requirement in light of United States v. Robinson, supra. The court responded by posing the question as a determination of whether the Robinson rule permitting full body searches incident to any custodial arrest, violates the Alaska constitutional provision on search and seizures, Alaska Const. art. 1 § 14. As the court said, The court concluded it could abandon the fourth requirement or follow the approach used by some other state courts. It did the latter, specifically relying on State v. Kaluna, supra, and People v. Brisendine, supra. The court held "the Alaska Constitution requires that governmental intrusions into the personal privacy of Alaska citizens be limited in scope to that degree necessary under the particular circumstances." 569 P.2d at 199. In State v. Kaluna, supra, the Hawaii Supreme Court invalidated the search of a small tissue packet which defendant took from her brassiere and handed to a matron during a station house strip search after being arrested for attempted robbery. The packet contained Seconal, a barbiturate and defendant was subsequently charged with unlawful possession of the substance; she was never charged with attempted robbery. Even though the court recognized that under Robinson the full search incident to custodial arrest was reasonable and, therefore, defendant's federal constitutional rights had not been violated, the search was held nevertheless unreasonable under the Hawaii Constitution. In refusing to decide Kaluna on the basis of Robinson the Hawaii court cites two Oregon cases, State v. O'Neal, 251 Or. 163, 444 P.2d 951 (1968) and State v. Krogness, 238 Or. 135, 144, 388 P.2d 120 (1963) cert. denied 377 U.S. 992, 84 S. Ct. 1919, 12 L. Ed. 2d 1045 (1964), quoting from Krogness for the proposition that before Robinson "[a]s a general rule, the search must be reasonably related to the offense which prompts the arrest." The Kaluna court concluded that The court further added that its decision should not hamper the police in the legitimate exercise of their authority because In People v. Brisendine, supra, the California Supreme Court invalidated the search of an opaque plastic bottle and envelopes found inside an arrestee's knapsack which contained marijuana and tablets of restricted drugs, holding that the intrusion could not be justified by the limited purpose which validated the search in its inception. *950 The officers arrested defendant and other campers in a forest for a fire ordinance violation. Because it was an area where camping was prohibited and because the officers had left their citation book in the police vehicle it was necessary for the officers to escort the campers out of the isolated forest area. This entailed traversing a considerable distance over primitive terrain in the nighttime carrying the effects of the arrestees. Under the circumstances the court said it was reasonable for the officers to conduct a search for weapons but the search for weapons did not justify the search of the bottle and envelopes. The court specifically rejected Robinson saying, The court then adopted the view of the Hawaii court in Kaluna, supra, holding that "governmental intrusions into the personal privacy of citizens of this State [must] be no greater in intensity than absolutely necessary under the circumstances." 13 Cal. 3d at 552, 119 Cal. Rptr. at 330, 531 P.2d at 1114, quoting from State v. Kaluna, 520 P.2d at 58-59.[11] In basing its decision on article I, section 13 of the California Constitution, the court pointed out that the United States Supreme Court has recognized that state constitutions provide an independent and adequate ground for decisions thus making the state courts the ultimate arbiters of state law,[12] and that although their decisions in the search and seizure area have often corresponded to federal law, there had "never been any question that the similarity was a matter of choice and not compulsion." 119 Cal. Rptr. at 328, 531 P.2d at 1112. This court chose in Florance to follow the federal law of Robinson, and thus adopted the federal constitutional minimum standard for the protection of privacy in cases of searches incident to arrests. We do not now choose to continue to do so. We are reluctant to embark upon the task of cataloguing items of personal property in the manner required by adherence to federal cases. We find that the focus on the character of the property searched has led to results which seem too frequently to turn upon fortuitous circumstances surrounding how one chooses to transport personal belongings and has resulted in failure of a more straightforward assessment of those individual protections against government intrusion which constitutions, both state and federal, seek to preserve. It is our belief that the citizens of Oregon are entitled to an analysis of the protections afforded by the Oregon Constitution independent of the United States Constitution.[13] One of *951 the protections derived from the Oregon Constitution includes a recognition that a valid custodial arrest does not alone give rise to a unique right to search. Such a warrantless search must be justified by the circumstances surrounding the arrest. In deciding this case under the Oregon Constitution we look to Oregon cases decided before Robinson and Florance which established parameters of permissible searches incident to arrests. In State v. O'Neal, supra, defendant was stopped because the car he was driving had no rear license plate. After arresting defendant for that violation and after giving him citations for operating a vehicle without an operator's license and for operating a vehicle with an expired front license plate, defendant's wallet was searched and a halfsmoked marijuana cigarette was found. He was then charged with illegal possession of narcotics. The opinion quotes a minority opinion of Justice Frankfurther in United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950): This court then cited State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962) where a search was upheld to protect the officer[14] and State v. Krogness, supra, in which a search was justified to prevent destruction of evidence. Relying on these cases the court concluded that the search of defendant's wallet could not reasonably relate to the traffic offenses for which defendant was arrested or cited and held that "there must be probable cause to believe that some crime, other than the traffic offense, has been committed, and the search must be relevant to that other crime." The Chinn court discussed the reasonableness of the search incident to arrest as to time, space and intensity and concluded that "[t]he proper test of a reasonable search is * * * based upon the entire factual situation." 231 Or. at 273, 373 P.2d 392. The court then asked: "Was the search close both in time and space to the arrest? Furthermore, was the intensity of the search commensurate both with the crime and what was known of the criminal? Finally, there is the question of the causal relationship between the arrest and the search." Id. Krogness approved the search of the car trunk of a person who had been arrested for a minor traffic violation on the basis of a finding by the trial court that the officer had probable cause to believe that a game violation had been committed. The court said, "[a]s a general rule, the search must *952 be reasonably related to the offense which prompts the arrest" 238 Or. at 144, 388 P.2d 120, and concluded that the trunk and other compartments of the automobile could not have been searched on the basis of the traffic violation alone but the gun with a telescopic sight which was in plain view in the back seat was sufficient to give the officer, a former game warden, probable cause to believe there had been a game violation and thus the search was justified.[15] These cases, Chinn, Krogness and O'Neal, have expanded the justification for a search incident to arrest beyond considerations of the officer's safety and destruction of evidence. They permit a search when it is relevant to the crime for which defendant is being arrested and so long as it is reasonable in light of all the facts. See also State v. Elk, 249 Or. 614, 620-21, 439 P.2d 1011 (1968); State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969). Thus before Florance the rule permitting searches and seizures incident to arrest where the search was related to the crime was well established in Oregon. That rule is applicable to the present case. There were, in fact, two separate searches here. One, not challenged, took place when the female officer searched defendant's person and found paper "bindles" containing a white powder in a pocket of her jacket; the second, the search of the purse, occurred after defendant was handcuffed and was in the police car being transported to the police station. The search was not for the protection of the police nor for the purpose of preventing the destruction of evidence since defendant did not have access to the purse. The question is whether it was relevant to the crime for which the defendant was arrested and whether it was reasonable under the facts of this case. Because the arrest was for possession of a controlled substance it was reasonable to believe that defendant would carry contraband in her purse and, although, the officers already possessed some evidence they were not prevented from searching further. Accordingly, we hold that the nature of the crime, i.e., possession, and the circumstances involved here, defendant's admission that she was selling "bunk" and her companion's statement that she was carrying cocaine, justify the search as an incident to arrest. We find in addition that because the search was close in time and space to the arrest it meets the standard of reasonableness enunciated in Chinn, supra. Affirmed. CAMPBELL, J., concurs in the result only and filed an opinion in which TANZER, J., joins. LENT, C.J., dissented and filed an opinion. CAMPBELL, Justice, concurring in result. I concur only in the result reached by the majority. The majority opinion in this case will be remembered as the case in which we shot down United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) and departed on a lonely journey in the dark of the moon and against the wind into the quagmire of the law of "search and seizure" with only "reasonableness" as a compass. This court adopted the Robinson rule in 1974 in the case of State v. Florance, 270 Or. 169, 527 P.2d 1202. The membership of this court has completely turned over since 1973 none of the present judges sat on the Florance case. Maybe the time is near at hand when we should take another look at whether or not we will follow decisions of the Supreme Court of the United States "on questions affecting the Constitution of the United States and the rights of citizens under the provisions of that Constitution, as well as under" the almost identical provisions of the Oregon Constitution. State v. Florance, supra, 270 Or. at 183, 527 P.2d 1202. *953 It would seem that we would be well advised to wait for a case in which that question has been squarely presented, briefed and argued. This is not that case. In the meantime we should follow United States v. Robinson, supra, and the United States Supreme Court decisions which follow it for the reasons set out in State v. Florance, supra, one of which is: Oregon is not the only state to adopt the Robinson rule. 2 LaFave, Search and Seizure § 5.2 (1978) (a treatise on the Fourth Amendment) states at page 264-265: This court has also adopted the rule of United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). See State v. Groda, 285 Or. 321, 591 P.2d 1354 (1979). In this case under United States v. Robinson, supra, the state contends that the search of the purse was a search of the person incident to arrest and that no additional justification was required beyond the probable cause to arrest. On the other hand, the defendant contends under United States v. Chadwick, supra, that the purse was a closed container not immediately associated with her person and that the officers had reduced it to their exclusive control. Therefore, because there was no longer any danger that she would obtain access to the purse, the search was not an incident to arrest and a warrant was required. The parties' opposing contentions require re-examination of the Robinson and Chadwick cases. In Robinson an officer of the District of Columbia arrested the defendant for driving without an operator's permit. When the defendant emerged from the vehicle the officer searched him and found a "crumpled up cigarette package" in the breast pocket of the coat he was wearing. The officer opened the package and found 14 capsules of white powder which proved to be heroin. The United States Supreme Court reinstated the defendant's conviction saying: In Chadwick the federal agents in Boston, acting on a tip from San Diego, watched Chadwick, a railroad station attendant, and a third man load a 200 pound footlocker into the trunk of Chadwick's automobile. While the trunk was still open and before the engine of the car was started the agents arrested Chadwick. The footlocker was moved to the federal building where one and one-half hours later it was opened and large amounts of marijuana were found. Chadwick filed a motion to suppress. The government tried to justify the search as an incident to arrest. The Supreme Court of the United States affirmed the order allowing the motion and said: In State v. Brown, 291 Or. 642, 634 P.2d 212 (1981) we found that Chadwick by using the phrase "personal property not immediately associated with the person of the arrestee" had distinguished it from Robinson. In other words, that Chadwick had exempted from the application of its ruling personal property discovered as a result of the search of a person, such as "wallets, cigarette boxes, and the like." 291 Or. at 653, 634 P.2d 212. The above quoted phrase "wallets, cigarette boxes, and the like used in State v. Brown was taken from 2 LaFave, Search and Seizure, supra § 5.5 at 347 where the full text is: Brown was an easy case in that the cigarette box which the defendant surrendered to the jailer came from one of his pockets and therefore clearly fell within the classification of a search of the person and was a search incident to arrest under Robinson and not a search of a closed container prohibited under Chadwick. This case is more difficult because the purse carried by the defendant does not quickly fit our Brown-LaFave definition of "search of a person." A handbag or a purse carried by a person is not necessarily a small container such as a wallet or cigarette box found in the clothing. However, under some circumstances a handbag or purse might qualify under the looser language of the definition and be a "like" which is found about "such clothing." Thus, we are required to move from Robinson to Chadwick and determine if the defendant's purse was "luggage or other personal property not immediately associated with the person of the arrestee" and therefore a closed container. We do not have a description of the defendant's purse. We know only that it was carried by the defendant in her hand at the time of arrest and that it contained a wallet. The defendant is charged with the possession of drugs found within the wallet. Apparently, one of the first cases to consider the United States Supreme Court's decision in Chadwick was United States v. *955 Berry, 560 F.2d 861 (7th Cir.1977).[2] In the Berry case several FBI agents suspected Stephen Berry and Robert Wilson of being bank robbers and followed them to an apartment house in Schiller Park, Illinois. After an hour and 15 minutes Berry and Wilson left the building and walked to two parked cars. Berry entered one car while Wilson opened the trunk of the other and removed an attache case. As Wilson walked toward Berry's car both men were arrested and handcuffed. The attache case was taken from Wilson and placed on the ground. Approximately eight minutes after the arrest the case was opened by an agent and contraband was found. The defendants filed a motion to suppress. The Court of Appeals at page 864 held: In State v. Sabater, 3 Kan. App.2d 692, 601 P.2d 11, rev. den. (1979) the defendant was convicted of possession of cocaine. When the defendant was placed under arrest on a different charge the police officer took her pocketbook. The officer searched the pocketbook and in it he found a wallet which contained a drinking straw. The residue in the straw contained cocaine. The court upheld the search and said: In United States v. Moreno, 569 F.2d 1049, (9th Cir.) cert. den. 435 U.S. 972, 98 S. Ct. 1615, 56 L. Ed. 2d 64 (1978) undercover agents in San Diego "set up" a buy of ten ounces of heroin from Raymond Moreno. At the delivery site Jody Moreno's purse was taken from her and searched. It contained a revolver and marked money from a previous drug transaction. The Ninth Circuit Court of Appeals held that the search of the purse was valid as an incident to her arrest citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Robinson and Chadwick were not cited. In Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979), the defendant was convicted *956 of murder, escape and robbery. A knife and the robbery victim's billfold were found in the defendent's purse when she was arrested. The purse was then held and inventoried at the jail. The Arkansas Supreme Court held that "[a] search of an individual's personal effects is incidental to an arrest if it is conducted shortly thereafter at a jail. U.S. v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974)." 266 Ark. at 719, 587 S.W.2d at 577. In Dawson v. State, 40 Md. App. 640, 395 A.2d 160 (1978) the defendant Betty Dawson was convicted of manslaughter. When a policeman arrived upon the scene he seized and searched Dawson's pocketbook and found a small caliber handgun. The defendant moved to suppress citing United States v. Chadwick. The Maryland Court of Appeals upheld the search: In Stewart v. State, 611 S.W.2d 434 (Tex. Cr.App. 1981) the defendant, Sherry Lea Stewart was arrested for shoplifting a steak and a bottle of bath oil. Her purse was seized and, pursuant to a search, cocaine was found. The Texas court discussed Robinson and Chadwick at length. It concluded the search was good. The opinion at 438 said: In Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980)[5] Officer Thompson witnessed an automobile accident involving the defendant, Ida Marie Hinkel. The vehicle driven by Hinkel smashed into another vehicle after running a red light at a high rate of speed. After Hinkel refused to show Thompson her driver's license or get out of her vehicle he took hold of her and her purse and proceeded to pull her out of the vehicle. In the struggle her purse, which had been next to her on the front seat, was left in her vehicle. Hinkel was escorted by Thompson to the back seat of his patrol car. Another officer took the purse from Hinkel's vehicle and gave it to Thompson. The purse was then opened by Thompson who discovered that it contained a loaded hand gun. Hinkel was charged with carrying a concealed weapon and reckless driving. *957 The Alaska Supreme Court found that the search was good. It discussed the oft quoted language of Chadwick "luggage or other personal property not immediately associated with the person of the arrestee," and in connection with it said at page 1071: In United States v. Venizelos, 495 F. Supp. 1277 (S.D.N.Y. 1980)[6] the defendant, Arietta Venizelos, was arrested pursuant to a warrant while driving a small rental car in White Plains, New York. The warrant had been issued under an indictment charging the defendant with a conspiracy to distribute drugs. When arrested the defendant denied her identity and claimed that she was Leslie Kinney. When she started to reach into her purse or handbag an agent stopped her and took the purse. The agent then opened the purse and took out a wallet which he handed back to the defendant. From the wallet the defendant produced a driver's license in the name Leslie Kinney. The agents took the defendant to the Kinney residence where Mrs. Kinney refused to support the defendant's claim that she was Mrs. Kinney's daughter. At the drug enforcement headquarters a more complete search of the purse disclosed needles, syringes, pills, and marijuana. The Federal District Judge upheld the search. At page 1282 of his opinion he said: The general thread that seems to run through all of the above cases is that a handbag or a purse is similar to and serves the same function as a pocket or pockets in a person's clothing. Both the purse and the pockets are used to carry the same personal items wallet, identification and cosmetics. Several courts have mentioned that a purse is carried by a person at all times. No court has gone so far as to say that a purse is a "portable pocket." *958 The bottom line in this case is that the defendant's purse was personal property "immediately associated with the person of the arrestee" and therefore subject to search as an incident to arrest. No additional justification beyond probable cause to arrest was required. There was sufficient probable cause to arrest the defendant. She told the police that she was selling "bunk" and her male companion told them that she was in the possession of cocaine.[7] It is of no concern that the police officers did not search the defendant's purse until after she was handcuffed and placed in the back of the patrol car. In State v. Florance, supra, 270 Or. 191-192, 527 P.2d 1202: In State v. Brown, supra, we went one step further and said that the defendant could be searched at the jail as an incident to the arrest. I would hold that the search was good.[8] I would affirm both the Court of Appeals and the trial court. TANZER, J., joins in this opinion. LENT, Chief Justice, dissenting. The purse was "seized," i.e., it was taken from defendant's possession at the time she was placed in the police car for transportation. Throughout the time the purse, the wallet and the coin compartment within were searched, the purse was physically beyond the defendant's ability to reach it. She was in handcuffs in the back of the police car. A plastic shield separated the back of the car from the front. A police officer in the front searched the purse and the wallet. That police officer was never asked why she searched either container. With all due apology to Charles Dickens, I infer quite simply that this was "The Old Curiosity Search." I shall assume for the sake of argument that there was probable cause to search the purse, even though cause depends in part upon the unsworn information of defendant's companion and there is somewhat less than a paucity of evidence of his veracity in this record. The state quite rightly does not claim there were any exigent circumstances to justify search of these containers without a warrant. I do not perceive it to be necessary to cite authority for the proposition that under Article I, section 9, of the Oregon Constitution a warrantless search is considered in law to be unreasonable, thereby offending the constitutional prohibition against unreasonable searches, unless it can be shown to be a search sanctioned by a recognized exception. *959 Both the majority and the concurring opinions here find an exception. That exception perforce must rest upon identifying the container in question by some kind of mumbo jumbo as to how closely it resembled an arrestee's pockets, which may be searched incident to a lawful custodial arrest. Neither the police in the field nor the law-abiding citizen whose rights are constitutionally protected should have to analyze the lawfulness of police conduct by determining whether the container is more like luggage, on the one hand, or a cigarette box, on the other. Both are containers that are not part of the clothing of the citizen. Both may be taken into the possession of the police without removing the citizen's clothing. If the citizen from whom a container is taken will not voluntarily consent to its search without a warrant, the police may inventory the container as such, i.e., a trunk, a suitcase, a briefcase, a knapsack, a knotted bandana, a paper sack, a purse, a cigarette case, or whatever best describes that container. The police, the citizenry and the courts of this state would be served best by a simple holding that the Oregon Constitution prohibits the warrantless search of a closed container seized by the police and placed beyond the reach of the arrestee. In a case such as this, the police would know that they must not search the container without first making a showing to a magistrate that there was probable cause to believe the purse contained evidence of crime. Assuming such a showing could be made, I would observe that the same evidence for conviction would have been obtained in accordance with the constitution as was obtained here in a manner judicially approved only after three levels of scrutiny. Under the simple rule I propose, the arrestee's rights against unreasonable searches would be protected by Article I, section 9, of the Oregon Constitution, and there would be no need to inquire whether the arrestee is deprived of liberty or property without due process of law under the United States Constitution. I am authorized to say that Justice Linde agrees that this would be the better rule, see State v. Brown, 291 Or. 642, 656, 634 P.2d 212 (1981) (concurring opinion), although he concurs in the majority's statement of Oregon law as it stood before State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974), abandoned it in order to follow federal cases. I dissent. [1] Article I, section 9 of the Oregon Constitution provides: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. " Amendment IV of the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [2] The officer doing the questioning testified defendant still appeared groggy and unsteady on her feet, and that he didn't feel it would be prudent to leave her on her own, though the ambulance attendants had advised him it did not appear to be an emergency. [3] Fake narcotics. [4] As noted in State v. Newman, 292 Or. 216, 637 P.2d 143, a "civil hold," complete with handcuffs, is a procedure undefined in Oregon statutes or case law. Defendant does not challenge the search of her person incident to the "civil hold" or the lawfulness of the arrest which followed. [5] This was the characterization of the trial court's holding made by defense counsel at oral argument before us. At trial the court and defense counsel had the following exchange, which supports the characterization: "THE COURT: * * * I think this was a good search. I think they had a right to inventory that purse. "Whether it was done in the police car or done in the jail doesn't make a whit of difference. "It's not like opening containers. They are looking in her wallet. I think they have an obligation to inventory her possessions for her protection and their own, and a pill is not something that's so hard to identify. As I understand, they are cross tops, and they're very apparent and obvious when you see one. "I think it's a good search, and I will deny your motion. "COUNSEL: All right. May I just say for the record that I raised other grounds in my motion to suppress, and although I didn't argue them, I don't want to lose them by default. "THE COURT: Of course, it was seized without a warrant, but I think that first of all they had probable cause to search this lady considering her physical condition and the statements of her companion. I think they had probable cause to search her, and so they, therefore, when they found powder, they had probable cause to arrest her. "As it turned out, it was not a controlled substance, but it gave the appearance of that, and I also heard the statement that she was selling bunk or whatever her expression. The arrest is appropriate. In my view they had an obligation to take her property into custody, and I think they had a right to make an inventory search, and in the course of that they found contraband which was the basis of this charge. "So I think it was appropriate to act without a warrant. I think they had probable cause to arrest her. I think I agree the search was without her consent, but I don't think consent was a necessary thing at this point in time. I don't think it was overintrusive. "I think there was probable cause for the arrest, as I've indicated, and I think that it was it was not beyond the scope incident to a lawful arrest. So for any of the reasons I've raised, I think the search was okay. "COUNSEL: So you're saying that searching the wallet would have been appropriate either incident to the lawful arrest or as an inventory search? "THE COURT: I am holding that they had a right to make an inventory search of her wallet, her bag and wallet, and when they did that, they found the drug. They had a right to arrest her. They had probable cause for that, and then everything else followed. "COUNSEL: All right." [6] Defense counsel characterized the Court of Appeals opinion as approving the search incident to defendant's arrest. State v. Brown, supra, involved a search during the booking process which was justified "as an incident to a lawful arrest." 291 Or. at 655, 634 P.2d 212. Brown cited as authority State v. Florance, supra, "* * * such a search of the person arrested as would be reasonable if made by the officer at that time and place may be made by him at any time in the course of transporting the arrested person to jail." 270 Or. at 191-92, 527 P.2d 1202. [7] We have often announced a holding without basing it on one constitutional provision or the other, after referring to both, State v. Newton, 291 Or. 788, 801, 636 P.2d 393 (1981); Roberts v. Mills, 290 Or. 441, 444, 622 P.2d 1094 (1981); State v. Quinn, 290 Or. 383, 390, 623 P.2d 630 (1981); State v. Carlile, 290 Or. 161, 163, 619 P.2d 1280 (1980); State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979). Sometimes a case is decided only on fourth amendment grounds, or on the basis of fourth amendment analysis. State v. Brown, supra, see Linde, J., concurring, 291 Or. at 656, 634 P.2d 212; State v. Tourtillott, 289 Or. 845 at 853-54, 618 P.2d 423; State v. Jordan, 288 Or. 391, 402, 605 P.2d 646 (1980) cert. denied 449 U.S. 846, 101 S. Ct. 132, 66 L. Ed. 2d 56 (1980); State v. Fondren, 285 Or. 361, 367, 591 P.2d 1374, cert. denied 444 U.S. 834, 100 S. Ct. 66, 62 L. Ed. 2d 44 (1979). [8] Newman decided that a search of a purse removed from its owner's possession is not a search of the person. Though involving a noncriminal situation, the opinion indicates that "even in the context of a criminal case it would have been questionable whether the police could have searched the defendant's purse without a warrant." 292 Or. at 223 n. 8, 637 P.2d 143. [9] Specifically Robinson, Chadwick and Belton, all supra, and most recently United States v. Ross, ___ U.S. ___, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). United States v. Ross, relies upon an "automobile exception" analysis to justify the search and seizure of containers within an automobile trunk following the arrest of the driver. [10] For a general discussion of what has been termed "the new federalism" arising from state court's emphasis on their own state constitutions, see Linde, First Things First: Rediscovering the State's Bill of Rights, 9 U of Baltimore L.Rev. 379 (1980), and the articles cited at 396 n. 70, therein, particularly Wilkes, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 Ky.L.J. 421, 437-43 (1974); Wilkes, More on the New Federalism in Criminal Procedure, 63 Ky.L.J. 873 (1975); Wilkes, The New Federalism in Criminal Procedure Revisited, 64 Ky.L.J. 729 (1976). [11] The court also cited an earlier case of its own, People v. Superior Court of Los Angeles County, 7 Cal. 3d 186, 101 Cal. Rptr. 837, 496 P.2d 1205 (1972) in which it had held that if an arrestee is cited for an offense which typically entails neither instrumentalities nor fruits of the crime, no search is allowable unless there are particular facts present which would lead the officer to believe the arrestee is armed. A pat-down, or limited search for weapons, is permissible, however, if the arrestee is taken into custody. [12] Jankovich v. Indiana Toll Road Commission, 379 U.S. 487, 491-495, 85 S. Ct. 493, 495-6, 13 L. Ed. 2d 439 (1965). [13] This is not a revolutionary idea but one that is founded in the most fundamental principles of federalism and in the history of state constitutions. "* * * It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse. `By the end of the Revolutionary period, the concept of a Bill of Rights had been fully developed in the American system. Eleven of the 13 states (and Vermont as well) had enacted Constitutions to fill in the political gap caused by the overthrow of British authority. * * * Eight of the Revolutionary Constitutions were prefaced by Bills of Rights, while four contained guarantees of many of the most important individual rights in the body of their texts. Included in these Revolutionary constitutional provisions were all of the rights that were to be protected in the federal Bill of Rights. By the time of the Treaty of Paris (1783) then, the American inventory of individual rights had been virtually completed and included in the different state Constitutions whether in separate Bills of Rights or the organic texts themselves.' * * * (1 Schwartz, The Bill of Rights: A Documentary History (1971) p. 383; see generally 2 id., p. 1204.) In particular, the Rights of the Colonists (Boston, 1772) declared for the first time `the right against unreasonable searches and seizures that was to ripen into the Fourth Amendment' (1 id. at pp. 199, 206), and that protection was embodied in every one of the eight state constitutions adopted prior to 1789 which contained a separate bill of rights (1 id., at pp. 235, 265, 278, 282, 287, 323, 342, 377). (Footnote omitted.)" Brisendine, supra, 13 Cal. 3d at 550, 119 Cal. Rptr. at 329, 531 P.2d at 1113. [14] The Chinn decision is based on article 1, section 9 of the Oregon Constitution but discussed federal cases decided under the fourth amendment because they were "instructive." 231 Or. at 266, 373 P.2d 392. [15] United States ex rel. Krogness v. Gladden, 242 F. Supp. 499 (D.C.Or. 1965) granted Krogness's petition for habeas corpus and held that the search was illegal. [1] It is true that the quoted statement was published in 1978, but the 1982 pocket part to the text does not indicate any change. The Gustafson case referred to is Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973) decided the same day as United States v. Robinson, supra. [2] Chadwick was decided June 21, 1977 and Berry was decided August 24, 1977. [3] The reference to the "purse" by the Seventh Circuit Court of Appeals is dicta in that context. 2 LaFave, Search and Seizure § 5.5 at 355 comments on the Berry case as follows: "Whether or not the Berry result will be accepted by other courts, this case identifies the critical issue posed by Chadwick: precisely what is it that takes a possessed container outside the Robinson search-incident-to arrest rule? One possible answer, given in Berry, is that Robinson extends only to containers on the person and containers such as a purse which are `immediately associated' with the person. But Chadwick does not articulate this distinction; as the dissenters noted, the `Court's opinion does not explain why a wallet carried in the arrested person's clothing, but not the footlocker in the present case is subject to "reduced expectations of privacy caused by the arrest."' At one point, however, the Chadwick majority asserted that by `placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination.' From this, it might be contended that the distinction is not that drawn in Berry, but rather between secured and unsecured containers. This approach would produce a different result in Berry and in many other situations." (Footnotes omitted.) [4] The cases referred to by the Maryland court are: United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); United States v. Ester, 442 F. Supp. 736 (S.D.N.Y. 1977); State v. Dudley, 561 S.W.2d 403 (Mo. App.) (1978); State v. Dean, 2 Kan. App.2d 64, 574 P.2d 572; United States v. Berry, 560 F.2d 861 (7th Cir.) cert. den. 439 U.S. 840, 99 S. Ct. 129, 58 L. Ed. 2d 138 (1977). [5] But see United States v. Farrar, 470 F. Supp. 128 (S.D.Miss. 1979) wherein the Federal District Court ruled that a 9 inch by 12 inch purse hidden under the passenger's seat was within the scope of the Chadwick rule and therefore a warrant was required. [6] In the Moreno, Sumlin, Hinkel, and Venizelos cases the defendant was arrested in an automobile and the search in each case probably would now be upheld on an additional ground under New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). [7] One of the officers at the motion to suppress testified as follows: "By bunk I asked her if she meant quantities that are sold on the street supposedly to be narcotics but not actually narcotics, a fraud that is common on the streets downtown, and she said yes, that's what she had been doing." It is a crime to deliver an imitation controlled substance. ORS 475.991. [8] There is some interesting language in United States v. Chadwick, 532 F.2d 773 (1st Cir.1976), the United States Court of Appeals case for the First Circuit which was later affirmed by the Supreme Court in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977): "* * * Portable objects in hand such as zipper bags, briefcases and small suitcases fit without too much difficulty in Chimel's `immediate control' standard. Their size, accessibility, and portability all liken them to `personal effects' found on an arrestee's person, such as clothing or a cigarette package in one's pocket, which may lawfully be searched without a warrant as incident to an arrest. See United States v. Robinson, supra; United States v. Edwards, supra. To exclude searches of such items can create "gossamer thin" distinctions which arresting officers could find impracticable, if not impossible, to follow; and, where the justification for a search depends to a great extent on the reasonable judgments which the arresting officers could have made at the time of arrest, see United States v. Robinson, supra, those distinctions would appear unwarranted." (Footnote omitted.) 532 F.2d at 780.

69256049306d487c5c16b4f888480644e0ef1295364fa09264c2f3484f6944df

1982-11-02T00:00:00Z

8655e97c-3135-420d-a939-cc75e5ed36e2

Land Associates, Inc. v. Becker

294 Or. 308, 656 P.2d 927

oregon

Oregon Supreme Court

656 P.2d 927 (1982) 294 Or. 308 LAND ASSOCIATES, INC., an Oregon Corporation, Plaintiff, v. Richard A. BECKER; United States National Bank of Oregon, a National Banking Association; Lane County Oregon; Lloyd Hinrichs and Yvonna Hinrichs, Husband and Wife; Janice Louise Becker; United States of America, Acting by and through Internal Revenue Department; Gerald J. Druliner; State of Oregon, Acting by and through Department of Revenue; Coastal Adjustment Bureau, Inc., an Oregon Corporation; State of Oregon, Acting by and through Employment Division; and Lane County Escrow Service, Inc., Defendants. Launa H. Bautista, Petitioner On Review, v. Land Associates, Inc., and E & B Investors, Inc., Respondents On Review. CA 22290; SC 28874. Supreme Court of Oregon. Argued and Submitted November 3, 1982. Decided December 30, 1982. *929 Harold D. Gillis, Eugene, argued the cause and filed the briefs for petitioner on review. William A. Turnbow, Eugene, argued the cause and filed the brief for respondents on review. With him on the brief was Hershner, Hunter, Miller, Moulton & Andrews, Eugene. Before LENT, C.J., and LINDE, TANZER, CAMPBELL, ROBERTS and CARSON, JJ. CAMPBELL, Justice. Launa H. Bautista, the assignee of unjoined pendente lite junior lien creditors, attempted to redeem property after foreclosure. The trial court dismissed her complaint in intervention in which she named Land Associates, Inc. and its assignee E & B Investors, Inc. as defendants. The Court of Appeals affirmed on the basis that she had no statutory right to redeem. We reverse, 58 Or. App. 216, 647 P.2d 989. Land Associates, the seller of real property on a land sales contract, brought an action for judgment against its buyer on June 26, 1979, naming several others who had interests in the property as defendants. Land Associates initially requested a strict foreclosure, but in an amended complaint asked for a judicial sale. Land Associates joined those who held junior liens and judgments of record at the time it filed the complaint. After the complaint was filed, two trust deeds and a judgment against the buyer went on record. The trust deeds were recorded June 27, 1979, and July 2, 1979. The judgment was entered October 31, 1979. The people holding these three above-mentioned liens were not joined in the foreclosure action and did not intervene. On November 19, 1979, Becker, the purchaser on the contract, conveyed his interest in the property by deed to respondent E & B *930 Investors. On March 5, 1980, the trial court entered a stipulated decree that gave Land Associates judgment for the balance of the purchase price, attorney fees and costs and directed the sale of the property on execution by the sheriff to satisfy the judgment. The decree provided for a possible deficiency and foreclosed all property interests or rights of all defendants, except for the statutory rights of redemption. Land Associates bought the property at the sheriff's sale on April 17, 1980, and 27 days later, on May 14, 1980, obtained an ex parte order from the court directing the sheriff to issue a deed. The record in this court indicates that only the State of Oregon waived its rights to redeem. On this same day Land Associates assigned the certificate of sale to respondent E & B Investors and conveyed the property. The sheriff issued the deed the following day. The court confirmed the sale on May 15, 1980. The three pendente lite lien creditors mentioned above then assigned their interests to appellant Bautista on June 13, 1980. On the same day, 57 days after the sale, Bautista served her notice of intent to redeem on Land Associates and its assignee E & B Investors. The sheriff refused to proceed with the redemption without direction from the court because he had already issued a deed to Land Associates. Bautista then intervened in this action, naming Land Associates and E & B Investors, Inc. as respondents, and filed allegations in the nature of a complaint asking to set aside the order which authorized the deed and directing the sheriff to permit her to exercise her statutory right of redemption. The trial court dismissed her second amended complaint and she appealed. The Court of Appeals affirmed this dismissal. It held that Bautista, as the assignee of unjoined junior lien creditors, had no right to statutory redemption, relying on Portland Mtg. Co. v. Creditors Prot. Ass'n., 199 Or. 432, 262 P.2d 918 (1953). We allowed review to consider what redemption rights a lien creditor may have when its interest is acquired pendente lite. Intervenor Bautista contends that the court erred, in that she claims a statutory right of redemption as an assignee of pendente lite unjoined junior lienholders whose rights were foreclosed because of the doctrine of lis pendens. She argues the order allowing the sheriff's deed should be set aside because respondent did not acquire the rights of all persons entitled to redeem either under former ORS 18.160 (ORCP 71B became effective January 1, 1982) or through the inherent powers of the court. Respondents Land Associates and E & B Investors argue that because of the doctrine of lis pendens, Bautista actually had no rights in the real property, but rather only a contingent interest that could only attach to the real property if the buyer successfully defended the foreclosure suit. They also argue that because Bautista was not a party to the foreclosure action, she was not in the class of people who are entitled to exercise statutory redemption rights; that this suit was an impermissible collateral attack on the order that allowed the execution of the sheriff's deed; and that the sheriff's deed was absolute. In order to understand the issues in this case, it is necessary to examine the history of mortgages to some extent, even though this case is based on a land sales contract, rather than a mortgage. Originally when one borrowed money on his land, he gave title to the land to the one who loaned the money. The borrower, however, could get his land back by paying the entire sum on a certain day of payment called Law Day. If he defaulted and did not pay the sum on that day, he lost all rights to his land. There were times when this absolute deadline resulted in injustices (as when the borrower was robbed on his way to Law Day), and the Court of Chancery conceived the idea of equitable redemption to soften this harsh rule. This allowed the borrower to come into court after default, and if he told a convincing story, he was allowed to force a reconveyance of the land. This remedy itself led to abuses, because the borrowers were allowed to reclaim their land years after they should *931 have repaid the money. The Chancery Court, aware of the problems, then created the remedy of foreclosure. Foreclosure was designed to end the period of equitable redemption so that the new owner could be sure that his title was secure and the previous owner could not redeem the land.[1] Foreclosure, then, forecloses the previous owner from exercising the equitable right of redemption. Equitable redemption only allows a junior lien creditor to redeem from the senior lien holder and become subrogated to his interests. Mortgage law continued to change; however, the theory underlying mortgages changed from the mortgage giving the lender actual title to the property subject to the right of equitable redemption to the concept that the mortgage only gives the lender a lien on the property. This theory led to foreclosure and sale, rather than the earlier strict foreclosure that was considered equitable under the title theory. Most states, including Oregon, that adopted a lien theory of mortgage also enacted statutory redemption as an additional remedy. The period for statutory redemption[2] starts after the foreclosure and sale itself and is one last chance for the previous owner and any lien creditors to regain the property. It is important to distinguish the two types of redemption equitable redemption only exists until the interest is foreclosed, while statutory redemption only begins after the interest is foreclosed. In the present case, the Court of Appeals relied on Portland Mtg. Co., supra, indicating that while arguably Bautista might have an equitable right of redemption, she did not have a statutory right of redemption. In this it is mistaken. Portland Mtg. Co. concerned an attempted redemption by junior lien creditors who were not joined in the foreclosure action. This court held that they had no right to statutory right to redeem because their interest had not been foreclosed. Those creditors were lienholders of record when the initial petition was filed; because they were not joined they were not bound by the foreclosure, and a statutory right of redemption did not arise. The present situation differs because Bautista's predecessors were not lienholders of record when the initial complaint was filed. The doctrine of lis pendens controls here. This doctrine states that the filing of a suit concerning real property is notice to people who obtain an interest in the property after the commencement of the suit that they will be bound by the outcome of the suit. Puckett v. Benjamin, 21 Or. 370, 381, 28 P. 65 (1891). It is a *932 necessary doctrine; without it every change of ownership or lesser interest in real property would require a modification of the suit and would require continual checking of the records to be sure that someone else had not obtained property rights in the property in question. Respondents argue that the doctrine means that any change of ownership during the pendency of the suit does not have any legal effect until the outcome of the suit, but in this they are mistaken. Kaston v. Storey, 47 Or. 150, 154, 80 P. 217 (1905). The doctrine of lis pendens does not change a property owner's right to transfer interests in a property even though a foreclosure suit is pending, and it also does not stop another person from gaining an interest by becoming a lien creditor after the suit is filed, as did Bautista's predecessors in interest in the present case. The doctrine of lis pendens, however, binds Bautista's predecessors in interest by the foreclosure suit. This is the major difference between the present case and Portland Mtg. Co. In Portland Mtg. Co., because the lien creditors of record were not joined, they were not bound by the foreclosure; thus the statutory right of redemption did not arise and their only recourse would have been the equitable right of redemption. The situation in the present case is just the opposite; because the interests did not arise until after the foreclosure suit started, the doctrine of lis pendens means that the holders of these interests are bound by the decree of foreclosure and thus their interests were foreclosed along with those of the buyer and the lien creditors who were joined in the suit. Because their interests were foreclosed, their statutory right of redemption then came into existence. Bautista acquired these rights by the assignment. She thus is in the class of people who can exercise the rights of statutory redemption. Respondents also argue that this suit is an impermissible collateral attack on the order that allowed the execution of the sheriff's deed. However, because Bautista is an intervenor and is trying to correct an order in a proceeding provided for by law for that very purpose she is making a direct attack, which is permissible. In re Armstrong's Estate, 159 Or. 698, 707-708, 82 P.2d 880 (1938). Respondents do not appeal from the November 7, 1980, order allowing Bautista to file the pleadings in this case. Respondents also contend that the sheriff's deed was absolute and absent fraud, the court may not inquire into how it was obtained. The statute controlling the execution of sheriff's deeds is ORS 23.600: The bracketed portion of the statute was added in 1931. (OL 1931 Ch. 129). There is no legislative history to guide us in the interpretation of this statute, and it has not been previously construed. Bautista argues that because respondents did not actually acquire the rights of all persons entitled to redeem in the present case, the court's order directing the sheriff to execute the deed should be set aside based on former ORS 18.160 or the general equitable powers of the Court. Redemption statutes should be liberally construed. Ulrich v. Lincoln Realty Co., 175 Or. 296, 305, 153 P.2d 255 (1944). Because there is no legislative history to aid *933 our inquiry, we look to the purpose of the statute. Bautista contends, and we agree, that the purpose of this amendment is to avoid requiring the purchaser to mark time needlessly for the remainder of the 60 days when the purchaser holds all the possible rights to redemption. Respondents, however, contend that the phrase "it is made to appear to the satisfaction of the court" means precisely what it says, and the reality of whether the purchaser has acquired the rights of all the people who are entitled to redeem does not matter. We disagree. The legislature surely did not amend this statute to encourage purchasers at a sale to neglect searching the title or to practice misrepresentation or fraud upon the court. We hold that a purchaser at such a sale may take advantage of ORS 23.600 only when in actuality he has acquired all rights of redemption, and the phrase "it is made to appear to the satisfaction of the court" concerns the manner and type of proof that the court will accept. In the present case, there is no evidence in the record that Land Associates acquired these statutory redemption rights except a waiver of these rights by one of the defendants. It is obvious that Land Associates could not have proven to the trial court by any manner or type of proof that it had acquired all the rights of redemption because it had not, at that time or any time, acquired those of Bautista's assignors. We do not need to examine the evidence Land Associates might have presented, or speculate on whether oral or written allegation, affidavits, or non-certified copies of waivers of the rights would have met this standard. Land Associates was not entitled to take advantage of this statute that allows an acceleration of the waiting time for a sheriff's deed because it had not acquired all the redemption rights. We next must consider whether Bautista is entitled to relief under ORS 18.160 or the general equitable powers of the court. Former ORS 18.160 permits a court, in its discretion, to "relieve a party from a judgment, decree, order, or other proceeding taken against him through his mistake, inadvertance, surprise or excusable neglect." This statute is to be liberally construed. Wagar v. Prudential Ins. Co., 276 Or. 827, 832, 556 P.2d 658 (1976). Respondents contend that Bautista is not a party and thus does not qualify for relief under this statute. Although Bautista's assignors were not named parties in the foreclosure proceedings, the operation of lis pendens bound her assignors as though they were parties. Bautista thus was allowed to intervene. She also qualifies as one who may get relief under this statute. Land Associates obtained the ex parte order one day before the sale itself was confirmed. This was only 27 days after the sale and 33 days before the end of the statutory redemption period. Someone in Bautista's position could have no reason to believe that a court would issue an ex parte order before the confirmation of the sale and before the end of the statutory redemption period. We hold, therefore, that the order should be set aside under former ORS 18.160. Because of this decision, we do not examine whether the general equitable powers of the court would also support this result. Respondents advance one final argument: that the word "absolute" in the statute means exactly what it says, and one may not look behind the sheriff's deed after it is issued.[3] They contend that the legislative assembly enacted ORS 23.600 to add certainty and predictibility to the foreclosure process and to encourage the bidding of higher prices at sheriff's sales. They argue that this would benefit both debtors (who may realize a greater proportion of any surplus value of their property) and junior *934 lien creditors (who are more likely to be paid from the proceeds of the sale).[4] We need not consider this argument because although the statute says that upon the execution of a deed of conveyance "the title of such purchaser or redemption shall become absolute," if the court lacked jurisdiction over the property or one or more of the owners of the property had not been joined, then the title could not be absolute in the way the respondents contend. The better reading of the statute is that if a purchaser or redemptioner actually has acquired all the redemption rights, and is entitled to have the deed of conveyance issued before the end of the regular statutory redemption period, then no one may later attempt to redeem. The word "absolute" does not actually add anything to the statute; it simply means that after one has waived his right to redeem, he may not later attempt to do so. This interpretation is consistent with the way "absolute" is used in another statute. ORS 23.520 states: "Upon a sale of real property, when the estate is less than a leasehold of two years' unexpired term, the sale shall be absolute. In all other cases such property shall be subject to redemption as provided in ORS 23.530 to 23.600." The word "absolute" here is in opposition to the phrase "subject to redemption." It has no connotation that if the proceedings were irregular, the sale could not be set aside. The legislative assembly would not create valuable statutory rights and then allow a purchaser or redemptioner to eliminate these rights by asking the court for an early deed, even though he had not obtained all rights of redemption. This would make the supposedly valuable rights to redemption useless, and would be contrary to the express intent to give lienholders a full 60 days in which to decide whether they want to exercise their rights. The actual acquisition of all rights of redemption is a condition precedent to the utilization of ORS 23.600; without this, the title acquired is not "absolute," but rather a nullity. When the order authorizing the sheriff's deed is set aside, the deed itself must also be set aside. Reversed and remanded. [1] See 3 Powell, Real Property §§ 438-439, 462 (rev. ed. 1981); Walsh, Mortgages, §§ 1-3, 6 (1934); Kratovil, Modern Mortgage Law and Practice §§ 1-7 (1972). [2] Bautista claims a right to redeem under ORS 23.530 and 23.540: "ORS 23.530. Property sold subject to redemption, as provided in ORS 23.520, or any part thereof separately sold, may be redeemed by the following persons: "(1) The mortgagor or judgment debtor whose right and title were sold, or his heir, devisee or grantee, who has acquired, by inheritance, devise, deed, sale, or by virtue of any execution or by any other means, the legal title to the whole or any part of the property separately sold; provided, that in the event redemption is made by anyone acquiring the legal title after attachment, or after a judgment becomes a lien on the property, such person shall acquire no greater or better right thereby to the property so redeemed than the holder of the legal title at the time of such attachment or judgment. "(2) A creditor having a lien by judgment, decree or mortgage on any portion of the property, or any portion of any part thereof separately sold, subsequent in time to that on which the property was sold. Such creditors, after having redeemed the property, are to be termed redemptioners." "ORS 23.540. A lien creditor may redeem the property within 60 days from the date of the sale by paying the amount of the purchase money, with interest at the rate of 10 percent per annum thereon from the time of sale, together with the amount of any taxes which the purchaser may have paid thereon, and any other sum which the judgment debtor might be required to pay for redemption, with like interest, and if the purchaser is also a creditor having a lien prior to that of the redemptioner, the amount of such lien, with interest; provided, that if objections to any sale are filed, a lien creditor may redeem within 60 days from the date of the order confirming the sale." [3] Bautista argues that the word "absolute" in the statute refers to the quality of the estate that the purchaser or redemptioner takes, as in "fee simple absolute." This cannot be the meaning, because other estates, including life estates and leaseholds of more than two years, may be foreclosed and redeemed. [4] The other side of the argument is that the "prime purpose" of granting statutory rights of redemption to mortgagors in the first place "was to exert pressure by means of the threat of redemption which would cause mortgagees to bid a fair value at foreclosure sales." A secondary reason was to allow the mortgagor additional time to refinance in order that he might save the property. Note, Effect of Statutory Redemption by a Mortgagor or his Grantee in Oregon, 27 Or.L.Rev. 139, 140 (1948).

2fbdcc65c3dfd1150df362f5f10a84b64fa8d1ee32bac9fda62f7817d4655cae

1982-12-30T00:00:00Z

fe559f31-7466-430f-808c-d3d8c84ad1a4

State v. Roberti

293 Or. 236, 646 P.2d 1341

oregon

Oregon Supreme Court

646 P.2d 1341 (1982) 293 Or. 236 STATE of Oregon, Respondent On Rehearing/Petitioner On Review, v. Gary Patrick ROBERTI, Petitioner On Rehearing/Respondent On Review. TC T79-12-0348, CA 18838; SC 27840. Supreme Court of Oregon, In Banc. Submitted on Petition for Rehearing May 24, 1982. Decided June 22, 1982. *1342 J. Michael Alexander and Brown, Burt, Swanson, Lathen & Alexander, Salem, for petitioner. No appearance contra. Submitted on Respondent's Petition for Rehearing May 24, 1982. LENT, Justice. Upon defendant's petition for rehearing, Justice Roberts withdraws her former concurring opinion and joins in Justice Lent's former dissenting opinion, which had been joined by Justice Peterson. Justice Linde also joins in the former dissenting opinion of Justice Lent for the reasons stated in Justice Linde's former dissenting opinion. The result is that a majority of the court now holds that the trial court erred in overruling the objection to receipt of the evidence as described in the former majority opinion, State v. Roberti, 293 Or. 59, 62-63, 644 P.2d 1104, 1106, 1107 (1982). It remains to consider whether the error, beyond a reasonable doubt, was harmless. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Or.Const. Art. VII (Amend), § 3; State v. Naylor, 291 Or. 191, 196, 629 P.2d 1308, 1310 (1981). In announcing his decision as factfinder, the trial judge stated: We find, as did the Court of Appeals, that the trial court error was not harmless. It follows that the decision of the Court of Appeals must be affirmed and the case remanded to the District Court for trial. DENECKE, C.J., and TANZER and CAMPBELL, JJ., dissent for the reasons stated in Justice TANZER'S former majority opinion.

da9d2a50922c045e49570a1a993f6768392e76c66e01794b199b164295310940

1982-06-22T00:00:00Z

c9ad21d5-4c34-47b1-9e5f-903aabbfe18a

State v. Robertson

293 Or. 402, 649 P.2d 569

oregon

Oregon Supreme Court

649 P.2d 569 (1982) 293 Or. 402 STATE of Oregon, Respondent On Review, v. Dwight ROBERTSON, Petitioner On Review. State of Oregon, Respondent On Review, v. Reginald Dwayne Young, Petitioner On Review. TC 10-80-07971; CA 19337; SC 28280; TC 10-80-07969; CA 19338; SC 28281. Supreme Court of Oregon. Argued and Submitted March 3, 1982. Decided August 3, 1982. *571 Kenneth A. Morrow, Eugene, argued the cause for petitioner Dwight Robertson on review. With him on the petition for review was Morrow, McCrea & Divita, P.C., Eugene. James R. Strickland, Eugene, filed a brief for Reginald Dwayne Young, petitioner on review. With him on the brief was Curtis & Strickland, Eugene. Darryl L. Larson, Asst. Dist. Atty., Eugene, argued the cause for respondent on review. With him on the brief in the Court of Appeals was J. Pat Horton, Dist. Atty., for Lane County. Before DENECKE, C.J.,[*] and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. LINDE, Justice. The issue to be decided is the constitutional validity of a statute creating and defining the crime of "coercion." Defendants were indicted under one subsection of the statute, ORS 163.275(1)(e), which makes it a crime to compel or induce another person to engage in conduct from which he has the legal right to abstain by causing him to fear the disclosure of discreditable assertions about some person.[1] Defendants demurred on the ground that the terms of the statute are too vague for a penal law. The trial court sustained the demurrers. On the state's appeal, the Court of Appeals reversed, upholding the validity of the statute and the indictment by divided opinions first in a panel decision in State v. Robertson, 54 Or. App. 630, 635 P.2d 1057 (1981) and State v. Young, 54 Or. App. 681, 635 P.2d 681 (1981), and subsequently in banc, with three judges dissenting, in State v. Paige, 55 Or. App. 519, 638 P.2d 1173 (1981). Having allowed review and heard argument in the first two cases, we take account also of the opinions of the entire court in Paige. There is a preliminary question whether the Court of Appeals obtained jurisdiction by the state's appeal. The circuit court in each case entered an order sustaining defendant's demurrer to the coercion count of the indictment, which was based "on the *572 ground that the facts therein do not state a crime for the reason that the same and ORS 163.275 are unconstitutionally vague." Finding no statute whose literal terms authorize an appeal from such an order, we asked the parties to submit additional memoranda on the issue. Since the Deady Code of 1864, the statutes have required that upon considering a demurrer in a criminal case, "the court shall give judgment, either allowing or disallowing it, and an entry to that effect shall be made in the journal." ORS 135.660. For a century between that code and 1963, the state could appeal only from "a judgment for the defendant, on a demurrer to the indictment" or from an order arresting judgment. Act of Oct. 19, 1864, § 227, in Oregon Laws 1845-64, at 480. ORS 138.060 (1961 ed.) An order merely sustaining a demurrer was not appealable. State v. Cloran, 233 Or. 400, 374 P.2d 748 (1962), State v. Davis, 207 Or. 525, 296 P.2d 240 (1956). A 1963 amendment added an appeal from an order sustaining a plea of former conviction or acquittal; the existing reference to a "judgment for the defendant on a demurrer" was reenacted. 1963 Or. Laws ch. 385. In 1968, the state attempted to appeal from a trial court order dismissing an indictment upon defendant's motion. This court dismissed the appeal because the order was not a judgment on a demurrer and therefore not within the list of appealable orders. State v. Sieckmann, 251 Or. 259, 445 P.2d 599 (1968). Thereafter the Department of Justice obtained an amendment which allowed the state to appeal from an "order made prior to trial dismissing the indictment." The amendment did not add these words to ORS 138.060; rather, they replaced the prior reference to an appeal from a judgment on a demurrer, removing the explicit basis for such an appeal. 1971 Or. Laws ch. 644. The statute was further amended in 1973 to add the words "setting aside" to "dismissing" and broadening "indictment" to "accusatory instrument," so that the relevant provision now reads: "The state may take an appeal from the circuit court or the district court to the Court of Appeals from: (1) An order made prior to trial dismissing or setting aside the accusatory instrument." ORS 138.060(1). At the same time, the legislature enacted a new provision providing for dismissal of an accusatory instrument, ORS 135.470. The statutes now prescribe different grounds for demurring to an accusatory instrument, for "dismissing" such an instrument, and for "setting aside" an indictment.[2] The demurrer in the present case properly invoked failure to state an offense, on grounds of constitutional defect. Under ORS 135.660 this would lead to a "judgment" that would have been appealable under ORS 138.060 as it stood until 1971, when the reference to appeals from judgments on demurrers was eliminated from ORS 138.060. The state's memorandum in response to this court's questions concedes that the statutes now do not expressly allow the state to appeal from an order or judgment on a demurrer "if the present Oregon criminal procedure statutes are read literally, with an insistence upon precise and uniform terminology, and with an incomplete appreciation of the history behind them." The state argues, however, that a proper appreciation of that history should persuade us not to limit ORS 138.060 literally to orders "dismissing" accusatory instruments. It contends that when the Department of Justice, after State v. Sieckmann, supra, induced the legislature to substitute "order ... dismissing the indictment" for "judgment for the defendant on a demurrer," the state did not mean to sacrifice its *573 long-standing right to appeal from adverse judgments on demurrers but to expand it to include orders of dismissal, and also orders sustaining demurrers without requiring a judgment prescribed by ORS 135.660, superseding the rule of State v. Cloran, supra, and the decisions there cited. In short, the department asks us to effectuate the policy objectives shown by the legislative history of the 1971 and 1973 amendments. Though the legislative history is sparse, it appears consistent with the department's version of the intended goal of the amendments.[3] When the 1971 amendment removed judgments on demurrers from ORS 138.060, any effect of rendering them unappealable was certainly unintended. In deciding that it had jurisdiction of this appeal, the Court of Appeals extended its earlier decision in State v. Thomas, 32 Or. App. 85, 573 P.2d 1259, reconsidered in 34 Or. App. 187, 578 P.2d 452 (1978), which it had initially decided the other way. In the second Thomas opinion, the court in banc expressed continued doubt whether an order sustaining a demurrer but not dismissing the accusatory instrument was appealable under the 1971 amendment, but the court concluded that at least the 1973 addition of the words "setting aside" to ORS 138.060 covered such an order if the 1971 reference to orders "dismissing" an indictment did not. As the department recognizes, the statutes can benefit from further revision. Nevertheless, we are not inclined to disturb the conclusion of the Court of Appeals that because the purpose of the amendments was to broaden the state's ability to appeal orders that invalidate accusatory instruments, the court may take jurisdiction of such appeals from "orders" sustaining demurrers whether or not they are identified as judgments, as prescribed in ORS 135.660. Although the defendant's demurrer alleged only that the crime charged in the indictment was "unconstitutionally vague," the Court of Appeals construed a supporting trial memorandum as having attacked the statute also as unconstitutionally "overbroad." As the court proceeded to decide the case on that basis, we accept its characterization of the memorandum. But we once again draw attention to the frequently misunderstood difference between the two constitutional claims. "Vagueness" and "overbreadth" of a law are not two alternative or cumulative epithets for the same shortcoming. The rule against vague penal laws has been rested on various constitutional premises. In State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), this court suggested that abdication of the lawmakers' responsibility to define a crime to prosecutors, judges, or jurors in case-by-case adjudication allowed those charged with enforcing the law to make the law after the event: 254 Or. at 27, 457 P.2d 491, quoted in State v. Blair, 287 Or. 519, 522-23, 601 P.2d 766 (1979).[4] Perhaps the vice of the "uncontrolled discretion" mentioned in Hodges lies as much in inviting standardless and unequal application of penal laws, contrary to article I, section 20.[5] Moreover, the unfairness of "failure to notify potential defendants of [the law's] scope and reach" can constitute a denial of due process under the federal 14th amendment. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939). Recently in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., ___ U.S. ___, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982), the Supreme Court of the United States reaffirmed the constitutional objections to vague laws in terms much like those in our own cases, quoting from Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222 (1972): Village of Hoffman Estates, supra, ___ U.S. at ___, 102 S. Ct. at 1193, 71 L. Ed. 2d at 371.[6] In the Oregon Criminal Code of *575 1971, the legislature enacted a commitment to "give fair warning of the nature of the conduct declared to constitute an offense and of the sentences authorized upon conviction." ORS 161.025(1)(c). That commitment must be respected in the interpretation and application of the code. "Overbreadth," however, is a different claim. It should be kept in mind that the terms "overbroad" and "overbreadth" are not themselves terms of the state or federal constitutions, any more than the terms "vague" or "vagueness"; they are only lawyers' phrases for shortcomings that are claimed to contravene other constitutional constraints. They have been used by different theorists and courts to mean different things and to carry different consequences. See Monaghan, Overbreadth, 1981 Sup.Ct.Rev. 1 (1981). In principle, however, a claim of "overbreadth" asserts that the terms of a law exceed constitutional boundaries, purporting to reach conduct protected by guarantees such as, for instance, Oregon Constitution, article I, section 8 (freedom to speak and write) or section 27 (right to bear arms). As this court recently stated in a case under section 27: State v. Blocker, 291 Or. 255, 261, 630 P.2d 824, 827 (1981). A claim of "overbreadth" cannot properly assert that the words of the law, read literally, are broader than the lawmaker intended, for that is an issue to be resolved by interpretation. A constitutional claim that the law as interpreted cannot be discerned from its terms once again is a claim of vagueness, not overbreadth. Again, the Supreme Court noted the tendency to confuse the arguments in Village of Hoffman Estates, supra, in which Flipside challenged an ordinance prohibiting the sale of paraphernalia designed for illegal drug use: Village of Hoffman Estates, supra 102 S. Ct. at 1193, n. 9. The Court of Appeals correctly understood the distinction. When a statute is attacked as vague, for failing to define and communicate its coverage, the statute sometimes can be saved by a judicial interpretation that gives it the required definiteness. It is the court's obligation to do so when this can be done without departing too far from what the legislature sought to accomplish or what the statute itself can convey to a reader. But when such a saving construction cannot be attributed to the legislature with reasonable fidelity to the legislature's words and apparent intent, the statute is invalid as enacted, and it is immaterial whether the particular case in which it is *576 challenged would be immune from a validly drawn law.[8] A narrowing construction similarly may save a statute attacked as "overbroad," unless the constitutional guarantee invoked against the statute forbade its very enactment as drafted. Article I, section 8, for instance, forbids lawmakers to pass any law "restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever," beyond providing a remedy for any person injured by the "abuse" of this right.[9] This forecloses the enactment of any law written in terms directed to the substance of any "opinion" or any "subject" of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach. Examples are perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants. See Greenawalt, Speech and Crime, 1980 Am.B. Found. Res. J. 645, 648-70. Only if a law passes that test is it open to a narrowing construction to avoid "overbreadth" or to scrutiny of its application to particular facts. As the court recently said of another challenge under article I, section 8: State v. Spencer, 289 Or. 225, 228, 611 P.2d 1147, 1148 (1980).[10] *577 The question is whether a saving construction is necessary, and if so, whether it is possible in the case of the coercion statute. The Court of Appeals took the defendants' contentions in this case to raise the claim that by indiscriminately reaching expression designed to induce another's conduct by means of threats or warnings, the coercion statute as written is a law restricting freedom of speech contrary to article I, section 8 of the Oregon Constitution and the federal first amendment. The court rejected this claim as well as that of vagueness. The issue, therefore, is whether the statute that the legislature passed can be understood in terms clear enough to avoid vagueness and also confined within constitutionally permissible limits. For the reasons that follow, we conclude that it cannot. ORS 163.275 provides: We turn to an examination whether the statute on its face is a law whose enactment was forbidden by article I, section 8, or if not, whether it either is impermissibly vague or written so broadly as potentially to reach communications that must remain free. The Court of Appeals divided on the question whether ORS 163.275 is a law "restricting the right to speak ... freely on any subject whatever." The majority of the Robertson panel held that it was not. The panel distinguished State v. Spencer, supra, on the ground that "speech itself was the direct object of [the] disorderly conduct provision," whereas the coercion statute "is not directed at the act of communicating and in that respect is like any other criminal statute defining a crime, such as robbery, which may incidentally involve communication." In the subsequent decision in banc in State v. Paige, supra, the dissenters disputed that view of the statute: 55 Or. App. at 524, 638 P.2d 1173. The Paige majority disagreed with the dissent's statement that "the act of making the threat ... is the gravamen of the offense." It noted that "the offense of coercion is not committed until the victim acts." Because a threat of adverse consequences is not forbidden unless successful, the majority found that "[t]he making of the threat is not the basis of the offense, but only a manner of bringing it about." It therefore concluded that the coercion statute proscribes "not speech but conduct the act of overpowering another's will." 55 Or. App. at 522, 638 P.2d 1173. The diverging premises touch some of the most difficult themes in the constitutional law of free speech. In our view, it cannot be said that the coercion statute does not forbid speech. We agree that because the statute is directed in terms against the pursuit of a forbidden effect and not, like the disorderly conduct provision in Spencer, against forbidden speech as such, it is not a law whose enactment was for this reason alone wholly withdrawn from legislative authority by article I, section 8. But because speech is a statutory element in the definition of the offense, the statute is susceptible to attack for possible overbreadth. Subsection (1) of ORS 163.275, which formulates the crime of "coercion," has two major parts. The opening clause defines the essence of the crime as compelling or inducing otherwise voluntary conduct by means of fear. The remainder of the sentence qualifies the definition by specifying the kinds of consequences which may not be threatened in order to compel or induce the demanded conduct. The elements stated in the opening clause are (1) that the accused makes a demand upon another person, (2) that the addressee otherwise is legally free to choose whether to engage in the demanded conduct, (3) that the accused puts the addressee in fear of one of the specified adverse actions by the accused or someone else if the demand is not met, and (4) that this fear compels or induces the addressee to comply with the demand. In view of the last element it is accurate, as the Paige majority said, that the offense is not committed until the victim acts. But this does not demonstrate that the statute is not directed against speech. The offense presupposes a "demand" by the defendant, which means a communication in words or otherwise; and as a practical matter, if not as a logical necessity, the legislature no doubt also assumed that the impelling fear will be instilled by speech or its equivalent. If the victim acts in fearful anticipation without any demand, the definition of coercion is not met. The demand, the fear-instilling communication of a specified consequence of noncompliance, and the fear-induced compliance all are essential; the crime is not made out if the addressee, though frightened, does not comply or if he acts for reasons independent of the demand or the threat. The challenge under article I, section 8, therefore cannot be dismissed simply by saying that the statute forbids an "act" rather than "speech." That distinction could be helpful if a law proscribed threatening gestures or other intimidating acts, or if it became necessary to differentiate between the communicative content and the noncommunicative means of proscribed expression. But speech often would be the offender's only act in committing this crime. Indeed, the statute leaves it immaterial whether an accused or another person had either the intent or the capacity to carry out the threatened consequences; a successful bluff seems to suffice. There is an intrinsic, though not insurmountable, paradox of overbreadth analysis. If a law is invalid whenever it literally could be applied to restrict free expression, there seemingly will never be occasion to hold that a valid law was unconstitutionally applied in a particular case. In practice the *579 paradox causes less trouble when speech as such is not a specified element or intended target of the restrictive law. That an offense includes the use of words is not in itself fatal to the enactment of a prohibition in terms directed at causing harm rather than against words as such. Communication is an element in many traditional crimes. As stated above, article I, section 8, prohibits lawmakers from enacting restrictions that focus on the content of speech or writing, either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences. This is the principle applied in State v. Spencer, supra. It means that laws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end. Spencer, in turn, quoted from State v. Blair, 287 Or. 519, 523, 601 P.2d 766, 768 (1979), which invalidated a section of the harrassment law for vagueness: 289 Or. 225 at 229, 611 P.2d at 1149. The statute invalidated in Spencer prohibited "abusive or obscene language, or ... an obscene gesture, in a public place" if intended to cause "public inconvenience, annoyance or alarm," whether or not the language or gesture in fact did this. If that statute had been directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8.[11] To this extent, the Court of Appeals correctly distinguished State v. Spencer. The coercion statute is written so as to focus on a forbidden effect the effect of frightening another person into a nonobligatory and undesired course of conduct. But the statute continues by specifying that the compulsion or inducement may not be imposed in aid of a "demand," and by means of specified verbal warnings or threats. We do not suggest that ORS 163.275 would be a better penal statute if it ended before the specification of means; as already stated, legislative attention to the reach of a penal law is a major object of the rule against vagueness. When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect, as ORS 163.275 is, must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such "overbreadth." A notable characteristic of ORS 163.275 is that it requires neither the conduct demanded of the victim nor the action threatened in case of refusal to be wrongful. It therefore does not fit into the constitutional analysis of solicitation, conspiracy, advice, or other verbal participation in another's criminal act, nor is it confined to threats of crimes or torts against an uncooperative victim, as in a robbery or rape. Only one item among the threatened consequences listed in ORS 163.275(1) assumes illegality, the catch-all item (c), "other conduct constituting a crime." It is not contended that the word "other" in item (c) implies that *580 the other threatened consequences listed in the law are covered only insofar as their execution would be illegal, and their character precludes such a construction of several of them. Some, indeed, would often be constitutionally privileged if carried out, such as the publication of derogatory facts under (e), or would actually be legal duties, such as giving testimony under (g) or performing one's official duties under (h). Neither the action demanded nor the occurrence of the threatened consequences upon a refusal is the concern of this statute. The target of the law is the effective use of fear to induce compliance with a demand. This spacious coverage offers tempting opportunities for an "overbreadth" attack on the statutory text, limited only by the imagination of court and counsel. This is particularly true of ORS 163.275(1)(e), supra, dealing with threats to expose or publicize some asserted fact that would tend to subject some person to hatred, contempt, or ridicule, under which the present charge was brought. Thus defendants posited situations in which one man tells another: "If you don't quit making love to my wife, I'm going to tell your wife," or someone proposes to disclose an airline pilot's secret illness if he does not get medical attention, or a politician's embarrassing past if he does not withdraw his candidacy from office. The dissenters in the Court of Appeals added illustrations in which a journalist advises a public official that he will disclose private facts showing an official's financial interest in a pending measure if the official does not refrain from voting on the measure, or in which "one appellate judge might tell another, `Change your opinion, or I shall dissent and expose your complete ignorance of this area of the law.'" 55 Or. App. at 524, 638 P.2d 1173 (Gillette, J., dissenting). Indeed, they might have added that a prosecutor's plea-bargaining attempts to induce a defendant to plead guilty to one charge in order to avoid prosecution on other charges literally violates ORS 163.275(1)(d). Some of the examples, particularly hypothetical statements addressed to minors or to family members, are offered to show that the legislature could not possibly have meant to outlaw them, but that is not to the point. The question of overbreadth is not even whether the statute covers situations in which the actual disclosure would be privileged expression, but whether the hypothetical demand backed by the threat of such a disclosure would be so privileged. The examples of such demands drawn from a political context and involving consequences directly relevant to the demanded act plainly would be an exercise of free speech or writing.[12] The real disagreement between defendants and the prosecution, therefore, is whether ORS 163.275 can be given a principled interpretation that excludes its application to these and other instances of free expression. The answer cannot be simple. The first difficulty lies in the search, not for an interpretation of ORS 163.275, but for the principles that the interpretation must preserve. Judicial and academic analyses of the principles governing freedom to make demands coupled with threats have been sparse and inconclusive, perhaps because these elements characterize the traditional domain of robbery and extortion of money by threats of bodily harm. Although the feared reaction of others underlies much inducement to desired conduct throughout social institutions, from family and schools to consumer advertising, a civilized legal system may choose to protect individual autonomy of choice against many kinds of compulsion, if its rules of civil or criminal liability remain within constitutional bounds. Yet some demands obviously are in the realm of free speech, as are warnings of the intended sanctions for noncompliance. It is easy to extend the political examples to others from academic, cultural, or religious settings and beyond.[13] Verbal *581 threats to take or initiate even unlawful, violent action are not beyond first amendment protection by their content alone, divorced from any imminent realization.[14] Principles for a free speech analysis of demands combined with threats might be sought in various elements of the combination, such as (1) the lawfulness or unlawfulness of the demanded conduct; (2) the lawful, unlawful, or constitutionally privileged nature of the threatened conduct; (3) the objective and the motive of the person making the demand; (4) the relationship between the parties to the demand or between the parties to the threatened consequences; (5) the relevance of the threatened consequences to noncompliance with the demand. Additional variables might be (6) the means of expression employed in the demand or the threat, (7) the likelihood and imminence of the threatened acts, or (8) other distinctions in the social setting or function of the demand. We turn to an examination whether one or a combination of these variables explains such precedents as exist on the constitutional question. The classic form of protection against being compelled by threats to give up what one is under no obligation to yield is found in the long-established laws against black-mail[15] or similar forms of extortion. On historic grounds alone, we have no doubt that these or their contemporary equivalents survived the proscription of speech-restraining laws in article I, section 8. A central characteristic of these classic crimes, however, was that the unlawful threats were used to obtain money or other things of value. Extortion developed as an extension of robbery by including threats other than threats of physical injury and is generally classified as one of the crimes against property. See Perkins, Criminal Law 372-75 (2nd ed 1969).[16] It continues to be so classified in the Model Penal Code and in the Oregon Criminal Code, which treats "theft by extortion" as one form of theft. ORS 164.075. Theft by extortion, as there defined, itself represents a significant extension of robbery by threat insofar as it includes threats of future actions that would not be unlawful or tortious if carried out. The kinds of threatened consequences required for theft by extortion, listed in ORS 164.075(1)(a) (i), are identical to those for coercion listed in ORS 163.275(1)(a) (i), above. The two offenses differ only in that theft by extortion consists in unlawfully compelling another to part with property. Conceivably *582 it is not beyond challenge in some hypothetical applications. But assuming for present purposes that the verbal element common to the two offenses causes no "overbreadth" in theft by extortion, as long as the statute is properly applied, does the same verbal element potentially reach instances of privileged speech when it is extended beyond compelling the unwilling delivery of property to other forms of unwilling behavior? That depends on whether there are situations in which one is constitutionally privileged to use threats to persuade another to change his course of conduct, though not to obtain property for oneself or another. Courts have been able to avoid this question when the charge before the court was extortion in the narrower sense stated above. In Carricarte v. State, 384 So. 2d 1261, (Fla.) cert. den., 449 U.S. 874, 101 S. Ct. 215, 66 L. Ed. 2d 95 (1980), a Florida court was faced with an "overbreadth" claim when a lawyer was charged with extortion for telling a real estate developer that if the developer would not employ him, he would attempt to stop the development, organize and represent opponents of the project, and cause newspaper articles to be published against it. Beginning with premises much like those we have set out above, the court sustained the charge over defendant's objection that he would have been constitutionally privileged in carrying out the alleged threats.[17] The objection was held to fail because the charge included the elements of "malice," a term not further explained, and "intent to acquire pecuniary gain." Id. The court concluded that "malicious" threats to injure another, when made with the intent to "extort" money or to compel another's conduct "against his will" would always be "communications undeserving of First Amendment protection." 384 So. 2d at 1262-63. Similarly, the Louisiana Supreme Court rejected an overbreadth attack on an extortion statute when a police officer demanded sexual intercourse under threat of arresting the victim. The court construed the statute to cover "what is commonly known as blackmail," prohibiting the use of threats to cause the victim to part with his property or otherwise act to the advantage of the threatener, and it concluded that when so construed, the extortion statute did not infringe upon or inhibit any constitutionally protected expression. State v. Felton, 339 So. 2d 797, 800 (La. 1976). Thus these decisions sustained extortion statutes on the basis that the forbidden threats were used simply to gain something of personal benefit to the threatener in a bilateral transaction. In each case, however, another element could be relevant to the result. In the Florida case, the lawyer's demand for employment was independently unlawful as a forbidden solicitation of legal business. Carricarte v. State, supra, 384 So. 2d at 1263-64. In State v. Felton, supra, the police officer's threat to arrest the victims if they did not comply with his demands, but not otherwise, no doubt was an unlawful abuse of his authority analogous to the original common law crime of official extortion, supra note 16. This leaves some doubt whether the analysis in these cases would have been the same if the threateners' conduct had not been unlawful apart from their use of threats to obtain personal objectives. Lacking the element of a self-seeking objective that characterizes blackmail or extortion statutes, on the other hand, a federal district court relied only on this second element, the independent unlawfulness of *583 coercive acts,[18] in rejecting an "overbreadth" challenge to the New York coercion statute on which ORS 163.275 is modeled, and which does not require such an objective. The court declined to enjoin a state prosecution for coercion at the suit of persons who had been charged with preventing the work of school personnel by means of "intimidation, physical force and interference and by means of any independently unlawful act." Bishop v. Golden, 302 F. Supp. 502, 505 (E.D.N.Y. 1969). Although the challenge was for overbreadth, the court did not look beyond the charge and discuss whether the statute as written might extend to demands that are neither accompanied by nor threaten "independently unlawful" conduct. These and other opinions characteristically start from the conduct charged in the particular case rather than from hypothetical applications that are presented to show the overbroad reach of the challenged statute. Potential overbreadth is faced more squarely when a statute is attacked outside the context of a specific prosecution, so that there is no concrete charge under the statute to be tested for constitutionality. This is apparent in another case that produced a far more searching examination of the constitutional status of "intimidation," though also conducted under a federal court's view of the federal first amendment without reference to a state guarantee such as article I, section 8. Landry v. Daley, 280 F. Supp. 938 (N.D.Ill. 1968) was a class action brought on behalf of "the class of all negroes in the City of Chicago" as well as individual and organizational plaintiffs which attacked, among other statutes, an Illinois "Intimidation Statute" under which no plaintiff then faced prosecution. The statute declared one guilty of "intimidation" when one of various acts somewhat similar to those listed in ORS 163.275. Ill. Rev. Stat. ch. 38, § 12-6 (1979). Plaintiffs claimed that this statute could be construed so as to punish them for threatening to engage in "direct action and protest activities" against racial discrimination. 280 F. Supp. at 960. First, the court assumed, with some misgivings, that "threats" are not constitutionally protected expression if the character, intent, and circumstances of the threat are narrowly circumscribed.[19] This meant at least that the context and circumstances reasonably cause the addressee to fear that the threatener will perform the threatened act. More important, the court construed the words "without lawful authority" as confining the paragraphs listing the forbidden threats to cover only unlawful acts, and *584 even then it invalidated one such a paragraph for covering minor offenses. Thus the court construed the proscription of threats "to inflict physical harm" on a person or property or to "subject any person to physical confinement or restraint" as excluding such threats when their execution would not be unlawful. A paragraph referring to threats to "accuse any person of an offense" was construed to mean only a formal accusation of an innocent person made "with malice" and without reasonable grounds before a court or magistrate having jurisdiction to inquire into the allegation, in other words, when execution of such a threat would constitute malicious prosecution. Another paragraph forbidding threats to "expose any person to hatred, contempt or ridicule" was limited to mean actionable defamation or invasion of privacy. A paragraph on taking or withholding official action was sustained as referring to a threatened abuse of authority. A threat to "bring about or continue a strike, boycott or other collective action" was construed, again by virtue of the statutory phrase "without lawful authority," to mean only unlawful collective action. In sum, the Landry court proceeded on the premise that the Illinois law could validly prohibit "threats" if it was construed to require that a threat be realistic in circumstances and intent and that the threatened action would be unlawful if executed. Even this was qualified, however. The paragraph of the Illinois law that referred expressly to threats "to commit any criminal offense" proved to be the one provision that the court invalidated as overbroad. The court did so on the ground that although the state might have valid reasons to penalize even petty offenses if actually committed, these reasons would not always justify punishing a threat to act in the forbidden manner, for instance to block a street, to carry a concealed weapon, or to engage in disorderly conduct. 280 F. Supp. at 964. Thus the Landry opinion concluded that the statute validly proscribed only "threats" of independently wrongful conduct, and then only if limited so as to exclude minor or relatively inconsequential wrongdoing. This conclusion implicitly rejects a broad state power to restrict threatening speech simply in order to prevent the immediate evil of the coercive effect, a protective aim to which the wrongfulness of the threatened conduct seems irrelevant.[20] It must be remembered that the Illinois statute did not require the element of selfish gain found in the extortion statutes discussed above. But the Landry court clearly was troubled by one application of the statute to threats of quite serious illegal action for material gains, the case of a threatened unlawful strike. It escaped its doubts only by once again evading the method of overbreadth analysis.[21] The court's caution is understandable, because *585 in relation to labor, civil rights, and other organizational activities the potential reach of laws against threats or other coercive expression raises constitutional issues that have resisted clear or cogent analysis under the federal first amendment. In one recent prosecution, Moore v. State, 519 S.W.2d 604 (Tenn. 1975), defendant was charged with threats amounting to extortion when he demanded that a food store contribute to his organization, the Black Panther Party, assertedly for charitable programs. When the store manager put off a decision, defendant was heard to say to a companion: "Well, I guess we'll have to close them up." Thereafter the store was picketed, with consequent loss of business. A Tennessee court rejected defendant's objection that the picketing was privileged under the first amendment on the grounds that defendant intended "to pressure the store into contributing money to his cause" and that the store should be free not to contribute, "secure in the knowledge that no retribution will be forthcoming under the guise of constitutional protection." 519 S.W.2d 606-07. To show the limits of picketing for an unlawful purpose, the court cited Hughes v. Superior Court, 339 U.S. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1950). This is doubtful authority, because in Hughes, as in its predecessor, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949), the picketing demanded unlawful action by the picketed enterprise, unlike the donations requested of the food store in Moore. On the other hand, the Supreme Court also has sustained a prohibition against picketing "to threaten, coerce, or restrain" a person who is not a party to a labor dispute. N.L.R.B. v. Retail Store Employees, 447 U.S. 607, 100 S. Ct. 2372, 65 L. Ed. 2d 377 (1980). Moore's conviction was sustained in subsequent federal habeas corpus proceedings. The district court denied relief because Moore was "not convicted for his picketing activities but for threatening to picket for the purpose of extorting a payment." Moore v. Newell, 401 F. Supp. 1018, 1021 (1975). The court thought it immaterial whether petitioner sought the payment to enrich himself or for charitable purposes.[22] The Court of Appeals affirmed, apparently on the theory that a constitutional privilege of picketing exists for publicizing "a dispute or grievance with a business," but that a merchant's refusal to contribute to a charitable cause was not such a grievance.[23]Moore v. Newell, 548 F.2d 671, 672 (6th Cir.1977). This implies either that a privilege not only to picket, but to threaten to do so, arises precisely from a demand for selfish material gain, for instance a demand for higher wages or contributions to a health or pension fund, or perhaps that the privilege is limited to such demands on behalf of employees or others in dealings with the enterprises as such. But there is no special right to "speak or write freely" on subjects limited to labor relations.[24] In Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971), the Supreme Court overturned an injunction against the distribution of leaflets accusing a real estate broker of "blockbusting" tactics, which the organization employed as a means to coerce the broker into signing an agreement to change his practices. Implicitly the demand on the broker coupled with the threat of disclosing his alleged practices *586 were considered privileged along with the actual distribution of the leaflets, for the Court wrote: 402 U.S. at 419, 91 S. Ct. at 1578. Similar issues have arisen in applying state laws against coercive action to organized boycotts in the context of race relations. Since this case was argued, the United States Supreme Court has reversed a civil judgment for damages awarded to retail merchants for loss of business resulting from a consumer boycott organized in support of a list of demands for actions by various community institutions. National Association for the Advancement of Colored People v. Claiborne Hardware Co., ___ U.S. ___, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982). The boycott was preceded by a demand on the merchants for support backed by the threat of a "selective buying campaign." The Mississippi Supreme Court rejected the defendants' constitutional claims on the grounds, first, that the demands and the boycott did not relate to a direct grievance against the merchants but demanded their support for political actions by the community, and second, that defendants violated a criminal law by threatening others with bodily harm to intimidate or coerce them to participate in the boycott. N.A.A.C.P. v. Claiborne Hardware Co., 393 So. 2d 1290 (Miss. 1981).[25] The United States Supreme Court held that damages must be limited to those attributable to violence. The verbal elements of the boycott did not lose their privileged character because the organizers "sought to persuade others to join the boycott through social pressure and the `threat' of social ostracism" such as publicizing names of nonparticipants at meetings and in a newspaper. "Speech does not lose its protected character ... simply because it may embarrass others or coerce them into action." ___ U.S. at ___, 102 S. Ct. at 3424. The Court continued by quoting the passage from Organization for a Better Austin v. Keefe set forth above, saying of that case: "In dissolving the prior restraint, the Court recognized that `offensive' and `coercive' speech was nevertheless protected by the First Amendment." ___ U.S. at ___, 102 S. Ct. at 3425. Our review of the foregoing cases is relevant, not because anything like civil rights boycotts or labor picketing is involved here, but because they have tested the courts' ability to explain the validity or invalidity of laws that forbid verbal demands coupled with verbal threats. It cannot be said that any single explanation has emerged from the decisions. To return to the variables we identified at the outset, the fact that the threatener's demand is for money or other selfish gain is a central element in robbery by threat, blackmail and extortion. But it alone is not conclusive, for peaceful informational picketing and by implication the threat to picket are free speech when designed to gain financial payments or other legally permissible benefits. *587 Nor does any other element alone seem conclusive. In the Supreme Court's picketing decisions, perhaps picketing as the particular form of communication is the distinguishing element; it is doubtful that the unlawfulness of the objective would equally permit the suppression of pamphlets or other verbal forms of stating the demand and the threat to stop work or patronage. Compare N.A.A.C.P. v. Claiborne Co., supra; Organization for a Better Austin v. Keefe, supra. But a demand that another engage in illegal acts can come close to solicitation to crime and be forbidden within analogous constitutional limits. See generally, Greenawalt, Speech and Crime, supra, 655-670, 689-690, 742-751, and compare Emerson, The System of Free Expression 401-412 (1970). The Illinois Intimidation Statute was saved in Landry v. Daley, supra, on the premise that it forbade only threats of unlawful action under circumstances creating a realistic fear of such action; but again, the court found the element of unlawfulness alone insufficient with respect to threats of relatively minor offenses, and it balked at extending this premise to threats of an unlawful strike. Its hesitancy may suggest a notion that labor relations constitute a special and potentially decisive element in the analysis of demands and threats. There is no apparent reason so to limit a privilege. The drafters of the American Law Institute's Model Penal Code believed that "some categories of threats ... should obviously be privileged."[26] Moreover, the Landry court's premise seems contrary to the interpretation given the Illinois statute by the state's own courts. See People v. Hubble, supra, n. 20. Whatever difference labor or race relations or other special universes of discourse may make in the federal case law, article I, section 8, extends freedom to speak, write, or print "on any subject whatever." In sum, our review of the cases that have tested laws against extortion, intimidation, or coercion under the first amendment yields no principled guidance on freedom of expression to state verbal demands coupled with verbal threats. A statute or other rule does not escape potential overbreadth solely because it deals with demands for property or benefits, or because it is limited to threats involving unlawful conduct, or because it is directed against the use of intimidating words or means of expression such as picketing. Each element narrows the potential infringement of free expression, but each element, standing alone, encompasses free expression under some circumstances. The state argues that ORS 163.275(1)(e), the specific provision under which the present charge is brought, can be saved if it is interpreted to forbid only threats to make defamatory disclosures if the threatener's demand is not met. The state points to statements before the Criminal Law Revision Commission to show that the commission was aware of the Illinois intimidation statute and apparently of Landry v. Daley, supra, and it argues that despite the absence in ORS 163.275 of the words "without lawful authority" upon which the Landry court sustained the statute, the Oregon law could and should be given an equally limited interpretation. Perhaps so; but the argument *588 misses the mark. The question is not whether the threatened disclosure in case of noncompliance sometimes would be privileged. As we have said, the statute is not concerned with the actual occurrence of the threatened consequences listed in ORS 163.275(1)(a) (i); several items in that list are not only legally privileged but legal duties. When the prohibition concerns the use of verbal threats of disclosure or other consequences in order to induce another to comply with a verbal demand, we do not share the Landry court's conviction that freedom of expression hinges on the legality of the threatened action.[27] The question therefore is whether this prohibition reaches instances of free speech so as to render the statute overbroad. To recapitulate, we believe that the constitutional right to speak, write, or print freely on any subject whatever guaranteed in article I, section 8, was not meant to immunize the use of words in some respects relevant to ORS 163.275. As we have said, one of these is the use of words in the course of what indisputably would have been a conventional crime when Oregon's Bill of Rights was adopted in 1859, or in the course of similar kinds of conventional crimes that lawmakers may from time to time enact.[28] This includes the use of words in the course of soliciting, attempting, carrying out, or concealing other crimes. Therefore article I, section 8 would not foreclose a statute, otherwise in valid form, that made it criminal to compel another to commit an offense by threats or other verbal means under circumstances in which the demand is meant to be followed and the compulsion is realistically plausible. In such a statute, the focus is on the actual or probable commission of the compelled offense, not on protecting the addressee from hearing the speaker's threats.[29] ORS 163.275, however, is not such a statute. It is not concerned with the performance of the compelled act, which the statute does not require to be unlawful. As we also have said, blackmail or analogous forms of extortion by threats are among the conventional crimes that survive article I, section 8, despite being committed by verbal means. The legislature, of course, may revise these crimes and extend their principles to contemporary circumstances or sensibilities. If it was unlawful to defraud people by crude face-to-face lies, for instance, free speech allows the legislature some leeway to extend the fraud principle to sophisticated lies communicated by contemporary means. Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle. See, e.g., State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980) (definition of "arms" within Or. Const. art. I, § 27); State ex rel Russell v. Jones, 293 Or. 312, 647 P.2d *589 904 (1982) (right to counsel); Sterling v. Cupp, 290 Or. 611, 625 P.2d 123 (1981) ("unnecessary rigor" under art. I, § 13). When extending an old crime to wider "subjects" of speech or writing, however, there is need for care that the extension does not leave its historical analogue behind and, perhaps inadvertently, reach instances of privileged expression. Blackmail and extortion were characterized by the use of threats for the objective of obtaining property from a victim in a private, bilateral transaction akin to robbery, in which the parties' relationship neither gives the threatener a legitimate basis for pressing his demand nor obliges the addressee to hear and consider it apart from the threat. Constitutional freedom of speech did not immunize the private communication of demands and threats in such a setting. That principle has survived. Legislatures may extend the principle beyond the extortion of property to other objects of extortion. The extortion of sexual conduct is an obvious example. See State v. Felton, supra, (582-583). That is the actual charge in the present case, in which defendants are accused of coercing the victim into sexual conduct by threatening to "expose a secret and publicize an asserted fact [not further described in the indictment] which would tend to subject [her] to hatred, contempt, and ridicule." No doubt this could be prohibited, if the issue before us were the validity of the charge rather than the validity of the statute under which it is brought. But as a statute broadens the potential objects of forbidden demands, the relationship between the parties becomes more important. There are few relationships in which a person is constitutionally privileged to insist, by private demands, coupled with private threats of otherwise unrelated sanctions, that another turn over property when he is under no legal duty to do so, and the legislature took pains to exempt threats of the kind of collective action in support of group demands upon a business that have troubled courts in the strike, boycott, and picketing cases. ORS 163.275(1)(f), supra. There may be more relationships, within and outside a family, in which it is an exercise of free speech to demand that a person refrain from turning over property, or refrain from particular sexual conduct, or face consequences of the kind listed in ORS 163.275.[30] The right of free expression is as important to many people in their personal and institutional relationships as it is in the narrower "civil liberties" related to politics, and nothing in article I, section 8, suggests that it is limited to the latter. The variety of arguably privileged expression proliferates when the statute is broadened to cover all demands "to engage in conduct from which [the addressee] has a legal right to abstain, or to abstain from engaging in conduct in which he has a legal right to engage." It is this extension that encompasses most of the hypothetical examples drawn from politics, journalism, family or academic life cited by defendants and the dissenters in the Court of Appeals to demonstrate the overbreadth of ORS 163.275. Moreover, apart from reaching such relationships, the statute makes no distinction whether the coercive demands and threats are addressed by one person to another in a private confrontation or correspondence or in a more or less public setting designed to inform and perhaps involve others in the issues posed by the demand and the potential sanction. Yet such a setting often will involve protected communication with this wider audience. Accordingly, we cannot escape the conclusion that ORS 163.275 as written reaches areas of constitutionally privileged expression and thus is invalid unless its coverage *590 is narrowed to exclude these areas. We also conclude that in the case of this statute the needed narrowing cannot be accomplished by judicial interpretation. The preceding paragraph has identified the sources of the statute's overbreadth in extending the principle of extortion to cover all demands to take or to refrain from nonobligatory action coupled with threats of adverse consequences in case of noncompliance, whether these demands and threats are stated privately or publicly and irrespective of the relationship of the parties themselves or with the public. The Model Penal Code undertook to narrow its version of "criminal coercion" by excluding situations in which the purpose of the threatened disclosure or official sanction is limited to compelling another to behave in ways reasonably related to the circumstances of the demand and the threat. See the affirmative defense in section 212.5, supra note 26. We do not mean to endorse that particular solution, which antedates much of the modern development of overbreadth analysis of statutes restricting speech. In any event, the Oregon Criminal Code did not follow the Model Penal Code with respect to privileged threats of disclosure but only created a narrower defense limited to threats of prosecution made to secure restitution.[31] We cannot substitute a wider set of exclusions for those knowingly chosen by the drafters of ORS 163.275, even assuming that such wider exclusions rather than narrower and more precise affirmative coverage are the chosen means to confine the statute within constitutional bounds. Nor can the statute be saved simply by adding or implying a limitation that it does not apply in any situation in which its application would restrict the accused's "right to speak, write, or print freely on any subject whatever" within the guarantee of article I, section 8. Such an implied limitation not only trades overbreadth for vagueness; it abandons scrutiny of the statute altogether for case-by-case adjudication, contrary to the command that no law restricting this right "shall be passed."[32] It is, therefore, in the first instance a legislative responsibility to narrow and clarify the coverage of a statute so as to eliminate most apparent applications to free speech or writing, leaving only marginal and unforeseeable instances of unconstitutional applications to judicial exclusion. The circuit court did not err in sustaining defendants' demurrer. The decision of the Court of Appeals to the contrary is reversed, and the case is remanded to the circuit court for entry of a judgment pursuant to ORS 135.660. PETERSON, Justice, concurring. I concur with the majority's analysis insofar as it applies to ORS 167.275(1)(e). As *591 will appear below, I am not convinced that ORS 167.275 is constitutionally defective in all its parts, and therefore write separately to set forth the bases for my conclusions. One reason for the problem in this case is the awkwardly written statute, ORS 163.275. Using the subpart under which the charge was brought for illustration, it appears that the statute has three elements: 1. The threat: A threat by the defendant to expose or publicize a secret tending to subject some person to contempt. 2. The demand: A demand by the defendant that the one threatened engage in conduct from which he or she has a legal right to abstain or the threat will be carried out. 3. The action: The one threatened is instilled with fear and engages in the demanded conduct. The statutory element involved in this case is a threat to expose a secret or publicize a fact, whether true or false, tending to subject the threatened person to hatred, contempt or ridicule, ORS 163.275(1)(e). Unlike the statute involved in Landry v. Daley, 280 F. Supp. 938 (N.D.Ill. 1968), the statute at bar condemns speech which is otherwise lawful. The majority opinion appears to invalidate the entire statute because its reach into the right of free expression is overbroad, so much so that "narrowing cannot be accomplished by judicial interpretation." I agree that the (1)(e) statutory incursions into protected speech are so substantial that there exists no satisfactory way of judicially severing constitutional applications of (1)(e) from unconstitutional applications. The alternative of creating constitutional boundaries on a case-by-case basis is not a realistic one, for "the contours of regulation would have to be hammered out case-by-case and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation."[1] Other subdivisions of ORS 167.275 may be immune from the overbreadth conclusions that fatally fetter subsection (1)(e). Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), suggests that other subsections of the statute may be valid, for the Supreme Court there upheld a statute which forbade "offensive, derisive or annoying word to any other person who is lawfully in any * * * public place." Although later federal decisions appear to restrict the Chaplinsky holding,[2] as recently as July 2, 1982, the Supreme Court stated: Other sections of ORS 167.275 may not be constitutionally infirm for overbreadth, or it may be possible for a court to adopt a construction of one or more of the other subsections which will save the statute.[3] The extent to which Article I, section 8, permits the imposition of criminal liability under other subsections of the statute is not before us. Therefore, though I concur that (1)(e) is invalid for the reasons set forth in the majority opinion, I do not agree that the other subsections are necessarily invalid. TANZER, J., joins in this opinion. [*] Denecke, C.J. retired June 30, 1982. [1] We follow the statutory use of the masculine pronoun to include the feminine. ORS 174.110. [2] A defendant may demur when an indictment is found by a grand jury in the wrong county, when it does not conform to statutory requirements, when the instrument charges multiple offenses, when the facts stated do not constitute an offense (the ground upon which the demurrer was allowed here), when the instrument shows justification, excuse, or other legal bar, or when it is not definite and certain. ORS 135.630. "Dismissal" is proper for former jeopardy. ORS 135.470. An indictment is properly "set aside" for procedural or formal defects listed in ORS 135.510. [3] The 1971 amendment was presented to the legislative committees by then Solicitor General Tanzer. The minutes of the Senate Criminal Law and Procedure Committee report: "Mr. Tanzer advised that HB 1003 was submitted to amend the demurrer subsection so as to refer to any order dismissing an indictment prior to trial and also to allow the state to appeal any order granting the defendants motion to judgment of acquittal. This would be after the state's case is presented. The latter, hoped-for amendment, was stricken by the House. The amendment modifying the demurrer clause was approved by the House. "The problem with the demurrer clause, Mr. Tanzer, continued, is that the only response to the indictment, other than a plea, which is provided for by statute is a demurrer. There is no such thing as a motion to dismiss in the statutes and the appeal statute, therefore, refers to a demurrer. However, the state cannot preclude the raising of constitutional issues and a motion to dismiss is the vehicle for doing this, whether the statute allows for such a motion or not. More and more often today indictments are not attacked by demurrer but by motions to dismiss. The state is precluded from appealing any ruling made on such an order. Mr. Tanzer cited as an example of the kinds of situations gotten into, State v. Sieckmann, 251 Or. 259, 445 P.2d 599 (1968)." [4] An accompanying footnote quoted from an opinion of the United States Supreme Court which suggests that such case-by-case definition of crimes also may fall short of due process under the 14th amendment: "[A] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves ... judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. .. ." Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S. Ct. 518, 520-21, 15 L. Ed. 2d 447 (1966). Strictly speaking, the prohibition against ex post facto laws concerns the time when a penal law takes effect rather than the institution that makes it. The rule that criminal laws require greater legislative responsibility and allow less delegation than civil or administrative laws may have only historic explanation, or it may reflect the fact that in criminal law the state both prescribes and initiates specifically penal sanctions, as distinct from civil recovery or regulatory licensing decision. Compare Megdal v. Oregon State Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980) (license revocation), Dickinson v. Davis, 277 Or. 665, 670-71, 561 P.2d 1019 (1977) (administrative fine). [5] Or.Const art. I, § 20: "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." See State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981). [6] The Supreme Court continued: "The degree of vagueness that the Constitution tolerates as well as the relative importance of fair notice and fair enforcement depend in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject-matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. And the Court has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, ___ U.S. ___, at ___, 102 S. Ct. 1186 at 1193, 71 L. Ed. 2d 362, at 371-2. [7] Lower court decisions invalidating such laws because they cover innocent uses, the Supreme Court wrote, "may reflect a belief that these measures are ineffective in stemming illegal drug use. This perceived defect, however, is not a defect of clarity. In the unlikely event that a state court construed this ordinance as prohibiting the sale of all pipes, of whatever description, then a seller of corncob pipes could not complain that the law is unduly vague. He could, of course, object that the law was not intended to cover such items." Village of Hoffman Estates v. Flipside, supra, ___ U.S. at ___, n. 9, 102 S. Ct. at 1193, n. 9, 71 L. Ed. 2d at 370-1, n. 9. [8] So far as 14th amendment due process requires fair notice to a defendant of what is forbidden, Village of Hoffman Estates, supra, explains that the defendant must show that he could not know that the (otherwise valid) terms of the law proscribed his conduct. When the law is attacked on its face in advance of potentially violative conduct, the Supreme Court stated: "[A court should] examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." (footnote omitted). ___ U.S. at ___, 102 S. Ct. at 1191, 71 L. Ed. 2d at 369. The court noted that "the complainant must prove that the enactment is vague `not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.'" quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688, 29 L. Ed. 2d 214 (1971). ___ U.S. at ___, n. 7, 102 S. Ct. at 1191, n. 7, 71 L. Ed. 2d at 369, n. 7. The analysis based on fair notice to defendants, of course, does not necessarily apply equally to the other "vagueness" objections based on legislative failure to make crucial policy choices in defining crimes and excessive transfer of those choices to prosecutors, courts, and jurors, to which we have referred above. [9] Cf. Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979). [10] In that case the court was unable to confine a definition of "disorderly conduct" by language or gestures, ORS 166.025(1)(c), within constitutional bounds consistent with the legislative purpose. In State v. Blair, supra, we similarly were unable to define and explain what would constitute communicating "in a manner likely to cause annoyance or alarm," which was made the crime of "harassment" by ORS 166.065(1)(c). There is an additional element bearing on the review of statutes for "overbreadth" under article I, section 8, as compared with some other guarantees such as article I, section 27, considered in State v. Blocker, supra, and State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980). Article I, section 8, provides: "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever...." As the quotation from State v. Spencer states, it is a prohibition expressly directed at lawmakers at the time of considering a proposed law and forbidding passage of any law that in terms restrains the "free expression of opinion" or restricts "the right to speak, write, or print freely on any subject whatever." It does not invite the enactment of such laws, leaving it to courts to protect freedom of expression in individual cases. See 289 Or. at 228, 614 P.2d 94. [11] Not, at least, without the support of legislative or other background showing that suppression of expression itself was the intended or expected object of the law; compare United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968) (prosecution for destroying a draft registration certificate burned in political protest). [12] See also Or.Const., art. I, § 26: "No law shall be passed restraining any of the inhabitants of the State from ... instructing their Representatives; nor from applying to the Legislature for redress of greviances (sic)." [13] For instance: "If you do not withdraw this research report (or essay, or script), I will disclose that you falsified the experiment (or plagiarized the essay or the plot)"; or "if you do not leave the ministry of this church, I will disclose the history of your past divorces." The role of demands backed by threats in labor and race relations is discussed below. [14] See Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (confining a prohibition of threats to kill the President within first amendment limits), and see generally, Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). Face-to-face threats of violence likely would lose first amendment protection under the "fighting words" doctrine first developed, for insults rather than threats, in Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940) and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). [15] The term "blackmail," originally rents paid in kind or in base coinage, is said also to refer to a tribute exacted by freebooting Scottish and English chieftains for protection. Perkins, Criminal Law 374-75 (2nd ed. 1969). [16] Common law extortion could be committed only by "corruptly" demanding and collecting an unauthorized payment under color of public office; it is a crime against the legitimate conduct of government, like its obverse, bribery, more than against the victim's property. Perkins, supra at 368, citing 4 Blackstone, Commentaries 141 (1769). Interestingly, robbery by threat was extended beyond threats of immediate bodily harm to include a threat to accuse another specifically of sodomy, i.e., one form of sexual misconduct, though one regarded far more gravely than that threatened to be disclosed in the present case. Perkins, supra at 372, citing Hickman's Case, 2 East P.C. 728 (1783). Various types of American statutes are described in LaFave & Scott, Criminal Law 705-707 (1972), Comment, Criminal Law A Study of Statutory Blackmail and Extortion in the Several States, 44 Mich.L.Rev. 461 (1945). [17] The court's overbreadth analysis, limited to the First Amendment, recited: "[Defendant's] standing to attack the facial validity of the statutes under the overbreadth doctrine rests upon his contention that these statutes impermissibly affect First Amendment rights.... It is not necessary for him to demonstrate that his own activity is constitutionally protected.... "Legislation may be overly broad if it is susceptible of application to conduct protected by the First Amendment.... Statutes which punish only the spoken word will withstand an overbreadth challenge only if they may be narrowly construed to delete application to protected speech." (Citations omitted). 384 So. 2d at 1262. [18] Even under an extortion statute, long before a claim of "overbreadth" was known, the South Dakota Supreme Court found a violation when a lawyer wrote an errant husband that he would have him arrested if he did not release some property to his wife, rejecting the lawyer's contention that he was performing a professional duty to his client rather than benefitting himself in part on the ground that the letter implied a wrongful offer to compromise an alleged criminal offense. In re Sherin, 27 S.D. 232, 130 N.W. 761 (1911). [19] State of Illinois unquestionably has a legitimate interest in protecting persons from coercion by threats, even though expression is involved.... [However:] "Legitimate political expression intended to secure changes in a society's legal, political, social, or economic structure frequently takes the form of expressions about future events or conditions. Such expression may be in the form of promises, predictions or warnings, or threats of lawful action. "While we doubt that threats of the character proscribed by the Illinois Intimidation statute are legitimate forms of expression, the point at which legitimate expression becomes coercive expression of unlawful intent is not easily determined, especially in the heat of public debate. The freedoms of expression, however, are extremely vulnerable to excessive restriction...." 280 F. Supp. at 961. We again note that unlike the Illinois law, ORS 163.275 does not in terms make it a crime to "communicate ... a threat" or any other "opinion" or "subject" of speech or writing, and to that extent escapes the initial bar to legislative enactment stated in State v. Spencer, supra. [20] In a subsequent decision, an Illinois appellate court held, contrary to the Landry court's assumption, that "the phrase `without lawful authority' upon which defendant relies in his analysis of the intimidation statute is not an element of that offense." People v. Hubble, 81 Ill. App.3d 560, 37 Ill.Dec. 189, 192, 401 N.E.2d 1282, 1285 (Ill. App.Ct. 1980). The court sustained the conviction of a defendant who threatened to bring criminal charges against his former wife unless she agreed not to testify in support of criminal charges that she had initiated against him. The Illinois court held that the defendant's privilege to carry out his threat was immaterial; it was the use of the threat to "exercise of an improper influence which is the gravamen of the offense." 37 Ill.Dec. at 192, 401 N.E.2d at 1285. The opinion does not refer to any constitutional issue or to the federal court's effort to save the intimidation statute from overbreadth in Landry v. Daley, supra. [21] "We recognize that the conclusion of validity may inhibit the making of threats which some persons may deem desirable, e.g., the threat of a teachers' strike which would be an unlawful strike under Illinois law. We do not determine that the sub-paragraph in question would even be applicable to such a threat. Nor do we seek to determine its constitutionality under any and all circumstances. We hold simply that given a legitimate state interest, statutory language understandable by persons of common intelligence and no impingement on protected activity, the provision is valid. Its possible unconstitutional application in a given factual situation we leave to that case when and if it ever arises." Landry v. Daley, 280 F. Supp. 938, 966 (1968). [22] The court cited United States v. Green, 350 U.S. 415, 76 S. Ct. 522, 100 L. Ed. 494 (1956) for the proposition that "the threat to picket or picketing itself cannot be used by labor officials to extort money in return for `labor peace.'" 401 F. Supp. at 1021. Green was a prosecution under the "Hobbs Act," 18 U.S.C. § 1951, which forbids obstructing commerce by "extortion" defined in the conventional way. It involved no issue of "overbreadth" or free speech. [23] The absence of direct authority for this distinction is suggested by the court's use of the negative explanation that it had found "no decision" supporting a right to picket for charitable contributions. [24] However, laws that distinguish between picketing at locations involved in labor disputes and other locations have been held to deny equal protection. Carey v. Brown, 447 U.S. 455, 100 S. Ct. 2286, 65 L. Ed. 2d 263 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). [25] On the first issue, the court followed its decision in Southern Christian Leader. Conf. Inc. v. A.G. Corp., 241 So. 2d 619 (Miss. 1970), in which it said that the "whole trouble" with a constitutional defense was "that these defendants had no complaint or grievance or even gripe" against the plaintiff's boycotted retail store. 241 So. 2d at 624. As to the statutory violation, the court relied on its decision in Shields v. State, 203 So. 2d 78 (Miss. 1967), which described the gist of the offense as "threatening with the intent or purpose to intimidate" by "words or acts calculated and intended to cause an ordinarily prudent and firm person to fear an injury to his person or property." 203 So. 2d at 81. If the reference to an "ordinarily prudent and firm person" implies that the circumstances must be such that the actual infliction of the threatened injury seems imminent, this corresponds to the reading held to save the Illinois intimidation statute in Landry v. Daley, supra. [26] The definition of "criminal coercion" in the Model Penal Code, § 212.5, would provide: "It is an affirmative defense to prosecution based on paragraphs (b), (c) or (d) that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure or proposed official action, as by desisting from further misbehavior, making good a wrong done, refraining from taking any action or responsibility for which the actor believes the other disqualified." Model Penal Code, § 212.5 (Proposed Official Draft May 1962) at 140-41. We note that in the Model Penal Code an "affirmative defense," when supported by evidence, must be negatived by proof beyond a reasonable doubt. See Model Penal Code § 1.13 commentary at 110 (Tent. Draft No. 4, 1955). [27] To make the prohibition of "coercion" depend on the unlawful character of the threatened act also would complicate the burden of proof in a prosecution under ORS 163.275; it might, for instance, require proof beyond a reasonable doubt that the threatened disclosure would be defamatory or that the other threatened acts would be unlawful under the hypothetical circumstances under which they might be carried out. This casts further doubt on reading the Landry court's view of unlawful intimidation into ORS 163.275 beyond subsection (1)(c), which expressly requires it. [28] We refer to "conventional" crimes so as not to imply that constitutional freedom of expression today does not extend to crimes known before the Bill of Rights, such as seditious or criminal libel, that restrained freedom of public disclosure and debate. [29] As to providing a remedy for harm done by the impact of words as such, article I, section 8 does not immunize a speaker or writer against civil liability to another person "by due course of law for injury done him in his person, property, or reputation," as provided in article I, section 10, when the injurious words qualify as an "abuse" of freedom of expression for which one can be held "responsible" within the meaning of section 8. See Hall v. May Dept. Stores Co., 292 Or. 131, 637 P.2d 126 (1981) (tortious infliction of emotional distress by verbal intimidation and threats), Wheeler v. Green, supra, n. 9 (defamation), Turman v. Central Billing Bureau, Inc., 279 Or. 443, 568 P.2d 1382 (1977) (abusive debt collection methods). [30] Even where such demands are privileged, there may be few settings where they may be coupled with threats to injure a person or property, ORS 163.275(1)(a) and (b), although, as noted above, these subsections are not confined to threats of wrongful injuries, or where they may be coupled with threats of conduct constituting a crime, ORS 163.275(c). Possibly privileged expression under those subsections could be protected by recognizing exceptions to their coverage rather than by invalidation for overbreadth, but that question is not now presented. [31] ORS 163.285: "In any prosecution for coercion committed by instilling in the victim a fear that he or another person would be charged with a crime, it is a defense that the defendant reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of the threatened charge." [32] As Professor Tribe has written with reference to the exception of "fighting words" from free speech: "To construe a statute by reference to such a fact-oriented standard is to inject an excessive element of vagueness into the law because the standard itself takes shape only as courts proceed on a retrospective, case-by-case basis ... "[The interplay between overbreadth and vagueness] is most sharply focused in a hypothetical statute: `It shall be a crime to say anything in public unless the speech is protected by the first and fourteenth amendments.' This statute is guaranteed not to be overbroad since, by its terms, it literally forbids nothing that the Constitution protects .... The problem with that solution is that it simply exchanges overbreadth for vagueness." (footnote omitted). Tribe, American Constitutional Law 716 (1978). Tribe therefore concludes that the implied exclusion of constitutionally protected behavior in case-by-case decisions may save the validity of a statute when such instances are rare in proportion to the identifiable legitimate applications of a law not directed at speech, for instance prohibitions of trespass or breach of the peace, but that it cannot save statutes that literally proscribe wide areas of privileged as well as unprivileged expression, leaving the actor to speculate whether his words escape the proscription. Id. at 714-716. [1] Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965). Compare Younger v. Harris, 401 U.S. 37, 52, 91 S. Ct. 746, 754, 27 L. Ed. 2d 669 (1971). [2] See Papish v. University of Missouri Curators, 410 U.S. 667, 93 S. Ct. 1197, 35 L. Ed. 2d 618 (1973), Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972). [3] See Tribe, American Constitutional Law 710-716 (1978), and cases cited therein.

3ee861fa71f035767260ed69923bf94747fee50673f7869d1ec90529ac6b5645

1982-08-03T00:00:00Z

b3eb7dab-10d9-4f98-bc53-1c67ebf2533a

Matter of Marriage of Engle

293 Or. 207, 646 P.2d 20

oregon

Oregon Supreme Court

646 P.2d 20 (1982) 293 Or. 207 In the matter of the Marriage of Fred H. ENGLE, Petitioner/Cross-Respondent On Review, and Virginia M. Engle, Respondent/Cross-Petitioner On Review. No. D79-0274; CA 18436; SC 27920, 27932. Supreme Court of Oregon, In Banc.[*] Argued and Submitted November 3, 1981. Decided June 9, 1982. Rehearing Denied July 13, 1982. J.W. Walton, Corvallis, argued the cause for petitioner/cross-respondent on review. With him on the petition and briefs was Ringo, Walton, Eves & Gardner, P.C., Corvallis. Thomas Garrison, Roseburg, argued the cause for respondent/cross-petitioner on review. With him on the petition and the brief was Garrison & Garrison, Roseburg. PETERSON, Justice. A husband and wife, after over 25 years of marriage, are divorcing. The value of their property is nearly two million dollars. The issues solely relate to the division of the property, and tax consequences thereof. *21 The case involves consideration of the holding of United States v. Davis, 370 U.S. 65, 82 S. Ct. 1190, 8 L. Ed. 2d 335 (1962), and amendments to ORS 107.105(1)(e), amendments which were enacted in response to the decision of the Court of Appeals in this case, and which are now applicable to this case. We granted review to consider whether a court-ordered transfer to the wife of the husband's separate property, property acquired after the marriage, was a partitioning of jointly held property. Davis held that the transfer of separately owned appreciated property from one spouse to the other spouse pursuant to a divorce decree was a "sale or other disposition" of property under sections 61(a), 1001 and 1002 of the Internal Revenue Code of 1954. As a consequence, the transferring spouse was required to pay taxes on the capital gain realized at the time of transfer. The court reasoned that under the law of the domicile of the husband and wife the wife had "no interest passive or active over the management or disposition of her husband's personal property," and that the transaction did not "remotely reach the dignity of co-ownership" or "equate * * * with a division of property by co-owners." 370 U.S. at 70-71, 82 S. Ct. at 1193-92. Recognizing that the "view may permit different tax treatment among the several states * * [because] of substantive differences between community property and commonlaw systems," the court tersely observed that this was one of "the facts of life." 370 U.S. at 71, 82 S. Ct. at 1193. Davis spawned a generation of litigation in both state and federal courts[1] and a substantial volume of commentary.[2] In dividing the parties' real and personal property, the trial court awarded wife $450,000 in corporate stock which, though acquired after the marriage, was in the husband's sole name. Husband appealed, asserting that the property division should be revised because if the forced transfer were held to be a taxable event under Davis, he would be subject to an additional tax liability of approximately $142,000.[3] The Court of Appeals, 52 Or. App. 561, 629 P.2d 397, held that the wife had little interest in the corporate stock, that she had no power to transfer the property by will or otherwise, and that "[a] transfer of separately owned, appreciated property pursuant to a decree of dissolution in Oregon most likely will result in taxable gain to the transferor." 52 Or. App. at 576, 629 P.2d 397. The Court of Appeals therefore remanded the case to the trial court "so that the judgment awarded wife may be calculated with due consideration for the tax consequences to husband." 52 Or. App. at 577, 629 P.2d 397. The Court of Appeals handed down its opinion on May 26, 1981. We granted review on August 25, 1981. 291 Or. 504, 634 P.2d 1344. In the interim, the legislature passed and the governor signed 1981 Oregon Laws chapter 775, which, as will appear below, amends ORS 107.105 in a way that directly affects this case. In 1971, Oregon adopted a no-fault dissolution law, and the property division statute was changed to state: The statute was amended in 1977 by the addition of two sentences. Or. Laws 1977 ch. 847, § 2. When this case was tried and when it was decided in the Court of Appeals, ORS 107.105(1)(e) read as follows: As stated above, ORS 107.105(1)(e) was amended in response to the Court of Appeals opinion.[4] As amended in 1981, it provides (bracketed material was deleted; new provisions are underlined): Prior to the 1981 amendment, ORS 107.105(2) provided that "[i]n determining * * * the proper division of property * * * the court may consider evidence of the tax consequences on the parties of its proposed decree." (Emphasis added.) The 1981 amendments to ORS 107.105 did not change ORS 107.105(2), but added the concluding sentence of ORS 107.105(1)(e) that "[i]n arriving at a just and proper division of property, the court shall consider reasonable costs of sale of assets, taxes and any other costs reasonably anticipated by the parties." (Emphasis added.) The 1981 amendment appears to require that courts, when appropriate, consider the tax consequences of property divisions.[5] Both the trial court and the Court of Appeals did so, as we now proceed to do. Under Davis, whether the court-ordered transfer is to be viewed as a nontaxable division of property between two co-owners is determined by Oregon law. Whatever the law of Oregon was prior to the 1981 amendments to ORS 107.105(1)(e), this court must measure the trial court decree against the amended ORS 107.105(1)(e). The amended statute provides that the transfer "shall be considered a partitioning of jointly owned property" if the property is a "marital asset" (as that term is used in ORS 107.105(1)(e)). In this case the tax effect turns on whether the husband's corporate stock, which was acquired after the marriage and which has always been held in his name, is a "marital asset" under ORS 107.105(1)(e). Although the answer is not clearly apparent from the face of the statute, the legislative history suggests that such property is a marital asset. The term "marital assets" is not defined in chapter 107 or elsewhere. It appears in the second sentence of ORS 107.105(1)(e) in connection with the requirement that the court consider "the contribution of a spouse as a homemaker." The legislative history concerning the precise meaning of the term "marital assets" is not as clear as it might be, particularly as it concerns property received by gift or inheritance, but the meaning is clear insofar as the issues in this case are concerned. As stated above, ORS 107.105(1)(e) was amended in 1977, HB 2471, Or. Laws 1977, ch. 847, § 2. The amendments resulted, at least in part, from a resolution of the Oregon Women's Political Caucus Convention recommending that the role of the homemaker be recognized as an economically valuable contribution to the acquisition of assets during marriage. One intent underlying the 1977 amendments is the recognition that although money for the acquisition of property during the marriage often results from the labors of the employed spouse, the efforts of the nonwage-earning homemaker are also an important contribution toward the acquisition of property during the marriage. The end result of the 1977 amendments was the addition of two sentences following the first sentence of ORS 107.105(1)(e). The first of the two sentences referred to required the court to "view the contribution of a spouse as a homemaker in the contribution of marital assets." The second added sentence provided for a rebuttable presumption "that both spouses have *24 contributed equally to the acquisition of property during their marriage." The first sentence of the amendment uses the phrase "the contribution of marital assets" and the second sentence of the amendment speaks of "the acquisition of property during their marriage." Although there may be some question whether property received during the marriage by a spouse by way of gift or inheritance is intended to be included within either phrase (a question which we need not and do not decide in this case),[6] there is no doubt that both phrases intended to include most other property acquired by one or both spouses during the marriage. The amendment recognized the fact that nonearning spouses who maintain the home, do the cooking and cleaning and raise the children, also contribute to the acquisition of property in a tangible, substantial way. The result was the creation of the rebuttable presumption of an equal contribution. Thus, when property is acquired with monies earned by a working spouse, whether title is taken in the husband's name, the wife's name, or in both names, the acquisition of the property would be treated, at least presumptively, as having resulted from the equal efforts of the spouses. As respects property so acquired, the legislative history indicates that the meaning of the term "marital assets," contained in the second sentence of ORS 107.105(1)(e), and the meaning of the term "property," contained in the third sentence, are identical. For tax or other reasons, marital partners may choose to acquire property and take title in the name of either or both, as joint tenants, tenants in common, tenants by the entirety, with or without rights of survivorship, or otherwise. The "homemaker contribution" sentence of ORS 107.105(1)(e) was intended to recognize the participation of the nonworking homemaker spouse, whose efforts contribute to the acquisition of property in numerous tangible and intangible ways, and to minimize the effect of the state of title of an asset acquired after marriage, so far as the division of property is concerned. The term "marital assets," as used in the second sentence of ORS 107.105(1)(e), was intended to include property such as the corporate stock involved in this case, where the stock was acquired during the marriage other than by gift or inheritance or other than in exchange for property which was received by gift or inheritance.[7] Our role in this case is an unusual one. We are not sitting as a tax court. The ultimate federal tax consequences of the court-ordered decree in this case would be determinable in a federal tribunal. But *25 federal courts, under Davis, "must * * * look to the state law controlling the disposition of the property to determine the exact nature of that disposition for [federal] tax characteristic purposes." Collins v. C.I.R., 388 F.2d 353, 355 (10th Cir.1968). Pursuant to ORS 107.105(1)(e) and 107.105(2), we consider evidence of the probable federal tax consequences of the decree. We first examine the four Collins cases (referred to herein as Collins I, II, III and IV) to ascertain the probable federal tax consequences of the trial court decree. In Collins I (Collins v. C.I.R., 388 F.2d 353 (10th Cir.1968)), an Oklahoma husband and wife entered into a divorce property settlement agreement pursuant to which the husband transferred his separately-owned corporate stock to the wife. At the time of the transfer, the value of the stock was greater than its cost. Husband reported no gain resulting from the stock transfer. The Tax Court of the United States held that the transfer of the stock was, for federal income tax purposes, a disposition of property and a taxable transaction, 26 U.S.C. §§ 1001(c), 1002,[8] and a deficiency was assessed against the husband. The husband appealed, claiming that under 12 O.S. 1961, § 1278,[9] the transfer of the stock was a division of jointly owned property and therefore no tax was due. The Court of Appeals affirmed the Tax Court, holding that because the traditional elements of co-ownership were lacking the wife had no rights to transfer, control or bequeath the husband's stock capital gain was realized when the transfer was made. 388 F.2d at 355-356. Collins I was decided in January, 1968. In October, 1968, the Supreme Court of Oklahoma decided Collins II (Collins v. Oklahoma Tax Commission, 446 P.2d 290 (Okl. 1968)), which involved virtually the same question, albeit under Oklahoma state tax law. The Oklahoma Supreme Court held that the wife's interest in the corporate stock under O.S. 1961, § 1278, was "a species of common ownership." Accordingly, the court held that the transfer resulted in no taxable gain to the husband. *26 Collins III. The husband, after losing in the Tenth Circuit in Collins I, filed a petition for a writ of certiorari in the Supreme Court. After the Supreme Court was advised of the Oklahoma Supreme Court decision in Collins II, it summarily vacated the judgment of the Tenth Circuit and remanded "for further consideration in light of the opinion of the Supreme Court of Oklahoma in Collins v. Oklahoma Tax Comm'n, 446 P.2d 290." Collins v. Commissioner, 393 U.S. 215, 89 S. Ct. 388, 21 L. Ed. 2d 355 (1968). On remand, in Collins IV, Collins v. C.I.R., 412 F.2d 211 (10th Cir.1969), the Court of Appeals held that "[h]aving the benefit of an interpretation of state law on this very point, we must conclude that the stock transfer operated merely to finalize the extent of the wife's vested interest in property she and her husband held under `a species of common ownership.'" 412 F.2d at 212. The opinion concluded: The legislative history of ORS 107.105(1)(e) reflects legislative awareness of the Collins cases and similar cases from other jurisdictions, and a desire to achieve the same result. The words used in the amending language "a species of co-ownership" is virtually identical to the language in the Collins II and Collins IV opinions. Our decision, based upon the evidence in this case, the applicable federal statutes, the four Collins cases discussed above, other caselaw discussed in the Court of Appeals opinion, see 52 Or. App. at 568-571, 629 P.2d 397, and the 1981 amendments to ORS 107.105(1)(e) is that whatever the nature of the spouse's interest in a separately held "marital asset" prior to the filing of a petition for dissolution, the statute compels this conclusion: The statute is clear and its mandate binds this court. We must hold that upon the filing of the complaint, the interest of the parties is as set forth in the statute there exists "a species of co-ownership."[10] The precise nature of the "species of co-ownership" is not defined in the statute. Whatever its extent, we believe that the co-ownership interests created by the statute are such that an appropriate federal tax tribunal would hold that the court-ordered disposition, for federal tax purposes, is in the nature of a nontaxable division of property jointly acquired during the marriage, and that the transferring spouse would not be liable for the payment of taxable gain realized at the time of transfer.[11] It is apparent that the Court of Appeals remanded the case because of its conclusion that the trial court decree would result in taxable gain to the husband. Because of *27 the later legislation and the decision of this court that the corporate stock is a "marital asset," that reason for remand no longer exists. The property division of the trial court, in light of the 1981 amendments to ORS 107.105(1)(e) and the holding of this court, impresses us as being fair. In a long term marriage in which the parties' properties were acquired during the marriage, the parties should separate on as equal a basis as possible. See Grove and Grove, 280 Or. 341, 349, 571 P.2d 477 (1977). Here, the marriage was long term, and although the husband received the "long half" of the parties' assets, much of the property had been the husband's prior to the marriage, and therefore the division is not unfair. The trial judge recognized the difficulty of obtaining a complete separation of assets. Although a property division achieving a complete disentanglement of the parties' affairs is preferred, Haguewood and Haguewood, 292 Or. 197, 207, 638 P.2d 1135 (1981), see also Slauson and Slauson, 29 Or. App. 177, 183-184, 562 P.2d 604 (1977), because of the unique facts of this case, we believe that the trial court did about as well as can be done to divide the parties' assets. Unfortunately, complete disentanglement was not readily possible. We therefore reverse the Court of Appeals and reinstate the decree of the trial court. TANZER, J., filed a dissenting opinion in which CAMPBELL, J., joins. TANZER, Justice, dissenting. I dissent. The 1981 amendments to ORS 107.105(1)(e) appear to be a legislative attempt to secure the tax consequences of community property without enacting the substance of community property. All that is enacted are labels intended to sound as if they describe interests, e.g., "shall be considered a species of co-ownership." As the majority recognizes, we are not an authoritative court on issues of federal tax laws. I predict that the United States Supreme Court, if presented with this issue, would look through the statutory labels to the actual ownership interests and conclude that a transfer of separately owned, appreciated property in Oregon is a taxable event despite the vague, indefinite substantive language of the 1981 amendments. In support of this conclusion, I rely upon the excellent opinion by Judge Young for the Court of Appeals. CAMPBELL, J., joins in this dissent. [*] Tongue, J., retired February 7, 1982. [1] Some of the cases are cited and discussed in the Court of Appeals opinion, 52 Or. App. at 568-571, 629 P.2d 397. Shepard's Supreme Court Citations lists scores of cases involving the Davis problem. [2] See Note, 53 Or.L.Rev. 544-556 (1974), for a partial list of law review articles discussing Davis and related cases. [3] The opinion of the Court of Appeals contains a detailed summary of the property divided. 52 Or. App. at 564-565, 629 P.2d 397. We note, in passing, that there is an unspoken echo to the husband's complaints that the Davis rule would subject him to an immediate tax obligation of $156,000, an echo which might legitimately issue from the wife's lips. If she takes the stock at the husband's basis, will the capital gains tax liability be imposed upon her when the stock is sold? What consideration should be given to her unspoken pejoration? This question has not been raised and need not be discussed further. [4] Legislator Margaret Hendriksen, in a meeting of the House Judiciary Committee, referred to the Court of Appeals decision as one having "very drastic tax consequences * * * on property divisions which had capital gain * * *." Accompanying the proposed amendment was a memorandum which read as follows: "The proposed amendment to ORS 107.105(1)(e) is intended to clarify the effect of the prior amendment to that provision enacted by the 1977 Oregon Legislature. It was widely believed at that time that such amendment provided each spouse with rights in the marital assets rising to the dignity of co-ownership, which would then make a transfer of such assets pursuant to a dissolution of marriage not a taxable transfer under the doctrine set forth in U.S. v. Davis, 370 U.S. 65, 82 S. Ct. 1190, 8 L. Ed. 2d 335 (1962), whether such assets were jointly or separately held. "However, the Oregon Court of Appeals, in Engle v. Engle, Case No. CA 18436, has recently held that, despite ORS 107.105(1)(e), the Davis doctrine is applicable in Oregon, which means that a transfer by one spouse of his or her separately-owned property to the other spouse, or in certain cases even an unequal division of jointly-owned property, in consideration of a relinquishment of the other spouse's marital rights, is a taxable transfer. "The implication of this decision, if followed, is that Oregon residents who make transfers of property pursuant to a dissolution of marriage may incur a substantial capital gains tax on such transfer, yet receive no cash with which to pay the tax. This additional cash drain, at a time when the biggest financial problem usually faced by the parties is a lack of cash or other liquid assets, is an unnecessary and unwarranted burden on Oregon residents, particularly when the residents of community property states and certain common law states, such as Colorado and Oklahoma, have been held to be free from such tax. "Nor is the burden of this tax limited to the party making the transfer of property, for under ORS 107.105(1)(e), and the Engle decision itself, a court is to take the tax effect of such a transfer into account in making its division of property pursuant to a decree of dissolution of marriage. "It is important to note that the enactment of this proposed revision will not provide an exemption from tax so much as a deferral. The potential taxable gain will remain in the property, and the tax will be payable when it is sold or otherwise disposed of in a taxable transaction. The purpose of this legislation is simply to avoid imposing the tax at the time the property is transferred in a property settlement pursuant to a dissolution of marriage. "Finally, the reason that it is proposed that this legislation be retroactive to the effective date of Oregon Laws 1979, Ch. 847, is to reflect the fact that this is not intended to change prior law, but merely clarify what appeared to be the intent of the legislature at that time, and reverse the Oregon Court of Appeals' decision in Engle v. Engle." [5] We assume that the legislature intended that the consideration of tax consequences be made upon request, and where appropriate, after presentation of relevant evidence. [6] Pierson and Pierson, affirmed by the Court of Appeals without opinion on January 6, 1982, 55 Or. App. 534, 643 P.2d 422, and argued May 4, 1982, in this court, currently under advisement, involves questions relating to the division of property inherited by a spouse during the marriage. Jenks and Jenks, 55 Or. App. 824, 640 P.2d 1032 (1982), review allowed, 293 Or. 146 (May 11, 1982), is set for hearing on June 7, 1982. Jenks involves division of property given to a spouse during the marriage. [7] Compare Section 307(b) and (c) of the Uniform Marriage and Divorce Act, as originally promulgated. It provided: "(b) For purposes of this Act only, `marital property' means all property acquired by either spouse subsequent to the marriage except: "(1) property acquired by gift, bequest, devise, or descent; "(2) property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent; "(3) property acquired by a spouse after a decree of legal separation; "(4) property excluded by valid agreement of the parties; and "(5) the increase in value of property acquired prior to the marriage. "(c) All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (b)." The second sentence of ORS 107.105(1)(e), which first appeared in 1977, is drawn from section 307 of the Uniform Marriage and Divorce Act. [8] Internal Revenue Code of 1954, §§ 1001, 1002: Section 1001(c) states: "In the case of a sale or exchange of property, the extent to which the gain or loss determined under this section shall be recognized for purposes of this subtitle shall be determined under section 1002." Section 1002 states: "Except as otherwise provided in this subtitle, on the sale or exchange of property the entire amount of the gain or loss, determined under section 1001, shall be recognized." Section 1002 has been repealed; 26 U.S.C. § 1001(c) now provides: "(c) Recognition of gain or loss. Except as otherwise provided in this subtitle, the entire amount of the gain or loss, determined under this section, on the sale or exchange of property shall be recognized." [9] The pertinent part is as follows: "As to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof." [10] The Court of Appeals, in its opinion (52 Or. App. at 573-576, 629 P.2d 397) carefully analyzed the nature of the parties' property rights in such property prior to enactment of the amendment and concluded that the nonowner spouse's claim to the other spouse's separately-held property was "* * * in the nature of a personal claim," an "equitable right to share in the marital estate." The court therefore concluded that "[a] transfer of separately owned, appreciated property pursuant to a decree of dissolution in Oregon most likely will result in taxable gain to the transferor." 52 Or. App. at 576, 629 P.2d 397. In light of the amendment, that holding no longer obtains. [11] We express no opinion as to the nature of the spouse's property interest in separately held property prior to the filing of a petition for dissolution, or if the petition does not terminate in a decree of dissolution, or as to the necessity that the "nonowner" spouse join in the transfer of title of such property after a petition for dissolution is filed.

4995c1106f0cfeeec52f9df9941bcfcb8e7aad743e85008c707d697a68e4644b

1982-06-09T00:00:00Z

374eb7be-65b7-4c5a-9154-857680a0c195

Ross v. Springfield School Dist. No. 19

294 Or. 357, 657 P.2d 188

oregon

Oregon Supreme Court

657 P.2d 188 (1982) 294 Or. 357 Frank W. ROSS, Petitioner On Review, v. SPRINGFIELD SCHOOL DISTRICT NO. 19, Respondent On Review. CA 19038; SC 28590. Supreme Court of Oregon, In Banc. Argued and Submitted July 15, 1982. Decided December 30, 1982. *189 Robert D. Durham, Eugene, argued the cause for petitioner on review. With him on the brief were Jennifer Friesen and Kulongoski, Heid, Durham & Drummonds, Eugene. John C. Volmert, Springfield, argued the cause for respondent on review. With him on the brief were Merwin C. Logan and Wurtz, Logan & Logan, Springfield. Oregon School Boards Ass'n filed a brief amicus curiae. ROBERTS, Justice. The Board of the Springfield School District dismissed petitioner, a permanent teacher of 19 years' employment with the district, on grounds of inefficiency, immorality and gross unfitness. Petitioner appealed to the Fair Dismissal Appeals Board (FDAB) by means of the procedure established in ORS 342.905. After a hearing the FDAB found the facts relied upon by the school board in its dismissal to be true and that such facts supported the statutory grounds of immorality and gross unfitness. The FDAB dismissed the charge of inefficiency finding that the evidence to support the charge was "less than a scintilla." The FDAB reviewed the school board's dismissal on the other two grounds for unreasonableness or arbitrariness and, finding none, affirmed the dismissal. The Court of Appeals upheld the FDAB decision. 56 Or. App. 197, 641 P.2d 600 (1982). It reasoned that under the dismissal statute the FDAB review function was limited. If the facts relied upon by the school board were true, the FDAB could reverse the school board decision only if the board acted unreasonably, arbitrarily or imposed a sanction which was clearly excessive. ORS 342.905(5). We review the decision of the FDAB pursuant to ORS 183.482(8).[1] This appeal presents for our consideration the two interrelated issues of the authority delegated by the legislature to local school boards and the FDAB to interpret and apply the statutory grounds for dismissal of a permanent teacher set forth in ORS 342.865,[2] and the proper interpretation to be given these terms. *190 We begin with an overview of the Fair Dismissal Statutes. ORS 342.865-342.915 provide the method by which a permanent teacher, as defined in ORS 342.815(5),[3] may be dismissed. A recommendation for dismissal begins with the district superintendent. The statute specifies content and timeliness requirements the recommendation must meet in order to provide adequate notice to the teacher, the school board and the FDAB. The school board may then act on the recommendation. If it chooses to approve dismissal, the dismissal takes effect on the date of school board action or at a later date set by the board. Notice of the board's decision must be provided the teacher. Upon dismissal the teacher may appeal to the FDAB. In the event of appeal a three person panel of the FDAB holds a contested case hearing. The teacher is entitled to present any evidence relevant to the truth of the charges and the adequacy of the facts justifying the dismissal. Upon completion of the hearing the FDAB prepares a report of its findings and order which includes the panel's determination of the accuracy of the facts relied upon by the school board, incorporation of additional facts developed at the hearing, consideration of school board policies and standards of performance and, where the panel seeks to reverse the dismissal, specific reasons supporting its determination that the school board's action was arbitrary, unreasonable or a clearly excessive remedy. Either the school board or the teacher may seek judicial review of the FDAB decision. The statutes under which the school boards and the FDAB operate define the roles of the agencies. ORS 342.895(1) provides: "Authority to dismiss a permanent teacher is vested in the district school board subject to the provisions of the fair dismissal procedures of ORS 342.805 to 342.955 and only after recommendation of the dismissal is given to the district school board by the superintendent." The procedure to which the school board's authority is subject is the FDAB appeal process. The authority of the FDAB on appeal is set forth in ORS 342.905(5). That statute in relevant part provides: No hearing is required at the school board level. The contested case hearing conducted by the FDAB presents a dismissed teacher with the first opportunity to rebut the facts and charges brought by the district superintendent and approved by the school board. One of the FDAB's "review" functions is that of primary fact-finder. If the FDAB finds the allegations untrue or unsubstantiated, *191 the teacher must be reinstated. ORS 342.905(6)(a).[4] The issue presented by this case is the scope of the FDAB review function in the event the panel finds the facts true and substantiated. Petitioner contends that in this regard the statute lodges with the FDAB responsibility to interpret and apply the statutory grounds for dismissal set forth in ORS 342.865(1). Respondent school district asserts that such power was delegated to local school boards, subject to review by the FDAB only for factual accuracy and unreasonable, arbitrary, or excessive school board action. Respondents rely on the 1979 amendment to ORS 342.905(5), in brackets, supra. They read the "unreasonable, arbitrary or clearly an excessive remedy" language as a limitation on FDAB power both to reverse a dismissal sanction and to determine whether petitioner's conduct constitutes the grounds cited. Under this analysis school boards, not the FDAB, are empowered to apply the statutory terms to particular facts and the FDAB cannot reach a contrary interpretation of the standards without first finding the school board interpretation arbitrary, unreasonable or excessive. We do not find the amendment so all encompassing. Both before and after the amendment the FDAB remains the agency responsible for interpreting the statute. The unchanged statutory mandate that the FDAB consider whether the "facts * * * are adequate to justify the statutory grounds cited" compels this conclusion.[5] The amendment serves to clarify that while the FDAB interprets the statute, this interpretive authority does not permit the FDAB to assess the propriety of the sanction imposed by the school board beyond determining if it is arbitrary, unreasonable or excessive. Where the FDAB finds both that the facts surrounding the teacher's conduct are true and substantiated, and that the facts adequately justify the statutory grounds cited, the school board decision on the dismissal sanction, unless arbitrary, unreasonable or excessive, must stand. We find little support in the history of the legislation for a contrary interpretation. It is apparent that the decision in Lincoln County School District v. Mayer, 39 Or. App. 99, 591 P.2d 755 rev. den. 287 Or. 215 (1979), relied on by the Court of Appeals in this case, provided the impetus during the 1979 legislative session for a reevaluation of the role of the FDAB relative to the school board in dismissal appeals. Mayer reinstated the Lincoln County school board's decision to dismiss a permanent teacher on the grounds of inefficiency, insubordination, neglect of duty and inadequate performance. The FDAB had reversed the dismissal. Though finding the facts charged to be true and indicating that the facts justified the grounds for dismissal the FDAB disagreed with the school board that the teacher should be dismissed. Mayer interpreted the Fair Dismissal statutes to mean that the FDAB is empowered to conduct a "de novo" review of the facts but, so long as the facts justify the grounds cited for *192 dismissal, that agency may engage in only deferential review of the school board's judgment concerning the dismissal sanction. "[I]t is not for FDAB to determine whether it would dismiss the teacher, but whether there is some evidence to justify the `grounds cited as reasons,' not the dismissal itself." 39 Or. App. at 106, 591 P.2d 755. There can be no question that the legislators were apprised of the Mayer decision. Many of the committee debates centered upon its impact on the review function of the FDAB. Hearings on Senate Bill 446 before the Senate Committee on Education, May 15, 22, June 4, 12, 1979; and before the House Committee on Education June 23, 27, 28, 1979. We do not read the legislative history or the amendment that resulted as other than a codification of the Mayer decision. We agree with the observation of the Court of Appeals that with regard to the sanction "the amended statute makes clearer than did the statute in effect at the time of Mayer that the FDAB may not substitute its judgment for that of the school board. * * *" 56 Or. App. at 203, 641 P.2d 600. Nonetheless, the FDAB's duty independently to interpret the statutory grounds remains unchanged. On review under ORS 342.905(5) the FDAB undertakes three inquiries: 1) whether the facts alleged are true and substantiated, 2) whether the facts are adequate to justify the statutory grounds cited, and 3) whether the sanction was arbitrary, unreasonable, or excessive. In this case the material facts are not in dispute. Petitioner, a librarian at elementary schools in the Springfield school district, was present at the Adult World Bookstore in Eugene in January, 1979, during an undercover investigation of the book store by the Eugene police department. The book store sold sexually explicit material and displayed movies in an arcade. In an attempt to enjoin the book store as a nuisance, police engaged in surveillance activities and recorded the activities of customers, including petitioner, while at the arcade. Police observations were incorporated into a complaint and affidavit subsequently filed in Lane County against the book store. Petitioner was subpoened but never testified for the prosecution in the injunction case. The FDAB found that petitioner's conduct at the book store became known in the communities where he taught. Petitioner was charged with no crime. On March 27, 1979, the Springfield district superintendent filed a complaint with the Teacher Standards and Practices Commission seeking revocation of petitioner's teaching certificate for gross unfitness "based upon proceedings pending in Lane County Circuit Court." The Commission conducted a preliminary investigation as required by ORS 342.176,[6] and thereafter resolved "[t]hat after completing the preliminary investigation on the complaint * * * the Commission finds a lack of probable grounds for action against the teacher under ORS 342.175-342.177 and therefore dismisses the matter." Minutes, Teacher Standards and Practices Commission, May 17, 1979, at 13. On January 14, 1980, the school board dismissed petitioner on grounds of inefficiency, immorality, and gross unfitness. The allegations submitted by the superintendent to the board in support of the dismissal may be summarized as follows: police observation *193 of petitioner's conduct at the book store and the incorporation of these observations in an affidavit and complaint filed in the Adult World injunction case caused petitioner to become the subject of public notoriety. As a result his ability to perform the duties of a teacher, specifically to provide leadership by example, to promote high moral standards, to inspire confidence in students, and to maintain open communication with the students, parents and teachers of the school community, was impaired. The issue before us is whether the FDAB correctly decided that the facts found as true adequately justified the statutory grounds of gross unfitness and immorality. Gross unfitness is not a ground for dismissal of a permanent teacher enumerated in ORS 342.865(1). It is incorporated by subsection (i) of that statute which provides: "No permanent teacher shall be dismissed except for: * * * (i) Any cause which constitutes grounds for the revocation of such permanent teacher's teaching certificate." ORS 342.175(1)(c) includes as grounds for revocation "any gross unfitness." The Teacher Standards and Practices Commission is charged with rulemaking and adjudicative powers in the revocation and suspension of teaching certificates. ORS 342.165-342.167, 342.177. It is the Commission which decides whether there is sufficient evidence to justify holding a hearing and whether the charge, if proven after hearing, warrants revocation of a teaching certificate. In short, the Commission is the agency with power to interpret the statutory grounds for revocation. In this case the Commission determined that the facts underlying the charge of gross unfitness did not constitute grounds for revocation; in fact, they did not warrant proceeding to a hearing. In its order the FDAB stated that it We note that the standard for FDAB is not "gross unfitness" but "any cause which constitutes grounds for the revocation of such permanent teacher's teaching certificate." If the Commission, with knowledge of the facts stated in the investigatory report, concluded that these did not give probable cause to proceed to a revocation hearing, this conclusion must represent the Commission's interpretation of the statute for which it has responsibility. Not only has the FDAB misconceived its own responsibility independently to apply the statutory term to the facts, it has, by adopting the school board's determination that petitioner's conduct constituted gross unfitness, engaged in a more restrictive interpretation of that term than that rendered by the Commission. ORS 342.865(1)(i) does not confer on the school board or the FDAB independent authority to interpret the grounds for revocation of a teaching certificate. Where the Commission has determined that a particular set of facts does not constitute grounds for revocation neither the school board nor the FDAB may reach a different interpretation. Petitioner's dismissal on this ground is reversed. The FDAB indicated that "[e]ither ground will support the dismissal action by the Board." We therefore address petitioner's remaining arguments as they relate to his dismissal for immorality. Petitioner first asserts that prior rulemaking pursuant to the Administrative Procedures Act (ORS 183.310 et seq.) is required under Megdal v. Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980), before the FDAB may engage in adjudication in individual cases. We disagree. We do not read Megdal so broadly. *194 Megdal addressed terms of delegation.[7] It examined ORS 679.140, the statute which sets forth grounds for discipline of dentists. Because the statute specified that the grounds for discipline included but were not limited to the conduct enumerated by the legislation, we concluded that the State Board of Dental Examiners was authorized to expand by rules the statutory list of activities that could subject a dentist to license revocation. In contrast, the FDAB's authority under the teacher dismissal standards in ORS 342.865(1) is interpretive rather than legislative. See Megdal, supra, 288 Or. at 304, 605 P.2d 273, Springfield Education Association v. Springfield School District, 290 Or. 217, 231-33, 621 P.2d 547 (1980). The statute lists eight grounds for dismissal and incorporates the grounds upon which a teaching certificate may be revoked set forth in ORS 342.175. It begins "No permanent teacher shall be dismissed except for * * *." There is no authority delegated to the FDAB to legislate beyond the language of the statute. Further, Megdal was premised upon an interpretation of the intent of a particular statute which we resolved called for rulemaking prior to adjudication. No such statute is involved here. In this case the Megdal analysis has no application. Under the Fair Dismissal statutes the school board exercises a limited function in the statutory standards for dismissal. Any rules, policies or standards of performance[8] adopted by the school board and applied in a nonarbitrary fashion must be given consideration by the FDAB. ORS 342.905(5), ORS 342.865(2).[9] It appears that the Springfield school board has not attempted to define immorality through rules, policies or standards in the present case. The statute places primary interpretive responsibility with the FDAB. When applying terms of complete legislative expression, an agency may interpret statutory standards either by an interpretive rule or by order in a contested case. Springfield, supra, 290 Or. at 226, 621 P.2d 547. The FDAB has chosen to interpret immorality by means of an order in this case. No requirement for prior rulemaking exists. Petitioner asserts that the order in this case is inadequate because the FDAB made no attempt to define immorality. The order included the following Ultimate Findings of Fact and Conclusions of Law: In a subsequent section entitled "Discussion" the FDAB stated, "[W]hatever else `immorality' may include, it certainly includes acts of deviate sexual intercourse as such acts are contrary to the statutes of Oregon." In a concurring opinion one board member distinguished Burton v. Cascade School District, 353 F. Supp. 254 (D.Or. 1973), from the present case by stating "[i]n the Cascade case there was no forbidden behavior, in the Ross case there was." In his petition for rehearing and/or reconsideration petitioner challenged the FDAB's conclusion that his conduct violated Oregon law.[10] In its order denying rehearing or reconsideration the FDAB responded, "[t]he issue is not whether the petitioner was guilty of criminal conduct." We find that the order affirming petitioner's dismissal is inadequate. The FDAB nowhere sets forth any basis upon which it might have concluded that petitioner's conduct violated that standard. It is essential that an agency articulate in a contested case the rational connection between the facts and the legal conclusion it draws from them. See Spray v. Board of Medical Examiners, 50 Or. App. 311, 321, 624 P.2d 125 rev. den. 291 Or. 117, 631 P.2d 341 (1981). This is required both for purposes of meaningful judicial review and to ensure that the agency gives responsible attention to its application of the statute. See Home Plate, Inc. v. OLCC, 20 Or. App. 188, 530 P.2d 862 (1975). Springfield illustrates that: Because there is no rationale to support the conclusion that petitioner's conduct was immoral dismissal on this ground is remanded to the FDAB for a determination of whether the facts as to immorality are adequate to justify the statutory grounds. Reversed and remanded. PETERSON, Justice, dissenting. For the following reasons, I dissent. First: After construing ORS 342.905(5) the majority misapplies it to the FDAB orders. *196 Second: The majority errs in holding that a Teacher Standards and Practices Commission (TSPC) order declining to order a hearing on a complaint for revocation of petitioner's teaching certificate bars the FDAB from considering the gross unfitness charge. Third: Petitioner has never claimed that the FDAB is barred from considering the gross unfitness claim because of the TSPC order. The majority errs in considering and deciding an important question which has not been raised by any party before the school board, the FDAB, the Court of Appeals, or this court, and which has not been briefed, argued or considered by anyone other than this court. Although I largely agree with the majority's construction of the statute, I do not agree with its application of the statute to the order involved in this case. ORS 342.905(5) provides: I perceive that the majority holds: 1. The statute first requires that FDAB determine whether the facts upon which the district based its dismissal are "true and substantiated." This is a species of fact finding. Here, there is no dispute on the facts. 2. FDAB then makes a legal determination: Are the relevant facts "adequate to justify the statutory grounds cited"? 3. Finally, FDAB decides whether dismissal is unreasonable, arbitrary, or excessive. FDAB does not itself decide whether dismissal is to be ordered. That is the district's decision, and FDAB's function, once it determines the facts, is in the nature of an appellate tribunal. FDAB upheld the dismissal. The majority, citing Megdal v. Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980), remands stating: Remand is not necessary. Even under Megdal, the FDAB orders are sufficient. Megdal involved a dentist whose license was revoked by the State Board of Dental Examiners for "unprofessional conduct." On appeal we held that although the term "unprofessional conduct" was not unconstitutionally vague, 288 Or. at 303, the order of revocation must nonetheless be reversed because "the term [`unprofessional conduct'] cannot be applied without prior rulemaking [by the agency]." 288 Or. at 305, 605 P.2d 273. We pointed out that legislatively created licensing standards fell within three categories: See footnote 7 of the majority opinion. Megdal held that the term "unprofessional conduct" fell within the third category, and because the agency had not promulgated rules, "there was no legal ground to revoke his license." 288 Or. at 321, 605 P.2d 273. The majority in that case at bar concludes that the term "immorality" falls within the second category and remands for the agency to enter a further order. In a sense, the majority is trying to squeeze this case into a Megdal mold when it is not, strictly speaking, a Megdal case. In struggling to make this into a clean Megdal case, the majority makes several errors. In Megdal, the agency charged with making the license revocation decision was the Board of Dental Examiners. In the case at bar, the agency charged with making the dismissal decision is the school district. FDAB does not occupy the same position as did the Board of Dental Examiners. It is, in a sense, an appellate tribunal charged with determining facts and then deciding whether the action of another agency, based upon those facts, is permissible and whether dismissal is unreasonable, arbitrary or excessive. With respect to a Class 2 case, we stated in Springfield Education Assn v. School Dist., 290 Or. 217, 227-28, 621 P.2d 547 (1980): The FDAB consists of 20 members: five permanent teachers; five school administrators; five school board members; and five public members. I would defer to their expertise. I believe that the FDAB orders sufficiently state the rationale underlying the conclusion to uphold the dismissal for gross unfitness and immorality. The majority orders remand "for a determination of whether the facts as to immorality are adequate to justify the statutory grounds." 294 Or. at 370, 657 P.2d at 195. FDAB has already done that. There are two FDAB orders. We must first examine the orders to see what findings and conclusions the FDAB made. I will briefly summarize them. These quotations are from the first FDAB orders. I shall not repeat the findings that are quoted in the majority opinion. The FDAB order also contains several pages of "Discussion" relating to immorality and unfitness which contain the FDAB analysis and additional statements of fact. Because of the FDAB conclusion that the petitioner's conduct was "contrary to the statutes of Oregon," petitioner filed a petition for reconsideration with FDAB in which he argued that no criminal statutes had been violated. Thereafter, FDAB entered this further order denying the petition for reconsideration, stating in part: I disagree with the majority's conclusion that "there is no rationale to support the conclusion that petitioner's conduct was immoral." On the contrary, it is clear that the reason for the school board dismissal and the FDAB orders was their belief that the petitioner engaged in sexual acts anal intercourse in a store open to the public, and that because of widespread newspaper *199 publicity concerning the Adult World Bookstore and because of knowledge of persons in the Mohawk and Camp Creek communities, petitioner "could not have an effective relationship with students or parents." The decision is not ours to make. It is either for the school board or FDAB. There is substantial evidence to support the decisions. I am hard put to hypothesize how, on remand, FDAB can say it more clearly than it already has. The FDAB orders contain several references to the term "deviate sexual intercourse." The orders do not define the term nor do they refer to the definition contained in ORS 163.305(1): There is no question that petitioner was involved in a form of deviate sexual intercourse, as that term is defined in ORS 163.305(1). Whether or not the FDAB had that definition in mind is not clear. I read the FDAB orders to say that petitioner's conduct constituted deviate sexual intercourse and that that was, under the circumstances, immoral. The FDAB took pains to point out that petitioner was not charged with being a homosexual, and he was not charged with any kind of sexual conduct occurring in his own home. The repeated FDAB references to deviate sexual intercourse convinces me that FDAB likely had a definition similar to the ORS 163.305(1) definition in mind, and that because the events occurred in a store open to the public, the conduct constituted "immorality."[1] The FDAB order sets forth the rationale for its determination that petitioner's conduct constituted immorality. For that reason alone, I would affirm. Following this incident, the Springfield District superintendent filed a complaint with the Teacher Standards and Practices Commission (TSPC) seeking revocation of petitioner's teaching certificate for gross unfitness.[2] TSPC conducted a preliminary investigation. The minutes of its May 17, 1979, meeting contain this entry: The majority holds: "Where the Commission has determined that a particular set of facts does not constitute grounds for revocation neither the school board nor the FDAB may reach a different interpretation." 294 Or. at 367, 657 P.2d at 193. The majority errs on this point, as well. Professor Davis has written: See also Shannon v. Moffett, 43 Or. App. 723, 604 P.2d 407 (1979); Oregon City Fed. of Teachers v. OCEA, 36 Or. App. 27, 584 P.2d 303 (1978) (Tanzer, J.) (recognizing the doctrine of collateral estoppel in agency proceedings). A prerequisite to the application of the doctrine of collateral estoppel is the presence of a "full and fair opportunity to contest the issue in the first action." State Farm v. Century Home, 275 Or. 97, 550 P.2d 1185 (1976). An examination of the TSPC proceeding shows that the school board had no "full and fair opportunity" to contest the issue of "gross unfitness" in the TSPC proceeding. TSPC decided, after a nonadversary preliminary investigation and a meeting in executive session, that it would dismiss the complaint made by the school board and hold no hearing under ORS 342.177. The school board was not given an opportunity to be represented by counsel and had no opportunity to present evidence in an adjudicatory setting by calling, examining or cross-examining witnesses or presenting other evidence. Before the school board can be collaterally estopped from litigating the issue of "gross unfitness," that issue must have been adjudicated. As Professor Davis writes, "In name and tradition `res judicata' means thing adjudicated. Only what is adjudicated can be res judicata. Administrative action other than adjudication cannot be res judicata." 2 K Davis, Administrative Law Treatise § 18.08, at 597 (1958). The TSPC action here was not adjudicative. It was investigatory and should have no effect upon this dismissal proceeding. The person asserting collateral estoppel has the burden of asserting the defense and proving its applicability. State Farm v. Century Home, 275 Or. 97, 104, 550 P.2d 1185 (1976). This rule applies as well in administrative law proceedings. Mogel, Res Judicata and Collateral Estoppel in Administrative Proceedings, 30 Baylor L.Rev. 462, 463 n. 11 (1978). The majority may say that collateral estoppel and res judicata are not involved. The majority does say that FDAB is barred from considering the gross unfitness charge because the TSPC decision interprets the statute and that FDAB cannot engage "in a more restrictive interpretation of that term than that rendered by the Commission." Majority opinion 657 P.2d at 193. I believe that the reasons which underlie the principle of collateral estoppel still apply. The "set of facts" which were before the TSPC, whether for interpretation or decision, are not the same as those before the FDAB (or at least, there has been no adjudication by FDAB that they were or were not), and TSPC has made no adjudication. Even conceding that TSPC alone can interpret ORS 342.865(1)(i), I would hold that its refusal to order a hearing has no more effect, for rule making or adjudicative purposes or collateral estoppel purposes, than a grand jury returning a "not true" bill. In a very real sense, the majority's decision on this point represents the ultimate anomaly. Although the FDAB orders are replete with facts to support its conclusions that the petitioner was properly dismissed for gross unfitness or immorality, the majority remands the immorality charge because the FDAB orders contain "no other rationale." Yet, the majority gives full adjudicative effect to a TSPC order which contains no findings, no conclusions, no analysis, no rationale, which was not entered after a hearing, and as to which the school district had no opportunity to be heard or present evidence. TSPC is in the same relative position as was the Board of Dental Examiners in Megdal. I suspect that this court would hold that the term "gross unfitness" is either a Class 2 or Class 3 term. If Megdal and Springfield Education Assn are to have validity, we should apply the rationale underlying those decisions to the TSPC order of dismissal. We should give no effect to the TSPC order. I confess to particular dismay with the majority's holding that the TSPC determination on the "gross unfitness" claim bars FDAB consideration. I can find nothing in the record or briefs indicating that the issue was ever raised by the petitioner, much less considered by the FDAB or by the Court of Appeals. Had the question been raised, it is likely that evidence would have been presented and a decision made on the question. We should not consider the issue at all. In summary, I would affirm the Court of Appeals and FDAB because the FDAB found that the facts that the school board "relied upon to support the statutory grounds cited for dismissal were true and substantiated," determined that the facts "are adequate to justify the statutory grounds cited," and in addition, the FDAB independently found that petitioner's conduct constituted "immorality" which affected his ability to teach in the community. Even under the majority's analysis, the decisions of the FDAB and Court of Appeals should be affirmed. We need not decide the question whether petitioner's dismissal for gross unfitness was correct because of the FDAB finding of immorality. CAMPBELL and CARSON, JJ., join in this dissent. [1] ORS 183.482(8)(a) provides: "The court may affirm reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall: "(A) Set aside or modify the order; or "(B) Remand the case to the agency for further action under a correct interpretation of the provision of law." [2] ORS 342.865(1) provides: "No permanent teacher shall be dismissed except for: "(a) Inefficiency; "(b) Immorality; "(c) Insubordination; "(d) Neglect of duty; "(e) Physical or mental incapacity; "(f) Conviction of a felony or of a crime involving moral turpitude; "(g) Inadequate performance; "(h) Failure to comply with such reasonable requirements as the board may prescribe to show normal improvement and evidence of professional training and growth; or "(i) Any cause which constitutes grounds for the revocation of such permanent teacher's teaching certificate." ORS 342.175(1) lists the following ground for revocation of a teaching certificate: "* * * "(c) Any gross unfitness; * * *" [3] ORS 342.815(5) provides: "`Permanent teacher' means any teacher who has been regularly employed by a fair dismissal district for a period of not less than three successive school years and who has been reelected by the district after the completion of such three-year period for the next succeeding school year." [4] ORS 342.905(6)(a) provides: "Subject to subsection (5) of this section and paragraphs (b) and (c) of this subsection, if the Fair Dismissal Appeals Board panel finds that the facts relied on to support the recommendation of the district superintendent are untrue or unsubstantiated, or if true and substantiated, are not adequate to justify the statutory grounds cited as reason for the dismissal, and so notifies the permanent teacher, the district superintendent, the district school board and the Superintendent of Public Instruction, the teacher shall be reinstated and the teacher shall receive the salary for the period between the effective date of the dismissal and the date of the order reinstating the teacher." [5] Former ORS 342.905(5) provided in relevant part: "* * * The report [of the FDAB] shall contain in its finding as to whether or not the facts relied on to support the recommendations of the district superintendent are true and substantiated and if true and substantiated, whether or not they are adequate to justify the statutory grounds cited as reasons for the dismissal." FDAB consideration of nonarbitrary school board policies and the limitation in FDAB power to reverse a dismissal sanction were the substantive changes in 1979. [6] ORS 342.176 provides: "Upon receipt of the complaint under ORS 342.175, the staff of the commission shall promptly undertake a preliminary investigation of the facts on which the complaint is based. The results of the preliminary investigation shall be reported to the commission at its next regular meeting following completion of the investigation. If the commission finds from the report that there is sufficient evidence to justify holding a hearing under ORS 342.177 on the grounds stated in ORS 342.175, it shall notify in writing the teacher or administrator against whom a complaint has been made, inclose a statement of the charges based on the complaint and preliminary investigation and set a date for a hearing. It shall also notify in writing the complainant and the employing district. If the commission finds that there is insufficient or no evidence to justify a hearing, the commission shall notify in writing the teacher or administrator, the complainant and the employing district of its finding." [7] Springfield Education Association v. Springfield School District, 290 Or. 217, 621 P.2d 547 (1980), divides statutory terms into three classes, each of which conveys to the agency a different range of responsibility for definition. The first class, terms of precise meaning, are those of common or technical parlance requiring little more than application to the facts of the case. The second class includes inexact terms which comprise a complete expression of legislative policy. The agency's function is one of interpretation within the meaning intended by the legislature. The third class, terms of "delegation," are forms of incomplete legislation which the agency is given authority to complete. The agency functions as more than mere interpreter; it may make rules within the range of discretion established by the statutory terms. [8] School boards are authorized to establish rules for the government of schools, ORS 332.107, and to adopt standards of performance for teachers, ORS 342.850(2)(b)(A). ORS 332.107 provides: "Each district school board may establish rules for the government of the schools and pupils consistent with the rules of the State Board of Education." ORS 342.850(2)(b)(A) provides: "(b) The district school board shall implement the evaluation process that includes: "(A) The establishment of job descriptions and performance standards which include but are not limited to items included in the job description * * *." [9] ORS 342.865(2) provides: "In determining whether the professional performance of a permanent teacher is adequate, consideration shall be given to regular and special evaluation reports prepared in accordance with the policy of the employing school district and to any written standards of performance which shall have been adopted by the board." [10] The Preliminary Investigation Report produced by the Teacher Standards and Practices Commission in response to the district superintendent's complaint seeking revocation of petitioner's teaching certificate included an opinion by an Assistant Attorney General that petitioner had committed no crime. The Report was in evidence before the FDAB. There are no allegations that petitioner's conduct constituted a crime. Petitioner's only involvement in the nuisance injunction was as one of thirty to forty potential witnesses for the prosecution. [1] Compare the dissenting opinion, texts and authorities cited in the dissenting opinion of Tobriner, J., in Pettit v. State Board of Education, 10 Cal. 3d 29, 109 Cal. Rptr. 665, 513 P.2d 889, 894-899 (1973). See also Comment, 61 Cal.L.Rev. 1442 (1973). [2] See footnote 1 of the majority opinion.

88d3fd435f7a0082fb6f459e02acd4d9547f64f4095311a6b148f4d34dc59adb

1982-12-30T00:00:00Z

12216ada-3646-44c7-82a1-fb9d81cb24e2

Ward v. Department of Revenue

293 Or. 506, 650 P.2d 923

oregon

Oregon Supreme Court

650 P.2d 923 (1982) 293 Or. 506 Douglas G. WARD and Helen P. Ward, Husband and Wife, Appellants, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. SC 28228. Supreme Court of Oregon, In Banc[*]. Argued and Submitted June 7, 1982. Decided September 21, 1982. *924 Gary D. Allen, Salem, argued the cause and filed the brief for appellants. G.F. Bartz, Asst. Atty. Gen., Tax Section, Salem, argued the cause for respondent. With him on the brief was David B. Frohnmayer, Atty. Gen., Salem. TANZER, Justice. Plaintiffs-taxpayers challenge a county assessor's valuation of their real property for ad valorem tax purposes. The subject property is a 26-acre parcel of real property which includes 20 condominium units and a number of undeveloped tax lots. This appeal concerns only the assessor's valuation of a 14-acre (10 tax lots) undeveloped portion of the parcel. The Tax Court found that plaintiffs had not established that the fair market value of the tract in question was different than the assessed value and upheld the valuation by the Department of Revenue. Plaintiffs appeal contending that on de novo review (see ORS 305.425(1) and 305.445) we should compute the fair market value of the 14-acre tract by the price which they had recently paid for the entire 26-acre parcel subtracting the undisputed assessed value of the remainder of the parcel. In 1976, First Federal Savings & Loan Association acquired title to the 26-acre parcel through foreclosure of a mortgage loan. It had the property appraised and set a selling price of about $500,000 for the entire 26-acre parcel. The property was never listed for sale, but real estate brokers, developers and investors in the area knew it was available. Just prior to plaintiffs' purchase of the parcel, First Federal agreed to sell it to another buyer for $525,000, but the buyer could not raise the down payment. Plaintiffs agreed to purchase the parcel in January, 1978, and consummated the sale in June, 1978, for $500,000. Financing arrangements were ordinary, and there is no indication that First Federal was under any compulsion or pressure at the time to sell the property. Plaintiffs' purchase of the property appears to have been a voluntary bona fide arm's-length transaction between a knowledgeable and willing buyer and a willing seller. In April, 1978, the county assessor assessed the taxable units comprising the parcel at a total of $600,000, $100,000 more than the purchase price. First Federal and plaintiffs petitioned the local board of equalization for review of the assessment. When the board sustained the assessment, plaintiffs petitioned the Department of Revenue for review as to only the undeveloped 14-acre tract. Plaintiffs did not challenge the value assigned to the other 12 acres. After considering some recently imposed development restrictions, the department reduced the total assessed valuation of the 14-acre tract from $167,080 to $154,860. Plaintiffs then appealed to the Tax Court contending that, subtracting the undisputed assessed value of the 12-acre parcel from the purchase price of the total, the value of the remaining 14-acre tract should be only $58,350. Plaintiffs' only witness as to the tract's value before the Tax Court was Mr. Ward, one of the plaintiffs. He claimed no expertise in the valuation of real property and testified principally as to the nature of the property and the circumstances of the sale as described above. The department called the only appraisal expert to testify, the county assessor. He had appraised only the 14-acre tract. Based on an examination of the physical, legal, and economic characteristics of the property and an analysis of recent sales of comparable properties within the area, he concluded that the tract's true cash value was approximately the assessed value. The Tax Court reasoned that one sale was not persuasive evidence of market value and that plaintiffs' arithmetic approach therefore failed to persuade the *925 court by a preponderance that the defendant's order was incorrect. We must make that determination anew. The issue is the property's "true cash value," that is, its "market value * * * as of the assessment date." ORS 308.205.[1] As the parties challenging the validity and correctness of the assessment, plaintiffs have the burden of proving a valuation different from that found by the department or of proving that the challenged assessment is incorrect. See ORS 305.427; J.R. Widmer, Inc. v. Dept. of Rev., 261 Or. 371, 494 P.2d 854 (1972); see also, Borden, Inc. v. Dept. of Rev., 286 Or. 567, 576, 595 P.2d 1372 (1979). As noted, plaintiffs' sole evidence of the subject property's value is the price paid for the entire 26-acre parcel, less the value of the 12-acre tract. They contend that this is sufficient evidence to satisfy their burden of proof. In addition, plaintiffs, without offering their own comparable sales market analysis, seek to discredit the department's by arguing that the sales and properties upon which its valuation was based are not sufficiently comparable. The agreed price in a voluntary arm's-length sale of the assessed property, contemporaneous with the assessment, between a knowledgeable and willing buyer and seller is persuasive evidence of the property's market value. Sabin v. Dept. of Rev., 270 Or. 422, 426-427, 528 P.2d 69 (1974); Equity Land Res., Inc. v. Dept. of Rev., 268 Or. 410, 415, 521 P.2d 324 (1974); Kem v. Dept. of Rev., 267 Or. 111, 114, 514 P.2d 1335 (1973). As this court emphasized in Kem, however, such a sale "is not necessarily determinative of market value and does not foreclose other methods of valuation." 267 Or. at 115, 514 P.2d 1335. See Annot., 89 A.L.R.3d 1126 (1979). Accordingly, we hold that proof of a recent arms-length sale of the whole, minus the agreed value of an excluded part, is legally sufficient to prove fair market value in the sense that plaintiffs would survive a motion equivalent to a motion for nonsuit. The next question, however, is whether we are persuaded as fact finders by such evidence. To answer that, we look to all the evidence. We are not persuaded by plaintiffs' formula (recent sale price minus assessed value of excluded 12 acres). In real estate, the value of the whole is relevant to the value of a part, but it is not necessarily determinative. The market value of a large parcel does not necessarily equal the sum of the market value of the parts into which that parcel may be divided or subdivided because smaller parcels may be more readily marketable. We find this testimony by the defendant's appraiser convincing: Plaintiffs' evidence of the value of the undivided whole is strong, but their formula for determining the value of the 14-acre part does not take into account the distinction in marketability of larger and smaller parcels. Nor does it take into account that a hypothetical division of the property may be considered in determining the highest and best use of the property as a measure of true cash value, see Sabin v. Dept. of Rev., 270 Or. 422, 425-26, 528 P.2d 69 (1974). Defendant's comparable sales analysis does take these distinctions into account. We therefore find the latter to be more persuasive. Plaintiffs argue that we should reject defendant's evidence of value extrapolated *926 from comparable sales because they were not sufficiently comparable and the necessary adjustments were so great as to diminish the reliability of the appraiser's opinion. The comparable sales approach to valuation is well accepted, Chapin v. Dept. of Rev., 290 Or. 931, 936-937, 627 P.2d 480 (1981), and, to the extent the property has a significant ascertainable market, it has been the preferred method, Portland Canning Co. v. Tax Com., 241 Or. 109, 113, 404 P.2d 236 (1965). Because sales are seldom comparable in every detail, adjustments must be considered which reflect differences. J.R. Widmer, Inc. v. Dept. of Rev., 4 OTR 361, 366 (1971), aff'd 261 Or. 371, 494 P.2d 854 (1972). If the differences and the adjustments are too great, the sale will not be considered comparable, see, Bend Millwork Co. v. Dept. of Rev., 285 Or. 577, 592, 592 P.2d 986 (1979); Medical Building Land Co. v. Dept. of Rev., 283 Or. 69, 78, 582 P.2d 416 (1978). Here, the sales used in the comparison ranged in price from $15,000 to $40,000 per acre and involved properties ranging in size from 2.6 to 7.7 acres. Making adjustments for time of purchase, location, size, developable area, and topography, the appraiser opined a fair market value per acre of the 14-acre parcel of about $13,000. The adjustments are substantial, but not so great as to discredit the opinion or rob it entirely of probative value. It would serve no purpose to set out the details on these pages. It is sufficient to say that we, as fact finders, find the appraisal analysis credible and plaintiffs' evidence of the value of the whole unpersuasive as to the value of the part. Because plaintiffs' proof does not take into account the difference between the value of parts of property and the aggregate and because defendant's comparable sales analysis does so and is not successfully discredited, we find that plaintiffs have not carried their burden of persuasion that defendant's determination of fair market value is wrong. The Tax Court and Department of Revenue Order No. VL 79-597 are affirmed. [*] Denecke, C.J., retired June 30, 1982. [1] The department's regulations define "market value" as: "Market Value as a basis for true cash value shall be taken to mean the highest price in terms of money which a property will bring if exposed for sale in the open market, allowing a period of time typical for the particular type of property involved and under conditions where both parties to the transaction are under no undue compulsion to sell or buy and are able, willing and reasonably well-informed." OAR 150-308.205-(A)(1)(a).

58a298b71183427a0f9b5b6352e3e061a1575f2de139269a4d8056029880c3d4

1982-09-21T00:00:00Z

d5bb09b7-ea9c-494b-914a-a824fa9d7547

Wright v. Hazen Investments, Inc.

293 Or. 259, 648 P.2d 360

oregon

Oregon Supreme Court

648 P.2d 360 (1982) 293 Or. 259 Bernice WRIGHT, Respondent On Review, v. HAZEN INVESTMENTS, INC., an Oregon Corporation and Glen Harmon, Defendants, and Sara Hazen, Jack Hazen and John Hazen, Petitioners On Review. CA No. 17597; SC No. 28208. Supreme Court of Oregon, In Banc.[*] Argued and Submitted February 10, 1982. Decided June 29, 1982. Rehearing Denied August 3, 1982. Terence J. Hammons, Eugene, argued the cause and filed the brief for petitioners. David V. Brewer, Eugene, argued the cause and filed the brief for Respondent. CAMPBELL, Justice. This is a suit for declaratory judgment, injunction, specific performance and damages arising out of a restaurant venture entered into by plaintiff and defendants. The primary issues for consideration are whether joinder of a lessor (McKay Investment Company) and a sub-lessor (Texaco) is necessary in a suit for declaration of ownership of an assigned leasehold interest and whether remand for joinder and amendment of a decree to include a necessary corporation (H&W Enterprises, Inc.) is proper. The Court of Appeals, 53 Or. App. 700, 632 P.2d 1328 upheld the trial court action remanding the case for joinder of H&W Enterprises, Inc. as a necessary party and amendment of the decree to include it. It also upheld the trial court's finding that McKay Investment Company and Texaco as lessor and sub-lessor were not necessary *361 parties. The trial court enjoined defendants from interference in plaintiff's rights in the property or disposition without plaintiff's consent. Hazen Investments, Inc. is a corporation owned by defendants Jack, Sara and John Hazen and Glen Harmon. In 1977, plaintiff and John Hazen discussed the possibility of opening a restaurant. The proposed site was a building owned by McKay Investment Company and leased to Texaco. The lease allowed assignment without consent but provided that Texaco would remain liable on the lease. In August, 1977, Texaco assigned its lease to defendants Hazen as individuals. The assignment required Texaco's prior written consent for any further assignment. It also authorized forfeiture on written notice after default. In September, 1977, plaintiff and defendants Hazen and Harmon formed H&W Enterprises, Inc. (hereinafter H&W) to operate the proposed restaurant. Plaintiff contributed some $45,000 in cash for renovation and operating expenses, defendants Hazen contributed cash, restaurant equipment and the leasehold for a value of $45,000, and defendant Harmon contributed services. It is undisputed that plaintiff owns 40% of the H&W stock. The same parties simultaneously formed a partnership for tax reasons in which plaintiff has a 40% interest. The restaurant venture was not successful. In May, 1978, the lease, improvements and equipment were subleased to third parties who were later evicted for nonpayment of rent. Defendants Hazen thereupon took the position that H&W was defunct and that the lease was their property. They twice tried to transfer the lease and equipment as individuals. Plaintiff brought this action to declare her interest in the venture's assets and to prevent their transfer by defendants without her consent. The trial court found that plaintiff owned 40% of all leasehold improvements, equipment and inventory because of her interest in the partnership and that the plaintiff owned a 40% interest in the leasehold because of her 40% ownership of H&W. The court also issued plaintiff's requested injunction against transfer of assets without her consent and enjoined defendants from interfering with plaintiff's right of possession and access to the real property, leasehold, improvements equipment and inventory. The Court of Appeals affirmed with modification to make it clear that ownership of leasehold improvements, equipment, inventory and proceeds therefrom was in the partnership and ownership of the leasehold interest was in H&W.[1] Plaintiff's ownership therefore derived from her holdings in these entities and was not personal. We first address defendants' claim that the Court of Appeals erred in affirming the finding that McKay Investment Company (the lessor), and Texaco (McKay's lessee and the assignor of the subject property), were not indispensable parties in an action for declaration of rights in the assigned leasehold interest. The statute governing joinder in actions for declaratory relief is ORS 28.110, modeled on the Uniform Declaratory Judgments Act, § 11, which provides: We affirm the Court of Appeals and trial court finding that neither McKay nor Texaco was a necessary party in this case. The joinder mandated in ORS 28.110 is necessary as to any interest which "would be affected" by the declaration. In City of Salem v. Oregon-Washington Water Service Co., 144 Or. 93, 105, 23 P.2d 539 (1933), this court analyzed this requirement: That case involved a controversy between a city and a water company over certain provisions of the city charter approved by special election. The case before us involves a controversy between a sub-assignor and certain of its sub-assignee's shareholders over title to the assigned property interest. McKay owned the fee and Texaco owned the leasehold interest assigned. Although both McKay and Texaco had an "interest" in the subject matter of the controversy, such "interest" was not in any way part of the controversy so as to render either a necessary party. The lease between McKay as lessor and Texaco as lessee provided for free assignability but with liability on the lease remaining in Texaco. Because McKay's lessee remained liable on the lease, it cannot be said that McKay's ownership interest "would be affected" by the litigation. Texaco is liable to McKay as it has been throughout the lease term. The assignment between Texaco and the Hazens as individuals provided for assignment only with the prior written consent of Texaco as assignor. No consent to assignment was obtained by the Hazens prior to the assignment in favor of H&W. Texaco could therefore disregard the assignment and hold the Hazens to the terms of the assignment, although as between the Hazens and H&W the assignment is binding. Because Texaco could look to the Hazens for performance of the assignment terms, it cannot be said that Texaco "would be affected" by the outcome of litigation as to ownership of the assigned leasehold interest between sub-assignor and sub-assignee. We find no error in the lower courts' ruling that joinder of McKay and Texaco was not required by ORS 28.110. Defendants also claim error in the Court of Appeals order remanding the case to the trial court for joinder and amendment of the decree after finding H&W a necessary party in the declaratory judgment action. Rather, defendants contend that the failure to join H&W deprived the trial court of jurisdiction to render a declaratory judgment under ORS 28.110, so that the remedy of remand and joinder in the decree was error. This court has construed ORS 28.110 to require joinder of all affected interests in order to yield jurisdiction to enter a declaratory judgment. Stanley, Adm. v. Mueller, 211 Or. 198, 315 P.2d 125 (1957). See also Pike v. Allen International Ltd., 287 Or. 55, 597 P.2d 804 (1979). The lack of jurisdiction is premised on the absence of a "justiciable controversy" and is grounded in the policy favoring finality of judgments. Id. See generally Anderson, Actions for Declaratory Judgment at 263, 298, §§ 138, 155, (2d ed (1951). The second part of ORS 28.110, requiring that "no declaration shall prejudice the rights of persons not parties to the proceeding," is merely an emphasis of the mandate in the first clause requiring joinder of all "who have or claim any interest which would be affected by the declaration." Stanley, Adm. v. Mueller, supra, 211 Or. at 207, 315 P.2d 125. Since H&W was a necessary party, and since plaintiff failed to join H&W, it would appear that the trial court was thereby deprived of jurisdiction to issue a declaratory judgment in this case. The Court of Appeals, however, remanded the case for joinder of H&W and entry of an amended decree including H&W. In so doing, the court relied on Marx v. Lenske/Krause, 263 Or. 90, 500 P.2d 715 (1972), a case decided under the compulsory *363 joinder statute, then ORS 13.110.[2] In Marx, a suit for sale of trust property to satisfy a debt owed by defendant Lenske to plaintiff for accounting services rendered during litigation, the estate of the trustee, Krause, cross-claimed against its co-defendant Lenske for legal services rendered by Krause and his partners. All partners signed a written consent to be bound by the judgment, but were not joined. The court said: The exception created in Marx is not determinative in the case before us. Marx involved the question of joinder of all partners in an action concerning a debt owed to the partnership in which all partners would share. Since all partners had the same interest concerning the controversy, and since one partner was represented, the court saw fit to avoid retrial of the same issues which had already been fully litigated. In this case, however, the dispute is between three shareholders of a corporation as to ownership of property. Two claim ownership and one claims that the corporation owns such property. Such a dispute would be similar to a dispute arising among the partners in Marx as to ownership of the debt between the Krause estate (one partner as an individual) and the partnership. No such dispute existed in Marx. The interests of H&W may be very different from those of its shareholders. We hold, therefore, that, in a suit for declaratory judgment as to ownership of property as between corporation and shareholders, the exception delineated in Marx and allowing remand for joinder and amendment of decree does not sufficiently protect the interests of the corporation and is inapplicable. We therefore reverse and remand to the trial court for dismissal unless H&W be joined within a time to be set by the court.[3] [*] Peterson, J., did not participate in this decision. [1] The partnership is not involved in this appeal. [2] The current compulsory joinder statute is ORCP 29, which provides in pertinent part: "A. Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in that person's absence complete relief cannot be accorded among those already parties, or (2) that person claims an interest in relation to the subject of the action and is so situtated that the disposition in that person's absence may (a) as a practical matter impair or impede the person's ability to protect that interest or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of their claimed interest. If such person has not been so joined, the court shall order that such person be made a party. If a person should join as a plaintiff but refuses to do so, such person shall be made a defendant, the reason being stated in the complaint. "B. Determination by court whenever joinder not feasible. If a person as described in subsections A.(1) and (2) of this rule cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." [3] ORCP 30 provides: "Misjoinder of parties is not ground for a dismissal of an action. Parties may be dropped or added by order of the court on motion of any party of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately."

34bcb3a0374bbf5e01967973af40da90e3ec73a7829c1597493095e38bdca536

1982-06-29T00:00:00Z

6581eb67-43d3-4375-80f6-2f885a25c71b

Harris and Harris

S057887

oregon

Oregon Supreme Court

FILED: December 16, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of the Marriage of JACKIE L. HARRIS, Petitioner on Review, and LANE S. HARRIS, Respondent on Review. (CC 0630166; CA A136179; SC S057887) En Banc On review from the Court of Appeals.* Argued and submitted May 13, 2010. J. Michael Alexander, Swanson, Lathen, Alexander & McCann, PC, Salem, argued the cause and filed the brief for petitioner on review.  Gilbert Feibleman, Feibleman & Case, PC, Salem, argued the cause and filed the briefs for respondent on review.  DE MUNIZ, C. J. The decision of the Court of Appeals is modified in part and, as modified, affirmed.  The judgment of the circuit court is modified in part and, as modified, affirmed, and the case is remanded to the circuit court for further proceedings. *Appeal from Benton County Circuit Court, Janet Holcomb, Judge. 230 Or App 679, 217 P3d 224 (2009). DE MUNIZ, C. J. The issue in this dissolution of marriage case is whether the trial court erred in failing to award compensatory spousal support to wife.  The trial court did not award compensatory support to wife, concluding that wife's contribution during the marriage was not a significant contribution that enhanced husband's earning potential.  On appeal, the Court of Appeals held that the trial court's rationale for denying compensatory spousal support to wife -- viz., that wife's contribution during the marriage was typical and expected and not a substantial contribution that enhanced husband's earning potential -- was wrong.  Nevertheless, the Court of Appeals affirmed the trial court's decision, reasoning that an award of compensatory support would not be "just and equitable" under all the circumstances.  We allowed review to address the proper standard for an award of compensatory spousal support under the marital dissolution statutes.  We conclude that  the Court of Appeals correctly determined that wife's contribution to the marriage constituted a significant contribution to the education, training, vocational skills, career, or earning capacity of husband so as to trigger consideration whether wife should receive an award of compensatory spousal support.  However, the Court of Appeals failed to adequately consider all of the applicable factors set out in ORS 107.105(1)(d)(B) for determining the propriety of an award of compensatory spousal support.  Applying the pertinent statutory factors to the undisputed facts in this case, we conclude that it is "just and equitable in all the circumstances" to award wife $2,000 per month in compensatory spousal support for a period of 10 years. I.  FACTUAL AND PROCEDURAL BACKGROUND The Court of Appeals reviewed the facts in this case de novo.  ORS 19.415(3) (2007).(1)  Pursuant to ORS 19.415(4), this court also may review the facts de novo, or it may limit its review to questions of law.  See Kunze and Kunze, 337 Or 122, 124, 92 P3d 100 (2004) (so noting).  Here, the facts relevant to resolving the issues before the court are not in dispute.  Instead, we must determine the legal significance of those facts.  Consequently, there is no need for this court to review the facts de novo, and we set out here the statement of facts from the Court of Appeals opinion.(2) "Wife and husband were married in March 1990.  At that time, husband was a full-time college student, while wife worked full time for the State of Oregon and attended college classes part time.  In 1992, husband completed his undergraduate degree and began dental school.  Wife continued to work full time and to attend classes 'sporadically,' but stopped attending classes in 1993 after the parties' first child was born.  Thereafter, the parties shared childcare and household responsibilities, with wife assuming the larger portion.  Wife's job provided the family with financial support and health insurance.  Husband also contributed to the family finances during dental school by way of student loans, money earned working occasionally in his father's dental office and at a few odd jobs, and, during one year, monthly $1,000 workers' compensation payments.  "In 1996, husband graduated from dental school and joined his father's dental practice.  He immediately began to earn more than $100,000 annually and became the family's primary wage-earner.  After the parties' second child was born in 1997, wife left her employment and assumed primary childcare and household responsibilities.  "In 1998, husband's father sold husband an interest in his practice at a substantially below-market price.  Thereafter, husband's earned income increased dramatically, averaging slightly more than $355,000 per year from 2002 to 2005 and more than $407,000 in 2006, in addition to rental income in each of those years averaging $23,000.  Among other things, husband's financial success enabled the parties to build a four-bedroom, 3,252 square foot home on 1.21 acres; lease luxury vehicles; purchase a high-speed motorboat and a time-share in Mexico; take several family vacations each year; and join a country club. "Sometime in 1999, wife began to work in husband's business approximately 10 hours each week planning office parties, making bank deposits, paying bills, completing data entry, mailing letters, and running errands.  She continued to do so until the parties separated in February 2006, after approximately 16 years of marriage. "At the time of trial in April 2007, husband was 37 years old, and wife was 38 years old.  Both parties were in good health.  Wife testified that she intended to complete her undergraduate degree and to pursue a graduate degree in business, but that, even if she did not, she could earn between $30,000 and $40,000 per year as a state employee, at a job for which she is already qualified.  The trial court awarded wife custody of the parties' children and divided the real and personal property equally; each party received assets valued at $720,402.  The court further ordered that husband pay wife $1,087 per month in child support; $3,000 per month in transitional spousal support for four years; and $4,000 per month in maintenance spousal support for six years, stepped down to $2,500 per month for two years followed by $1,000 per month for one year." Harris and Harris, 230 Or App 679, 681-82, 217 P3d 224 (2009). As identified above, the issue in this case is whether wife is entitled to an award of compensatory spousal support and, if so, for how long.(3)  The trial court made the following findings regarding compensatory support: "18.  Both parties have contributed to the accumulation of assets during the marriage.  Wife primarily in the early years while she was working and Husband was going to school.  Although, Husband also contributed to the family at that time, as well.  Husband substantially contributed after his dental practice became established.  The contributions by both Husband and Wife to this marriage has [sic] resulted in over $1,000,000 in net assets that the parties are dividing.  The parties agreed that Husband would be going to dental school, and that Wife would be primarily taking care of the children when they decided to have children, and they both have benefitted from that agreement, and they are now in the process of dividing up the assets from those agreements. "19.  As to the issue of compensatory spousal support, the court does not mean to minimize Wife's contributions however Wife's contribution was a typical contribution for a spouse at the age and place in their lives where the parties were when they got married, and Wife's contribution during the marriage was also a typical and expected contribution.  Wife's contributions were not a substantial contribution that enhanced Husband's earning potential or will enhance his earning potential in the future.  Compensatory spousal support is not appropriate." The Court of Appeals affirmed the trial court's ruling on that issue, but on grounds different from those relied on by the trial court.  Before addressing the parties' arguments and the rulings made by the courts below, we first set out the statutory framework for spousal support awards in Oregon.  We do so because it is the overall statutory framework that informs the analysis that should govern the specific statutory provisions addressed to compensatory support.  See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (context of statutory terms including other provisions or related statutes is relevant consideration at first-level text and context step of statutory interpretation methodology). II.  STATUTORY FRAMEWORK FOR SPOUSAL SUPPORT At the outset, we observe that compensatory spousal support is one of the three categories of spousal support set out in ORS 107.105(1).(4)  Those three categories of spousal support, although interrelated, serve different functions.  Transitional spousal support provides support "as needed for a party to attain education and training necessary to allow the party to prepare for reentry into the job market or for advancement therein."  ORS 107.105(1)(d)(A).  Spousal maintenance is "a contribution by one spouse to the support of the other for either a specified or an indefinite period."  ORS 107.105(1)(d)(C).  Compensatory spousal support provides compensation to one of the parties to the marriage "when there has been a significant financial or other contribution by [that] party to the education, training, vocational skills, career or earning capacity of the other party and when such an order for compensatory support is otherwise just and equitable in all the circumstances * * *."  ORS 107.105(1)(d)(B).  That statutory subsection then goes on to reiterate that the court should consider a number of factors in awarding compensatory support, including "[a]ny other factors the court deems just and equitable."  ORS 107.105(1)(d)(B)(vi). Significantly, the legislature went to substantial lengths to set out a number of criteria for consideration under each of the categories of spousal support.  As the Court of Appeals noted in Austin and Austin, 191 Or App 307, 317, 82 P3d 170 (2003): "Under [ORS 107.105(1)(d)], courts are to designate one or more 'categories' of spousal support and are to make findings regarding the relevant factors.  Id.  Those categories of support are 'transitional,' 'compensatory,' and 'maintenance.'  ORS 107.105(1)(d)(A), (B), (C).  Each subparagraph pertains to a different type of spousal support and sets out a nonexclusive list of factors that a court is to consider in awarding that type of support.  The final factor in each of the three lists is '[a]ny other factors the court deems just and equitable.'  ORS 107.105(1)(d)(A)(vii), (B)(vi), (C)(xi).  Nonetheless, that each of the three lists expressly includes particular factors indicates that the legislature considered those factors to be particularly relevant in awarding that type of spousal support."  Although there is some overlap with respect to some of the statutory factors that apply to more than one of the spousal support categories (e.g., the duration of the marriage is a factor listed for evaluation under all three of the spousal support categories), each of the factors merits explicit consideration under each of the types of spousal support. With that general discussion of the statutory framework as backdrop, we turn to the specific legal issues involved in this proceeding.  Those issues are:  Were wife's contributions to husband's education, training, vocational skills, career, or earning capacity significant enough to trigger consideration of an award of compensatory spousal support?  If so, what amount of compensatory spousal support, if any, should wife be awarded based on the applicable statutory factors and for how long? III.  SIGNIFICANCE OF WIFE'S CONTRIBUTION ORS 107.105(1)(d)(B) provides for an award of compensatory spousal support when "there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party * * *."  The parties view the statutory requirement that a contribution be "significant" through different lenses. Wife contends that the compensatory spousal support provisions essentially incorporate much of what was formerly found in the enhanced earning capacity statute, former ORS 107.105(1)(f) (1993).  Wife notes that the archetypal example of a spouse who qualified for a property distribution award under the enhanced earning capacity statute was the wife who supported the husband in medical school by working and keeping the home.  Wife argues that she would have qualified for a property distribution based on her contributions to husband's enhanced earning capacity under the former statute, and that she should, therefore, qualify for an award of compensatory spousal support under the current statute, based on her contributions to husband's education, career, and earning capacity.  Husband contends that, for wife's contributions to be "significant" under the compensatory spousal support statute, those contributions must be significant in some aspect that is separate and apart from contributions that are typical of a healthy marital relationship.  Husband asserts that the statutory term "significant" connotes proof of something uncommon or special.  Husband argues that "[t]he Oregon legislature did not enact a statute that allows for an award of compensatory support if there has been some contribution, any contribution or a normal or typical contribution.  The precondition to the consideration of such an award is the presence of a significant contribution."  Husband further asserts that both maintenance support under ORS 107.105(1)(d)(C) and transitional support under ORS 107.105(1)(d)(A) take into account the normal and typical contributions of one spouse to the other by requiring consideration of factors such as the duration of the marriage in determining the appropriate level of those types of support. We reject husband's arguments.  Although it is true that the compensatory spousal support statute provides that contributions from one spouse to another must be significant, as husband himself notes, "significant" is defined essentially as "having meaning."  Webster's Third New Int'l Dictionary  2116 (unabridged ed 2002) defines "significant" in pertinent part as: "1: having meaning; esp: full of import : SUGGESTIVE, EXPRESSIVE < ~ anecdote> "* * * * * "3a : having or likely to have influence or effect : deserving to be considered : IMPORTANT, WEIGHTY, NOTABLE Thus, it appears at the first step in the interpretive process that, as long as the contributions of one spouse to the other are meaningful and are likely to have influence and effect, they come within the definitional scope of the statutory term "significant." Furthermore, as this court announced in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), the legislative history of a statute is also relevant in analyzing the scope of the statute and discerning legislative intent.  Thus, the context of a statutory provision, including its prior versions, is helpful in determining its reach.  Consequently, we turn to those inquiries. Oregon spousal support statutes have long taken into account the contribution of one spouse to the education and training of the other spouse.  The 1983 version of the spousal support statutes provided that the contribution made by one spouse to the education, training, and earning capacity of the other spouse was an enumerated factor that the court should consider in awarding spousal support.  Or Laws 1983, ch 728, § 2.  In 1993, the legislature amended the spousal support statutes, retaining the provisions requiring consideration of the contribution of one spouse to the education, training, and earning capacity of the other spouse.  The 1993 legislature, however, also added an "enhanced earning capacity" provision for the division of marital property, inserting the following terms into ORS 107.105(1): "(f) * * * The present value of, and income resulting from, the future enhanced earning capacity of either party shall be considered as property.  The presumption of equal contribution to the acquisition of marital property, however, shall not apply to enhanced earning capacity.  A spouse asserting an interest in the income resulting from an enhancement of earning capacity of the other spouse must demonstrate that the spouse made a material contribution to the enhancement.  Material contribution can be shown by, among other things, having contributed, financially or otherwise, to the education and training that resulted in the enhanced earning capacity.  The contribution shall have been substantial and of prolonged duration." Or Laws 1993, ch 315, § 1. In Denton and Denton, 326 Or 236, 951 P2d 693 (1998), this court addressed the provisions of former ORS 107.105(1)(f) (1993).  The court first parsed the statute, noting that "[u]nder ORS 107.105(1)(f), those contributions that are 'material' 'to the education and training' that produce the enhancement, that are 'substantial,' and that are of 'prolonged duration' will justify an award for enhanced earning capacity."  Id. at 243.  The court then discussed the contributions that wife made to her husband's acquisition of his medical license and specialty: "During the period when husband was attempting to gain admission to medical school, and while husband was in medical school, wife worked full time, putting food on the family's table and a roof over their heads.  Moreover, wife performed all domestic tasks during the entire period in which husband prepared himself for medical school, attended medical school, and performed his dermatology residency in Iowa.  That freed husband to devote all his energy and concentration to his studies, which directly facilitated his acquisition of the medical degree as well as his dermatology specialty. "Wife also contributed directly to husband's educational expenses during medical school.  The bulk of the financial aid that husband received during his attendance at OHSU was in the form of student loans that were later repaid with marital assets out of husband's salary after he graduated.  However, those loans were lower than otherwise would have been the case, because wife supplied the income that kept the couple from having to borrow to pay living expenses while husband attended school.  Additionally, * * * [wife's] continuing willingness to uproot, to relocate, and to find new employment constituted nonfinancial contributions to the enhancement." Id. at 243-44.  In Denton, this court concluded that those contributions, "when considered together, as they must be, were both material and substantial."  Id. (emphasis in original). Although Denton addressed a former version of the spousal support statutes and not the version of those statutes at issue in this case, this court's decision in Denton is relevant and significant here for at least two reasons.  First, as wife argues, the enhanced earning capacity statutory terms at issue in Denton imposed at least as stringent requirements as the statute at issue here before the contributions of one spouse to the other would be considered sufficient to justify an award.  Although the award in Denton was in the form of property distribution rather than a spousal support award, that distinction does not make the court's analysis of similar statutory terms inapplicable.  Consequently, this court's decision in Denton is relevant in a logic and analytic sense.  Second, this court's decision in Denton is significant in light of the subsequent amendments the legislature made to the spousal support statutes, in that the legislature did not increase the contribution requirement by one spouse to the other in response to the Denton decision.  In 1999, the legislature revised the spousal support statutes and amended ORS 107.105 to its present form.(5)  Or Laws 1999, ch 587, § 1.  Those amendments  repealed the enhanced earning capacity statute (ORS 107.105(1)(f)) and migrated some of the elements from the repealed enhanced earning capacity statute and the former spousal support provisions addressing compensatory-type awards into the new compensatory spousal support provision.  The Court of Appeals has described the effect of those 1999 amendments as broadening the criteria for which a spouse could receive compensatory spousal support.  In Austin, the Court of Appeals noted that in adopting the 1999 amendments, the legislature incorporated three types of contributions from the former statutes -- i.e., contributions to education, training, and earning power/capacity-- and added two more -- i.e., contributions to vocational skills and career.  191 Or App at 318.  The Court of Appeals also noted that "[t]he focus of ORS 107.105(1)(d)(B) [the compensatory spousal support provision] is more broadly directed toward assessing whether one spouse is entitled to compensation for certain contributions made to the other, a focus that is indicated by the legislature's choice of name for this type of spousal support:  compensatory."  Id.  Finally, the Court of Appeals deemed it significant that the new statutory provision connected those five criteria with the disjunctive connector "or," which sets out each of the types of contribution as separate, independent factors, not all of which need be connected to increased earning capacity.  Id. at 319. We agree.  As a linguistic matter, the new compensatory spousal support provision has broadened the kinds of contributions that can be considered beyond those numerated under the former enhanced earning capacity statute.  They also no longer require that the contributions all must be connected to enhanced earning capacity.  We thus conclude that the legislature did not intend the 1999 amendments to establish a higher threshold for an award of compensatory spousal support than previously existed for property distributions under the former enhanced earning capacity statute. The legislative history of the compensatory spousal support provision also supports our conclusion.  For example, the Staff Measure Summary before the Senate Judiciary Committee described the 1999 amendments, including the provisions that became ORS 107.105(1)(d)(B), as follows: "In a suit for dissolution, the court has the power to make an award to either spouse for spousal support and an appropriate division of the marital property.  In determining the amount and duration of spousal support to award, ORS 107.105 requires that the court consider an enumerated list of criteria.  This bill reorganizes that list into three separate types of spousal support (transitional, compensatory and maintenance).  Persons seeking spousal support would now have to argue that they fit into one of these categories before a court would award support.  It should be noted that each of the categories contains criteria similar to that currently existing in the statute. "ORS 107.105 also grants the court authority to award property to either spouse as is 'just and proper' under the circumstances.  An item of property that may be valued is the 'enhanced earning capacity' of either party. The court may make such an award to a spouse if the spouse shows that they made a 'material contribution' to the enhanced earning capacity of the other spouse.  A 'material contribution' can be a contribution to the education or training of the spouse who, as a result, enjoys a greater earning potential.  The classic example is the wife who supports the husband in medical school by working and keeping the home.  If upon completion of his medical training, the husband divorces the wife, she may make a claim that she materially contributed to his anticipated future higher earnings as a physician.  This bill will eliminate enhanced earning capacity as species of property.  The bill, however, retains the concept of enhanced earning capacity within spousal support." Staff Measure Summary, Senate Judiciary Committee, HB 2555, May 27, 1999 (emphases added).  The written testimony submitted before the House Civil Judiciary Committee by one of the chief proponents of the bill, Russell Lipetsky, also demonstrates that the bill was not intended to heighten the contribution required from spouses in order to qualify for support awards.  In his written testimony on HB 2555, Lipetzky characterized the legislative proposal as follows: "The enhanced earning capacity ('EEC') statute is found tucked into ORS 107.105(1)(f), which is a lengthy statute that provides the court with the general authority to divide property in a divorce.  Since its inception, the EEC statute has been a continuing source of confusion and frustration for divorcing couples, family law attorneys, and the courts.  That confusion stems mostly from the requirement of the statute that an intangible future economic benefit -- a party's future enhanced earning capacity -- be translated (somehow) into a present day dollar value and divided (somehow) by the court in a divorce proceeding. "* * * * * "In allowing a party's enhanced earning to be characterized as spousal support, the drafters of this bill believe the goals of the EEC statute can be fully met, and that those goals can be met with much greater ease and understanding by all participants in the legal process." Testimony, House Judiciary Committee/Civil, HB 2555, Feb 25, 1999, Ex C (statement of Russell Lipetzky).  Lipetzky's testimony explicitly referenced this court's decision in Denton and Denton, but took no issue with the determination by this court about the necessary level of contribution by a spouse for an award under the enhanced earning capacity statute.  Lipetzky stated:  "Although the Oregon Supreme Court has attempted to shed light on the statute in Denton, 326 Or 236 (1998), that case left unanswered many questions about the practical application of the EEC statutes."  Id. Finally, another of the bill's drafters testified that the compensatory support aspects of the bill were not intended to create "any new ground," other than to treat the matter as a support issue rather than a property division issue.  Tape Recording, House Judiciary Committee/Civil, HB 2555, Feb 25, 1999, Tape 48, Side A (statement of Ron Gevurtz).  We think that it is a fair characterization that the 1999 amendments were not intended to substantially increase the burden on the contributing spouse to qualify for support, but rather to reorganize the support statutes in a manner that would promote greater ease in application. The 1999 amendments continue to recognize the contributions of one spouse to the enhanced earning capacity of the other spouse, but they changed the manner of compensation from the division of marital property to compensatory spousal support.  In recharacterizing the means of compensating a contributing spouse, however, the 1999 amendments also had the effect of broadening the types of contributions by one spouse that will qualify for an award of compensatory spousal support.  We conclude, therefore, that those amendments did not establish a higher threshold for qualifying for an award of compensatory support than previously existed for property distributions under the former enhanced earning capacity statute.  Having reached that conclusion, we must now determine whether wife's contributions are "significant" as required under the compensatory support statute. Husband characterizes wife's contributions as "typical" and "expected" household support activities in contrast to the "significant" contributions that he contends the statute requires.  We disagree.  The undisputed facts in this case show that wife contributed to husband's "education, training, vocational skills, career or earning capacity" by working full time while husband attended both undergraduate and dental school.  Wife's work provided the family with financial support and health insurance.  Once husband established his dental practice, wife assumed primary homemaking and childcare responsibilities.  Wife also worked part time in husband's dental practice for a period of seven years.  We conclude that wife's contributions were "significant contributions" to husband's education and career sufficient to trigger consideration of a compensatory spousal support award under the relevant statutory criteria.  Cf. Denton, 326 Or at 243-45 (analyzing contributions under former enhanced earning capacity statute).  We now turn to consideration of the statutory criteria relevant to a determination of an appropriate compensatory spousal support award. IV.  STATUTORY FACTORS FOR DETERMINING COMPENSATORY SPOUSAL SUPPORT AWARDS ORS 107.105(1)(d)(B) provides, in part: "The factors to be considered by the court in awarding compensatory spousal support include but are not limited to: "(i) The amount, duration and nature of the contribution; "(ii) The duration of the marriage; "(iii) The relative earning capacity of the parties; "(iv) The extent to which the marital estate has already benefited from the contribution; "(v) The tax consequences to each party; and "(vi) Any other factors the court deems just and equitable." In this case, the trial court did not analyze the statutory criteria, because it determined that wife's contributions to the marriage were not sufficiently significant to meet the threshold requirement to trigger consideration of a compensatory spousal support award.  For its part, the Court of Appeals did reach the question whether an award of compensatory spousal support would be "just and equitable in all of the circumstances."  We note, however, that the Court of Appeals' rather truncated analysis and application of the statutory criteria in this case appears to have placed substantial emphasis on the absolute dollar amounts included in the marital estate, which led that court to conclude, erroneously in our view, that no award of compensatory spousal support should be made.  Because we conclude that the Court of Appeals erred in analyzing and applying the statutory criteria for an award of compensatory spousal support, we set out what we consider to be the proper application of the statutory criteria to the facts presented here. A.        Amount, duration, and nature of contribution The first factor to address under the statute includes the "amount, duration and nature of the contribution" of the contributing spouse.  To a substantial degree, those factors mirror the kind of considerations that must be addressed in making the initial determination whether the contributions of the spouse are significant enough to warrant any award of compensatory spousal support.  As noted above, wife worked full time from the beginning of the marriage in March 1990 through husband's graduation from dental school in 1996.  During that period of time, wife was the primary financial provider for the family.  Beginning in 1993, when their first child was born, through February 2006, when they separated, wife provided primary childcare and household responsibilities for husband and the family.  Wife also worked part time in husband's dental practice from 1999 through their divorce in 2006.  Husband contends, however, that wife's contributions are not sufficient in amount, duration, and nature, because husband's success derived from his father's largess and husband's own unique personal skill in dentistry.  Although husband was allowed to buy into his father's already successful dental practice on favorable terms and some of husband's earning capacity in his dental practice depends on his personal skill level, those circumstances do not negate wife's entitlement to some award of compensatory spousal support. First, as we already have discussed, the 1999 amendments to the spousal support statutes broadened the statutory provisions such that contributions of one spouse do not need to contribute directly to the higher earning capacity of the other spouse, as long as they contribute to the education, training, vocational skills, career, or earning capacity of the spouse.  Consequently, contributions to the education and training of a spouse can suffice.  In this case, there is no question but that wife's full-time work while husband attained his undergraduate degree and his dental degree contributed significantly to husband's education and training. Furthermore, in our view, husband's argument ignores wife's support of husband during the period when he obtained his dental degree allowed him to enter into what became a successful career.  Without his dental degree, husband would not have been able to join his father's dental practice and would not have been able to put his personal dentistry skills to work.  Wife was instrumental in husband's ability to obtain the dental degree that was the gateway to his dental career.  Consequently, we conclude that wife's contributions are sufficient in amount, duration, and nature to weigh in favor of an award of compensatory spousal support. B.        Duration of marriage Neither party presents us with any argument based solely on the second statutory factor -- duration of the marriage.  Although there may well be some circumstances where the duration of the marriage viewed in isolation is pivotal, we do not perceive that this is such a case.  Consequently, we do not attempt to further analyze this factor in isolation, beyond noting that the parties were married for approximately 16 years.  See, e.g., Garza and Garza, 201 Or App 318, 328, 118 P3d 824 (2005) (in analyzing how criteria set out in ORS 107.105(1)(d)(B) apply, Court of Appeals noted only duration of marriage without providing further elucidation).  Wife, however, contends that the "duration of the marriage" and the "extent to which the marital estate has already benefited from the contribution" are "two rather interrelated factors that go to the basic purpose of compensatory support -- to compensate a spouse for contributions to another's education, training, etc., when the marriage is dissolved before the benefits of such labors are fully realized."  As a general matter, we agree with that basic description of the interplay of these two statutory provisions, and we address that interplay more fully below. C.        Relative earning capacity of the parties The third statutory factor addresses the earning capacities of the parties to the marriage.  Here, the relative earning capacities of husband and wife contrast sharply.  Husband averaged more than $350,000 per year in income from his dental practice from 2002 until the initiation of the marital dissolution in 2006.  Husband also received rental income in each of those years averaging $23,000.  Nothing in the record suggests that husband's income will be reduced substantially in the future.  In contrast, wife's testimony established that her earning capacity is approximately $30,000 to $40,000 per year, based on her current training and prior job experience.  The contrast between the relative earning capacities of husband and wife also weighs in favor of an award of compensatory spousal support. Husband, in fact, does not suggest that this statutory factor does not support an award of compensatory spousal support.  Rather, husband focuses his argument on the degree to which the marital estate has already benefited from husband's income during the years of the marriage and asserts that an award of compensatory spousal support would not be "just and equitable."  We note, however, that the spousal support statutes establish a particular connection between compensatory spousal support and the earning capacity of the spouse paying such support.  ORS 107.135(3) applies to proceedings to reconsider spousal support awards.  ORS 107.135(3)(a) provides: "In a proceeding under this section to reconsider the spousal or child support provisions of the judgment, the following provisions apply: "(a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse." (Emphasis added.)  In light of the legislatively recognized relationship between earning capacity and compensatory spousal support, we conclude that the substantial contrast in earning capacities of husband and wife also weighs in favor of an award of compensatory spousal support. D.        Extent to which the marital estate has already benefited  The fourth factor set out in ORS 107.105(1)(d)(B)(iv) is a legislative directive to consider the extent to which the marital estate has already benefited from the contribution made by the spouse seeking an award of compensatory spousal support.  Not surprisingly, the parties view this requirement from different perspectives. Husband takes a pragmatic approach, emphasizing the value of the assets amassed during the marriage.  Husband argues that wife should not be awarded any compensatory spousal support, because the marital estate being shared already contains substantial assets generated from husband's income.  Husband points out that the marital estate includes the value of husband's dental practice (valued at $671,000), that wife received more than $720,000 in assets when the marital estate was divided, and that wife also received the benefits of the lifestyle that the parties enjoyed during the period of their marriage after husband began his dental practice.  The Court of Appeals agreed with husband, noting that wife's contributions were "offset by the accumulation of nearly $1.5 million in marital assets and by the lifestyle that the parties enjoyed during the 10 years preceding their divorce."  Harris and Harris, 230 Or App 679, 685, 217 P3d 224 (2009). Wife takes a more comparative approach, contending that the extent to which the marital estate already has benefited should be evaluated in terms of what the overall marital estate would be were the marriage to continue through the greatest asset generating period.  Wife contends that the statute requires consideration of both the "duration of the marriage" and "the extent to which the marital estate has already benefitted from the contribution," and wife argues that those two interrelated factors go to the basic purpose of compensatory support, which she describes as "to compensate a spouse for contributions to another's education, training, etc.[,] when the marriage is dissolved before the benefits of such labors are fully realized."  Wife asserts: "If one looks particularly at the value of enhanced earning capacity, it is greatest immediately after it is achieved, and then progressively diminishes until it is exhausted at retirement.  The 'extent to which the marital estate has benefitted' must not focus solely on absolute dollars, but on where the parties are on this diminishing continuum at the time of divorce or separation.  In this case the parties accumulated substantial assets, principally from 2002 onward.  However, these few years are a small fraction of Husband's remaining work life of 27 years if he works until 65, of 17 if he retires at 55." We agree with wife in the following respects.  The fact that a contributing spouse receives significant assets in the disposition of a marital estate should not preclude an award of compensatory spousal support in all circumstances.  And in determining the extent to which the marital estate already has benefited, it is appropriate to consider the duration of the marriage in relation to the time period that the marriage partners would reasonably expect to realize the benefits of the marriage. The statute requires consideration of the extent to which the marital estate has already benefited from the contribution.  The statute does not call for an evaluation of the extent to which the marital estate has benefited from the contribution, but rather calls for an evaluation of the extent the marital estate has already benefited from the contribution.  The addition of the temporal term "already" connotes that the extent of benefits already accrued should be compared to the extent of benefits that will be accrued.  We understand the provision to mean that the relevant inquiry is how much the marital estate has already realized the benefits of the spouse's contributions compared to how much the marital estate would ultimately realize as the benefits of those contributions. We do not agree with wife, however, to the extent that she appears to contend that the appropriate benchmark for compensatory spousal support is to provide the contributing spouse with an award that fully realizes all the benefits that would be obtained were the marriage not dissolving.  Although it may be an overstatement to categorize the parties' positions in absolute terms, we view husband's position to be something akin to asserting that, if the parties have accumulated substantial assets and enjoyed a luxurious lifestyle during the marriage, then no compensatory support should be granted.  And we understand wife's position to be that the contributing spouse should be awarded compensatory spousal support in an amount that will fully realize all the benefits that the spouse would have obtained had the marriage lasted throughout the other spouse's entire earning career.  In our view, the correct answer lies somewhere in between. In this case, during the period after husband began his dental practice until the marriage dissolved, the parties' lifestyle included a large home, luxury cars, expensive vacations, and a country club membership.  In addition, wife received a substantial amount in the distribution of marital assets -- viz., assets valued at approximately $720,000.  The Court of Appeals concluded that wife's share of the marital assets and her participation in the lifestyle that the parties enjoyed during the 10 years preceding their dissolution offset the contributions wife made to husband's education, training, and career.  Although the amount of the marital assets that wife received is significant, that focus is too limited.  As wife notes, if she and husband had married after he completed his dental degree (and consequently she had not made the contributions she did to help him through the years it took for him to obtain his dental degree), wife would almost certainly have received the same distribution of marital assets as she received here.  We agree.  Viewed in that manner and in light of husband's remaining 17- to 27-year highly productive earning career, we conclude that the significant asset distribution and comfortable lifestyle available to wife for the 10 years preceding the divorce does not offset completely the contributions wife made to husband's education, career, and enhanced earning capacity.  Accordingly, in this case, the significant asset distribution and financially comfortable lifestyle available to her do not disqualify wife from an award of compensatory spousal support.(6) E.         Tax consequences to each party ORS 107.105(1)(d)(B)(v) provides that the court should consider the tax consequence to each party in awarding compensatory spousal support.  The parties, however, focus little of their attention on that statutory factor, and neither the trial court nor the Court of Appeals addressed it in their respective decisions. Wife contends that husband will continue to realize substantially more income per month, even with a spousal support obligation of $12,000 per month, due to the disparate incomes of the parties, the marginal tax rates that would apply to an award of spousal support to wife, and the tax deductibility of such an award to husband.  Wife also notes in passing that the "actual cost" of the $3,000 per month compensatory spousal support award she seeks "will be only $1,740" due to husband's incremental tax rate.  Wife does not elaborate on those points other than to suggest that they support a determination that an award of compensatory spousal support to wife would be just and equitable in light of all the circumstances.  We do not find anything in the record related to the tax consequences to the parties in this case helpful or significant to determine whether an award of compensatory spousal support is appropriate. F.         Any other factors court deems just and equitable Under ORS 107.105(1)(d)(B)(vi), the court may address any other factors that the court deems just and equitable.  As we have discussed previously, the directive to consider the just and equitable nature of a compensatory spousal support award is actually expressed three-fold in the spousal support statutes.  The terms "just and equitable" permit the court to exercise its equitable power in determining a proper award of spousal support, including compensatory spousal support, in light of all the circumstances.  The overall statutory framework, however, provides some over-arching principles that bear on the court's exercise of its equitable power. As discussed above, spousal support is divided into three categories of support:  transitional spousal support, spousal maintenance, and compensatory spousal support.  Those categories of spousal support are interrelated, and they also are cabined by the statutory directive to set the total spousal support award at "an amount of money for a period of time as may be just and equitable for one party to contribute to the other."  ORS 107.105(1)(d).  Consequently, we conclude that the amounts of spousal support awarded under each of the spousal support categories are relevant considerations in determining the overall just and equitable amount of spousal support to award.  As we explained above, however, each of the three categories of spousal support serves a different function.  Transitional spousal support provides the temporary support needed for a spouse to obtain the training and education necessary for reentry into the job market.  ORS 107.105(1)(d)(A).  Spousal maintenance provides the financial support needed by a spouse for a specified or indefinite period, depending in part upon the financial needs and resources of each spouse.  ORS 107.105(1)(d)(C).  Compensatory support provides compensation to a spouse who has made a significant contribution, financial or otherwise, to the education, training, or career of the other spouse.  ORS 107.105(1)(d)(B).  Thus, the amount of support awarded under each category of spousal support is relevant and should be considered in determining the overall amount of spousal support that is just and equitable.  Because each category of spousal support serves a different function, however, an award of spousal support under one or more of the categories should not generally serve to negate entirely an award of support under the other categories.  In other words, an award of transitional support, even a large award of transitional support, may not preclude an award of compensatory support where the statutory factors for determining an award of compensatory support are satisfied.  Although a large transitional support award is relevant and may well serve to reduce the compensatory support award to some extent, only rarely will an award of spousal support under one or more of the statutory categories serve to eliminate completely an award of spousal support under the other category or categories when the applicable statutory criteria are otherwise met. Wife sought in the trial court and argues in this court for a compensatory support award in the amount of $3,000 per month for 17 years of husband's remaining dental career.  In determining the amount and the length of a compensatory spousal support award, we take into account the awards that wife has received as transitional support and as maintenance support,(7) the comfortable lifestyle that the marital assets provided to wife during the marriage, and the substantial distribution of marital assets to wife.  We have also considered the six years that wife contributed significantly to husband's ability to obtain his dental degree, that wife assumed primary childcare and household responsibilities when she left work, that wife frequently worked at husband's business for approximately seven years, and husband's ability to produce income from his dental practice of $350,000 to $400,000 per year over the next 17 to 27 years.  Based on the foregoing, we conclude that a compensatory spousal support award of $2,000 per month for 10 years is just and equitable in all of the circumstances.  Consequently, the decision of the Court of Appeals and the judgment of the circuit court must be modified to award compensatory spousal support to wife in that amount.(8) The decision of the Court of Appeals is modified in part and, as modified, affirmed.  The judgment of the circuit court is modified in part and, as modified, affirmed, and the case is remanded to the circuit court for further proceedings. 1. As the Court of Appeals noted, the 2009 amendments to ORS 19.415(3) do not apply to this case, because the notice of appeal was filed in 2007.  Or Laws 2009, ch 231, § 3. 2. Both parties to this proceeding expressly acknowledge that the facts set forth in the Court of Appeals opinion are accurate and adequate to resolve the issues on review.  In their briefing in this court, both parties emphasize those facts that support their position on the issues presented.  We set out the entire statement of facts from the Court of Appeals decision in order to provide the most complete background for the discussion that follows. 3. In the Court of Appeals, husband also challenged the trial court's determination of the level and duration of maintenance spousal support.  The Court of Appeals affirmed the trial court's ruling without discussion, and husband does not renew his challenge to that determination in this court.  Consequently, we do not address the propriety of the maintenance spousal support award, but rather consider it appropriate for purposes of our consideration of the compensatory support issue presented in this case. 4. ORS 107.105(1) provides, in part: "Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment: "* * * * * "(d) For spousal support, an amount of money for a period of time as may be just and equitable for one party to contribute to the other, in gross or in installments or both. The court may approve an agreement for the entry of an order for the support of a party. In making the spousal support order, the court shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision. The court may order: "(A) Transitional spousal support as needed for a party to attain education and training necessary to allow the party to prepare for reentry into the job market or for advancement therein. The factors to be considered by the court in awarding transitional spousal support include but are not limited to: "(i) The duration of the marriage; "(ii) A party's training and employment skills; "(iii) A party's work experience; "(iv) The financial needs and resources of each party; "(v) The tax consequences to each party; "(vi) A party's custodial and child support responsibilities; and "(vii) Any other factors the court deems just and equitable. "(B) Compensatory spousal support when there has been a significant financial or other contribution by one party to the education, training, vocational skills, career or earning capacity of the other party and when an order for compensatory spousal support is otherwise just and equitable in all of the circumstances. The factors to be considered by the court in awarding compensatory spousal support include but are not limited to: "(i) The amount, duration and nature of the contribution; "(ii) The duration of the marriage; "(iii) The relative earning capacity of the parties; "(iv) The extent to which the marital estate has already benefited from the contribution; "(v) The tax consequences to each party; and "(vi) Any other factors the court deems just and equitable. "(C) Spousal maintenance as a contribution by one spouse to the support of the other for either a specified or an indefinite period. The factors to be considered by the court in awarding spousal maintenance include but are not limited to: "(i) The duration of the marriage; "(ii) The age of the parties; "(iii) The health of the parties, including their physical, mental and emotional condition; "(iv) The standard of living established during the marriage; "(v) The relative income and earning capacity of the parties, recognizing that the wage earner's continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property; "(vi) A party's training and employment skills; "(vii) A party's work experience; "(viii) The financial needs and resources of each party; "(ix) The tax consequences to each party; "(x) A party's custodial and child support responsibilities; and "(xi) Any other factors the court deems just and equitable." 5. There were some minor changes to ORS 107.105 in 2001 and 2003, but they do not affect the reach of the statute in any significant way for purposes of the analysis in this case.  See Or Laws 2003, ch 576, § 109; Or Laws 2001, ch 873, § 5. 6. We also observe that, during that period of time, wife had primary childcare and household responsibilities and wife engaged in part-time work in husband's business operations.    7. In this case, the trial court awarded wife transitional support and maintenance support totaling $7,000 per month for four years, $4,000 per month for two years, $2,500 per month for two years, and $1,000 per month for one year.    8. In a related case, S058224, wife has petitioned this court for review of the Court of Appeals' award of attorney fees to husband.  By separate order issued today in case number S058224, the court has allowed wife's petition for review, vacated the Court of Appeals' award of attorney fees to husband, and remanded the award of attorney fees to the Court of Appeals for reconsideration in light of this decision.

1c2689f13ebe5fa51db840c5724a344421f7b4b14ca3d016562d50de3edc302a

2010-12-16T00:00:00Z

cce6e402-c939-428f-abca-824e64b3018a

Cole v. STATE BY & THROUGH OR. DEPT. OF REV.

294 Or. 188, 655 P.2d 171

oregon

Oregon Supreme Court

655 P.2d 171 (1982) 294 Or. 188 Daniel and Carolyn COLE, Norman P. and Phyllis Lind, and Agnes L. Hicks, Appellants, v. THE STATE OF OREGON, BY and THROUGH the Oregon Department of Revenue, Respondent. TC Nos. 1778, 1779, 1780; SC 28687. Supreme Court of Oregon, In Banc. Argued and Submitted November 1, 1982. Decided December 15, 1982. *172 Barbara A. Rose, Portland, argued and filed brief for appellants. Walter J. Apley, Asst. Atty. Gen., Salem, argued and filed brief for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem. LINDE, Justice. The Oregon Tax Court dismissed taxpayers' appeal of orders of the Department of Revenue assessing personal income taxes because taxpayers failed to allege that they had paid the assessed taxes and interest as required by 1982 Or. Laws ch. 29.[1] Taxpayers appeal the dismissal on the grounds that the prepayment requirement enacted by that statute is unconstitutional. Specifically, taxpayers contend that to require payment of a tax as a precondition of judicial review deprives them of property without due process of law, and that they are denied equal protection of the laws because the requirement of payment before appeal applies to income taxes but not to certain other taxes. They also contend that their arguments under these clauses of the federal 14th amendment "apply with as much vigor to Article I, sections 10 and 20 of the Oregon State Constitution." *173 As this court has repeatedly stated, issues of Oregon law, including issues under the Oregon Constitution, must be resolved before it can be decided whether the state's law fails to preserve a right that the national charter obliges every state to protect. Hewitt v. SAIF, 294 Or. 33, 653 P.2d 970, (1982); State v. Caraher, 293 Or. 741, 748-52, 653 P.2d 942 (1982); Sterling v. Cupp, 290 Or. 611, 614 and n. 2, 625 P.2d 123 (1981). In this case they are easily resolved. Article I, section 10 of the Oregon Constitution, which guarantees that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation," is neither in text nor in historical function the equivalent of a due process clause, though briefs persist in citing it as such. It concerns remedies for "injuries done" of the stated kind. State v. Burrow, 293 Or. 691 n. 5, 653 P.2d 226 (1982); Maddox v. Clackamas County School Dist. No. 25, 293 Or. 27, 34 n. 7, 643 P.2d 1253 (1982). Even assuming that a quasijudicial administrative process were not "due course of law,"[2] and that article I, section 10 overcame the immunity of the state implicit in article IV, section 24,[3] a procedural requirement that one pay assessed taxes before suing to have them refunded is not the kind of "injury done him" contemplated in that guarantee. Article I, section 20 provides that "[n]o 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." The stay of collection of some taxes without requiring payment pending an appeal doubtless is a privilege within the meaning of this guarantee; but nothing suggests that it does not "upon the same terms ... equally belong to all citizens." Every citizen must pay his assessed income tax before appealing the assessment to the tax court, and every citizen may obtain a stay pending appeal of the other taxes covered by ORS 305.565(1). Persons appealing income tax assessments are not a different "class of citizens" from persons appealing, for instance, inheritance tax assessments, when any person may sometime find himself in a position to appeal one or the other on equal terms with all other taxpayers. At least they are not "classes" absent some showing that the laws are directed at classes of persons identifiable by characteristics other than their status of appellants. See Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 567-68, 652 P.2d 318 (1982); State v. Clark, 291 Or. 231, 237-41, 630 P.2d 810 (1981). Taxpayers cite no relevant decisions to suggest that the analysis would be different under the equal protection clause of the 14th amendment, unless they have a "fundamental right" to appeal without prepayment by virtue of that amendment's due process clause. We therefore turn to that claim. The Department of Revenue relies on Bull v. United States, 295 U.S. 247, 259-60, 55 S. Ct. 695, 699, 79 L. Ed. 1421 (1935), and Phillips v. Commissioner, 283 U.S. 589, 595-99, 51 S. Ct. 608, 611-12, 75 L. Ed. 1289 (1931), for the principle that collection of a tax in advance of litigating the taxpayer's liability for it is not a deprivation of property without due process of law. Taxpayers point out that due process has come a long way since 1935, and they claim to find intimations of new due process constraints on tax collection in two recent decisions of the United States Supreme Court, Laing v. United States, 423 U.S. 161, 96 S. Ct. 473, 46 L. Ed. 2d 416 (1976) and Commissioner v. Shapiro, 424 U.S. 614, 96 S. Ct. 1062, 47 L. Ed. 2d 278 (1976). *174 Like Phillips, these recent cases involved summary procedures under which the Internal Revenue Service, in certain circumstances may assess a tax and seize the taxpayer's assets before the taxpayer has had an opportunity to contest the asserted tax liability. In each case the Supreme Court ruled for the taxpayer under the applicable statutes without deciding any constitutional issue. A footnote in Laing reserved the question, not raised by taxpayers, whether "due process demands that the taxpayer in a jeopardy assessment situation be afforded a prompt post-assessment hearing at which the Government must make some preliminary showing in support of the assessment." 423 U.S. at 184 n. 26, 96 S. Ct. at 485 n. 26. In Shapiro, the Court suggested that "to permit the Government to seize and hold property on the mere good-faith allegation of an unpaid tax would raise serious constitutional problems" if seizure of assets is alleged to cause irreparable injury, and that "the Due Process Clause requires that the party whose property is taken to be given an opportunity for some kind of predeprivation or prompt postdeprivation hearing at which some showing of the probable validity of the deprivation must be made." 424 U.S. at 629, 96 S. Ct. at 1071-1072.[4] The present case, however, does not involve a jeopardy assessment or any other summary procedure. These taxpayers had opportunities for both an informal administrative hearing and a formal quasijudicial hearing to challenge the assessment. ORS 305.265, 305.275, OAR 150-305-115. These procedural opportunities more than satisfy the kind of due process requirements suggested by the Supreme Court in Shapiro, supra, apart from the fact that no "irreparable harm" from delaying a hearing until after payment is shown here. The taxpayers' only criticism of the administrative hearing is that the Director of the Department of Revenue need not accept the hearing officer's recommended decision but may make a contrary decision upon a summary of the evidence prepared by the hearing officer. If the director proposes to modify the recommended decision, however, he must give the parties his reasons in writing, and he must reopen the hearing if he intends to modify the order upon any evidence outside the hearing record. ORS 305.115(1). At bottom, taxpayers' argument is that due process is not complete until there has been judicial review of their tax liability, and that irrespective of quasijudicial administrative hearings judicial review cannot consistent with due process be limited to challenges to a tax that has been paid. The Supreme Court has not so held, and we see no indication that it would so hold. The statutory amendment requiring payment of the tax before an appeal became effective several weeks after the orders to these taxpayers, which had the effect of shortening the period in which they could pay the taxes and perfect their appeals. The taxpayers did not, however, ask the tax court to stay the prepayment requirement as authorized by section 2(3) of 1982 Oregon Laws, chapter 29, upon a taxpayer's "showing of undue hardship," although they were informed of this provision by the department's notice of their appeal rights. Taxpayers did no more than point out to the tax court that they had "considerably less than sixty days in which to raise substantial sums of disputed tax assessments." They have not asserted that it would be difficult for them to do so. On this record, we cannot hold that they are entitled to a hardship exemption from the statutory requirement, assuming that this otherwise would be within our responsibility in reviewing the tax court's decision under ORS 305.445. The tax court's decision is affirmed. [1] The pertinent sections of 1982 Or. Laws ch. 29, HB 3314, are as follows: "SECTION 2. (1) Except as provided in subsection (3) of this section, in any appeal from an order of the department involving a deficiency of taxes imposed upon or measured by net income, the tax assessed, and all penalties and interest due, shall be paid to the department on or before the filing of a complaint with the regular division of the Oregon Tax Court under ORS 305.560. The complaint shall be filed as a claim for refund. "... "(3) Upon a showing of undue hardship by the plaintiff, the tax court may stay all or any part of the payment of tax, penalty and interest required under subsection (1) of this section. "... "Section 4. ORS 305.565 is amended to read: 305.565. (1) Unless otherwise ordered by the Oregon Tax Court, no proceeding for the collection of any taxes, interest or penalties resulting from an assessment of taxes or additional taxes imposed by ORS chapter 118, 119, 310, [314, 316, 317, 318] or this chapter shall be stayed by the taking or pendency of any appeal to the director or department, or from an order of the department or the Oregon Tax Court.[,] No stay shall be ordered by the tax court if the department [believes] demonstrates that collection of the tax will be jeopardized by delay." [2] But see Ortwein v. Schwab, 262 Or. 375, 381, 498 P.2d 757 (1972), aff'd 410 U.S. 656, 659-60, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973) (welfare); Inland Navigation Co. v. Chambers, 202 Or. 339, 350, 274 P.2d 104 (1954) (taxation). [3] Or. Const. art. IV, § 24: "Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution;...." Cf. Federal Land Bank of Spokane v. Schermerhorn, 155 Or. 533, 549, 64 P.2d 1337 (1937). [4] Taxpayer also quotes earlier dicta to the same effect in Rambo v. United States, 492 F.2d 1060, 1064-65 (6th Cir.1974), cert. den. 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 103 (1976).

d2ef6bc42d7f664a8c2ebeb03f5b1629b2a41e7b2531bf85d798423fb9826ebf

1982-12-15T00:00:00Z

40b8df40-f3d1-43c1-bb32-f279baba8e74

Cook v. Employment Division

293 Or. 398, 649 P.2d 594

oregon

Oregon Supreme Court

649 P.2d 594 (1982) 293 Or. 398 Bill A. COOK, Petitioner On Review, v. EMPLOYMENT DIVISION, Raymond P. Thorne, Assistant Director, Respondent On Review. CA 16099; SC 27769. Supreme Court of Oregon, In Banc. Decided August 3, 1982. Petition for Attorneys Fees May 14, 1982. Petition for Attorneys Fees May 19, 1982. *595 Robert A. Payne, Oregon Legal Services, McMinnville, for petition. Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem, contra. On Petitioner's Petition for Attorneys Fees May 14, 1982. On Respondent's Objection to Petition for Attorneys Fees May 19, 1982. LENT, Chief Justice. Following our decision in Cook v. Employment Division, 293 Or. 1, 643 P.2d 1271 (1982), petitioner Cook filed a petition for an award of attorney fees, contending as follows: ORS 183.495 provides: The respondent Division opposed the petition, contending that neither basis asserted was a tenable ground for an award of fees. The policy of this court has been not to allow attorney fees unless a party seeking attorney fees can point to express statutory or contractual authorization of the court to award fees. Riedel v. First National Bank, 287 Or. 285, 290, 291, 598 P.2d 302, 305 (1979).[1] ORS 183.495 affords no authorization. That statute is concerned with court review of an agency order. Our review in Cook v. Employment Division, supra, was of a decision of the Court of Appeals, which itself was not a judicial review of a final order of an agency.[2] In support of his claim for attorney fees for acting as a "private attorney general," petitioner cites no authority whatsoever. We are aware of none. Perhaps petitioner relies upon our decisions to award attorney fees in Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975), and Gilbert v. Hoisting & Port Engrs., 237 Or. 130, 384 P.2d 136, 390 P.2d 320, cert. den. 376 U.S. 963, 84 S. Ct. 1125, 11 L. Ed. 2d 981 (1964). In those cases we allowed awards of attorney fees based upon the inherent power of a court of equity. In this matter we did not sit in equity. Petition for attorney fees denied. [1] There is no claim of contractual authorization in this case. In Riedel v. First National Bank, 287 Or. 285, 292, n. 5, 598 P.2d 302, 306, n. 5 (1979), we noted an exception to our general policy in interpleader cases. [2] The Court of Appeals' decision on the merits of the agency action was Cook v. Employment Division, 47 Or. App. 437, 614 P.2d 1193 (1980), and we denied a petition for review of that decision, 290 Or. 157 (1980).

693c09873891a9b427ec6cc81f8002fb0facc5402ab363beff69f45c461065f2

1982-08-03T00:00:00Z

cf03dac0-25b2-4c31-bd69-0e45f87b7b67

Maddox v. Clackamas Cty. Sch. Dist. No. 25

293 Or. 27, 643 P.2d 1253

oregon

Oregon Supreme Court

643 P.2d 1253 (1982) 293 Or. 27 William K. MADDOX, Petitioner On Review, v. CLACKAMAS COUNTY SCHOOL DISTRICT NO. 25, a Public Body Corporate; Robert Jackson, Charles Zeek, John Weygandt, Jesse Lantz and Harold Gibboney, Individually and As Members of the District School Board of Clackamas County School District No. 25; and Richard Bailey, Respondents On Review. No. 78-5-275; CA 17281; SC 27822. Supreme Court of Oregon, In Banc[*]. Argued and Submitted October 6, 1981. Decided April 27, 1982. *1254 Paul J. Kelly, Jr., Portland, argued the cause for petitioner. With him on the briefs was Glasgow, LaBarre & Kelly, P.C., Portland. James C. Tait, Oregon City, argued the cause for respondent. With him on the brief was Hibbard, Caldwell, Canning, Bowerman & Schultz, Oregon City. TANZER, Justice. This is a claim in contract and under 42 U.S.C. § 1983 brought by an elementary school teacher whose employment was terminated one month into his one school-year term as a probationary teacher. He seeks damages from the employer school district for breach of contract and from the school district and the school board members individually for deprivation without due process of law of his property interest in continued employment. The trial court dismissed the claim and the Court of Appeals affirmed. There are two issues: The first is whether a probationary teacher whose contract is expressly subject to ORS 342.835 has a claim for breach of contract to challenge a termination under that statute during the term of his contract. The second is whether a probationary teacher hired for a fixed term has a "property" interest in his job of which he cannot be deprived without due process of law, and if so, what process is due. The facts are stipulated. Plaintiff was hired for the 1976-77 school year. About one month into the school year, the school principal informed plaintiff by letter that he intended to recommend plaintiff's dismissal to the district school board at a special meeting to be held two days later.[1] The letter listed the reasons for the principal's recommendation, informed plaintiff that he would be welcome at the meeting and that he would be afforded an additional hearing "depending upon the direction the board takes." At the meeting, plaintiff characterized the charges against him as untrue, exaggerated and not grounds for dismissal, but he did not comment further on the specific charges. He asked the board to delay its decision in order to give him and his lawyer an opportunity to prepare an adequate response. He requested a public hearing, at which he would be allowed to call and cross-examine witnesses. The board denied plaintiff's request to continue the proceedings and, following an executive session, voted to terminate his employment effective immediately. Plaintiff was informed by letter that he was dismissed as of the date of the meeting. Upon plaintiff's request, an informal public hearing was held several weeks later. Witnesses were not sworn, but plaintiff was apparently free to question the principal who recommended his dismissal and to have witnesses speak in his behalf. Afterward, the board voted to confirm its decision to terminate plaintiff's employment. Plaintiff then brought this action for damages for breach of his employment contract, and for deprivation of his property interest in his one-year contract without due process of law.[2] Defendants moved to dismiss and for summary judgment. The circuit court dismissed both causes of action because plaintiff had a statutory remedy under ORS 342.835(3), infra, by which to challenge the board's decision. It is not clear whether the court viewed the statutory remedy as being exclusive or as one which must be exhausted before other remedies would be available. At any rate, the court concluded that the only remedy then available to plaintiff was to pursue his statutory right of appeal from the board's decision. Summary judgment was denied. The Court of Appeals affirmed the trial court. It held that the contract claim was *1255 properly dismissed because plaintiff may not avoid the limited statutory review granted under ORS 342.835(3) by bringing an action for breach of contract. In addition, it held that the § 1983 claim was properly dismissed because plaintiff did not have a property interest in his contract which was protected by the United States Constitution or the Oregon Constitution. We allowed review to clarify the remedies available to a probationary teacher who is dismissed during the term of the contract. On somewhat different reasoning, we affirm the Court of Appeals. The employment relationship between school district and teacher has many aspects, each subject to various sources of regulation, such as statute (e.g. ORS ch. 342), administrative rules, and individual or collective contracts. Work hours, for example, may be determined administratively. Duties to be performed and compensation for performance are normally controlled by express or implied contract. The aspect involved in this case is termination. We have held that in the absence of agreement or other regulation (and disregarding constitutional requirements), either the employer or the employee may terminate employment at any time for any reason, Vaughn v. Pacific Northwest Bell Telephone, 289 Or. 73, 611 P.2d 281 (1980); Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978); Nees v. Hocks, 272 Or. 210, 216, 536 P.2d 512 (1975).[3] Here, those prerogatives are restricted. The duration of employment is governed by both contract and statute. The term of employment is established by contract as one year but, as the contract acknowledges, that term is subject to termination pursuant to statute. The contract specified the parties, school year, salary and required teacher certification. It then listed several "conditions of employment," including: Under the "laws of the State of Oregon" to which this contract was subject, the school district was not free to terminate employment of probationary teachers such as plaintiff at will.[4] Termination of probationary teachers' employment was governed by ORS 342.835, which at all pertinent times provided: Under that statute, school districts were authorized to dismiss probationary teachers for any cause their board "in good faith" deemed sufficient. The probationary teacher is entitled to written reasons for the dismissal and, upon request, a hearing by the board. The statute also provides for an appeal from the hearing. In Henthorn v. Grand Prairie School Dist., 287 Or. 683, 601 P.2d 1243 (1979), we construed ORS 342.835 to provide that the appeal was by writ of review, which review was limited to the procedures used in the dismissal process.[5] The intent of ORS 342.835 was to give to probationary teachers a limited measure of procedural protection from arbitrary termination, but to leave the substantive determination to terminate with the school districts, to allow flexibility in probationary teacher decisions and to avoid embroilment in extended termination procedures.[6] In sum, the contract provides for a contractual term of employment subject to statutory termination provisions. Termination is not elsewhere dealt with in the contract. Although the contract is for a specified term, it does not purport to eliminate or modify the controlling effect of ORS 342.835. (We need not consider whether that can lawfully be done by contract.) This contract purports only to jointly acknowledge that the terms of the agreement of the parties are subject to state laws, of which ORS 342.835 governing termination is one. In other words, termination grounds and procedures are governed by a source other than the contract and the contract notes the existence and controlling effect of that other source. Those interests of the parties which exist by virtue of the contract (e.g., compensation) may be protected by contract remedies. Plaintiff's freedom from improper termination, however, does not arise from the contract. That interest exists by virtue of the statute. His remedies also exist by virtue of the statute. The contract only acknowledges that its provisions (e.g., term) are "subject to," among other things, the termination provisions of ORS 342.845. No additional contract right or remedy to enforce the statute is created by the "subject to" provision. Plaintiff argues that we should construe ORS 342.835 to allow for alternative remedies because the statutory remedy is inadequate. Specifically, he argues that we should recognize a contract remedy because a probationary teacher who is successful in the writ of review proceeding may not be awarded damages. Statutes need not create a complete remedy for vindication of statutorily created interests, see, for example, ORS ch. 656, the Workers' Compensation Act, and where they do not, it is not for the courts to fill the statutory gaps. We note, however, had the termination been set aside on writ of review, the reviewing court was authorized to award "restitution," ORS 34.100. Under the present statute, a teacher would have a claim for relief at least for compensation under a contract for the period of employment prior to a proper termination. We need not examine the full scope of contract remedies in that situation. Here, it sufficies to say that plaintiff has remedies and there is no basis for us to add to the statutory remedies for that purpose. *1257 Plaintiff's first cause of action for breach of contract was properly dismissed. Plaintiff's second cause of action, brought against the school district and the individual board members, alleged that the procedures by which he was dismissed deprived him of his property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution.[7] He seeks damages under 42 U.S.C. § 1983.[8] Defendants raise two procedural defenses. They argue first that the court should require plaintiff to exhaust the available state remedy by seeking a writ of review before bringing his § 1983 claim. As we have noted, plaintiff's only available state remedy was by writ of review to the circuit court. Assuming plaintiff could establish a violation of his constitutional rights in that proceeding, he could not necessarily be awarded the full scope of damages awardable in a § 1983 suit. Therefore, resort to a § 1983 action would eventually be necessary. In addition, the federal courts have not required exhaustion of state judicial remedies before hearing a § 1983 claim. See, Steffel v. Thompson, 415 U.S. 452, 472-473, 94 S. Ct. 1209, 1222-1223, 39 L. Ed. 2d 505 (1974); Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 481, 5 L. Ed. 2d 492, 502 (1961); cf., McNeese v. Board of Education, 373 U.S. 668, 671-674, 83 S. Ct. 1433, 1435-1437, 10 L. Ed. 2d 622 (1963) (state administrative remedy need not be exhausted). Although the same considerations may not apply when the suit is brought in state court, given the limited nature of the state remedy provided by ORS 342.835(3), we will not require exhaustion in this case. A § 1983 violation comes under the Tort Claims Act. Defendants argue that plaintiff's claim is barred by his failure to give timely tort claims notice. ORS 30.265(1), 30.275(2)(b). We need not decide whether a state can impose such a statutory notice requirement on a § 1983 action. The statute requires notice within 180 days after the alleged injury. Plaintiff gave notice within 180 days of his post-termination hearing, but not within 180 days of his dismissal. His alleged injury occurred when he was denied due process of law. *1258 Especially in the context of dismissal from public employment, whether plaintiff was denied due process depends upon the adequacy of the pre- and post-termination hearings taken together. If plaintiff was injured, the injury did not occur until the post-termination hearing was held. Therefore, plaintiff's tort claim notice was timely. We turn now to the merits of plaintiff's claim. In examining plaintiff's claim under the Due Process Clause, the threshold inquiry is whether plaintiff has a "property" interest in the remainder of his one-year contract. If, as the Court of Appeals held, he does not, then the Due Process Clause is not applicable and plaintiff has suffered no denial of his constitutional rights. If he does, the next inquiry is whether the statutory procedure by which plaintiff was dismissed was constitutionally sufficient. Property interests are not created or defined by the federal constitution, but by "existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). In this case, plaintiff's property rights are defined by a contract subject to state law. He was hired for a fixed one-year term. He had a contractual right to serve that term, subject to the board's good faith decision to dismiss him. He does not serve entirely at the board's pleasure, because the obligation to act only in good faith is a statutory and a contractual limitation on the board's authority. He has, in the words of the United States Supreme Court, a "legitimate claim of entitlement" under state law to keep his position for one year, or until the board decides in good faith to dismiss him. Board of Regents v. Roth, 408 U.S. at 577, 92 S. Ct. at 2709. The United States Supreme Court cases which have found a property right in public employment have involved individuals who could be dismissed only for "cause." Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); cf., Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976) (under state law, plaintiff's employment was terminable at will). Here the statute, and therefore the contract, authorize defendants to dismiss plaintiff for "any cause" so long as the dismissal is in good faith. ORS 342.835(1). "Good faith" embodies a different standard than "cause" for dismissal, but the nature of the standard is sufficient to give rise to a property interest protected by due process. Board of Regents v. Roth, 408 U.S. at 570-571, 92 S. Ct. at 2705-2706. State law defines the interest, but federal constitutional law determines whether an underlying property interest "rises to the level of a `legitimate claim of entitlement' protected by the Due Process Clause." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 1560, 56 L. Ed. 2d 30 (1978). Because plaintiff has a contract for a fixed term, and because he cannot be dismissed except in good faith, he has a property interest in employment for the remainder of his contract term of which he cannot be deprived without due process of law.[9]See, Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 777 (9th Cir.1982). Unlike the threshold question of whether a property right exists, the question of what process is due turns partly on the weight of the interests at stake. Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 (1961) (quoting Joint Anti-Fascist Committee v. McGrath, 341 *1259 U.S. 123, 162, 71 S. Ct. 624, 643, 95 L. Ed. 817 (1951)). The specific requirements of due process are "flexible" in that "not all situations calling for procedural safeguards call for the same kind of procedure." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). Determination of the adequacy of the procedures employed requires consideration of the governmental and private interests that are affected, as well as the probability that the resulting deprivation will be erroneous. As the United States Supreme Court put it, In this case, plaintiff's interest is obviously in employment for the duration of his one school-year contract. The defendants' interest is in expeditious removal of undesired probationary teachers. We cannot say that one of these interests "outweighs" the other, for each is significant to the parties involved. For resolution of this issue we focus on the "risk of erroneous deprivation" of plaintiff's interest through the procedures used, bearing in mind that plaintiff can be dismissed for any cause whatsoever, as long as the board acts in good faith. The weight of plaintiff's employment interest bears on the risk of erroneous deprivation through the procedures used, because the more discretion the board has, the less likely it will do something it has no discretion to do. Here, plaintiff was given written notice of the reasons for his dismissal, and an opportunity to be heard informally before the board acted. After his dismissal, he was given a public hearing before the board, at which he was represented by counsel and had opportunity to question the principal who recommended his dismissal. Also, the decision maker whose good faith is in question (the school board) is a step removed from the official (the principal) who ordinarily supervises the probationary teacher and recommends termination, cf., Goldberg v. Kelly, 399 U.S. 254, 271, 90 S. Ct. 1011, 1022, 25 L. Ed. 2d 287 (1970); Morrissey v. Brewer, 408 U.S. at 486-489, 92 S. Ct. at 2602-2604. Taken together, these procedures were adequate to guard against a bad faith dismissal. Plaintiff had two opportunities to rebut the charges against him, before a decision maker a step removed from the recommendation and at least one opportunity to confront the person who made charges and who recommended his dismissal, and the regularity of the proceeding was subject to judicial review.[10] Given the nature of plaintiff's property interest, these procedures were sufficient to protect it. See, Tupper v. Fairview Hospital, 276 Or. 657, 556 P.2d 1340 (1976).[11] *1260 Plaintiff's complaint alleged a number of specific procedures to which he was entitled, but on appeal he relies most heavily on his right to an impartial decision-maker. Plaintiff claims he was denied this right, but his complaint does not disclose the basis of this contention. The fact that the board members made the initial decision to dismiss plaintiff does not, without more, render their subsequent decision impermissibly biased. Vanelli v. Reynolds School District No. 7, supra, n. 10; see also, Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 496-497, 96 S. Ct. 2308, 2315-2316, 49 L. Ed. 2d 1 (1976) (state school board's prior involvement in a labor dispute with striking teachers did not prevent it from deciding whether those teachers should be dismissed as a result of the unlawful strike); Withrow v. Larkin, 421 U.S. 35, 47, 55, 95 S. Ct. 1456, 1464, 1468, 43 L. Ed. 2d 712 (1975) (state medical examining board may adjudicate the merits of a disciplinary action in which the board itself had investigated and filed charges). Beyond that, plaintiff has not alleged actual bias in the board members. The trial court dismissed plaintiff's § 1983 claim for failure to state facts constituting a claim for relief. The dismissal was incorrect because plaintiff's complaint alleged he was fired without adequate prior notice of the charges or the sanctions being considered. None of the pleadings alleged that plaintiff had received notice of the charges and of the proposed sanction. Had plaintiff been dismissed with no notice, he would have a cause of action under § 1983. Therefore, the pleadings stated a claim for relief and the dismissal was error. The motion for summary judgment was based on the stipulated facts. Because the agreed facts establish that the procedures by which plaintiff was dismissed satisfied the requirements of the Due Process Clause, defendant's motion for summary judgment should have been granted. The judgment is modified in this respect to reflect summary judgment for defendants on the § 1983 claim. The circuit court is directed to enter a new judgment consistent with this holding. The decision of the Court of Appeals is affirmed as modified. [*] TONGUE, J., retired February 7, 1982. [1] Plaintiff claims he received the notice on September 29, 1976, the day of the school board meeting. The school board contends he received it on September 27. For the reasons discussed in this opinion, this dispute is not significant either to plaintiff's contract claim or his § 1983 claim. [2] The trial court granted summary judgment for defendants on a third cause of action against the school principal. Plaintiff does not challenge this judgment on appeal. [3] We are mindful of suggestions to judicially qualify employers' discretion to terminate, see Note, Protecting At Will Employees Against Wrongful Discharge: The Duty To Terminate Only In Good Faith, 93 Harv.L.Rev. 1816 (1980), or to do so by legislation. C. Summers, Individual Protection Against Unjust Dismissal, 62 Va.L.Rev. 481 (1976). This case does not require that we reexamine the existing rule. [4] This is to be distinguished from the extensive substantive and procedural protection from termination required for permanent teachers by the Fair Dismissal Law, ORS 342.805 to 342.955. Plaintiff is not a "permanent teacher" as that term is used in the statute. [5] The Henthorn construction was later codified, see Or. Laws 1981, ch. 323, and now appears as ORS 342.835(3): "If an appeal is taken from any hearing, the appeal shall be to the circuit court for the county in which the headquarters of the school district is located and shall be limited to the following: (a) The procedures at the hearing; (b) Whether the written copy of reasons for dismissal required by this section was supplied; and (c) In the case of nonrenewal, whether notice of nonrenewal was timely given." [6] See Minutes, Senate Education Committee, April 15, 1975, pp. 2-4. For example, see the testimony by Jon Danielson of the Oregon Education Association, Minutes, Senate Education Committee, April 15, 1975, p. 3. See also Exhibit L, House Committee on Labor and Business Affairs, May 22, 1975; Testimony by the Oregon School Boards Association. [7] * * nor shall any State deprive any person of life, liberty, or property, without due process of law;" Plaintiff further alleged that the same procedures which he claims to fall short of due process of law under the federal constitution also denied him rights guaranteed by Or.Const., Art. I, § 10. That section provides: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation." On its face, Art. I, § 10, guarantees a legal remedy after some injury has been done to an interest falling within its coverage, not a particular administrative procedure in advance of such an injury. This court declined to give the section a pretermination procedural effect independent of the Fourteenth Amendment in Tupper v. Fairview Hospital, 276 Or. 657, 556 P.2d 1340 (1976). In addition, although plaintiff does not press the argument on appeal, his complaint alleged that he was deprived of "liberty" without due process of law. The United States Supreme Court has found a liberty interest implicated for purposes of the Due Process Clause where the individual's "good name, reputation, honor or integrity" is at stake. Board of Regents v. Roth, 408 U.S. at 573, 92 S. Ct. at 2707. Plaintiff has not pointed to any charge by the school board which reflects adversely on these qualities. The charges against him generally involved his punctuality and failure to meet deadlines. Whatever the confines of a constitutionally protected liberty interest, these charges are not the sort that implicate that interest. [8] 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." In his second cause of action plaintiff also sought damages for deprivation of procedural rights secured to him by ORS 342.835. As we have already held, plaintiff was afforded all procedural rights which the statute provides him. This portion of the complaint was properly dismissed. [9] The Court of Appeals held that probationary teachers do not have a property interest in their jobs, citing Papadopoulos v. Bd. of Higher Ed., 14 Or. App. 130, 511 P.2d 854, rev. den. (1973), cert. den. 417 U.S. 919, 94 S. Ct. 2626, 41 L. Ed. 2d 224 (1974), and Davis v. Oregon State University, 591 F.2d 493 (9th Cir.1978). Those cases dealt with nonrenewal of a probationary teacher's contract rather than dismissal during a fixed term contract. The distinction is significant in determining whether a property interest exists. [10] The record does not indicate whether the principal was present at the board meeting where the decision to dismiss plaintiff was made. [11] In these cases, pre- and post-dismissal procedures must be viewed together to determine whether plaintiff's due process rights were violated. In Tupper, this court considered the adequacy of procedures used to dismiss a nonprobationary state employee. The employee was dismissed without notice, and was then given a "full post-termination hearing" before the Employment Relations Board. The court held that in addition to this post-termination hearing, plaintiff was entitled before being dismissed to notice of the charges against him and of the sanctions being considered, and an opportunity to refute those charges either orally or in writing before someone who was authorized to make the final decision. In its analysis of what due process required, the Tupper court viewed the procedures employed both prior to and following the dismissal to determine if, taken as a whole, they adequately protected plaintiff's property interest. The pre-termination procedures the court required were sufficient because of the extensive post-termination procedures. That notion was implicit in our statement that "in addition to his full post-termination hearing Tupper was entitled to [the procedural safeguards listed above] prior to dismissal." Tupper, 276 Or. at 665, 556 P.2d 1340. We recognize that the procedures to which Tupper was entitled were more extensive than those employed here, but Tupper's property interest was more significant. Unlike plaintiff here, he could only be dismissed for "cause."

85be65c64e51812797dc65e83c5945325d3fccdddc32b6d23d9e877d419f15c9

1982-04-27T00:00:00Z

0cc8100f-e734-4370-a318-d6b80580ab63

North Pacific SS Co. v. Guarisco

293 Or. 341, 647 P.2d 920

oregon

Oregon Supreme Court

647 P.2d 920 (1982) 293 Or. 341 NORTH PACIFIC Steamship CO., a Corporation, Petitioner On Review, v. Peter V. GUARISCO, Hellenic, Inc., Pyramid Ventures Group, Inc., Pyramid Bulkhandling, Inc., Respondents On Review, Donald C. Scafidi and Pyramid Bulkcarriers, Inc., Respondents On Review, Creole, Ltd., Pyramid Supply Inc., Transbulk Ltd., Pyramid Sugar Transport, Inc., and Creole International, Defendants. CA 13405; SC 27511. Supreme Court of Oregon. Argued and Submitted September 3, 1981. Decided July 7, 1982. Rehearing Denied August 24, 1982. *922 Bruce M. Hall, Portland, argued the cause and filed briefs for petitioner on review. With him on the briefs were Wood, Tatum, Mosser, Brooke & Holden, P.C. and Daniel M. Ricks, Portland. William M. McAllister, Portland, argued the cause and filed briefs for respondents on review. With him on the briefs was Richard C. Josephson, Portland. Before DENECKE, C.J., and LENT, LINDE, PETERSON and CAMPBELL, JJ. CAMPBELL, Justice. Plaintiff North Pacific Steamship Company (North Pacific), a judgment creditor, instituted this suit, styled as a creditor's bill in equity, against the several individual and corporate defendants in an effort to have their assets applied against its unsatisfied judgment. The judgment debtor, Pyramid Bulkcarriers (Bulkcarriers), is named as defendant but its assets have long since been depleted. The principal targets of this suit are several allied corporations and a couple of individuals who managed and controlled Bulkcarriers. In brief, North Pacific seeks to have these defendants held liable for Bulkcarriers' judgment debt under theories of improper diversion of corporate opportunities and "piercing the corporate veil." From a decree generally in favor of North Pacific, several of the defendants appealed; North Pacific cross-appealed. The Court of Appeals reversed upon a finding that the trial court was without jurisdiction over the defendants. 49 Or. App. 335, 619 P.2d 1302 (1980), opinion adhered to, reh den, 50 Or. App. 285, 622 P.2d 1142 (1981). North Pacific petitioned this court for review alleging this finding to be erroneous. We accepted review and are faced with the single issue: For purposes of this creditor's bill in equity, were the contracts between the several defendants and this state such as to make the trial court's exercise of jurisdiction over them consonant with applicable statutes and the Due Process Clause?[1] Cases of this sort have a tendency to generate voluminous and complex records, and this case is no exception.[2] Fortunately, however, the evidence relevant to the jurisdictional issue may be briefly stated. First, the cast of characters: Plaintiff North Pacific is a foreign corporation, incorporated under the laws of Liberia, apparently owned and controlled in large part by Portland industrialist Dr. Leonard Schnitzer and attorney Kenneth Lewis. During times material to the present controversy, North Pacific was not licensed to do business in Oregon and was represented here only by its agent, Lasco Shipping Company. Bulkcarriers, also a Liberian corporation, was incorporated in 1969, maintained its principal offices in Bermuda, and conducted its business out of Louisiana. Its primary business was ocean-going bulk transport with time-chartered vessels in the maritime trade between Gulf ports, the Caribbean, and South America. The original ownership of Bulkcarriers was equally divided between defendant Hellenic, Inc., and another unrelated corporation. Hellenic and *923 other defendants, however, gradually acquired control of Bulkcarriers and at times relevant here owned up to 80% of its stock. In addition, Hellenic owns 100% of the stock of defendant Pyramid Bulkhandling, Inc. (Bulkhandling). Hellenic, in turn, is a closely-held family corporation controlled by defendant Peter V. Guarisco, a Louisiana resident. Guarisco, who apparently has his fingers in many pies, also is a principal owner, either individually or through family connections, and manager of defendant Pyramid Ventures Group, Inc., (Ventures) and the other corporate defendants. In addition, he was Chairman of the Board of Bulkcarriers, Bulkhandling, and Ventures, as well as an officer or director of the other defendants. Defendant Ventures was formed under the direction of Guarisco and defendant Donald Scafidi and incorporated in Louisiana. Its principal purpose was apparently to operate as an agent of Bulkcarriers and not to acquire assets and income for itself. Defendant Scafidi, a Louisiana resident, was the "right-hand man" of Guarisco in these endeavors; although he had little capital investment in the various corporate defendants, he was an officer or director of at least several of them and was involved in their management and operations. The present controversy had its genesis in a charter agreement entered into between North Pacific and Bulkcarriers. In 1970, North Pacific acquired two self-loading ocean-going cargo vessels, the Pacsea and Pacsun, which it made available for charter operations. Bulkcarriers became interested in the vessels for its Gulf operations and entered into charter negotiations with North Pacific. Schnitzer and Lewis, as officers of Lasco, North Pacific's Portland agent, negotiated with Scafidi and a Mr. Richard V. Tedesco, agents for Bulkcarriers, in Portland and Louisiana to effect the charter. The charter contract, as finalized in late 1970, was between Bulkcarriers and North Pacific and was to run for several years. In the spring of 1971, difficulties began to develop. North Pacific contends that Bulkcarriers, realizing that a West Coast longshoremen's strike was imminent and that the financial market for ship chartering would plummet as a result, tried to back out of the deal. Bulkcarriers argued that operational problems with the ships and crews, which were supplied by North Pacific, and the dissatisfaction of their principal customers justified their cancelling of the charter. In any event, Bulkcarriers ceased charter payments and the ships were returned to North Pacific on June 30, 1971, one day before the strike. At North Pacific's instance, arbitration of the dispute ensued. Proceedings were held in Portland, New Orleans, and New York during 1971 and 1972 and resulted in a finding that Bulkcarriers had wrongfully breached its charter contracts as of June 30, 1971. The arbitrators set North Pacific's damages at $842,350.67. Shortly after the award was announced, North Pacific brought an action in Federal District Court for the Eastern District of Louisiana to have the award entered as a judgment of the court. On May 18, 1973, judgment was entered in favor of North Pacific against Bulkcarriers for the amount stated plus interest at 7% per annum until paid. North Pacific executed upon Bulkcarriers' Louisiana bank account, capturing $118,000, but inasmuch as Bulkcarriers had no further assets subject to execution North Pacific's judgment has gone largely unsatisfied. Further efforts by North Pacific to obtain satisfaction in Louisiana bogged down, and in 1975 it instituted the present action in Multnomah County Circuit Court. North Pacific's approach here was two-fold: 1) it brought a cause of action at law for fraud alleging that Scafidi and Tedesco made material misrepresentations during the contract negotiations; and 2) it brought the present suit styled as a creditor's bill in equity. Defendants from the beginning have vigorously challenged the Oregon courts' jurisdiction over them. Soon after service upon them they all joined in a special appearance, by way of motion to quash service, requesting dismissal of the suit *924 upon the ground that the court lacked personal jurisdiction over them. The circuit court found jurisdiction over Bulkcarriers, Ventures, and Scafidi based upon torts and business transactions alleged to have occurred within the state, but dismissed the complaint as to the rest of the defendants. Bulkcarriers, Ventures, and Scafidi petitioned this court for a writ of mandamus seeking to overturn the circuit court's determination as to them; this court, however, denied the petition.[3] Meanwhile, North Pacific amended its complaint and re-served the other defendants. These defendants again joined in a motion to quash. This time, however, the circuit court denied the motion as to Guarisco, Hellenic, and Bulkhandling. Defendants then moved for a order of dismissal upon grounds of forum non conveniens, alleging that a similar action was already pending in Louisiana, a more convenient forum; this motion, however, was also denied. The battle of motions and pleadings continued until finally, in late 1978, the case was tried. The action at law for fraud was split from the creditor's bill in equity for separate trial and then stayed pending a final decree in this suit. A final decree was entered in January 1979 generally in North Pacific's favor. In its findings of fact and conclusions of law the court, in relevant part, found and concluded as follows: the court had jurisdiction over all the remaining defendants; none of the defendants was the "alter ego" of Guarisco or Hellenic; and defendants Ventures, Bulkcarriers, and Bulkhandling had engaged in a plan to divert business from Bulkcarriers to Bulkhandling and Ventures, and ultimately to defendant Transbulk, Ltd., for the purpose of avoiding payment of North Pacific's judgment. A decree was entered against Ventures, Bulkcarriers, and Bulkhandling for the sum of $1,009,769.32 (the amount of the outstanding judgment against Bulkcarriers, plus interest). In addition, the court concluded that North Pacific had not established any basis for recovery under either fraud or general equitable principles and noted that the former finding would operate to collaterally estop North Pacific's maintenance of the pending fraud action. Several of the defendants appealed; North Pacific cross-appealed. The Court of Appeals reversed, finding that the circuit court had improperly exercised jurisdiction over the defendants for purposes of the creditor's bill. In an appeal by North Pacific from summary judgment entered for defendants in the fraud action, however, the court in reversing noted that personal jurisdiction might exist over the relevant defendants for purposes of that action. See 49 Or. App. 331, 333, 619 P.2d 1306 (1980). We accepted review of the creditor's bill suit in the hopes of clearing up this jurisdictional muddle. As noted above, the single issue before us is whether the circuit court's exercise of jurisdiction over the defendants in this case was proper under applicable statutes and consonant with federal constitutional due-process guarantees.[4] The brief recital of the facts evidences, at most, only a tenuous connection between the several defendants and this state. None of the defendants is a resident or domiciliary of Oregon, none was "present" here at the time the suit was filed, and *925 none has ever engaged in business activities here, other than Bulkcarriers' charter transaction. Moreover, none of the defendants has any assets, real or personal, legal or equitable, located within Oregon. North Pacific makes three arguments to justify the circuit court's exercise of jurisdiction in this case: 1) The court had jurisdiction over the defendants for purposes of the concomitant fraud action and this validates the exercise of jurisdiction in this creditor's bill suit. 2) Defendants' out-of-state activities (viz., the diversion of corporate opportunities and transfer of assets) were accomplished for the purpose of preventing satisfaction of North Pacific's judgment and such activities had a substantial enough effect in this state to justify jurisdiction over the defendants. 3) The present suit arises out of, and is sufficiently connected with, Bulkcarrier's in-state activities to justify jurisdiction over Bulkcarriers and, through it, the rest of defendants. The applicable Oregon statute pertaining to personal jurisdiction over non-resident defendants in force at the time this suit was filed was ORS 14.035(1),[5] which provided, in relevant part: In addition to the creditor's bill, North Pacific brought a fraud action alleging, in substance, that Bulkcarriers through its agents Scafidi and Tedesco made fraudulent misrepresentations during the charter contracting negotiations which induced North Pacific to enter into the charter agreement without sufficient financial guarantees. Since part of the contracting took place in Portland, Oregon courts could exercise personal jurisdiction over defendants Bulkcarriers and Scafidi for the purpose of adjudicating this fraud cause of action. ORS 14.035(1)(b); State ex rel. Academy Press, Ltd. v. Beckett, 282 Or. 701, 715-717, 581 P.2d 496 (1978); BRS, Inc. v. Dickerson, 278 Or. 269, 563 P.2d 723 (1977). See generally, 1 Restatement (Second) of Conflicts of Law §§ 36 and 49 (1971); Annot., 24 A.L.R.3d 532, 565 (1969). Indeed, the circuit court did find an adequate basis for jurisdiction over the defendants in that action and this conclusion was affirmed by the Court of Appeals. 49 Or. App. 331, 619 P.2d 1306 (1980). North Pacific is attempting to use the jurisdiction over the defendants obtained in that action to justify jurisdiction over them in this creditor's bill suit. The Court of Appeals implicitly rejected this approach when it dismissed this suit for lack of jurisdiction over the defendants while remanding the fraud action for trial. We agree. The statute upon which North Pacific is relying, ORS 14.035, provided in section (4):[6] The intent of this provision is that, despite the liberalization of the rules pertaining to joinder of claims against already served defendants, where the defendant is a non-resident of the state and jurisdiction was obtained over it through use of a "long-arm" statute, each separate claim or cause of action stated against such defendant must have its own independent jurisdictional grounds. See generally Restatement (Second) of Judgment § 12 (Tent. Draft No. 5, 1978). For example, where plaintiff brings a tort action against a non-resident defendant and obtains jurisdiction over him based on the fact that the tort occurred in-state, a separate breach of contract action against the same defendant cannot be joined unless there are independent grounds pertaining to the breach of contract for finding jurisdiction over the defendant on that claim. Applying this rule to the case at bar, it is clear that personal jurisdiction over Bulkcarriers and Scafidi for purposes of the fraud action does not translate to personal jurisdiction over them and the rest of the defendants for purposes of this creditor's bill. Although the two cases are related, they are too tenuously connected to allow the personal jurisdictional basis for one to suffice for the other. We therefore conclude that for personal jurisdiction to be exercised over the defendants in this creditor's bill suit there must be established sufficient and adequate contacts between them and this state relating to the bases for relief sought here contacts relevant to the fraud action are not necessarily relevant to this suit. Part of the basis for North Pacific's claim for relief in this creditor's bill suit is its allegations that the defendants conspired to deplete Bulkcarriers' assets and to have corporate opportunities available to it diverted to other of the defendants, particularly Bulkhandling and Transbulk, for the purpose of preventing North Pacific from satisfying its judgment against Bulkcarriers. North Pacific contends that out-of-state acts by a non-resident defendant done for the purpose of causing an in-state effect are sufficient to give this state's courts personal jurisdiction over the defendant. Under certain circumstances this may well be a valid proposition. See 1 Restatement (Second) of Conflicts of Law §§ 37 and 50 (1971); Annot., 24 A.L.R.3d 532, 565 [§ 4(b)] (1969). Before personal jurisdiction can be predicated upon such a ground, however, the applicable jurisdictional statute must allow it. ORS 14.035(1) only speaks in terms of transacting business in this state (subsection (a)) or of committing a "tortious act" in-state (subsection (b)). We have held that ORS 14.035(1)(b) does apply to out-of-state acts having in-state effects (see, e.g., BRS, Inc. v. Dickerson, supra), but consistent with the express language of the provision, this has only been in actions sounding in tort.[7] The present case is, in contrast, a creditor's bill in equity; North Pacific is calling upon the equitable powers of the court in an effort to satisfy its judgment out of the *927 assets of others than the judgment debtor. This is not an action sounding in tort notwithstanding the tortious overtones to North Pacific's allegations. Diversion of corporate opportunities, transfer of assets between related corporations, and manipulation of a corporation by an individual or a parent corporation may be inequitable vis-a-vis creditors of the affected corporations, but they are not per se tortious. North Pacific did not bring this suit to set aside "fraudulent conveyances" nor did it specifically allege, other than in the companion fraud case, a cause of action in tort and seek tort remedies. In any event, North Pacific has not established that the defendants' out-of-state conduct has had any substantial in-state tortious effect. To be sure, the alleged acts may well have severely impacted upon North Pacific, stymying its attempts to collect on a million-dollar judgment, but a significant tortious effect on interests in this state has not been alleged or shown. North Pacific is not an Oregon corporation. Its incorporators had it incorporated in Liberia, apparently for the purpose of avoiding the incidents of Oregon and American citizenship. And despite the fact that North Pacific finds it advantageous to do business here, setting up an agent corporation for that purpose, it did not register itself to do business in this state. There is some indication in the record that North Pacific is primarily owned and operated by Oregon residents, but the manner, nature, and extent of their injury is anything but clear.[8] Given the plaintiff's evident reluctance to bring itself within the control, regulation, and protection of our laws and its failure to establish that any interests protected by our laws have been adversely affected by defendants' activities, there is an insufficient basis for finding that any "tortious act" within the purview of ORS 14.035(1)(b) and relevant to the plaintiff's creditor's bill in equity has occurred in this state. Therefore, we conclude, personal jurisdiction over defendants cannot properly be based upon ORS 14.035(1)(b). North Pacific's final justification for the circuit court's exercise of personal jurisdiction over defendants is its contention that this suit arises out of the "transaction of business" by Bulkcarriers within this state and that ORS 14.035(1)(a) thus applies. North Pacific then seeks to reach the rest of the defendants with the argument that the interests of the various corporate and individual defendants are so inextricably intertwined and that the financial and managerial inter-connections are so extensive that, for purposes of this suit, there is sufficient "identity" between Bulkcarriers and the rest of the defendants such that personal jurisdiction over it validates personal jurisdiction over them. Assuming arguendo *928 that this is true,[9] the question remains whether Bulkcarriers' contacts with this state during the charter contracting may be relied upon to justify the exercise of personal jurisdiction over it in this creditor's bill. We may start with the assumption that Bulkcarriers, in coming into this state to effect a charter contract concerning vessels physically present within this state, may well have made itself amenable to suit here for disputes arising out of performance or breach of this contract. ORS 14.035(1)(a); State ex rel. White Lumber v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968). See generally, 1 Restatement (Second) of Conflicts of Law § 48 (1971); Annots., 23 A.L.R.3d 551 (1969), 20 A.L.R.3d 1201 (1968). When the charter contract was breached, however, North Pacific chose not to seek relief in Oregon courts but rather had the dispute settled elsewhere. First, it had the dispute submitted to arbitration; then it had the arbitrator's award enforced in Louisiana by having a judgment entered upon it there; and finally, it partially executed the judgment there. Thus, an Oregon breach of contract has been transformed into a partially satisfied Louisiana judgment. Nevertheless, North Pacific contends that those contacts which were relevant to the breach of contract remain relevant to this creditor's bill suit i.e., that the present suit "arises out of" the 1970 contract. Creditors' bills in equity have been an infrequent topic for discussion by this court. As a general matter, a creditor's bill is an equitable suit to subject a debtor's nonexempt assets to payment of an unsatisfied judgment against him under circumstances where legal remedies are inadequate or unavailable to accomplish that result. Williams v. Commercial National Bank, 49 Or. 492, 501-502, 90 P. 1012, 91 P. 443 (1907). See generally, Dobbs on Remedies § 1.3, p. 11 (1973); 21 Am.Jur.2d, Creditors' Bills §§ 1-2 (1981). In order to establish that the available legal remedies are inadequate, the creditor must generally show that his claim has been reduced to judgment and that a legal execution has been attempted and was returned nulla bona, i.e., not fully satisfied.[10]Creditors Protective Ass'n v. Balcom, 248 Or. 38, 41, 432 P.2d 319 (1967); Ryckman v. Manerud, 68 Or. 350, 357-360, 136 P. 826 (1913). Other than these general requirements, the jurisdictional basis for a creditor's bill has not been delineated by this court. Courts in other jurisdictions have tended to view creditor's bills as basically in rem or quasi-in rem proceedings. See 21 Am.Jur.2d, Creditor's Bills 53, § 65 (1981). Under such an approach, the court's jurisdiction would be dependent upon and limited by the presence and extent of the debtor's property *929 within the state. See 21 C.J.S. Creditors' Suits § 24 (1940). Since it appears that none of the defendants has any property of any nature within this state, it is questionable whether the courts of this state should exercise jurisdiction to entertain this creditor's bill. Regardless of these concerns, and assuming arguendo that personal jurisdiction over the defendants suffices to enable the court to award the relief sought, it is clear that the nature and extent of their contacts with this state are not sufficient to allow the Oregon courts to exercise personal jurisdiction over them for purposes of this creditor's bill suit. The language of former ORS 14.035(1)(a), allowing jurisdiction "as to any * * * suit * * * arising from * * * [t]he transaction [by defendant] of any business within this state" cannot be reasonably interpreted to countenance the exercise of jurisdiction over defendants here. North Pacific's present suit is an effort to obtain satisfaction of a Louisiana judgment. Its claim for relief is based upon conduct of the defendants occurring after the breach of contract and taking place wholly outside of this state. The fact that the contracting took place in this state, indeed even the fact that there was a contract, is no longer relevant in this creditor's bill suit. North Pacific's claim for relief is not based upon the contract, but rather upon a foreign judgment; moreover, it is not based upon the contractual events occurring in this state, but rather upon post-breach events unrelated to the contract occurring wholly out-of-state. Thus, although it may be said as a matter of causation that this suit had its genesis in the contract entered into in 1970 in this state, Bulkcarriers' contacts with this state, relevant as they may have been to a breach of contract action here, are simply not relevant to this creditor's bill suit seeking to obtain satisfaction of a foreign judgment.[11] Isolated business contacts between the non-resident defendants and this state, irrelevant to plaintiff's suit cannot be relied upon to base personal jurisdiction over them. See State ex rel. White Lumber v. Sulmonetti, supra, 252 Or. at 127, 448 P.2d 571. We conclude, this is a suit "arising from" out-of-state activities by non-residents which have no established impact on Oregon interests and which are separate and independent from the prior contract-related activities and not a suit "arising from" the transaction of business in this state by the defendants within the meaning of ORS 14.035(1)(a). It follows that the circuit court improperly exercised jurisdiction over the defendants in this suit, that its decree is a nullity, and that the decision of the Court of Appeals must be affirmed.[12] PETERSON, J., filed a concurring opinion in which LINDE, J., joined. *930 PETERSON, Justice, concurring. Although I concur in the result, I disagree with the analysis in part 3 of the court's opinion. Scafidi and Tedesco, as agents for Bulkcarriers, conducted transactions in Oregon and Louisiana to effect the charter. Tedesco is now deceased. The plaintiff's complaint in this suit alleged multiple theories of recovery. One of the theories of recovery against the defendant Scafidi was that Scafidi, "by reason of [his] actions and handling of the affairs of Pyramid Bulkcarriers, Inc., [is] also responsible for the judgment [against Bulkcarriers]. * * *" Although the trial judge considered that this was an appropriate theory of recovery, he found against the plaintiff on the merits. The majority states that the question is whether contacts "with this state during charter contracting may be relied upon to justify the exercise of personal jurisdiction * * * in this creditor's bill." 293 Or. at 353, 647 P.2d at 928. The majority answers the query in the negative, saying: ORS 14.025(1) subjected persons to the jurisdiction of Oregon courts "as to any cause of action or suit or proceeding arising from * * * the transaction of any business within this state * * *." Under the statute, the determining factor is the relationship between the cause of action, suit or proceeding and the transaction of business. If the claim arises from the transaction of business, personal jurisdiction exists over the person transacting business. ORS 14.035(1), (4). Creditors' bills, even though independent actions in form, are usually ancillary in the sense that they are brought to collect a judgment obtained in another proceeding. The proceedings are equitable, and are usually in rem rather than in personam, being a continuation in effect of the judgment upon which they are founded in order to achieve a satisfaction thereof. Pierce v. United States, 255 U.S. 398, 41 S. Ct. 365, 65 L. Ed. 697 (1920). An effort to collect a judgment which arises from the transaction of business is as much a consequence of the transaction of business as the cause of action underlying the judgment. Because creditors' bills are, in a sense, ancillary to the underlying proceeding, I believe that the creditors' bill claim against Scafidi has a sufficiently close nexus to his transaction of business in Oregon to support the conclusion that the claim asserted against Scafidi in this case can be said to arise from the transaction of business within Oregon. As noted in footnote 1 of the majority opinion, this court has held that ORS 14.035 is to be construed to permit exercise of jurisdiction over nonresident defendants to the limits allowed by the Due Process Clause. State ex rel. Western Seed v. Campbell, 250 Or. 262, 271, 442 P.2d 215 (1968). Compare ORCP 4 L. Although some of the elements of the creditors' bill claim may involve post-breach events unrelated to the contract, the fact that the underlying claim arose from the transaction of business in Oregon creates the necessary causal relationship for the exercise of jurisdiction. The plaintiff cites Creditors Protective Ass'n v. Balcom, 248 Or. 38, 432 P.2d 319 (1967), for the proposition that a judgment creditor can proceed by way of a creditors' bill to obtain a judgment against one who, although not a party to the underlying judgment, actively participated in a fraudulent scheme to hinder the creditors' collection of the judgment.[1] The defendants, in *931 their brief, concede that "* * * when an individual causes cash or other tangible property to be withheld or transferred without consideration that to that extent the individual is liable. * * *" The trial court assumed that this theory of recovery was available to the plaintiff against the individual defendants, including Scafidi, but found against the plaintiff under the evidence.[2] I concur with the trial court's analysis of the evidence and with its finding, and would therefore affirm the trial court in denying recovery to the plaintiff on the plaintiff's claim against Scafidi, but not for the reasons stated in the Court of Appeals opinion or in the majority opinion. LINDE, J., joins in this concurring opinion. [1] In those cases where the jurisdiction of the court rests upon the service of process out-of-state on a non-resident defendant under the "long arm" provisions of ORS 14.035, the analysis is two-pronged: 1) do the jurisdictional facts fall within the terms of the statute; and, if so, 2) do federal constitutional due-process guarantees permit the exercise of personal jurisdiction over this defendant? State ex rel. Academy Press v. Beckett, 282 Or. 701, 708, 581 P.2d 496 (1978). This court has held that, to the extent the jurisdictional facts fall within the terms of ORS 14.035, that statute is to be construed to permit exertion of jurisdiction over non-resident defendants to the limits allowed by the due-process clause. State ex rel. Western Seed v. Campbell, 250 Or. 262, 271, 442 P.2d 215 (1968). Compare ORCP 4 L. [2] Actual trial of North Pacific's suit lasted several weeks and generated 1300 pages of transcript; over 500 exhibits were introduced into evidence. The fact that seven years have now elapsed between the time of the original filing of this suit and this opinion is indicative of the complexity of the issues, both jurisdictional and on the merits, and the tenacity of the parties. [3] North Pacific has contended that this court's prior refusal to issue the alternative writ of mandamus is a binding determination on the jurisdictional issue. Where a trial court holds that it has personal jurisdiction over a defendant, we have permitted the defendant to challenge such a ruling either through petition for mandamus or through appeal. State ex rel. Ware v. Hieber, 267 Or. 124, 128, 515 P.2d 721 (1973). Mandamus, an extraordinary remedy, is a discretionary writ and not a writ of right. State ex rel. Willamette Nat. Lumber Co. v. Circ. Ct. for Multn. Cty., 187 Or. 591, 598, 211 P.2d 994 (1949). It follows that when this court denies a petition for mandamus without ruling on the merits of the petitioner's claim, such a denial does not necessarily preclude consideration of the issue upon appeal. See Annot., 21 A.L.R.3d 206, 218 [§ 5], 248 [§ 12] (1968); 52 Am.Jur.2d Mandamus § 487 (1970). [4] Given our determination, outlined below, that the applicable Oregon statutes do not allow the exertion of personal jurisdiction over the defendants in this case, we do not reach defendants' constitutional arguments. [5] ORS 14.035 was repealed by Or. Laws 1979, ch. 284, § 199 and replaced with ORCP 4. Despite this repeal, it is clear that ORS 14.035 remains the applicable statute as far as this case is concerned. ORCP 1 C. See generally, Annot., 19 A.L.R.3d 138 (1968). [6] This awkwardly phrased provision has since been replaced by ORCP 4 N., which provides: "In any action brought in reliance upon jurisdictional grounds stated in [ORCP 4 B. through L. pertaining to "long-arm" jurisdiction over non-resident defendants], there cannot be joined in the same action any other claim or cause against the defendant unless grounds exist under this rule, or other statute, for personal jurisdiction over the defendant as to the claim or cause joined." The drafters of ORCP 4 N. indicated that they viewed it to be the equivalent of ORS 14.035(4). See commentary to ORCP 4. [7] The "tortious act" language of ORS 14.035(1)(b) has been replaced, with regard to a foreign act/local injury, by ORCP 4 D which provides for personal jurisdiction over non-resident defendants: "In any action claiming injury to person or property within this state arising out of an act or omission outside this state by defendant, provided in addition that at the time of the injury, either: "D.(1) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or "D.(2) Products, materials, or things distributed, processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade." The drafters' comment to ORCP 4 D. indicates that this provision is intended to apply to contract or tort actions where the plaintiff's injury occurred in-state. We express no opinion as to whether this provision, or ORCP 4 L. (the "catch-all" provision allowing jurisdiction wherever it is not inconsistent with due-process), could have permitted the exertion of jurisdiction in this case, had they been applicable. [8] Obviously, "injury" to a corporation does not occur in every state where a stockholder resides. If such were the case, a defendant being sued by a large public corporation could be haled into court anywhere in the country. Thus, the fact that two of the owners of North Pacific are Portland residents does not ipso facto give this state's courts jurisdiction over any suit alleging injury to it. Bulkcarriers' breach of contract may well have caused significant effects in this state, assuming the ships and crews had to return here to await rechartering. That does not mean, however, that the defendants' Louisiana machinations, which merely financially injured North Pacific and are the basis for this suit, necessarily impacted here. See Prejean v. Sonatrach, Inc., 652 F.2d 1260 (5th Cir.1981); Data Communication Inc. v. Dirmeyer, 514 F. Supp. 26 (ED NY 1981). The presence of an agent corporation in this state does not establish a local injury, inasmuch as the alleged injury was suffered by North Pacific, not Lasco. Nor is it determinative that North Pacific chose to sue here or that it is managed by Portland residents. For a "local injury" to have been established here for purposes of ORS 14.035(1)(b), it was incumbent upon North Pacific, a foreign plaintiff, to show with some particularity how defendants' acts had a tortious effect within this state bald assertions of local injury will not suffice. In this respect, compare the "local injuries" found in State ex rel. Academy Press v. Beckett, supra, n. 1; State ex rel. Ware v. Hieber, supra, n. 3; State ex rel. Western Seed, supra, n. 1; State ex rel. White Lumber v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968). [9] See, e.g., State ex rel. Grinnell Co. v. MacPherson, 62 N.M. 308, 309 P.2d 981, U.S. cert. den. 355 U.S. 825, 78 S. Ct. 32, 2 L. Ed. 2d 39 (1957) (service upon subsidiary located within state sufficient to permit jurisdiction over non-resident parent where there was sufficient identity between them to justify finding that there was in fact only one giant "octopus" corporation); Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634 (8th Cir.1975). But see Rush v. Savchuk, 444 U.S. 320, 331-332, 100 S. Ct. 571, 578-579, 62 L. Ed. 2d 516 (1980) (forum contacts of several defendants cannot be aggregated to justify jurisdiction over all of them each defendant's contacts with the forum must be viewed separately for purposes of personal jurisdiction over him); Velandra v. Regie Nationale des Usines Renault, 336 F.2d 292 (6th Cir.1964). [10] Although this court has not addressed the issue, courts in other jurisdictions have held that a creditor's bill may not be based, as a general rule, upon a foreign judgment the judgment creditor must first translate the foreign judgment into a local one (for this purpose see ORS 24.105 et seq.). See Hotchkiss v. Martin, 52 So. 2d 113, 114 (Fla. 1951); 21 C.J.S. Creditors' Suits § 46(d) (1940); Annot., 129 A.L.R. 506 (1940). This rule appears to be based on the principle that an equitable suit will not lie where adequate legal remedies are available. Thus, the failure to register the foreign judgment locally may defeat the plaintiff's right to an equitable remedy, but does not necessarily work to deprive the court of subject matter jurisdiction over the suit. There is no evidence in the record that North Pacific's Louisiana judgment was filed here under ORS 24.105 et seq. Since defendants have not argued the point, however, we express no opinion as to the propriety of the trial court's decree upon this ground. [11] The Court of Appeals was of the opinion that since North Pacific's breach of contract action had "merged" into the judgment it had obtained in Louisiana, those contacts relevant to that cause of action were not relevant to post-judgment remedies. 49 Or. App. at 340, 619 P.2d 1302. The court explained its "merger" findings as follows: "While [Bulkcarriers] did negotiate the contract in Oregon and Oregon would have had jurisdiction over an action on that contract, the action for breach of contract was brought in Louisiana and merged in the judgment obtained there. The facts which could have formed a jurisdictional basis in the contract action cannot be relied upon to establish jurisdiction in this independent and different cause of suit." 50 Or. App. at 287-288, 622 P.2d 1142. The doctrine of merger by judgment, of course, is not strictly applicable here inasmuch as it is based on notions of collateral estoppel and res judicata (see Restatement (Second) of Judgments §§ 47-48 (Tent. Draft No. 1, 1973)), concerns not directly pertinent to personal jurisdiction determinations. There is, however, an analogy. When a judgment creditor seeks to enforce the judgment through either legal execution of an equitable creditor's bill, the facts, contacts, and concerns relating only to the underlying claim (which was extinguished by the judgment) are no longer relevant only those relating to the judgment's enforcement are. [12] We express no opinion as to whether jurisdiction would have been proper if there had been property within this state of the defendants or if the basis of the present suit had been a judgment originally obtained here. In addition, we note that this is not a situation where the plaintiff has no other available or convenient forum to litigate the issues to the contrary, a similar suit between the same parties is currently pending in Louisiana, which is arguably the "center of gravity" of this dispute anyway. [1] Creditors Protective Ass'n v. Balcom, 248 Or. 38, 432 P.2d 319 (1967), was a creditors' bill suit against a third person who, although not a judgment debtor of the plaintiff, hindered collection of the judgment. I quote from the opinion: "* * * Here the holder of the debtors' property, Shirley Roberts, in concert with the debtors, wrongfully paid over, or allowed to be paid over, amounts due to debtor in order to prevent the plaintiff from reaching the property. We hold that one who actively participates with the debtor in a fraudulent scheme to hinder the creditor's enforcement of his judgment, and, pursuant to that scheme, withholds amounts due on garnishment, is personally liable for the amount that garnishment would have realized. * * *" 248 Or. at 45, 432 P.2d 319. [2] The plaintiff cross-appealed from the trial court's denial of relief against Scafidi.

45e0a0774f09fdcc6ec10cd1714cc46a77a354a74c22183b5869a89e0f610b9e

1982-07-07T00:00:00Z

7569c5d0-2971-47fa-9fa3-1cf09b31c5bd

Brown v. Adult and Family Services

293 Or. 6, 643 P.2d 1266

oregon

Oregon Supreme Court

643 P.2d 1266 (1982) 293 Or. 6 Lavenna BROWN, Petitioner On Review, v. ADULT AND FAMILY SERVICES, Keith Putman, Administrator, Respondent On Review. Glen Davidson, Petitioner On Review, v. EMPLOYMENT DIVISION, Raymond P. Thorne, Administrator, and Global Housing, Ltd., Respondents On Review. Linda Howard, Petitioner On Review, v. ADULT AND FAMILY SERVICES, Keith Putman, Administrator, Respondent On Review. Karol M. Evans, Petitioner On Review, v. Adult and Family Services Divn. of the State of Oregon, Keith Putman, Administrator, Respondent On Review. CA 16980, 17206, 17870 and 18398; SC 27838. Supreme Court of Oregon, In Banc[*]. Argued and Submitted November 4, 1981. Decided April 27, 1982. Tom Steenson, The Dalles, argued the cause for petitioners on review. With him on the briefs were Amy Veranth, Portland, Robert A. Payne and David L. Slansky, McMinnville. With him on the briefs in the Court of Appeals were Christopher Cadin, The Dalles, and Amy Veranth, Portland. Stanton Long, Deputy Atty. Gen., Salem, argued the cause for respondents on review. On the brief was Dave Frohnmayer, Atty. *1267 Gen., and William F. Gary, Sol. Gen., Salem. On the briefs in the Court of Appeals were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., Al J. Laue, James C. Rhodes, and Betty Smith, Asst. Attys. Gen., Salem. LENT, Justice. We review the decisions of the Court of Appeals in four cases, consolidated for review before this court, to consider the common question concerning the Court of Appeals' exercise of its discretion to award attorney fees under ORS 183.495, which provides: In each of these cases, petitioner initially sought judicial review of an action or determination of a state administrative agency, and in each case the petitioner prevailed in the Court of Appeals.[1] Following those decisions, each petitioner petitioned the Court of Appeals for an award of attorney fees pursuant to ORS 183.495. In each case, the Court of Appeals denied the petition for attorney fees. The court held in Brown v. Adult and Family Services, 51 Or. App. 213, 625 P.2d 160 (1981), that attorney fees would not be awarded because the record showed that the agency had not acted arbitrarily. In a footnote the court indicated the standard which it regarded as controlling: attorney fees would be awarded only when an agency action had been "arbitrary." 51 Or. App. 217 n. 2, 625 P.2d 161 n. 2. The Court of Appeals similarly denied petitions for attorney fees in Howard v. Adult and Family Services, 51 Or. App. 206, 625 P.2d 666 (1981), and Evans v. Adult and Family Services, 51 Or. App. 367, 625 P.2d 687 (1981), in per curiam opinions relying on Brown, supra. The court denied the petition in Davidson v. Employment Division, 51 Or. App. 219, 625 P.2d 162 (1981), stating that attorney fees were inappropriate where "the Employment Division and its Appeals Board acted not in the capacity of a party, but rather as a disinterested tribunal with quasi-judicial powers * * * which adjudicated rights between the employer and the employe." 51 Or. App. at 221, 625 P.2d at 163. Petitioners Brown, Davidson, Howard, and Evans filed a consolidated petition for review, which we allowed, 291 Or. 151, 634 P.2d 1344 (1981), ORS 2.520, in order to consider whether, in exercising its discretion, the Court of Appeals has taken action that is inconsistent with legislative intent as expressed in the statute.[2] *1268 Petitioners advance a variety of arguments, the gist of which is that the award of attorney fees should be made largely as a matter of right to a prevailing petitioner, absent some unusual circumstances which would justify denying these fees. Petitioners rest this argument primarily on Executive Management Corporation v. Juckett, 274 Or. 515, 547 P.2d 603 (1976). In effect, petitioners contend that that case, which construed another provision for the discretionary award of attorney fees, established a rule applicable to all statutory provisions allowing the discretionary award of attorney fees. Executive Management Corporation should not be read in such an expansive way. It concerned the application of ORS 91.755, which allowed attorney fees in landlord/tenant litigation. The case held, without discussion, that attorney fees generally should be awarded in cases brought under that statute. That terse conclusion was not intended to establish a general rule for all statutes allowing for attorney fees. In enacting legislation covering landlord/tenant disputes, the legislature may have decided that these contests were best resolved through out-of-court settlement and concluded that the provision for attorney fees would encourage settlement by discouraging litigation. Several factors distinguish cases governed by ORS 91.755 from those governed by ORS 183.495. One difference is apparent on the face of the statute: ORS 91.755 provides for attorney fees to the prevailing party. ORS 183.495 does not allow an administrative agency to recover attorney fees in any circumstances. We conclude that Executive Management Corporation is not persuasive authority with respect to ORS 183.495. Petitioners also argue that attorney fees should be a matter of course in order to insure that persons dependent on various public assistance programs have full access to the appellate process. In Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), the United States Supreme Court held that due process required that welfare recipients have a meaningful pre-termination hearing on decisions threatening the cut-off of welfare benefits. The Court, however, specifically noted that it did not require that welfare recipients be provided with counsel in such hearings. See 397 U.S. at 270, 90 S. Ct. at 1022, 25 L. Ed. 2d at 300. We know of no decision since Goldberg which has held that fundamental due process requires that the state must provide counsel in situations such as this. For us to hold that ORS 183.495 provides the automatic award of attorney fees to the prevailing party would, by indirection, go far toward requiring the state to provide counsel. We decline to take this step. We also do not believe that a ruling establishing attorney fees as a matter of course would be consistent with the statutory language. The legislature clearly could have adopted language mandating the award of attorney fees to prevailing petitioners. There is nothing to indicate that in ORS 183.495 the legislature used the word "may" to mean "shall." We conclude that ORS 183.495 vests the reviewing court, the Court of Appeals, with broad discretion in these cases. In adopting ORS 183.495, the legislature realized that it could not anticipate the wide variety of situations in which petitioners might prevail *1269 on judicial review, or decide a priori in which of these situations the granting of attorney fees would be appropriate. Therefore, it vested the Court of Appeals with the task of evaluation according to the general or specific situation presented. The sparse legislative history of this statute suggests no clear standard for awarding attorney fees. It indicates only that the legislature intended that fees be awarded in some cases, though not all, and that it intended the authority to serve as a deterrent to agency error. This statute vests primary discretion in the Court of Appeals, rather than in this court. Such a grant of discretionary authority is appropriate in these cases. Review before the Court of Appeals is a matter of right, and the court examines factual questions to determine that these are supported by substantial evidence. Review before this court is discretionary with the court and is reserved to matters of importance beyond the particular case. We turn to the specific rules established by the Court of Appeals in these cases. In Brown, Howard and Evans, the Court of Appeals ruled that attorney fees would be awarded only where the agency action could be characterized as "arbitrary." We would note that in other contexts, the "arbitrary" standard has proven less than satisfactory. A precise definition applicable to all cases has proven impossible, and courts using this standard have reached inconsistent results. On the other hand, comparable terms do little to add precision. "Frivolous," "capricious," "unreasonable," and the like all require that the reviewing court exercise a large element of subjective judgment. Common to standards based on any of these terms is a notion that the reviewing court should award attorney fees if it determines that the agency action amounts to maladministration that should be deterred and which the award of attorney fees will deter. The Court of Appeals' construction of its discretion in these kind of cases as depending upon arbitrariness of agency action is certainly consistent with the legislative history, which suggests that basis to have provided the very impetus for introduction of the bill which resulted in the legislation.[3] The Court of Appeals, in Brown, Howard and Evans, has not violated the statute; therefore, there is no basis for this court to direct a different result. In Davidson v. Employment Division, supra, the court below purported to follow a different rule. In Wasco County v. AFSCME, 30 Or. App. 863, 569 P.2d 15 (1977), the court was concerned with judicial review of an order of the Employment Relations Board in a matter involving a complaint of an unfair labor practice. A reversal of the agency decision was obtained, and the prevailing party before the court sought an award of attorney fees, citing ORS 183.495 as authority. In Wasco County v. AFSCME, 31 Or. App. 765, 571 P.2d 549 (1977), the Court of Appeals declined to award attorney fees. The court there noted that contested case proceedings come before an Oregon administrative agency in two distinct manners. In one, the agency itself can "be a party to the administrative proceeding" and in the other the agency can "be a disinterested adjudicatory tribunal in which adverse parties litigate their dispute." The court found that there was no evidence that the legislature, in granting to the reviewing court the discretion to award attorney fees, intended that the attorney fees would be paid by an administrative agency which functioned as a sort of "specialized court." The Court of Appeals denied the petition for attorney fees to be paid from the specialized court's operating funds solely because the decision of that tribunal was reversed on judicial review. *1270 In Davidson the Court of Appeals has purported to follow the holding of Wasco County, interpreting its decision there as follows: 51 Or. App. at 221, 625 P.2d at 163. The court in Davidson determined that the "Division and its Appeals Board acted not in the capacity of a party, but rather as a disinterested tribunal with quasi-judicial powers, * * * which adjudicated rights between the employer and the employee." (Emphasis added). Id. We consider Wasco County inapposite to the determination of the instant case. Wasco County involved a dispute between a local government and a public employes' union, which dispute was referred to the Employment Relations Board. That board does perform a disinterested adjudicatory function between parties, neither of which represent the state itself, but we do not perceive a completely disinterested adjudicatory function in the role performed by the Employment Division in cases, such as the one before us, concerning the disposition of claims for unemployment compensation. In unemployment compensation disputes, the Employment Division, through its assistant directors and their authorized representatives, has a role which is both that of being a party and adjudicator. The assistant director or his representative makes an initial determination based on information gathered from the claimant and the employer. If there is a dispute concerning this determination, the claim is referred to a referee. After the referee renders a decision, the assistant director has the same rights as any other party to apply for review before the Employment Appeals Board. See ORS 657.270(3), 657.275(1). The assistant director also has the right as a party to seek judicial review of the Board's decision. See ORS 657.282. In the event of overpayment through claimant misrepresentation or through agency error, the assistant director is authorized to bring a civil suit to recover benefits to which the claimant was not entitled. ORS 657.310, 657.315. The instant case is, we think, representative of the manner in which disputes concerning unemployment compensation before the Employment Division are handled. In this case, the employer's total role appears to have been to fill in portions of two Employment Division forms. Though the employer is not completely without interest in the dispute (see ORS 657.430-657.495), the real parties in interest are the Employment Division and petitioner. The employer did not appear at the hearing before the referee or before the Employment Appeals Board. It neither appeared before nor submitted briefs or memoranda to the Court of Appeals. It appears to take no direct interest in the outcome of this litigation. The Employment Division, on the other hand, has played a party role throughout, as the caption of this case, Davidson v. Employment Division, accurately shows. All of this contrasts to the situation in Wasco County, supra, in which the Employment Relations Board was not a party and made no appearance in the Court of Appeals where the substance of the issue was decided. See 30 Or. App. 863, 864, 569 P.2d 15, 16 (1977). In such circumstances, to say that the Employment Division has only a disinterested adjudicatory role is not in accord with reality. We believe that to let those aspects of the Division's role which are quasi-judicial control to the exclusion of the Division's activities as a party violates the legislative intent underlying ORS 183.495 and the rule of law established by the Court of Appeals in Wasco County that the Court of Appeals here purported to apply. The statute vests discretion to award attorney fees in the Court of Appeals, and we believe that this vesting of discretion implies that in appropriate cases attorney fees will be awarded. The rule which the Court of Appeals has established in Davidson declares, in effect, that with the Employment Division *1271 there are no appropriate cases. We do not think that the statute condones such a blanket policy. Whether an award of attorney fees is to be made in Davidson is still a matter to be entrusted to the discretion of the Court of Appeals. We hold only that the test adopted by the Court of Appeals in Wasco County is not applicable. It is for the Court of Appeals either to devise a general test for cases involving these kinds of proceedings concerning claims for unemployment compensation and to apply that test to this claim or to state a specific test for this case that will be in harmony with the statute. The decisions of the Court of Appeals in the Brown, Howard and Evans cases are affirmed. In Davidson, we vacate the judgment of the Court of Appeals and remand the case to that court for a determination in keeping with statutory policy and the application of that policy to this case. TANZER, J., concurred in part and dissented in part, and filed opinion. TANZER, Justice, concurring in part and dissenting in part. I dissent in Davidson. The Court of Appeals, acting under the broad grant of discretion in ORS 183.495, denied attorney fees under its policy expressed in Wasco County v. AFSCME, 31 Or. App. 765, 571 P.2d 549 (1977), rev. den. (1978), that an agency acting quasi-judicially rather than as a party in interest will not be assessed attorney fees if it errs. The majority gives no indication of disagreement with the policy adopted by the Court of Appeals in Wasco County. It merely disagrees with the way the Court of Appeals applied its policy. The majority explains its disagreement by showing that after an initial administrative determination between the claimant and employer, the Employment Division has appeal rights to the Employment Appeals Board and for judicial review as a party. That obviously does not necessarily contradict the Court of Appeals. In one case the Employment Division may exercise its authority to appeal as if it were a party to reinstate its decision for the claimant and in the next its decision against the claimant. In either case, its initial determination is quasi-judicial and its subsequent action is as a combination policy-implementer and stakeholder rather than as a party with a substantive interest in the outcome. The Court of Appeals interpreted and applied its own policy denying attorney fees against agencies which are acting quasi-judicially to include the Employment Division acting as in this case. The majority does not say that the Court of Appeals is unable to interpret its own policy. Nor do I read the majority to hold that either the policy or its application are contrary to ORS 183.495. I would defer to the Court of Appeals in any reasonable interpretation and application of its own discretionary policy. I concur in the affirmance in Brown, Howard and Evans. [*] Tongue, J., retired effective February 7, 1982. [1] See Brown v. Adult and Family Services, 48 Or. App. 232, 616 P.2d 580 (1980); Davidson v. Employment Division, 48 Or. App. 119, 616 P.2d 540 (1980); Howard v. Adult and Family Services, 49 Or. App. 249, 619 P.2d 665 (1980); Evans v. Adult and Family Services, 49 Or. App. 787, 621 P.2d 76 (1980). [2] After we had allowed review in these cases, the legislature enacted Oregon Laws 1981, Chapter 871. This statute is not applicable to the cases at bar, but it appears to be an attempt to solve some of the problems raised in these cases. Oregon Laws 1981, Chapter 871 provides: "SECTION 1. [now ORS 183.497] (1) Notwithstanding ORS 183.495, in a judicial proceeding designated under subsection (2) of this section the court shall allow a petitioner reasonable attorney fees and expenses if the court finds in favor of the petitioner and determines that the state agency acted without a reasonable basis in fact or in law. "(2) The provisions of subsection (1) of this section apply to an administrative or judicial proceeding brought by a petitioner against a state agency, as defined in ORS 291.002, for: "(a) Judicial review of a final order as provided in ORS 183.480 to 183.484; "(b) Judicial review of a declaratory ruling provided in ORS 183.410; or "(c) A judicial determination of the validity of a rule as provided in ORS 183.400. "(3) Amounts allowed under this section for reasonable attorney fees and expenses shall be paid from funds available to the state agency whose final order, declaratory ruling or rule was reviewed by the court. The court may withhold all or part of the attorney fees from any award to a petitioner if the court finds that the state agency has proved that its action was substantially justified or that special circumstances exist which make the award of all or a portion of the attorney fees unjust. "SECTION 2. [now ORS 182.090] (1) In any civil judicial proceeding involving as adverse parties a state agency as defined in ORS 291.002 and a petitioner, the court shall award the petitioner reasonable attorney fees and reasonable expenses if the court finds in favor of the petitioner and also finds that the state agency acted without a reasonable basis in fact or in law. "(2) Amounts allowed under this section for reasonable attorney fees and expenses shall be paid from funds available to the state agency. "(3) As used in this section, `civil proceeding' means any proceeding, other than a criminal proceeding as defined in ORS 131.005(7), conducted before a court of this state." [3] The legislative history discussed in Brown v. Adult and Family Services, 51 Or. App. 213, 216, 625 P.2d 160 (1981), shows that Attorney General Johnson, the chief witness for the amendment, asserted that it was the intent of the amendment to deter agency arbitrariness.

81f2e8efafd09038e692750e7b48dbae50c77b19b20fab4896b78917afd7fca5

1982-04-27T00:00:00Z

ca7ff964-eba0-4b5b-8026-b6ac82a50d9b

Ben Rybke Co. v. Royal Globe Ins. Co.

293 Or. 513, 651 P.2d 138

oregon

Oregon Supreme Court

651 P.2d 138 (1982) 293 Or. 513 THE BEN RYBKE COMPANY, an Oregon Corporation, Petitioner On Review, v. THE ROYAL GLOBE INSURANCE COMPANY, an Illinois Corporation, and the St. Paul Fire and Marine Insurance Company, a Minnesota Corporation, Respondents On Review. CA 18688; SC 28515. Supreme Court of Oregon. Argued and Submitted July 13, 1982. Decided September 21, 1982. *139 Janice M. Stewart of McEwen, Newman, Hanna & Gisvold, Portland, argued the cause for petitioner on review and filed the petition and briefs. I. Franklin Hunsaker of Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland, argued the cause for respondent on review The St. Paul Fire and Marine Ins. Co. With them on the response and brief were Mary T. Danford, Douglas G. Houser and Deborah S. MacMillan, Portland. Randall B. Kester of Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland, argued the cause for respondent on review The Royal Globe Ins. Co., and filed the response and brief. Before LINDE, P.J., CAMPBELL and TANZER, JJ., and CARSON, J. Pro Tempore. TANZER, Justice. This is an action upon an insurance policy. Plaintiff-insured seeks to recover insurance for fire losses from two insurers, Royal Globe Insurance Company and St. Paul Fire and Marine Insurance Company. Defendants asserted that the action is barred by the one-year limitation period of ORS 743.660. Plaintiff asserted that the period of limitation was tolled by ORS 12.155. It also asserted an estoppel against the insurers' reliance on the limitation period. The trial court concluded that the limitation applied, found that the estoppel had not been established, and gave judgment for defendants. The Court of Appeals, 55 Or. App. 833, 640 P.2d 620, in banc, affirmed over the dissent of four of its members. That court divided over whether ORS 12.155 applied only to third party claims or applied equally to claims by insureds. We accepted review to determine the scope of application of ORS 12.155. We affirm the Court of Appeals, but upon a different rationale. We summarize the statement of the case made by the Court of Appeals. On February 7, 1977, plaintiff's place of business was damaged by fire. Immediately after the fire and on plaintiff's demand, St. Paul made a $7,500 advance payment[1] to plaintiff and Royal Globe made an advance payment of the same amount in March, 1977. Extensive correspondence, claims and deliberation among adjusters, agents and attorneys for the parties took place concerning the amounts of defendants' liabilities and, in September and December of 1977, the insurers transmitted payments to plaintiff's attorney which the insurers asserted constituted full payment of all sums owed plaintiff for its losses. The deliberations between the parties continued almost until plaintiff filed this action on the insurance contract on June 5, 1978, more than one year after the fire. ORS 12.155 provides: In Duncan v. Dubin, 276 Or. 631, 556 P.2d 105 (1976), we examined the legislative history of ORS 12.155 (which we need not duplicate here) and stated the "two-fold purpose" of the statute: The issue in that case was whether ORS 12.155 applied to the statute of limitations for personal injuries as well as to the contract statute of limitations. We held it did: The applicable statute of limitations in this case is ORS 12.080(1), which provides: Obviously, this lawsuit having been filed within six years, it is not barred by the applicable statute of limitations. The motions, arguments and orders in this case have referred not to ORS 12.080, but to ORS 743.660, which provides: This statute is not a statute of limitations. It is one of a series of sections in the insurance code which require that various specific provisions be contained in fire insurance policies, see ORS 743.609 to 743.663. Plaintiff assumes in its argument that the phrase "statute of limitations" in ORS 12.155 includes ORS 743.660 because the effect of the latter statute is the same as a statute of limitations. It argues that the statutory requirement that insurance policies allow a year in which to file lawsuits has the same practical effect as a statute which itself provides a limitation. The assumption, though mistaken, has a reasonable basis. In two previous cases, this court has applied qualifications found in ORS chapter 12 to the limitation now found in ORS 743.660. In Bell et al v. Quaker City F. & M. Ins. Co., 230 Or. 615, 370 P.2d 219 (1962), we considered the application to ORS 743.660 of ORS 12.020 which governs whether "an action is deemed commenced within the time limited" and ORS 12.030 which extends the time for service. (Our *141 emphasis.) We held them to apply because ORS 743.660 was "in effect" an amendment of the statute of limitations rather than part of a separate statutory code establishing new rights and remedies with its own limitations. 230 Or. at 619-620, 370 P.2d 219. In Hatley v. Truck Insurance Exchange, 261 Or. 606, 611, 494 P.2d 426, 495 P.2d 1196 (1972), this court later considered ORS 12.220, which allows additional time for refiling an action if it was "commenced within the time prescribed therefor" and dismissed or reversed on appeal after "the time for bringing a new action." (Our emphasis.) We held that ORS 12.220 applied to extend the one-year policy time limit required by ORS 743,660, citing Bell. The general wording of ORS 12.020, 12.030 and 12.220 made those holdings possible. Unlike the statutes considered in those cases, the wording of ORS 12.155 is specific. Subsection (1) refers to "the period of limitation for the commencement of an action for damages set by the applicable statute of limitations." Subsection (2) refers to notice regarding "the period of limitation for the commencement of an action for damages set by the applicable statute of limitations" and then excludes time from "the period limited for commencement of the action by the statute of limitations." (Our emphasis.) The plain words of ORS 12.155 do not allow an expansive reading such as that previously accorded to ORS 12.020, 12.030 and 12.220. ORS 743.660 is not a statute of limitations. It requires a particular contractual arrangement between the parties to insurance policies. It applies to those parties by operation of contract, whereas a statute of limitations applies to all plaintiffs by operation of statute. Also, unlike statutes of limitations, the effect and apparent purpose of ORS 743.660 is not to set a maximum time in which a lawsuit may be filed. Rather, it is to establish a contractual limitation of one year which cannot be reduced further by contract.[2] The effect of ORS 743.660 is not to displace the statute of limitations, but only to take from insurers the power to contractually impose a shorter limitation of less than 12 months. Arguably, the general purpose of ORS 12.155 might best be advanced by reading the phrase "statute of limitations" to include alternative contractual provisions. If ORS 12.155 refers to insureds it would be anomalous to permit an insurer to relieve itself of notice responsibilities under ORS 12.155 by the simple expedient of contractually reducing the limitation. That argument fails, however, because, as the Court of Appeals held, the terms of ORS 12.155 and the responsibilities imposed by it apply to third party claimants rather than to insureds. ORS 12.155 applies only to advance payments made pursuant to ORS 18.520 and 18.530. If the ORS 12.155 phrase "each person entitled to recover damages for the death, injury or destruction" is deemed ambiguous for failure to exclude insured persons absolutely, the constructional scales are tipped by reference to the latter two statutes.[3] Their terms, while *142 also not entirely immune from a larger construction, also make more sense if read to refer to claims against the insured. The elaborate constructional analysis in the opinion of Chief Judge Joseph for the Court of Appeals is apt on this point. We find simple reference to the sense of the words of ORS 12.155, 18.520 and 18.530 to be most persuasive. Moreover, the legislature could reasonably conclude that written advice of the applicable statute of limitations is desirable for the protection of a claimant other than the insured, but not as necessary for an insured who has already been given written advice of the contractual limitation in the policy itself. Those considerations reinforce our conclusion that the ORS 12.155 phrase "statute of limitations" is to be given its plain meaning. For all these reasons, we conclude that ORS 743.660 is not a statute of limitations within the meaning of ORS 12.155. This examination leads to the conclusion that plaintiff's claims were not barred by the appropriate statute of limitations, ORS 12.080(1), but that they were barred by operation of the one-year limitation in the contract, the operation of which was not suspended by ORS 12.155.[4] Finally, we consider plaintiff's contention that the Court of Appeals erred in refusing to review de novo the trial court's finding that estoppel had not been proved. ORS 19.125(3) provides: This is an action at law for the payment of money allegedly owing under a policy of insurance. The tender of an equitable defense does not convert the action at law into a suit in equity. Nor does it convert the judgment appealed from into a decree. Thus, ORS 19.125(1) does not apply to this proceeding and the Court of Appeals correctly declined to try the case de novo on the record pursuant to that statute. See, Holman Transfer Co. v. PNB Telephone Co., 287 Or. 387, 599 P.2d 1115 (1979). Affirmed. [1] ORS 18.500. "As used in ORS 12.155 and 18.500 to 18.530, `advance payment' means compensation for the injury or death of a person or the injury or destruction of property prior to the determination of legal liability therefor." [2] Perhaps a policy may provide for a period greater than one year inasmuch as ORS 743.607 provides that insurance policies must provide at least the protection required by ORS 743.609 to 743.663. If that construction were correct, the statute of limitations, ORS 12.080(1), would apply unless a shorter limitation were provided in the policy and asserted. We need not decide this point, however, because the policy in this case contains a 12-month provision per ORS 743.660. [3] ORS 18.520. "(1) Advance payment made for damages arising from the death or injury of a person is not an admission of liability for the death or injury by the person making the payment unless the parties to the payment agree to the contrary in writing. "(2) For the purpose of subsection (1) of this section, advance payment is made when payment is made with or to: (a) The injured person; (b) A person acting on behalf of the injured person with the consent of the injured person; or (c) Any other person entitled to recover damages on account of the injury or death of the injured or deceased person." ORS 18.530. "Any advance payment made for damages arising from injury or destruction of property is not an admission of liability for the injury or destruction by the person making the payment unless the parties to the payment agree to the contrary in writing." [4] The pleadings, memoranda, arguments and orders in the trial and appeal of this case have been in terms of "the applicable statute of limitations." Technically, only a defense based on ORS 12.080(1) has been pleaded and the contractual limitation has not been pleaded. Actually, however, throughout the proceedings the references were treated by all parties and the court as meaning ORS 743.660 and, implicitly, the policy provision required by that statute. As far as we can tell, the case was tried in all respects as if the answers and motions had set up as a defense the one-year policy provisions pursuant to ORS 743.660 rather than the statute itself and we can see no difference which would have occurred had ORS 743.660 and the policy provision been expressly pleaded. Hence, we disregard the pleading variance and decide the substantive issues as they were actually posed throughout the proceedings. [5] This section is unchanged despite the intervening abolition of procedural distinctions in the forms of action or suit in law and equity. ORCP 2, effective after the notice of appeal in this case, provides: "There shall be one form of action known as a civil action. All procedural distinctions between actions at law and suits in equity are hereby abolished, except for those distinctions specifically provided for by these rules, by statute, or by the Constitution of this state."

d79fa6ca0f64cfeaca7730a3b919bb6ce288eb56528152cb07cb3b9369436b55

1982-09-21T00:00:00Z

f1106944-e47e-47a0-bee7-1b9a53c7e950

Ducosin v. Mott

292 Or. 764, 642 P.2d 1168

oregon

Oregon Supreme Court

642 P.2d 1168 (1982) 292 Or. 764 Kathryn Colleen DUCOSIN, Petitioner On Review, v. Richard MOTT, Respondent On Review. No. 77-4-184; CA 16290; SC 27657. Supreme Court of Oregon, In Banc. Decided April 6, 1982. Argued and submitted September 3, 1981. Robert J. Morgan, Milwaukie, argued the cause for petitioner on review. With him on the brief was Emil Berg, Portland. John C. Anicker, Jr., Oregon City, argued the cause and filed the brief for respondent on review. Before DENECKE, C.J., and TONGUE,[*] LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. DENECKE, Chief Justice. The principal issue is whether a defamatory communication made to a county medical examiner suggesting a possible homicide is absolutely privileged. The trial court held that it was not, found the defendant acted maliciously, and awarded the plaintiff damages. The Court of Appeals held the *1169 communication was absolutely privileged and reversed. 49 Or. App. 369, 619 P.2d 678 (1980), 50 Or. App. 207, 622 P.2d 763 (1981). We affirm the Court of Appeals. There was animosity and litigation between the parties caused by the defendant's father bequeathing property to plaintiff's mother. The mother died in a nursing home where the plaintiff worked. The defendant called the county medical examiner and according to the testimony of the examiner suggested to the examiner that the plaintiff "possibly administered inappropriate amounts of medication to Mrs. Mangold [plaintiff's mother], leading to her death." As a result of the call the examiner postponed the cremation of the mother, notified the district attorney, and had an autopsy performed. As a result of the autopsy the examiner certified the cause of death as natural. If there is an absolute privilege, it is because the communication was made in a "judicial proceeding." "Judicial proceeding" has been defined more broadly than the phrase itself may imply. Ramstead v. Morgan, 219 Or. 383, 388-394, 347 P.2d 594, 77 ALR2d 481 (1959). The Restatement of Torts § 587, which we have cited with approval in several cases including Ramstead v. Morgan, supra, at 394, 347 P.2d 594, states that communications are absolutely privileged when made "preliminary to a proposed judicial proceeding, or in the institution of * * * a judicial proceeding." The defendant contends that this case is governed by Ramstead v. Morgan, supra. In Ramstead we held that a letter defamatory of the plaintiff, a member of the bar, written by the defendant to the bar grievance committee, was absolutely privileged. We reasoned that the communication was to institute a quasi-judicial proceeding, that is, to cause the bar to investigate the charges made in the letter. We used the same reasoning in Moore v. West Lawn Mem'l Park, 266 Or. 244, 512 P.2d 1344 (1973), in which the defendant wrote a defamatory letter to the State Board of Funeral Directors to which the plaintiff was applying for a license as a funeral director. The defendant argues that the instant case is similar because the communication by the defendant to the medical examiner would cause an investigation to be made of the cause of death of the decedent with a possible criminal charge being instituted as a result of the investigation. ORS 146.090 and following. Plaintiff contends the present case falls within the principle stated in Restatement (Second) of Torts § 598, which states: A portion of Comment e. to § 598, however, states: The plaintiff counters the assertion that this case falls within § 587 with a reference to Comment e. of § 587, as added in the Restatement (Second): *1170 It must be remembered that the Restatement is not a statute which we are bound to accept in its entirety. We can accept or reject all or any part of the black letter portion or all or any part of the explanatory comment. We are of the opinion that our analysis in Ramstead v. Morgan, supra, 219 Or. 383, 347 P.2d 594, is a better criterion than whether a judicial proceeding is a "bare possibility" or "under serious consideration" as suggested in Comment e. to § 587. In Ramstead we stated: We relied upon the same principle in Moore v. Westlawn Mem'l Park, supra, 266 Or. at 249, 512 P.2d 1344. In essence, in Ramstead we concluded that it is so important that lawyers guilty of misdeeds be disciplined that complaints of misdeeds made to appropriate bar groups be cloaked with an absolute privilege. Similarly, in Moore we concluded that it is so important that only qualified persons be licensed as funeral directors that communications to the licensing board concerning an applicant be cloaked with an absolute privilege. Applying this analysis to the instant case, it is apparent that communications to a medical examiner suggesting a possible homicidal cause of death should be cloaked with an absolute privilege. For centuries society has considered it important that a criminal act causing death not go undetected. The principal duty of the ancient office of coroner concerned "inquiries touching the manner of death of any person slain, or dying suddenly or in prison * * *." Cox v. Royal Tribe, 42 Or. 365, 369, 71 P. 73, 60 ALR 620 (1903). Local governments in the United States, including those in Oregon, retained this office. The name has been changed to "medical examiner" but the function has remained the same. ORS 146.003 and following.[1] A device used to determine *1171 the cause of death, the "coroner's inquest," has been retained in Oregon, now, however, to be conducted by the district attorney. ORS 146.135. The public importance of disclosing that a death was caused by criminal means is at least as high on the scale of importance to society as the disclosure of unethical practice by a lawyer or the disclosure of the misdeeds of an applicant for a license as a medical director. Analogous cases are those in which the defendant made a defamatory complaint to the prosecuting attorney. "Although there is some authority to the contrary, the better view seems to be that an informal complaint to a prosecuting attorney or a magistrate is to be regarded as an initial step in a judicial proceeding, and so entitled to an absolute, rather than a qualified immunity." Prosser, Law of Torts § 114, pp. 780-781 (4th ed. 1971). "Formal or informal complaints to a prosecuting attorney or other law enforcement officer concerning violations of the criminal law are absolutely privileged under the rule stated in § 587." Restatement of Torts (Second) § 598, Comment e. We hold the statement made by the defendant was absolutely privileged. Affirmed. [*] TONGUE, J., retired February 7, 1982. [1] ORS 146.090: "The medical examiner shall investigate and certify the cause and manner of all human deaths: "(1) Apparently homicidal, suicidal or occurring under suspicious or unknown circumstances; "(2) Resulting from the unlawful use of controlled substances or the use or abuse of chemicals or toxic agents; "(3) Occurring while incarcerated in any jail, correction facility or in police custody; "(4) Apparently accidental or following an injury; "(5) By disease, injury or toxic agent during or arising from employment; "(6) While not under the care of a physician during the period immediately previous to death; or "(7) Related to disease which might constitute a threat to the public health." ORS 146.095: "(1) The district medical examiner and the district attorney for the county where death occurs, as provided by ORS 146.100(2), shall be responsible for the investigation of all deaths requiring investigation. "(2) The medical examiner shall certify the manner and the cause of all deaths which he is required to investigate. The certificate of death shall be filed as required by ORS 432.307. "(3) The medical examiner shall make a report of death investigation to the State Medical Examiner as soon as possible after being notified of a death requiring investigation. "(4) Within five days after notification of a death requiring investigation, the medical examiner shall make a written report of the investigation and file it in the district medical examiner's office. "(5) The district medical examiner shall supervise the assistant district medical examiners and deputy medical examiners in cooperation with the district attorney. "(6) The district medical examiner shall regularly conduct administrative training programs for the assistant district medical examiners, deputy medical examiner and law enforcement agencies."

2ec854872e7fc0bbf82fec21716843f4ed0ec538f8803a318530c2223b468acc

1982-04-06T00:00:00Z

37a673b6-3068-4e61-99fa-3d4e92d9a9c7

State Ex Rel. Roach v. Roth

652 P.2d 779

oregon

Oregon Supreme Court

652 P.2d 779 (1982) STATE of Oregon, ex rel. R. Karen Roach, Administrator, Children's Services Division, Plaintiff-Relator, v. Phillip J. ROTH, Judge of the Circuit Court of the State of Oregon for Multnomah County, Defendant. SC 28803. Supreme Court of Oregon, In Banc. Argued and Submitted July 23, 1982. Decided October 19, 1982. Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for plaintiff-relator. With her on the petition were William F. Gary, Sol. Gen. and Dave Frohnmayer, Atty. Gen., Salem. David Audet, Portland, argued the cause for defendant. LINDE, Justice. At the opening of a criminal trial for sexual abuse, the defense moved for an order allowing the defense to interview the alleged victim, a minor in the custody of the Children's Services Division. After being advised of the objections of the caseworker and hearing arguments of counsel, the circuit court allowed the motion and issued an order addressed to Children's Protective Services.[1] Subsequently the circuit court denied a motion by Children's Services Division to vacate the previous order. The state, on relation of the division's administrator, then obtained an alternative writ of mandamus from this court commanding the circuit judge, defendant in this proceeding, to vacate his order and enter a contrary order or to show cause why he had not done so. Judge Roth, in turn, has moved to dismiss the alternative writ. The issue is framed by the state's contention that Judge Roth had no discretion to refuse to vacate his original order because he had no authority to issue it and the judge's contrary contention that the order was within his discretion and therefore is not reviewable by writ of mandamus. In the course of the proceedings, the state's challenge to the court's authority has taken different forms. At the circuit court hearing, the prosecutor objected to the defense request on the ground that the requested interview would be contrary to the child's welfare and that Children's Protective Services (CPS) was performing a parental function in resisting the request. After hearing testimony from the agency's caseworker, defendant stated that he saw no additional harm to the child (who had been interviewed by the prosecution and would be a witness at trial) in an "informal *780 meeting" if the caseworker as well as the attorneys were present, "and if the child is reluctant to talk, just cut her off like that." He therefore allowed the defense motion and subsequently signed an order that Children's Protective Services "make the child ... available for and submit to an interview" in the presence of these persons. In the mandamus proceedings in this court, the state expressly disavows any claim that defendant abused his discretion. It argues that the judge lacked authority altogether to issue the challenged order, without regard to the facts of the particular situation. We turn, therefore, to the question whether the court had no authority to order CPS to allow the defense access to a child in its custody at all. Defendant cites State v. York, 291 Or. 535, 543, 632 P.2d 1261 (1981), in which we stated that "the state cannot advise a witness not to speak to the defense attorneys." That case did not involve a pretrial order but an appeal from a conviction. We did, however, state that a defendant who is prevented from interviewing a witness should "take appropriate action to overcome the obstacle" and could request the assistance of the court to do so. 291 Or. at 543, 632 P.2d 1261. The issue is whether "appropriate action" includes an order in a criminal proceeding addressed to someone other than the prosecutor. Defendant points to no statutory source of authority to issue such an order, and we are aware of none. The pretrial discovery rules of ORS 135.805 to 135.873 do not extend to the present order to CPS. Without a source of authority there is no general power, merely by virtue of conducting a trial, to order persons how to conduct themselves outside the courtroom.[2] If independently of an order a person has a legal duty to take or refrain from certain action, that duty may be enforceable by some injunctive or mandatory proceeding against that person, but this does not mean that a court is authorized to command such conduct by an order made in the criminal case. Defendant cites holdings by other courts that have ordered defense access to witnesses in official custody. Indeed, the point at issue in the cases is not whether a court may order such access but whether it must do so, in other words, under what circumstances the order is even a matter of discretion.[3] The decisions rest on a variety of statutory or constitutional principles, of which some may have analogues in this state and others not.[4] We do not reject the *781 principle of these holdings that the state may not deny defense access to a witness in official custody. None of the many reported cases we have examined, however, show a trial court order addressed to someone other than the prosecutor, at least so far as can be discerned from the appellate opinions. The distinction is important both to procedure and to the relevant consequence of noncompliance. The prosecutor represents a party, in fact the initiating party, to the criminal case and therefore to any procedures on the defense motion for access to a witness. An agency charged with custody of the witness normally is not a party, unless made so in a separate proceeding, and can resist an order addressed to it only by attempting to enter the criminal proceeding to have the order set aside or by inviting contempt proceedings. When an order is simply addressed to the state as a party, represented by the prosecutor, it leaves to the state the relationships and arrangements among the various agencies or officials that may be involved in complying with the order.[5] We need not anticipate in this opinion what action the court trying the criminal case would take in the event of official noncompliance with an order for defense access to a witness. For the purposes of this case, it suffices that the defendant lacked authority to issue his order to CSP. A peremptory writ of mandamus to vacate the order will issue. Peremptory writ issued. CAMPBELL, Justice, dissenting. I dissent. I would find the defendant by virtue of the fact that he is a judge of the court of general jurisdiction had inherent power to issue the order in question. I would further find that the order could only be set aside for an abuse of discretion. The alternative writ should be dismissed because mandamus will not lie to control judicial discretion. Johnson v. Craddock et al, 228 Or. 308, 365 P.2d 89 (1961); State ex rel. Ricco v. Biggs, 198 Or. 413, 255 P.2d 1055 (1953). At an omnibus hearing before Judge Roth an attorney for a defendant who was accused of the crime of sexual abuse explained that the case basically rested on the eight year old victim's story as against that of his client. He further explained that the Children's Services Division, which had custody, refused to allow him to talk to the child. The attorney then made the following motion: Judge Roth then listened to the testimony of the caseworker for the Children's Services Division. At the conclusion of the testimony he said: *782 Thereafter, the order in question was issued. In relevant part it reads: I would find that the order is ambiguous and that Judge Roth's intention was that the child should be required to appear for an interview but not required to answer questions. Contrary to the State's contention, this is not a case where a witness is compelled to speak to defense counsel prior to trial. State v. York, 291 Or. 535, 632 P.2d 1261 (1981). We do not reach the issue of whether the Children's Services Division stands in loco parentis and has the authority to refuse to allow the child to answer questions. There is a line of cases that hold a defendant has the right to interview witnesses held in public custody under the terms and conditions set out by the trial judge. See Annotation, Accused's Right to Interview Witness held in Public Custody, 14 A.L.R.3d 652 (1967); 21A Am.Jur.2d 528 Criminal Law § 999 (1991). In Baker v. State, 47 So. 2d 728 (Fla. 1950) the defendant was convicted of a crime against nature involving girls who were 15 and 13 years of age. Prior to trial the girls were in the custody of the juvenile officer. The only question on appeal was whether the trial court abused its discretion in refusing to allow defendant's attorney permission to interview the girls except in the presence of the juvenile officer. The Florida Supreme Court held there was no abuse of discretion. In Clarence Holladay v. The State, 130 Tex.Cr. 591, 95 S.W.2d 119 (1936) the defendant was convicted of incest involving his 14 year old and 12 year old daughters. The Texas Court of Criminal Appeals held that the trial court did not abuse its discretion in refusing to allow an interview of the daughters by defendant's attorney out of the presence of the matron of the maternity home where the girls were confined. In many of the cases cited in the ALR annotation the witnesses sought to be interviewed were in jail for one reason or another. Obviously, there is a vast difference in custody by the Children's Services Division and jailhouse custody, but the reasons for allowing the interviews are the same in both situations. VI Wigmore on Evidence § 1850, 512-513 (Chadbourn Revision 1976) explains: Wigmore then goes on to quote extensively from Leahy v. State, 111 Tex.Cr. 570, 587, 13 S.W.2d 874, 882 (1929) which quotes from State v. Papa, 32 R.I. 453, 459, 80 A. 12 (1911). A part of that quote is as follows: In none of the cases that I have found was the authority of the trial judge to allow the interview questioned. All of the cases seem to turn upon whether or not the trial judge abused his discretion in that particular situation.[1] The majority opinion says that there is no statutory authority to issue orders concerning conduct outside of the court by persons who are not a party to the case. I would find that the trial judge's authority to allow the interview stems from two sources: (1) the case law from other jurisdictions, and (2) the inherent power of the court. The inherent power of the trial court reaches beyond the "keeping of time" and asking witnesses "to speak up."[2] [1] The court's order is directed to "Children's [sic] Protective Services," (CPS), while plaintiff-relator here is the Administrator of the Children's Services Division (CSD). An organization chart of CSD dated 3/17/82, reveals that Child Protective Services is one of six CSD field operations in Region 1, apparently Multnomah County. Local offices of the CSD investigate and report child abuse. See ORS 418.740 to 418.775. At trial, the terms "Childrens Protective Services," "CPS," "Children's Services Division," and "CSD" were used interchangeably. Like the parties, we shall assume that CPS and CSD are equivalent, for purposes of this case. [2] We do not, of course, refer to directions to jurors and bailiffs or other court employees. Certain kinds of official misbehavior or unlawful interference with court proceedings can be contempt of court. ORS 33.010(c), (d), (h), (i). [3] See Commonwealth v. Balliro, 349 Mass. 505, 209 N.E.2d 308 (1965), Annot., 14 ALR3d 652 (1967). [4] Many courts derive the right to interview witnesses from state constitutional rights to compulsory process. State v. Burri, 87 Wash. 2d 175, 550 P.2d 507, 512 (1976); State v. Lerner, 112 R.I. 62, 308 A.2d 324, 334-35 (1973); Wisniewski v. State, 51 Del. 84, 92, 138 A.2d 333 (1957). Contra, State v. Goodson, 116 La. 388, 40 So. 771, 775 (1906). Some courts imply it from a defense right to a list of witnesses, Exleton v. State, 30 Okl.Cr. 224, 235 P. 627, 630 (1925), or to effective counsel, Burri, supra; Wilson v. State, 93 Ga. App. 229, 91 S.E.2d 201 (1956). The right to compulsory process is sometimes held to imply a broad state constitutional right of the accused to have a fair opportunity to prove his innocence. Leahy v. State, 111 Tex.Cr. 570, 13 S.W.2d 874, 882 (1929); State v. Papa, 32 R.I. 453, 80 A. 12, 15 (1911). See also State v. Orona, 92 N.M. 450, 589 P.2d 1041, 1043 (1979) (right to present a defense); Balliro, supra n. 3 (same); People v. Butler, 23 Ill. App.3d 108, 318 N.E.2d 680 (1974) (right to fair trial). Some federal courts derive the right from due process or an unspecified clause of the sixth amendment. See e.g. Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir.1981), cert. den., ___ U.S. ___, 102 S. Ct. 2250, 72 L. Ed. 2d 856 (1982); United States v. Murray, 492 F.2d 178, 194 (9th Cir.1973), cert. den. sub nom. Roberts v. United States, 419 U.S. 854, 95 S. Ct. 98, 42 L. Ed. 2d 87 (1974). Washington v. Davis, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), which incorporated the sixth amendment right to compulsory process into 14th amendment due process, stated: "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense." 388 U.S. at 19, 87 S. Ct. at 1923. This has led to a line of decisions that the defendant's rights are violated when the government deports a potential witness before defendant has an opportunity to examine him. See United States v. Avila-Dominguez, 610 F.2d 1266, 1268-69 (5th Cir.), cert. den. sub nom. Perez v. United States, 449 U.S. 887, 101 S. Ct. 242, 66 L. Ed. 2d 113 (1980). [5] ORS 44.240 provides for examination of a witness confined in a state correctional institution. See also State ex rel. Gladden v. Sloper, 209 Or. 346, 306 P.2d 418 (1957), which denied a circuit court's power in a divorce proceeding to direct a comparable order to the warden of the state penitentiary for lack of statutory authority. [1] In State v. York, supra, we implied that the trial court had authority to order an interview when 291 Or. at page 543, 632 P.2d 126 we said: "For example, if prior to trial the defense attorney becomes aware of improper prosecutorial efforts to prevent interviewing of witnesses, assistance of the court could be requested." [2] 20 Am.Jur.2d 440 Courts § 79 (1965).

e55e26a1a7643cc8455f838706f4d865b17f170528347194b5e0b648ddcfd77f

1982-10-19T00:00:00Z

de3bdc56-1147-461e-bf39-dab31f9738b6

Northwest Natural Gas Co. v. Frank

293 Or. 374, 648 P.2d 1284

oregon

Oregon Supreme Court

648 P.2d 1284 (1982) 293 Or. 374 NORTHWEST NATURAL GAS COMPANY, an Oregon Corporation; and Cascade Natural Gas Corporation, a Washington Corporation, Petitioners, v. Lynn D. FRANK, Director of the Oregon Department of Energy, Respondent. SC 28346. Supreme Court of Oregon, In Banc.[*] Argued and Submitted March 3, 1982. Decided July 27, 1982. Bruce R. DeBolt, Northwest Natural Gas Co., Salem, argued the cause for petitioners. With him on the briefs were Harold W. Pierce, Portland, Northwest Natural Gas Co., and Gene C. Rose, Ontario, and W. Brian Matsuyama, Cascade Natural Gas Co., Seattle, Wash. William F. Gary, Sol. Gen., argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen., and Christine L. Dickey, Asst. Atty. Gen., Salem. *1285 Steven F. McCarrel, Portland Gen. Elec. Co., Portland, argued the cause and filed the brief for respondent-intervenor. LENT, Chief Justice. We exercise original jurisdiction granted by Oregon Laws 1981, Chapter 792, section 7(3), to review an order of the respondent director of the Oregon Department of Energy issued pursuant to ORS 469.420 as amended by Chapter 792. Petitioners are energy resource suppliers. Respondent's order assesses a tax against petitioners based upon their prorated share of the total number of British thermal units (BTUs) of energy sold by energy resource suppliers in Oregon. Petitioners seek to have this order declared invalid as a violation of Article VIII, section 2(1)(g) and/or Article IX, section 3b of the Constitution of Oregon. Respondent defends the order as not being in conflict with these constitutional provisions. The sole question for our consideration is whether assessments imposed under ORS 469.420(4) are "a tax * * * measured by the * * * sale * * * of oil or natural gas * * * that is subject to the provisions of section 2, Article VIII or section 3[b], Article IX of the Oregon Constitution * * *." (Ch. 792, § 4). We hold that assessments computed on the energy-resources-sold basis under ORS 469.420(4) are a tax measured by the sale of natural gas and oil. We hold further that this tax is subject to Article VIII, section 2(1)(g) and/or Article IX, section 3b of the Constitution and, therefore, is dedicated to the Common School Fund and is not available to the Department of Energy. Resolution of this dispute requires that we set forth at some length the various constitutional and statutory materials that bear on the case. Enacted in 1971, ORS 469.420 provides that the director of the Department of Energy shall fund department activities by assessing fees against electric utilities, natural gas utilities, and petroleum suppliers, collectively energy resource suppliers. These fees are based on the ratio that the energy resources (measured in BTUs) sold by each supplier bear to the total energy resources sold by all energy resource suppliers. ORS 469.420(4). In 1979, the Oregon legislature adopted House Joint Resolution 6 which, as Ballot Measure 3, proposed a constitutional amendment. The amendment added paragraph (g) to Article VIII, section 2(1) and added section 3b to Article IX of the Oregon Constitution.[1] Paragraph (g) provides: Section 3b provides: Our examination of the legislative background of House Joint Resolution 6 shows nothing to indicate that the legislature recognized any conflict between the proposed amendment and ORS 469.420, or considered the possibility of such a conflict. Shortly before the 1980 general election, the Governor asked the Attorney General's opinion on several questions concerning the proposed amendment. One question was: The Attorney General responded "Yes." 41 Op.Atty.Gen. 205 (1980). The Attorney General found that fees imposed under ORS 469.420(4) were an assessment "measured by" the BTUs of energy sold by energy resource suppliers, and concluded that the amendment would dedicate these revenues to the Common School Fund. 41 Op.Atty. Gen. at 210. This was apparently the first time that state officials realized that the amendment might conflict with ORS 469.420. The voters approved Ballot Measure 3 in the 1980 general election, making paragraph (g) and section 3b part of the Oregon Constitution. Following the adoption of the amendment, a new question was posed to the Attorney General: The Attorney General responded: 41 Op.Atty.Gen. 552 (1981). In this second opinion, the Attorney General reconsidered portions of his earlier opinion. He recognized the problem that brings this case before us: if all receipts from assessments based on oil and natural gas sales were constitutionally dedicated to the Common School Fund, the Department of Energy could not fund itself through ORS 469.420. Though admitting that the amendment was ambiguous, the Attorney General reversed portions of his 1980 opinion and, on the basis of legislative history, concluded that the amendment did not apply to assessments on oil and natural gas captured outside of Oregon. Because of the ambiguous language in the amendment,[2] the Attorney General cautioned against relying on his opinion and recommended that litigation be brought to resolve the question, warning that doubt would remain until this court ruled on the question. Id. at 557. Aware of the conflict between ORS 469.420(4) and the amendment, the 1981 legislature enacted Oregon Laws 1981, Chapter 792. Section 3 of this chapter reenacted ORS 469.420(4)(c) unchanged: the Department of Energy was to continue to compute assessments on an energy-resources-sold basis. Section 5 is an alternative version of ORS 469.420, largely identical with the present version, but changing the basis on which assessments are to be computed. The section 5 version of ORS 469.420(4)(c) provides: This assessment, under section 5, based on gross revenues was not subject to the constitutional amendment. Section 7 of Chapter 792 provided that, in his order for the biennium beginning July 1, 1981, the director should determine the amounts which would be assessed under ORS 469.420(4)(b) and (c), computed on an energy-resources-sold basis, and also under the section 5 versions of (4)(b) and (c), computed on a gross-revenues basis. The director was initially to assess energy resource suppliers only the lesser of the two amounts. The balance was to be imposed by a later assessment after the court decided whether the Department of Energy could continue to use the energy-resources-sold basis. Subsection 7(3) provided for direct judicial review to resolve the legality of using the energy-resources-sold basis. Section 4 of Chapter 792 provided: This section thus prescribes our action should we find a conflict between the amendment and ORS 469.420. Acting pursuant to Chapter 792, section 7, the director promulgated his biennial order on November 2, 1981. On December 31, 1981, petitioners filed their petition for review, bringing the matter before this court. This is a case of constitutional and statutory interpretation. The parties to the case have provided us with extensive materials from the relevant legislative histories. It is apparent that the language which the legislature employed in House Joint Resolution 6 and referred to the people as Ballot Measure 3 has effects which the drafters did not anticipate. The drafters did not consciously intend to compel the Department of Energy to change the system by which it assesses fees. The drafters, and the legislature as a whole, did not realize that it might be argued that this was one effect of the language they used in House Joint Resolution 6. Had they recognized the conflict between this language and ORS 460.420, they might well have redrafted the resolution to except assessments of the Department of Energy. The absence of such an exception appears to be the result of oversight, not a conscious decision to dedicate assessments made under ORS 469.420 to the Common School Fund. This is, however, one effect of the language which the legislature employed and which the people adopted into the Oregon Constitution in Ballot Measure 3. As a court, our role is to interpret the statutes and constitutional provisions. We do not redraft these provisions; we interpret them as the legislature has drafted them. It is axiomatic that in a case of statutory and constitutional construction, this court must give preeminent attention to the language which the legislature and the people have adopted. The statutes are the law, and while the legislative history *1288 may provide invaluable insights into the legislative process, it remains supplemental to the statutes as adopted. The requirement that we give effect to the words of an enactment is doubly applicable when the law in question is a constitutional amendment adopted by the voters. There is no reliable record of what the voters intended beyond the language of the amendment itself. There are no official committees, no minutes, no formal debates. Given the fact that it is the electorate, the ultimate sovereign, which has adopted the amendment to our Constitution, we are slow to go beyond the face of the enacted language into materials not presented to the public at large. By enacting Chapter 792, the legislature has given explicit and unambiguous instructions on how we are to deal with this case. Section 7 directs us to review the respondent director's order to determine if the assessments impose a tax which is constitutionally dedicated to the Common School Fund. If we find that the assessment computed on the energy-resources-sold basis is subject to the amendment, section 4 dictates the remedy which we are to prescribe: ORS 469.420 is automatically repealed, section 5 is established in lieu thereof, and the director must compute his assessment on the gross-revenue basis, which is not subject to the amendment. Reviewing the amendment and the various statutory provisions, we find that the respondent director's assessment computed on an energy-resources-sold basis is a "tax * * * measured by the * * * sale * * of oil or natural gas." We further find that, as such, the assessment is a tax which Article VIII, section 2(1)(g) dedicates exclusively to the Common School Fund. The respondent director concedes that at least a substantial part of the assessments made under ORS 469.420(4) are covered by the amendment. He argues that the amendment affects only taxes on oil and natural gas produced in Oregon and asks us to remodel the statutory plan so as to invalidate only that part of the tax falling on oil and natural gas produced in Oregon. We believe this argument is better addressed to the legislature. We decline to suggest whether the amendment does apply only to taxes on oil and natural gas extracted within this state because this question is not necessary to our resolution of this case. We have found that at least some of the taxes assessed on the energy-resources-sold basis are subject to Article VIII, section 2 or Article IX, section 3. Our disposition of this matter is, therefore, prescribed by Chapter 792, section 4. Section 4 provides: This section restricts our role to a determination of whether assessments under ORS 469.420(4) are valid. Because we find that part of the assessment plan established under that statute is not valid, the entire plan falls and is automatically replaced by the gross-revenues plan under Chapter 792, section 5. Attempting to save the current assessment plan, the respondent-intervenor, Portland General Electric Company, argues that the entire energy-resources-sold assessment plan is valid. The intervenor contends that the amendment applies only to future taxes and, specifically, that it does not apply at all to taxes imposed under ORS 469.420(4), because these were in effect when the amendment was adopted. In making this contention, the intervenor relies on the "Argument in Favor of Ballot Measure 3," which appeared in the 1980 Voter's Pamphlet: Intervenor argues that this shows that taxes under ORS 469.420(4) were not taxes on production, storage or sale of oil or natural gas and, therefore, were not covered by the amendment. While the voter's pamphlet is a source which we can consider in construing legislative enactments, we are aware of the need for caution in relying on the statements of advocates contained in the pamphlet. "Discriminating and cautious use must be made of such material because of its partisan character." State ex rel. Chapman v. Appling, 220 Or. 41, 68-69, 348 P.2d 759, 772 (1960). In this instance, we find the material unpersuasive. To accept intervenor's argument, we would have to conclude that in drafting Ballot Measure 3, the legislature was aware of ORS 469.420 and concluded that it was not a tax which would be affected by the amendment. We have reviewed the legislative history of the amendment, and we believe that in drafting Ballot Measure 3, the legislature simply overlooked ORS 469.420. Those officials who prepared the argument in favor of the ballot measure did not conclude that ORS 469.420 was not a tax on the sale of oil or natural gas; they never considered the statute. Only when the Governor sought the opinion of the Attorney General as to whether the statutory assessment came within the terms of the proposed amendment did the conflict come to light. While the 1980 and 1981 opinions of the Attorney General indicate that the precise meaning of the amendment is not entirely clear, we are offered no interpretation which would put the tax levied under ORS 469.420 entirely beyond its terms, and under section 4, this is what is required to save the energy-resources-sold basis for assessments. In summary, we hold that the assessment made under ORS 469.420(4) is a tax on energy resources sold which is subject to Article VIII, section 2(1)(g) and Article IX, section 3b of the Oregon Constitution. Therefore, by the operation of Chapter 792, section 4, ORS 469.420 is repealed and Chapter 792, section 5 established in lieu thereof. Because of this, the order of the director is invalid insofar as it assesses taxes on the basis of energy resources sold, and valid insofar as it assesses taxes on a gross-revenue basis. Accordingly, we order the director to amend his order to assess taxes exclusively on a gross revenue basis. [*] Deneck, C.J., retired June 30, 1982. [1] At the time the Oregon legislature adopted House Joint Resolution 6, Article IX of the Oregon Constitution did not contain a section 3a, so the materials to be added to that article were tentatively designated section 3a. However, subsequent to the adoption of House Joint Resolution 6, the voters in the May 1980 primary election approved a ballot measure which amended Article IX, adding a section 3a. For this reason, when the voters approved Ballot Measure 3 on the November 1980 general election ballot, the material added to Article IX was designated section 3b. For clarity, we refer to this new material throughout this opinion as section 3b. [2] The ambiguity in the amendment concerns the six percent limitation on taxes. Some suggest that this means only that the state can impose a maximum tax of six percent on oil and natural gas extracted within Oregon, but is not limited by the amendment itself from imposing different taxes on resources captured outside of Oregon. Others contend that the total tax on all resources, captured within or outside of Oregon, cannot exceed six percent of the value of the resources captured within Oregon. Because of our disposition of this case, we need not and do not resolve that question.

c56f77da7872fe6b978b4d308555cd15a8d8a2cfc8a885a73fa017435fe62eab

1982-07-27T00:00:00Z

edd39a1f-6607-4bca-af89-127a20a1aad2

In the Matter of Marriage of Tavares

293 Or. 484, 651 P.2d 133

oregon

Oregon Supreme Court

651 P.2d 133 (1982) 293 Or. 484 In the matter of the MARRIAGE OF Elaine A. TAVARES, Aka Elaine A. Bordier, Respondent On Review, and Ronald E. Tavares, Petitioner On Review. CA A20093; SC 28448. Supreme Court of Oregon. Argued and Submitted June 7, 1982. Decided September 21, 1982. John C. Anicker, Jr., Oregon City, argued the cause and filed a brief for petitioner on review. On the petition for review was Kevin D. Flynn, Hayward, Cal. David A. Kushner, Estacada, argued the cause and filed a brief for respondent on review. Before DENECKE, C.J.,[*] and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. PETERSON, Justice. In 1973 the Oregon age of majority was lowered from 21 to 18. Or. Laws 1973, ch. 827, § 14 (codified at ORS 109.510). As part of the same law, the legislature enacted ORS 107.108, which authorizes an Oregon domestic relations court to provide for the support of children over 18 and under 21 who are attending school. Id., § 12b. In 1972, California lowered its age of majority from 21 to 18, effective March 4, 1972. 1972 Cal. Stat. 50, ch. 38 (codified at Cal.Civ.Code § 25.1). However, California enacted no provision for support for children over 18 years. The issue in this case is whether an Oregon court, following registration of a California decree of dissolution in Oregon, and having personal jurisdiction over the parties, can alter the support obligation of the noncustodial parent (the obligor) to order support for an Oregon child over 18 attending school, when such a provision for support could not be imposed under California law. The procedural history of this case is somewhat unusual, and is relevant to the decision on the merits. The petitioner and respondent (herein referred to as "Mother" and "Father") were divorced in California in 1975. The decree gave custody of the four minor children to the mother and provided: At all times since 1975, Father has resided in California and continues to reside there. Mother and the four children moved to Oregon in 1978, and continue to reside in Oregon. Father is current on all support payments required to be paid under the provisions of the California decree. In 1980, Mother filed a pleading in the Clackamas County Circuit Court entitled "Motion for order to show cause and for modification of foreign decree to provide for increased child support" which, after reciting many of the above facts, alleged as follows: The motion contained no request that the California decree be registered. It concluded with a prayer seeking modification of the decree: Father made a general appearance. He did not question the trial court's exercise of power to modify the decree to provide for additional support for children under 18.[1] As to the claim for support for children over 18 attending school he claimed that the court was "without jurisdiction to order child support payments for any child over the age of eighteen" because of ORS 110.022(3), which provides: Following a hearing, the trial court entered an order which included the following "Findings": A final order was entered consistent with the findings. Father did not appeal the order increasing the monthly support for children under 18. Mother appealed, asserting that "[t]he fact that California law does not provide support for children between 18 and 21 years of age by a statute similar to ORS 107.108 does not prevent Oregon courts from providing such support for Oregon children who were residents of California when their parents' marriage was dissolved." The Court of Appeals reversed, holding that under ORS 110.281(1),[3] upon the registration of the California decree in Oregon, ORS 107.135(1)(a)[4] authorized Oregon courts to modify foreign decrees in the same manner as a local decree may be modified under that statute. The National Conference of Commissioners on Uniform State Laws first approved the Uniform Reciprocal Enforcement of Support Act (URESA) in 1950. With some modifications, Oregon adopted URESA in 1953. Or. Laws 1953, ch. 427. The Commissioners revised the Act in 1952, 1958, and 1968. The 1968 Uniform Act, entitled the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), was adopted in large part by Oregon and is contained in chapter 110 of the Oregon Revised Statutes. Or. Laws 1979, ch. 484, ORS 110.005. The uniform reciprocal enforcement of support acts came into being because: A Prefatory Note to RURESA, 9A ULA 644 (1979), states: RURESA and Oregon's version of RURESA has four parts: General Provisions (ORS 110.005-110.045, ORS 110.291); Criminal Enforcement (ORS 110.052-110.062); Civil Enforcement (ORS 110.071-110.272); and Foreign Support Orders (ORS 110.275-110.281). Civil enforcement procedures are generally (but not always) concerned with collecting arrearages and normally (but not always) involve an obligee in one state who seeks to enforce a decree against an obligor who has moved to another state. In this case, Mother and the children (the obligees) reside in Oregon. If any part of RURESA is applicable, it is the fourth section, which provides for the registration of foreign support orders. First approved by the Commissioners on Uniform Laws in 1958, and modified by the Commissioners in 1968, provisions for registering foreign decrees first became a part of Oregon Law in 1979, with the enactment of what is now ORS 110.275 to 110.281. Or. Laws 1979, ch. 484, §§ 43-46. The procedures are summary. An obligee seeking to register a foreign support order transmits three certified copies of the foreign support order, and modifications thereof, with other information, to the clerk. The clerk files the papers "upon receipt," the obligor is given notice by mail, and the registered support order is "confirmed" unless the obligor petitions to vacate the registration within 20 days after mailing of the notice of registration. ORS 110.275, 110.277, 110.281(2). Thereafter, the registered support order is "treated in the same manner as a support order issued by a court of this state." ORS 110.281(1); note 2 supra. As stated, Father has never questioned the general power of Oregon courts to modify prospectively a foreign decree or otherwise to alter his support obligation for children under 18. Although we assume the existence of such power in this case, this court has never held that such power exists. In view of the lack of any objection to, and the absence of any appeal from that part of the trial court order increasing support for the children under 18, for the purposes of this opinion we will assume such power to exist.[6] *137 The trial court and the Court of Appeals treated this case as being governed by ORS chapter 110. Mother claims that the provisions of chapter 110 do not apply, that her motion to modify the California decree was in the nature of an original proceeding under Walker v. Walker, 26 Or. App. 701, 554 P.2d 591 (1976). In that case, the Court of Appeals held that registration of the foreign decree was not essential to confer jurisdiction to modify support provisions of a Hawaiian decree and that where "all parties are domiciled in Oregon and subject to the personal jurisdiction of Oregon courts, modification is constitutionally permissible upon the same showing [as in Hawaii the showing of "a material change in the physical or financial circumstances of either party"]." Id. at 706, 554 P.2d 591. Undeniably, the instant case is not a typical RURESA proceeding because the obligees are in Oregon, the father is not a resident of Oregon, does not work in Oregon, and has no assets in Oregon. But if the substance of the case is examined, it has the mark of a case involving registration of a foreign decree. Mother established the existence of, and the trial court registered and enforced a California decree, as "modified." The Court of Appeals treated the case as involving the establishment of a foreign decree under ORS chapter 110. We do so as well. Even though ORS 110.281(1) states that the registered decree "shall be treated in the same manner as a support order issued by a court of this state," to treat thereafter the California decree as being as modifiable as an Oregon decree under ORS 107.135(1)(a) not only entirely overlooks ORS 110.022(3), it reads ORS 110.022(3) out of the statute.[7] The "duty of support," as defined in ORS 110.022(3) is qualified by the express requirement that "the other jurisdiction"[8] (California, in this case) imposes the same or substantially similar duty of support. California does not impose the same or substantially similar duty of support. Whatever reason the legislature had for adding the final clause of ORS 110.022(3) to RURESA section 2(b),[9]*138 we are required to give the clause effect.[10] This conclusion is also consistent with the choice of law rule of section 7 of RURESA, ORS 110.071, that the obligor's duty of support is determined by the laws of the state where the obligor is present. The Court of Appeals, 55 Or. App. 231, 637 P.2d 929 is reversed. The order of the trial court is reinstated and affirmed. [*] Denecke, C.J., retired June 30, 1982. [1] Father asserted, as a defense to any increase in child support, that his earnings had declined since 1975. [2] ORS 110.071 provides: "Except as provided in ORS 110.022(3), duties of support applicable under this chapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. * *" [3] ORS 110.281(1): "(1) Upon registration the registered foreign support order shall be treated in the same manner as a support order issued by a court of this state. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a support order of this state and may be enforced and satisfied in like manner." [4] ORS 107.135(1)(a): "(1) The court has the power at any time after a decree of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by law for service of a summons, to: "(a) Set aside, alter or modify so much of the decree as may provide for the appointment and duties of trustees, for the custody, support and welfare of the minor children * * *." [5] See Clarkston v. Bridge, 273 Or. 68, 539 P.2d 1094 (1975): "* * * The URESA is designed to provide an inexpensive, simplified and effective means whereby an obligee in one state can enforce the duties of support owed by an obligor in another state. * * * "* * * "The URESA is a remedial statute designed to equalize the relative positions of resident and nonresident plaintiffs in support proceedings. * * *" Id. at 72, 79, 539 P.2d 1094. (Citations omitted.) [6] Fifty years ago it was uncertain whether any foreign decree providing for future support could even be enforced in Oregon. Cousineau v. Cousineau, 155 Or. 184, 63 P.2d 897 (1936), established that it was proper to enforce a California support decree in Oregon, both as to accrued installments and as to prospective installments of support. 155 Or. at 197-202, 63 P.2d 897. Accord Schroeder v. Schroeder, 271 Or. 582, 587, 533 P.2d 350 (1975). Picker v. Vollenhover, 206 Or. 45, 290 P.2d 789 (1955), also involved the establishment of a foreign decree in Oregon. In that opinion, it was thrice stated that the power of an Oregon court to modify prospectively a foreign decree was not before the court. 206 Or. at 61, 66, 73, 290 P.2d 789. The existence of that undecided question was noted again in Hatch v. Hatch, 247 Or. 588, 591, 431 P.2d 832 (1967), and avoided because there was "no necessity for resolving the question now." This court has never decided whether, or to what extent, a foreign decree can be modified. Cf. Sutton and Gifford, 53 Or. App. 309, 313-15, 632 P.2d 4 (1981) (allowing modification of foreign support decree); Woodruff and Woodruff, 41 Or. App. 529, 534, 599 P.2d 1182 (1979) (allowing modification of foreign support order as to future payments, noting that decree was modifiable in decree state); State ex rel La. v. Phillips, 39 Or. App. 325, 327, 591 P.2d 1196, aff'd on rehearing, 40 Or. App. 547, 549, 595 P.2d 1276 (1979) (allowing modification, in RURESA proceeding, of foreign support order as to future payments made within responding state); State ex rel. Nebraska v. Brooks, 34 Or. App. 975, 978, 580 P.2d 206 (Oregon is without jurisdiction in RURESA proceeding to modify foreign support decree) opinion withdrawn, result adhered to on other grounds, 35 Or. App. 805, 807-08, 583 P.2d 12 (1978) (withdrawing prior opinion and leaving open question of power of Oregon court in RURESA proceeding to modify foreign decree for support), review denied, 285 Or. 73 (1979); Walker and Walker, 26 Or. App. 701, 707, 554 P.2d 591 (1976) (allowing modification of foreign decree for support without registration of decree, also noting that decree was modifiable in decree state). Whether an Oregon court when not otherwise prohibited by statute can modify a foreign decree in a manner other than that which would be permitted if the modification were sought in the decree state is not before us. [7] We do not otherwise consider the precise meaning of the phrase in ORS 110.281(1) that the registered decree "is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a support order of this state and may be enforced and satisfied in like manner." This language is identical to section 40(a) of RURESA. Cf. ORS 107.135(1)(a) (granting the court power to "set aside, alter or modify" a decree). [8] The term "the other jurisdiction" is not defined in ORS chapter 110. It is uncertain whether that phrase refers to the state in which the decree was entered or the state "where the obligor was present for the period during which support is sought." Any difference is irrelevant to the case at bar, because Father was, at all times, a resident of California, which is also the state in which the decree was entered. [9] In the Commissioners' 1968 version of RURESA, the definition of "duty of support" is substantially identical to ORS 110.022(3) except for the final clause beginning with the words "and the duty to pay support for a `child attending school' as defined in ORS 107.108(4) where the other jurisdiction imposes the same or substantially similar duty of support." RURESA § 2(b), 9A ULA 656 (1979). [10] We also note that ORS 107.108 provides that courts "may" enter support orders for a child attending school in these situations: 1. After commencement of an annulment or dissolution or separation suit and before the decree therein, ORS 107.108(1)(a); 2. In a decree of annulment, dissolution or separation, ORS 107.108(1)(b); 3. During the pendency of an appeal of a decree, ORS 107.108(1)(c). Arguably, ORS 107.108 does not apply in this case, at all, in view of ORS 107.108(1)(a), (b) and (c). But see Eusterman and Eusterman, 41 Or. App. 717, 598 P.2d 1274 (1979).

db3ec9e4570e8af4469323a10bd1cbb549c5a02e04a210e3f47dd0d00f9fe739

1982-09-21T00:00:00Z

b0db3806-edbc-46ef-a8d5-90ae9b716278

Satterfield v. Satterfield

292 Or. 780, 643 P.2d 336

oregon

Oregon Supreme Court

643 P.2d 336 (1982) 292 Or. 780 John SATTERFIELD, Respondent, v. Gail Faye SATTERFIELD, Respondent On Review, and Wausau Insurance Companies, Petitioner On Review. CA 19757; SC 28225. Supreme Court of Oregon. Argued and Submitted March 4, 1982. Decided April 6, 1982. David Horne, Beaverton, argued cause for petitioner on review and filed brief. Stanton F. Long, Deputy Atty. Gen., Salem, argued cause for respondent on review. On brief were David B. Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and Al J. Laue, Asst. Atty. Gen., Salem. Before DENECKE, C.J., and LENT, LINDE,[**] PETERSON, TANZER and CAMPBELL, JJ. TANZER, Justice. This is a post-decree garnishment proceeding in a dissolution suit.[1] Plaintiff, while behind in his child support payments, received a workers' compensation award payable in monthly installments. Shortly thereafter, the Support Enforcement Division of the Department of Justice, acting on behalf of plaintiff's former wife, served a writ of garnishment upon the insurer. The *337 circuit court dismissed the garnishment on the basis of ORS 656.234. The Court of Appeals, in banc, citing its earlier decision in Calvin v. Calvin, 6 Or. App. 572, 487 P.2d 1164, 489 P.2d 403 (1971), reversed and remanded, reinstating the garnishment. Four members dissented. The controlling statute purports to exempt workers' compensation benefits from garnishment. ORS 656.234 provides: The words of ORS 656.234 clearly and unambiguously exempt moneys payable as workers' compensation benefits from garnishment. It is fundamental that courts apply clear, unambiguous, constitutional statutes according to their plain meaning, without resort to extrinsic evidence of legislative intent, Hillman v. North. Wasco Co. PUD, 213 Or. 264, 310, 323 P.2d 664 (1958); School Dist. 1, Mult. Co. v. Bingham et al., 204 Or. 601, 604, 283 P.2d 670, 284 P.2d 779 (1955), unless application of the literal meaning would produce an unintended, absurd result, Brown v. Portland School Dist. # 1, 291 Or. 77, 83, 628 P.2d 1183 (1981), or "if the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result," Johnson v. Star Machinery Co., 270 Or. 694, 704, 530 P.2d 53 (1974). Although one policy of the Workers' Compensation Act is to provide for dependents, another is to provide for the worker. We do not find that the literal import of the words produces a result so absurd or unreasonable in light of the apparent policy of the Act that we can say that the intention of the legislature requires that we disregard their plain meaning. In Calvin, the Court of Appeals looked behind the clear language of the statute and held that a garnishment on behalf of the worker's dependents was permissible because the policy of the Workers' Compensation Act was to provide care and support for injured workmen "and their dependents," ORS 656.012 (formerly ORS 656.004). That holding is consistent with the few cases we find decided elsewhere, see Anno., Workmen's Compensation Exemptions, 31 A.L.R.3d 532, 542. Assuming for argument that a statutory policy statement would have the force of a directory statute, a conflict would be presented between the general provision of ORS 656.012 and the specific provision of ORS 656.234. The latter would prevail because the resolution of such conflict would be governed by ORS 174.020, which provides: We conclude that the workers' compensation benefits in the hands of the insurer are exempt from garnishment, including garnishment for the enforcement of the rights of dependents, under the clear, unambiguous provisions of ORS 656.234. Calvin v. Calvin is disapproved. The judgment of the Court of Appeals is reversed. The circuit court order of dismissal is affirmed. [**] Linde, J., did not participate in this decision. [1] This case and McIntyre v. Wright, 292 Or. 784, 643 P.2d 338 (decided this date), present the same issue and were consolidated for argument. The issues presented and our resolution of them are identical. We have chosen to state our opinion in this case because this was the lead case in the Court of Appeals. Our decision and opinion is based on the advocacy in both cases.

c25e7732ac5a563d997f4e1e1d2b8087ff516f9cd3ba987c29b4858236b9d61d

1982-04-06T00:00:00Z

31902197-2c0a-4aab-97f4-fe87ffbeb620

Jackson County v. BEAR CREEK VALLEY, ETC.

293 Or. 121, 645 P.2d 532

oregon

Oregon Supreme Court

645 P.2d 532 (1982) 293 Or. 121 JACKSON COUNTY, Oregon, a Political Subdivision of the State of Oregon; City of Ashland, Oregon; League of Women Voters of Ashland; Citizens for a Livable Future and League of Women Voters of the Rogue Valley, Respondents On Review, v. BEAR CREEK VALLEY SANITARY AUTHORITY, Petitioner On Review. LUBA 80-090; CA 19535; SC 28143. Supreme Court of Oregon, In Banc. Argued and Submitted March 3, 1982. Decided May 18, 1982. Manville M. Heisel, Medford, argued the cause for petitioner on review. John L. Dubay, Jackson County Counsel, Medford, argued the cause and filed an answering brief for respondent on review Jackson County. Robert E. Stacey, Jr., Portland, argued the cause and filed a response to the petition for review for respondents on review City of Ashland, League of Women Voters of Ashland, Citizens for a Livable Future and League of Women Voters of the Rogue Valley. Mary J. Deits, Salem, filed a brief amicus curiae for Dept. of Land Conservation and Development in the Court of Appeals. With her on the brief were Dave Frohnmayer, Atty. Gen., John McCulloch, Jr., Sol. Gen. and William F. Gary, Deputy Sol. Gen., Salem. Michael H. Arant, Medford, filed a brief amicus curiae for the Special Districts Ass'n of Oregon in the Court of Appeals. LINDE, Justice. Jackson County adopted elements of a comprehensive land use plan that included policies concerning sewer extensions inconsistent with a plan previously adopted by Bear Creek Valley Sanitary Authority, which operates within Jackson County. The issue to be decided is whether the adoption of these policies exceeded the county's planning authority. The sanitary authority adopted a sewer plan in 1976. In 1978 it entered into a cooperative agreement with the county for the joint planning of future levels of sewer service. In 1980, the county adopted as part of its comprehensive plan seven policies concerning sanitary service. The sanitary *533 authority petitioned the Land Use Board of Appeals to invalidate this element of the county's comprehensive plan on the grounds, among others, that the county had no authority in preparing its plan to "usurp" the powers and responsibilities of special districts. The board accepted the contention that the county had exceeded its authority and invalidated five of the seven challenged policies without reaching the other grounds for the challenge.[1] On petition for judicial review by Jackson County and other interested parties,[2] the Court of Appeals reversed the board's holding in this respect and remanded the proceeding to the board for consideration of the remaining issues. 53 Or. App. 823, 632 P.2d 1349 (1981). In view of the importance of the counties' planning functions, we allowed review. We affirm the Court of Appeals. Sanitary authorities and counties each have planning responsibilities imposed by law. The statute governing sanitary authorities provides: ORS 450.825. This statutory directive antedates the enactment of the statewide comprehensive planning system in 1973. 1973 Or. Laws ch. 80. That enactment further superimposed on the legal authority of "special districts" the duty to "exercise their planning duties, powers and responsibilities" and to take actions affecting land use in accordance with the state-wide planning goals adopted under ORS chapter 197 by the Land Conservation and Development Commission (LCDC).[3] ORS 197.185. The same section also required that a special district enter into a "cooperative agreement" with the city or county in which it operates. Such a cooperative agreement was to list "the tasks which the special district must complete in order to bring its plan or programs into conformity with the state-wide goals" and a "program to coordinate *534 the development of the plan and programs of the district with other affected units of local government."[4] Thus special districts such as the sanitary authority have the responsibility to make plans for the performance of their functions, consistent with state-wide planning goals. But it is not the sanitary authority's planning responsibility that is at issue in the present proceeding, it is the county's. Jackson County has the statutory duty to prepare and adopt a comprehensive plan consistent with the state-wide planning goals. ORS 197.175(2)(a). There is no doubt that the comprehensive plan must cover the subject of sewer systems. The disagreement concerns only whether the county is to develop its own policies governing such systems or only "coordinate" plans made by other responsible agencies. Bear Creek Valley Sanitary Authority has maintained the latter position in different proceedings over the past six years. Its view was rejected by the Land Conservation and Development Commission in 1977.[5] On that issue, the sanitary authority relies primarily on the definition of "comprehensive plan" in ORS 197.015(5). Under the 1979 statute, that definition stated: The sanitary authority argues that the county's duty to prepare a "comprehensive plan" does not authorize it to do more than to "interrelate" and "coordinate" functions, systems, activities, and programs that are the responsibilities of other entities. Ordinarily the function of a definition section is not to impose duties but to specify the meaning of the defined term whenever it appears elsewhere in the statute. Chapman Bros. v. Miles-Hiatt Investments, 282 Or. 643, 646, 580 P.2d 540 (1978). ORS 197.015 goes about this in a cumulative and somewhat confusing way. The first sentence specifies elements of a "comprehensive plan" as that term is used in the statute, including among other things "sewer and water systems." The second sentence states what is meant by saying that a "comprehensive plan" is "comprehensive." The third sentence confusingly defines a term, "General nature," which does not appear elsewhere in the definition of "comprehensive plan;" it therefore does not seem a part of that definition. The fourth sentence states that a plan is "coordinated," one of the characteristics of a "comprehensive plan," when the needs of governmental, "semipublic," and private agencies as well as individual citizens have been "considered and accommodated as much as possible." The cumulative effect of these sequential specifications may be to offer opportunities for arguments that a purported *535 "comprehensive plan" is not properly "comprehensive," but they do not deny the county's authority to include an element of sewage disposal policies in its comprehensive plan in the first place. In the opinion by which it invalidated the county's sewer policies, the Land Use Board of Appeals referred to positions asserted by the opposing sides in debating their own and the other's responsibilities. According to the board, the county believed that the sanitary authority's plan did not conform to the state-wide planning goals and that the authority's responsibility is to provide sewer lines that correspond to the policies adopted by the county as part of its comprehensive plan. The board expressed the view that "the county has read too narrowly the statutory authority given special districts to adopt plans relating to the provisions of sewer service and has read too broadly the county's responsibility in adopting comprehensive plans and coordinating the plans of special districts." It saw further support for this conclusion in statutory provisions adopted in 1977 that require a special district in a county to enter into a cooperative agreement with the county for bringing the district's plans into conformity with the goals, ORS 197.185(2), and that direct a county to "coordinate all planning activities affecting land use within the county, including those of the county, cities, special districts and state agencies, to assure an integrated comprehensive plan for the entire area of the county." ORS 197.190. The board further cited provisions that bar an uncooperative special district from contesting the acknowledgment of the county's comprehensive plan by LCDC, ORS 197.254(2), and that subjects such a district's nonconforming plan to an enforcement order. ORS 197.320. The board concluded that the sewer policies at issue between the parties were within the responsibility of the sanitary authority, and that "a county does not have the power or authority to unilaterally take over the planning responsibilities of a special district just because the county does not believe that the special district's plan conforms to the applicable goal requirements." It therefore held that the county had exceeded its authority in adopting five of the seven challenged policies. As stated above, this is the holding reversed by the Court of Appeals. Bear Creek Valley's own planning responsibilities are not at issue. The opinion of the Land Use Board of Appeals treated the allocation of responsibility between the sanitary authority and the county as a question of "either or," citing the responsibility of the sanitary authority for planning sewer systems as a reason for excluding such planning from the responsibility of the county. But that is not necessarily so. The duties assigned to the two entities by the respective statutes can overlap. The Court of Appeals so concluded. As to the authority of the county under ORS 197.175(2), the court stated: 53 Or. App. 823, 828, 632 P.2d 1349. The court continued: 53 Or. App. 823, 829,[7] 632 P.2d 1349. It is not impossible that different sewer system plans, one made by a special district and another by a county, might each satisfy the statewide planning goals.[8] Whether this element of the county's comprehensive plan does so is properly determined by LCDC in the acknowledgment process, in which the special district's objections can be presented,[9] unless it is barred for failure to cooperate. ORS 197.251(3), (4). If a county's plan is acknowledged, Goal 2 may indeed call for the district's plans to conform to the wider comprehensive plan, but this case has not reached the stage for deciding that issue. As previously stated, the Court of Appeals remanded the case to the Land Use Board of Appeals for consideration of other issues that the board had not reached. The court's decision is affirmed. [1] Policy 1 establishes four levels of sanitation service permissible within Jackson County and specifies where each level of service is to be allowed. Conventional sewage collection and treatment as part of a regional sewage system is indicated for areas within an urban growth boundary. The same type of service is deemed appropriate for unincorporated areas only where a probable health hazard is deemed by the county to exist. On-site management (i.e., septic tanks) or small community waste disposal systems are deemed appropriate for new development outside urban growth boundaries. Remaining low density areas must use on-site disposal. Policy 2 prohibits new sewer extension outside of any urban growth boundary except as allowed by Policy 1. Policy 3 expresses a commitment to allow infill development. Policy 4 prohibits new development outside of urban areas from connecting to existing sewer lines. Policy 5 prohibits new sewage lines from passing through lands designated for agricultural use unless no other reasonable route is available. Policy 6 provides that where sewer lines are extended through agricultural lands there will be a sewer assessment deferral for such lands. Policy 7 calls for a balancing of various interests so that "disproportionate" emphasis is not given to public facilities in determining whether to allow new development. The Land Use Board of Appeals invalidated all policies except 3 and 7. [2] The City of Ashland, the League of women Voters of Ashland, the League of Women Voters of the Rogue Valley and Citizens for a Livable Future became parties in this suit by formally participating in the proceedings before the board. The Special Districts Association of Oregon and the Department of Land Conservation and Development filed amicus briefs in the Court of Appeals. [3] Under chapter 197, "special district" meant any unit of local government, other than a city or county, authorized and regulated by statute. ORS 197.015(10) (1979) (current version at ORS 197.015(15) (1981)). [4] ORS 197.185 was amended in several respects in 1981 Or. Laws ch. 748, § 26. No question has been raised whether the Court of Appeals should have tested the board's order against the 1981 version, and the present decision does not depend on it. [5] Bear Creek Valley Sanitary Authority v. Jackson County, LCDC Order No. 76-010 (Sept. 7, 1977). [6] ORS 197.015(5) was amended in 1981 to remove the reference to special districts. 1981 Or. Laws ch. 748, § 1. [7] Goal 2, referred to in this quotation, binds the sanitary authority by virtue of ORS 197.185 to make plans "consistent with the comprehensive plans of cities and counties," at least until that goal or its interpretation itself is claimed to exceed LCDC's statutory authority. Compare 1000 Friends of Oregon v. LCDC, 292 Or. 735, 642 P.2d 1158 (1982). That contention has not been briefed here. [8] The Department of Land Conservation and Development states in its brief amicus curiae: "Given the facts that there are a number of ways to meet the goals, a county and special district's sewer plans may both meet the goals, yet consist of very different policies and result in different growth patterns. Furthermore, while a special district's plan may meet the goals, it may still be inconsistent with the county's comprehensive plan, which is in violation of Goal 2 ... "The scheme which DLCD believes is intended by ORS chapter 197 and the goals essentially is that ... if there is a disagreement between a county and a special district which cannot be resolved by a coordination agreement, both proceed to develop their plans. The conflict is then resolved by LCDC at the time it considers acknowledgment of the county's plan keeping in mind that the county has the authority to make ultimate policy decisions." The amicus brief by the Special Districts Association of Oregon presents the argument that it is inefficient and wasteful planning to restrict sewer and similar services as a means of restricting future land development instead of using zoning and other direct land use controls for that purpose, and that the useful life and therefore planning projections for infrastructure installations such as sewers extends beyond the period for which land use plans are made. These policy arguments may be made to LCDC in the first instance; they do not persuade us that the legislature limited the counties in their comprehensive planning to incorporating or "coordinating" district plans but to draft no alternative plan elements of their own. [9] The Court of Appeals stated: "In the situation contemplated by ORS 197.254(2), then, the county must formulate its own sewer policies, and the special district must coordinate its plan with that of the county. Not only does this imply the county's statutory authority to do so, but it also suggests by implication that goal conflicts between districts and counties may be resolved at the acknowledgment phase when the district is not precluded from raising objections. Conceivably, both the county and district plans may be found by LCDC to comply with the statewide planning goals, and although we need not resolve that problem here, Goal 2 presumably would resolve it." 53 Or. App. 823, 830-31, 632 P.2d 1349.

dcab2b248ceb27801bd4c42c94074e859157d189c1bea782b7eba6069f871d06

1982-05-18T00:00:00Z

3b21d4b2-0b54-4963-a643-0aa98fb0dedb

Gale v. DEPARTMENT OF REVENUE, ETC.

293 Or. 221, 646 P.2d 27

oregon

Oregon Supreme Court

646 P.2d 27 (1982) 293 Or. 221 Wilna GALE, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. TC 1559; SC 28078. Supreme Court of Oregon, In Banc. Argued and Submitted April 6, 1982. Decided June 9, 1982. *28 Thomas D. Kershaw, Jr., Klamath Falls, argued the cause and filed briefs for appellant. Ira W. Jones, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem. PETERSON, Justice. Under ORS 310.630 et seq., medium and low income homeowners and renters are entitled to a refund of a portion of the real property taxes paid upon the dwelling they occupy. ORS 310.640(3) provides that the claimant's status as an owner or renter "shall be determined as of December 31 of the calendar year for which the claim is filed." The plaintiff in this case sold her home in October, 1977, and she claims entitlement to a pro rata portion of the owner refund to which she would have been entitled had she been an owner on December 31, 1977. She claims that the legislation impermissibly discriminates between homeowners who owned their homestead on December 31 of the tax year and homeowners who did not, in violation of the Equal Protection Clause of the Constitution of the United States.[1] She makes no claim under any provision of the Oregon Constitution. The plaintiff herein owned and resided in a house in Philomath, Oregon. She sold the house in October of 1977, and moved out. Even though she did not own the house on December 31, 1977, she filed for and received an owner's refund under ORS 310.640. The Department of Revenue subsequently issued an order and ruling disallowing the refund on the grounds that she did not own the house on December 31 of the year for which the claim was filed. Following an administrative appeal, the Department seized the plaintiff's 1981 tax refund and threatened further collection action. Plaintiff filed a complaint in the Tax Court seeking declaratory and injunctive relief. The Department of Revenue moved to dismiss the complaint for failure to state facts sufficient to constitute a claim, ORCP 21 A(8). The Tax Court granted the motion. Taxpayer appealed to this court. ORS 305.445. We affirm. The refund program creates two categories of eligible taxpayers, renters and homeowners. In order to qualify, taxpayer had to be either a homeowner[2] or a renter "as of December 31 of the calendar year for which the claim is filed." ORS 310.640(3) (1977 Replacement Part). Taxpayer makes no claim that she was a renter as of December 31, 1977, and her complaint shows that she was not a homeowner as of December 31, 1977. Her claim is that the statutes violate the Equal Protection Clause of the Fourteenth Amendment. She argues: The plaintiff is not critical of the differentiation of homeowners and renters. She criticizes the distinction between (1) homeowners who paid taxes upon their homestead and were an owner of the homestead as of December 31 of the calendar year for which the claim is filed, and (2) homeowners who paid taxes upon their homestead but were no longer an owner of the homestead as of December 31 of the calendar year for which the claim is filed. She asserts that an impermissible discrimination exists because taxpayers who own their homestead on December 31 are eligible for tax relief while a taxpayer who sold the home on December 29 or 30 is not. We find no impermissible classification. Our analysis is directed to the plaintiff's claim that the failure to allow the plaintiff a pro rata refund impermissibly discriminates against her in violation of the Equal Protection Clause of the Fourteenth Amendment.[3] There can be no question that the legislation distinguishes between owners who own their homes on December 31 of the calendar year and those who do not. But the fact that the law provides for different treatment for different people does not compel the conclusion that equal protection does not exist. The equal protection guarantee is that persons who are similarly situated obtain equal treatment. Here, the law classifies persons for different benefits, as determined by their status on December 31 of the calendar year. The inquiry is: Does the classification between persons who owned their homestead on December 31 and those who did not bear a rational relationship to whatever end or ends the statute may seek to achieve? Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 942, 59 L. Ed. 2d 171 (1979); Dandridge v. Williams, 397 U.S. 471, 485-486, 90 S. Ct. 1153, 1162-63, 25 L. Ed. 2d 491 (1970). The Supreme Court's "rational basis" test requires us, first, to examine the objectives of the statutes and, second, to analyze whether the classification rationally furthers achievement of those objectives. Although it is possible to infer the basis for the statutory requirement that the status of the claimant "be determined as of December 31 of the calendar year for which the claim is filed," we need not speculate. The legislative history makes it clear why the last sentence of ORS 310.640(3) was added to the statute in 1977. The homeowner's relief law was first enacted in 1971. Its goal was to reduce the homeowner's real property tax burden. The plan was simple: All homeowners were eligible for some tax relief, but the relief was graduated. The less income, the more potential tax relief. The maximum refund was $400; the minimum, to persons with *30 household income exceeding $8,000, was $100. ORS 310.640(4) then provided (Or. Laws 1971, ch. 747, § 3): In 1973, the statute was amended. Or. Laws 1973, ch. 752. Provision was made for refunds to renters as well as homeowners, dependent upon the income of the renter. Maximum benefits to homeowners and renters, respectively, were $490 and $245. Persons with incomes of $20,000 or over were not eligible. ORS 310.640(4) was renumbered ORS 310.640(3) and modified to read as follows (Or. Laws 1973, ch. 752, § 2): In November, 1973, the Department of Revenue promulgated detailed rules implementing the tax refund program. OAR 150-310.640 provided, in part: The 1975 legislature made minor revisions to the program. Or. Laws 1975, chs. 616 and 734. In 1977, substantial changes were made. Or. Laws 1977, chapters 90 and 841. Provisions were made for rental assistance, in addition to the existing provisions for rental refund. The amount of maximum and minimum owner and renter refunds was raised, and the income eligibility requirements were lowered. ORS 310.640(3) was amended to include, in its last sentence, the gist of what had previously been the first sentence of OAR 150-310.640. As amended in 1977, ORS 310.640(3) read (Or. Laws 1977, ch. 841, § 3): From 1973 on, provision was also made for auditing and adjusting claims. ORS 310.657(2) (1973 Replacement Part) provided: ORS 310.657 was amended in 1977 to make provision for consideration of the new rental assistance program. As amended, ORS 310.657(2) provided: Prior to 1977, the Department of Revenue had installed a sophisticated electronic system to record the data which was necessary to the implementation and operation of the program. The 1977 legislative history reveals that the question whether provision should be made for pro rata refunds to *31 owners and renters whose status was either homeowner for part of a year, or renter for part of a year, or homeowner and renter for part of a year was discussed and rejected. The hearings reveal that the difficulty of administering the programs would be increased immeasurably if renters and homeowners would be entitled to pro rata payments. For example, if a claimant were an owner and a renter in the same year, an apportionment of tax and rent would need to be made. In addition, an equivalent apportionment of income during each period of time would have to be made. The hearings also reveal that the cost of administration would be increased substantially. With the purpose of the legislation in mind, and the legislative history before us, we must consider whether the classification is reasonable and related to the purpose of the legislation. Classification is primarily a legislative problem. The mere fact that the classification "is not made with mathematical nicety or because in practice it results in some inequality" is not a basis for holding that a law violates the equal protection clause. U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 175, 101 S. Ct. 453, 459, 66 L. Ed. 2d 368 (1980). Although the Supreme Court of the United States often refers to the legislative distinction of those who are from those who are not covered by a law as the creation of "classes," what is really involved is the drawing of a line separating eligible persons from ineligible persons. As we observed in State v. Clark, 291 Or. 231, 240, 630 P.2d 810, cert. den., ___ U.S. ___, 102 S. Ct. 640, 70 L. Ed. 2d 619 (1981), any time that a law determines a "class" with reference to a date, the inevitable result is that the law "classifies" persons by virtue of those who qualify and those who do not.[4] The Supreme Court of the United States was faced with a similar problem in U.S. Railroad Retirement Bd. v. Fritz, supra. In that case, Congress restructured the railroad retirement system which had included provisions whereby a person who worked for both railroad and nonrailroad employers and who qualified for railroad retirement benefits and social security benefits received benefits under both systems. These benefits, in the opinion, were referred to as "windfall benefits." Congress decided to eliminate the windfall benefits. Their elimination required Congress to determine which employees currently in railroad service would be deemed to have a "vested" right to such windfall benefits. Such benefits were retained for some railroad employees who were employed in railroad service in 1974 or had a "current connection" with the railroad industry as of December 31, 1974. Some railroad employees who were "divested" contended that it was irrational for Congress to distinguish between employees simply on the basis of whether they had a "current connection" with the railroad industry as of the changeover date, December 31, 1974. *32 The Supreme Court held that the classification did not deny the plaintiff class equal protection of the laws. As to the process of line drawing, the court noted: See also Huckaba v. Johnson, 281 Or. 23, 573 P.2d 305 (1978).[6] As stated previously, the legislative history shows that the legislature considered and rejected the proration of refunds because administration would be much more complex and burdensome, and the cost more substantial. In nonsuspect classifications for taxation purposes, matters pertaining to cost and administrative difficulty are relevant to an equal protection inquiry. In School Dist. No. 12 v. Wasco County, 270 Or. 622, 529 P.2d 386 (1974), a statute provided that ad valorem tax refunds should be paid by the county, even though the tax was levied by and for the benefit of a single taxing school district in the county. This statute was upheld against the plaintiffs' assertion that the statute violated plaintiffs' rights under both the Equal Protection Clause of the Fourteenth Amendment and Art I, § 20, of the Oregon Constitution. As to administrative efficiency and cost, this statement is pertinent: Finally, it is appropriate to point out that it was within the power of the plaintiff to bring herself within the class of eligible persons simply by deferring the sale of her house. Whether this was a practical economic decision was for the plaintiff to decide. Many decisions are made with a view to eligibility for benefits or to tax liabilities which are determined by time. The difficulties of administration and the additional cost of operation of a plan for proration of refunds are substantial reasons supporting the legislative decision to draw the line at December 31 of each calendar year. The scheme is rational, understandable and workable. There is no equal protection constitutional infirmity. The judgment of the Tax Court is affirmed. [1] The Fourteenth Amendment to the Constitution of the United States provides: "* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [2] The term "homeowner" was not defined in the 1977 statutes. The homeowner refund was limited to property taxes attributable to the taxpayer's principal residence. ORS 310.630(5) and ORS 310.640(1)(a) (1977 Replacement Parts). [3] State v. Clark, 291 Or. 231, 630 P.2d 810, cert. den., ___ U.S. ___, 102 S. Ct. 640, 70 L. Ed. 2d 619 (1981); Jarvill v. City of Eugene, 289 Or. 157, 613 P.2d 1 (1980); Tharalson v. State Dept. of Rev., 281 Or. 9, 573 P.2d 298 (1978). Had a claim been made under Art. I, § 20, of the Oregon Constitution, we would first consider that claim. Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981). [4] Note this comment, relative to the "classification" under Art. I, § 20, of the Oregon Constitution: "The terms `class' and `classification' are invoked sometimes to mean whatever distinction is created by the challenged law itself and sometimes to refer to a law's disparate treatment of persons or groups by virtue of characteristics which they have apart from the law in question. Familiar examples of the latter kind of `class' are personal characteristics such as sex, ethnic background, legitimacy, past or present residency or military service. On the other hand, every law itself can be said to `classify' what it covers from what it excludes. For instance, the rule of this court that limits the time for filing a petition for review (Rule 10.05) `classifies' persons by offering the `privilege' of review to those who file within 30 days and denying it to those who file later. Similarly, a law that licenses opticians and optometrists to perform different functions, see Williamson v. Lee Optical, 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 2d 563 (1955), does not grant or deny privileges to classes of persons whose characteristics are those of `opticians' and `optometrists'; rather, the law creates these classes by the licensing scheme itself. Attacks on such laws as `class legislation' therefore tend to be circular and, as the above quotations from early decisions show, have generally been rejected whenever the law leaves it open to anyone to bring himself or herself within the favored class on equal terms. * * *" State v. Clark, 291 Or. at 240-241, 630 P.2d 810, cert. den., ___ U.S. ___, 102 S. Ct. 640, 70 L. Ed. 2d 619 (1981). [5] Note this statement from Mathews v. Diaz, 426 U.S. 67, 83-84, 96 S. Ct. 1883, 1893, 48 L. Ed. 2d 478, 492 (1976), which involved the constitutionality of provisions of the Social Security Act denying eligibility to aliens, age 65 or older, unless they had been admitted for permanent residence and also has resided in the country for at least five years: "* * * [T]he differences between the eligible and the ineligible are differences in degree rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment. In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation." (Footnote omitted.) [6] Huckaba v. Johnson, 281 Or. 23, 573 P.2d 305 (1978), involved the constitutionality of portions of the Personal Income Tax Act which allowed an exclusion from taxable income for payments received under retirement systems established by the United States, but which denied the exclusion in the case of a military retiree until age 65. The contention was made that this differentiation denied equal protection to military retirees under age 65, when compared with other federal retirees not drawing military retirement. This court upheld the different treatment, saying: "What is required in assessing a constitutional challenge to classification for tax benefit is a review of the grounds for the classification to determine if it rests upon a rational basis. The legislature may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it. [Citations omitted.] It, however, is not sufficient to merely point out differences between the groups of taxpayers for divergent treatment. The differences justifying the attempted classification must bear a reasonable relationship to the legislative purpose. The legislative power to create a classification implies the authority to subclassify persons included in the general class if there is a rational basis for making this further distinction. * * *" 281 Or. at 26, 573 P.2d 305.

79484585a78cc82021705f54c1ea020fddf5aa1e3968ac7e7cc0458c6760bda2

1982-06-09T00:00:00Z