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2ff7e7af-5898-4098-98ce-d68d5ae89e23

In Re Conduct of Walker

293 Or. 297, 647 P.2d 468

oregon

Oregon Supreme Court

647 P.2d 468 (1982) 293 Or. 297 In re Complaint As to the CONDUCT OF Glenn WALKER, Accused. OSB Nos. 80-14 and 81-7; SC 28533. Supreme Court of Oregon, In Banc. Submitted on Record May 3, 1982. Decided June 29, 1982. PER CURIAM. In this disciplinary proceeding the Oregon State Bar charges the accused with violation of several Disciplinary Rules of the Code of Professional Responsibility arising from his representation of two different clients. In one case he represented a client in two litigation matters, a personal injury action and a business dispute. In the other, he represented the personal representative of an estate. The Trial Board and the Disciplinary Review Board found the accused not guilty of all charges. We decide the facts on the record made before the Trial Board. The accused was charged with violation of the following disciplinary rules: *469 The bar alleged that the accused failed to prepare the cases for trial in a timely manner or to communicate with his client and that he failed to take appropriate steps to protect his client's interest in the cases. In late 1978 or early 1979, the accused agreed to represent the client in his action as guardian ad litem for injuries suffered by his stepson in a bicycle accident which occurred in August, 1977. In February, 1979, the accused agreed to represent the same client in an action against the client which arose out of a business transaction involving a sale of goods by the client to the three plaintiffs. Each of these cases was being handled by another lawyer at the time the accused agreed to take them over. The client agreed to pick up the files from the lawyer and deliver them to the accused,[1] but the accused did not receive them until mid-June, 1979. The delay is apparently attributable to an injury and subsequent hospitalization suffered by the client in March, 1979, and a physical illness which interfered with the accused's practice intermittently from March, 1979, until at least March, 1980. Throughout the accused's dealings with the client, the client made numerous phone calls, sometimes three times a day, to inquire as to the status of both cases. The accused continued to inform the client that when he had something to tell him he would get in touch with him. In the client's view, the accused did not communicate with him with sufficient frequency or keep him adequately informed. In the accused's view, the client sought constant and unnecessary reassurance. In September, 1979, in exasperation, the client wrote to the accused inquiring as to the status of the two cases. The accused responded by letter in October, informing the client that the defendants had been served in the personal injury case and that he was preparing for depositions in the business litigation. In March, 1980, the client again wrote to the accused inquiring as to the status of the personal injury action. The client stated in the letter that if the accused did not want to pursue the matter, or could not for some reason, that perhaps it should be turned over to another lawyer who was then handling another matter for the client. The accused took this as an indication from the client that he wanted the cases turned over to the other lawyer, and the accused did so without further communicating with the client. He then left on a vacation. However, the client and the other lawyer could not agree on a fee arrangement, and the other lawyer declined to handle the personal injury case. In early April, 1980, the accused received notice that the client was to be deposed in preparation for the business litigation. He wrote to the client, telling him that it was his understanding that the cases had been turned over to the other lawyer, that he was not in a position to handle the matters any longer, and that it was imperative that the client obtain counsel for the impending deposition. In response to this letter, the client came into the accused's office and demanded that the accused continue to represent him. The accused agreed to do so in both the business litigation and in the personal injury litigation. Early in their relationship, the client and the accused had agreed to a 25 percent contingent fee. The accused billed the client in early June, 1980, asking $1,000 for "costs and retainer." The client had not understood that he would have to pay costs. He wrote a letter to the accused in mid-July asking why he was being billed for costs when they had agreed on 25 percent of recovery as payment. The client suggested specific steps that he thought the accused should be taking in both the personal injury case and the business litigation. In response, the accused wrote to the client in August, 1980, informing him that he needed the money in order to do the depositions in the business litigation case, and that in view of the client's refusal to pay the costs, he was resigning. The client retained another *470 lawyer to pursue both cases and complained to the Bar. Although the accused did not communicate with the client as often as the client believed he should have, the record establishes that he kept the client adequately informed of the progress he made with each case. The record suggests delay in the accused's handling of the cases, but it does not establish neglect. There was no prejudice to the client as a result of the accused's handling the cases. The accused's handling of his client's litigation was not exemplary, but neither was it deserving of professional discipline.[2] We agree with the Trial Board and the Disciplinary Review Board that the accused did not violate any Disciplinary Rules in his handling of this client's cases. The accused is charged with violation of the following Disciplinary Rules in his representation of the personal representative of an estate: The accused had done legal work for the decedent before her death and agreed to represent the decedent's daughter in her capacity as personal representative for the estate. The charges arose from that representation. We agree with the Trial Board and the Disciplinary Review Board that the accused's conduct did not violate DR 6-101(A)(1), but find that his conduct violated DR 1-102(A)(4) and (5). The decedent died in March, 1976. The order admitting the will to probate and appointing the personal representative was entered in July, 1976. The inventory was filed in January, 1977. Ten months later, in October, 1977, the accused wrote to the personal representative asking for a list and records of receipts and disbursements in order to compile the final account. He wrote to the probate court in November, 1977, thanking it for "the additional 30-day period in which to get the final account filed." He stated that the account was ready for filing except he had been unable to contact the personal representative to prepare the schedule of receipts and disbursements, in part because she had been injured in an automobile accident and was having difficulty getting things done. The accident had occurred one-and-a-half years earlier. The personal representative testified credibly that the accident had not interfered in any way with her ability to function as personal representative. The final account was filed on December 23, 1977. In it, the accused stated that This statement was not true. Shortly after this filing, the accused filed a personal property tax clearance for the estate. The only tax which had been paid at the time the final account was filed was a portion of *471 the real property tax. None of the other taxes had been paid. The inheritance tax return and the request for income tax clearance were not filed until December, 1978, a year after the accused represented that all taxes had been paid or were being paid. The accused's explanation is unpersuasive. He testified that he had been preparing an inheritance tax return when he filed the final account. He testified that a return was not filed until a year later because it had to be "amended" over the course of the year. There is no documentation in the record to support his assertion. The accused's file contained no copy of a return prepared at the time of the filing of the final account. The earliest reference to tax return preparation is a letter of September, 1978, explaining to the court that the accused was in the process of "amending" the inheritance tax return so that it could be filed. There was, of course, no filed return to amend and we take the accused's use of the word to be evasive rather than candid. In April, 1978, the probate court on its own motion issued an order to show cause why the personal representative should not be removed for neglect in failure to close the estate. A hearing was set for May 15, 1978. At the accused's request, the hearing was reset for June, 1978. It was again reset at the accused's request for August, 1978, but did not take place for an undisclosed reason. The accused wrote to the court in September, 1978, explaining his progress, or lack of it, with the estate. He reiterated that the delay was due in large part to the personal representative's automobile accident. The show cause hearing was reset for November, 1978. It was again reset at the accused's request for December, 1978. Also in December, the accused wrote to the court bringing it up to date on the status of the estate. He stated that everything necessary to close the estate had been done except that he had not yet prepared a supplemental schedule of receipts of disbursements for the supplemental final account because he had been unable to get in touch with the personal representative. The show cause hearing was again reset for January, 1979. For some reason, it was rescheduled for February, 1979. That hearing did not take place, but the accused wrote to the court in late February explaining the delay in closing the estate. Additional inheritance tax had to be paid and the personal representative had delivered the check to the accused after hours and dropped it in his mail slot. The amount of the check was incorrect in that numbers were transposed, but to avoid further delay the accused sent the check to the Department of Revenue with the request that they refund the difference along with the clearance. These items had not yet arrived. The accused also informed the court that he would be "out of town considerably during March" and he went on vacation for three weeks in March. He told the court that he had asked his secretary to forward the final account order for the judge's signature as soon as the tax clearances arrived and that on his return he would have the personal representative pay the final expenses and distribute the assets and then close the estate. On March 20, 1979, the court on its own motion ordered the removal of the personal representative, and the following day designated a successor. When the accused returned from vacation and discovered that the personal representative had been removed, he formed a plan to have her reinstated. He asked her to prepare five checks, one for his fee, one for her fee as personal representative, and the other three for distribution to the three heirs. The accused intended to present the checks to the court along with his affidavit and motion to vacate the order removing the personal representative, as a means of demonstrating to the court that the estate was ready to close. The accused did not intend or anticipate that either he or the personal representative or any of the heirs would present the checks for payment. The personal representative apparently misunderstood the accused's directions. Instead of giving him all five checks, she *472 slipped the accused's check for attorney fees under the door of his office after hours. She then attempted to cash her own check, which she was unable to do because the funds had been transferred by the successor personal representative. Subsequently, the accused filed the motion to vacate the order removing the personal representative. At the time of filing, he knew that he had received only one check, rather than five, but he did not know that the personal representative had attempted to cash her own. The court denied the motion. A decree of final distribution was entered in July of 1980 and the order of discharge was entered in August, 1980. The accused testified that his delay in closing the estate was due to difficulty in obtaining his client's cooperation. It is obvious from the record that she was a difficult client to represent. However, the accused was unable to specify any document in the hands of the personal representative at the date of filing of the final account which he needed for the closing of the estate. The difficulty thereafter related primarily to obtaining documentation for business of the estate occurring during the following year during which the estate was unnecessarily open. The Bar charged the accused with misrepresenting to the court that the income and inheritance taxes had been paid or were being paid, when in fact he knew that was not the case. It also charged him with preparing checks and directing the personal representative to draw the checks on the estate checking account after he knew she had been removed as personal representative. The bar also charged him with recommending to the personal representative that she effectively ignore the order of the court discharging her. Finally, it charged him with undertaking to handle the estate of a decedent when he knew or should have known that he was not experienced or competent to handle the matter. We find, as did the Trial Board and the Disciplinary Review Board, that the accused did not violate DR 6-101(A)(1), Failing to Act Competently, in his decision to handle this estate. The record amply establishes the accused's experience handling probate matters and his professional ability to perform such work. We also find, as did the Trial Board and the Disciplinary Review Board, that it is not proved that the accused recommended to the personal representative that she ignore the order of the court discharging her, or that she draw checks against the estate for the purpose of depleting the funds. Although the accused did not choose a prudent course as a means of supporting his assertion that the estate was ready to be closed, we find that he acted without the intention or expectation that the personal representative would attempt to cash any of the checks. The final account is another matter. The accused's statement in it that all taxes "have been paid or are being paid at the same time as this final account is being executed" was false and the accused knew it was false. Even were we to accept his testimony that he was then working on a draft inheritance tax return that he "amended" over the course of the next year, it would not alter a finding that the statement to the court was knowingly false. Although the accused may have intended to prepare the tax returns at some time in the near future, his statement that they were paid or were then being paid was a misrepresentation intended to mollify the court and present the appearance of dispatch in the personal representative's handling of the estate. The accused points to his letter of September, 1978, regarding "amending" of the return as evidence that he did not intend to mislead the court, but that letter does not detract from the knowing falsity of the accused's representation of fact 10 months later. We find by clear and convincing evidence that the accused made a false statement to the court, knowing it to be false, in violation of DR 1-102(A)(4). Regarding the charge under DR 1-102(A)(5), whether the accused's conduct was prejudicial to the administration of justice depends upon its effect on the court's ability to perform its duties. Those duties *473 are specified in the Oregon Probate Code, ORS chs. 111-119. The Probate Code was revised extensively in 1969. The major purpose of the revision was to expedite and simplify the probate of both testate and intestate estates.[3] To this end, the personal representative was authorized to proceed with the administration of the estate without obtaining a court order for individual acts.[4] More responsibility for the handling of the estate was placed with the personal representative, but the probate court retained the duty to supervise the personal representative's performance. ORS 111.085(8). The duty of the probate court, the personal representative and the personal representative's lawyer is the same: to complete probate and close the estate as expeditiously as possible. ORS 114.265; In re Snyder, 276 Or. 897, 559 P.2d 1273 (1976). Here, in addition to the misrepresentation regarding the estate's tax status, there was a pattern of delay, continuances and shadings of the truth which were intended to placate the court. It had the effect of delaying the probate court taking independent action to expedite the closing of the estate. At the accused's request, the show cause hearing was set over seven times over the course of a year. The accused repeatedly reported to the court that the delays were in part attributable to the personal representative's injuries from an automobile accident, but there is no reason in the record to infer that the injury affected her ability to perform her duties in any way. The conduct may have been intended to protect the accused's client, but it hindered the court's ability to carry out its supervisory function. Misrepresentation and half-truths as to the status of an estate are grave matters. As we stated in In re Greene, 290 Or. 291, 297-298, 620 P.2d 1379 (1980): We find that the accused violated DR 1-102(A)(4) and (5) by misrepresenting the status of the estate to the court. In view of our finding that the accused is guilty of violation of other subsections of DR 1-102, we need not go further to determine whether the same conduct also violates the more general language of DR 1-102(A)(6). The question of appropriate sanction remains. We note that the accused's handling of the estate was hampered by the personal representative's conduct. Many of the accused's delaying tactics were apparently motivated by his desire to protect the personal representative. It is clear that the accused's conduct was not motivated by any thought of personal gain. Nevertheless, we take a grave view of misrepresentation, particularly to the court, and of conduct prejudicial to the administration of justice. Under the circumstances, a 30-day suspension from the practice of law is appropriate. Accused suspended from the practice of law for 30 days from the effective date of this decision. ORAP 11.03. Judgment to Oregon State Bar for costs. [1] The testimony conflicts on this point, but the testimony of the accused appears credible and the Trial Board, to whose credibility determinations we give weight, so found. [2] This case resembles In re Loew, 292 Or. 806, 642 P.2d 1171 (1982), in that the accused deferred action on litigation for which he had no conviction on behalf of an understandably impatient client. Coincidentally in both cases, for example, the clients were retired military pilots, now civilian pilots. In the Loew case, however, the procrastination was so aggravated that a filing date was missed and the client's interests were prejudiced. This accused was not so neglectful. [3] See Foreword to Preliminary Draft, Proposed Oregon Probate Code, August, 1968, p. xiv. [4] See Commentary to Part 4, Duties and Powers of Personal Representative, Proposed Probate Code, August, 1968, p. 117.

97282d7891d99901d88f8fb70f1b63c756572892aff1b10b3f0f8c642bc9a34b

1982-06-29T00:00:00Z

80196671-f877-47cc-aa43-796d8964cf81

Patton v. State Bd. of Higher Educ.

293 Or. 363, 647 P.2d 931

oregon

Oregon Supreme Court

647 P.2d 931 (1982) 293 Or. 363 Gilbert PATTON, Petitioner On Review, v. STATE Board of Higher Education, University of Oregon, Paul Olum, and Dr. Stanley A. Brown, Respondents On Review. CA A20930; SC 28648. Supreme Court of Oregon, In Banc. Submitted on Briefs May 13, 1982. Decided July 7, 1982. Charles S. Spinner, Eugene, filed brief for petitioner on review. With him on the brief was Spinner & Young, Eugene. Richard David Wasserman, Asst. Atty. Gen., Salem, filed brief for respondents on review. With him on the brief were Dave *932 Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. Professor Peter Swan, University of Oregon Law School, Eugene, on behalf of respondent University of Oregon. MEMORANDUM OPINION. Petitioner, a student at the University of Oregon, was placed on mandatory medical leave pursuant to a university rule.[1] He sought review of this order in the Court of Appeals under ORS 183.482, which provides for judicial review of "contested cases" under the Administrative Procedure Act. The Court of Appeals on its own motion dismissed for want of jurisdiction, 56 Or. App. 714, 642 P.2d 1207 (1982), and petitioner sought review of this dismissal. We allow the petition for review and remand the case to the Court of Appeals. The Court of Appeals explained its dismissal as follows: 56 Or. App. at 718, 642 P.2d 1207. In other words, the court believed that its jurisdiction depended on the kind of hearing actually conducted by the agency rather than on whether the proceeding qualified as a "contested case" under the Administrative Procedure Act. This is erroneous. The Court of Appeals has jurisdiction if a proceeding meets the definition of a "contested case" under any part of ORS 183.310(2), which provides: A contested case calls for certain administrative procedures, ORS 183.440-183.470. Failure to follow those procedures in any given case may or may not be reversible error, ORS 183.482(7), but that goes to the merits; it does not control the court's jurisdiction. Here the Court of Appeals never reached the question whether the controversy qualified as a contested case under any provision of ORS 183.310(2) and thereby placed jurisdiction on review in that court. The court's order dismissing petitioner's petition for review is vacated and the case is remanded to the Court of Appeals for consideration of that question. [1] OAR 571-23-015 provides in part: "The following procedures shall be followed when the Dean of Student Personnel Services has reason to believe that a student may have a serious medical or mental health disability which substantially threatens the welfare of the individual, other members of the University community or the educational processes of the institution: "* * * "(6) Conduct of Conference for Medical Determination. At the conference convened pursuant to this notice the Director of the Student Health Center shall refer to reports and recommendations and hear the evidence in an order determined to be best suited to the requirements of the ultimate medical determination. The Director is empowered to request further independent medical or psychiatric examinations of the student which may be relevant to the determination. "(7) Proceedings under ORS Chapter 183. In any circumstances in which the proceedings for determination in which the proceedings for determination of the necessity for medical leave might be required by law to be conducted in accordance with the provisions of ORS Chapter 183 rather than through the conference as provided in section (5) of this rule, the Director of the Student Health Services is authorized as follows: "(a) To obtain the appropriate assistance and advice of legal counsel in the Director's rulings on evidence and findings of fact; "* * * "(8) Determination of Director: "* * * "(b) If, following the proceedings in section (6) or (7), of this rule, the Director of the Student Health Center determines that the student's medical or psychiatric condition substantially threatens the welfare of the individual, of other members of the University community or of the education processes of the institution, the Director will so inform the student and the Dean of Student Personnel Services in writing, and the student will be notified and placed on medical leave by the Director of the Student Health Center." We assume that the "Director of the Student Health Services" mentioned in paragraph (7) is the same "Director" as the "Director of the Student Health Center" referred to elsewhere in the rule and is the official authorized to order the student's medical leave.

d079c3126a521e012e3fa81fd093b351d725258840fcc219c587117603c4d473

1982-07-07T00:00:00Z

d8b578fc-e52c-4ec5-bd06-82503911527c

A-1 Sandblasting & Steamcleaning v. Baiden

293 Or. 17, 643 P.2d 1260

oregon

Oregon Supreme Court

643 P.2d 1260 (1982) 293 Or. 17 A-1 SANDBLASTING & STEAMCLEANING Co., Inc., an Oregon Corporation, Respondent On Review, v. Frank William BAIDEN, Underwriters at Lloyds, and Other English Companies, Petitioners On Review. SC 28131; CA 17975; TC A7902-00834. Supreme Court of Oregon, In Banc. Argued and Submitted February 11, 1982. Decided April 27, 1982. *1261 Robert E. Franz, Jr., Eugene, argued the cause and filed brief for petitioners on review. Charles R. Mowry, Portland, argued the cause and filed brief for respondent on review. With him on the brief was Dardano & Mowry, Weidner & Griffiths, Portland. LINDE, Justice. Plaintiff, a contractor in the business of cleaning and painting large structures, sued its liability insurer to recover sums that plaintiff had paid to the owners of automobiles damaged by plaintiff in the course of spray painting a bridge. The insurer defended on the grounds that coverage was excluded, first, by a clause in the policy and second, by a public policy against recovering insurance for liability arising from intentional conduct. The trial court entered summary judgment for defendant on the basis of the policy exclusion. The Court of Appeals reversed, holding that the exclusion required clarification by evidence and that coverage, if provided by the insurance policy, was not precluded by the nature of plaintiff's conduct. 53 Or. App. 890, 632 P.2d 1377 (1981). Having allowed review primarily to consider the second issue, we affirm. The Court of Appeals summarized the facts as follows: 53 Or. App. at 892, 632 P.2d 1377. The clause relied on by defendant as excluding coverage provides: 53 Or. App. at 892-93, 632 P.2d 1377. The parties dispute whether the list of acids, alkalis, liquids, and other substances mentioned in this clause includes the paint sprayed by plaintiff that gave rise to the claims against it. The Court of Appeals concluded that this reading of the clause is not "so clear as to cause a reasonable person in the position of the insured to believe that paint was one of the substances referred to" in the exclusion and that the clause plausibly might be read to exclude liability for pollution damages to the environment. In view of an affidavit that defendants knew of the sandblasting and painting operations for which plaintiff wished liability insurance, the meaning intended or understood by the parties to the policy should be determined upon trial. 53 Or. App. 894-96, 632 P.2d 1377. We agree with this conclusion of the Court of Appeals. The case nevertheless would not need to be remanded for trial if the harmful conduct for which plaintiff became liable precludes recovery under a general principle disallowing indemnity against liability for intentional wrongdoing. In the law of liability insurance, this general principle is variously based on specific policy provisions, or on "the very nature of insurance," or on public policy. See Keeton, Insurance Law 288-289 (1971). Because such insurance contracts traditionally covered liability arising from "accidents" or expressly excluded liability for intentional acts, most decisions denying recovery have not had to go beyond the limits explicit or implicit in the contract and squarely to hold insurance covering liability for intentional acts to be an unlawful contract. There may be a question how far the case law interpreting older policies was superseded, intentionally or otherwise, by the 1966 change in a new standard liability policy, which substituted the term "occurrence" for "accident" in the key coverage clause (though retaining "accident" as part of the definition of "occurrence" at least for some purposes).[1] The insurance contract found in the present record, however, consists primarily of typewritten provisions of a policy issued by defendant underwriters at Lloyd's, London, which refer neither to "accidents" nor to the legal premise of the liability against which the policy protects the insured. If any policy provisions or prior interpretations of similar insurance policies exclude coverage of this insured's operations, other than the exclusion previously referred to, defendants have not cited them. We therefore turn to the question whether Oregon law precludes recovery if the losses resulting from those operations otherwise were within the coverage of the insurance contract. Defendants contend that recovery is precluded insofar as the insured intentionally chose a method of operation, spray painting, which the insured fully expected to cause the harm for which it paid and now seeks reimbursement. "Intent," in this as in other contexts, is a term of many meanings, which is applied to mental states extending from conscious performance of the simplest bodily acts to the widest ultimate expectations. In a provision restricting insurance against liability for intentional wrongdoing, "intentional" could refer to any liability pleaded as one of the intentional torts, or irrespective of the theory of liability, to an insured's intentional action which unintentionally causes harm, or to such intentional action only when taken in disregard of a *1263 certainty or high likelihood of harm, or to actions motivated by a purpose to cause harm, though not necessarily the actual harm suffered by the injured party, or finally only to action taken for the purpose of inflicting the very harm for which liability is later imposed. Courts have reached different positions on these meanings of intent when construing clauses excluding intended harm from insurance coverage. See Pachucki v. Republic Ins. Co., 89 Wis. 703, 708, 278 N.W.2d 898, 901 (1979), citing Annot., 2 A.L.R.3d 1238 (1965). This court interpreted one such exclusion to apply only when the harm itself was intended in City of Burns v. Northwestern Mutual Ins. Co., 248 Or. 364, 434 P.2d 465 (1967). Two later decisions similarly interpreted contract clauses, Snyder v. Nelson/Leatherby Ins. Co., 278 Or. 409, 564 P.2d 681 (1977) (policy limited to losses "caused by accident"); Nielsen v. St. Paul Companies, 283 Or. 277, 583 P.2d 545 (1978) (exclusion of losses "expected or intended from the standpoint of the Insured"). Professor (now Judge) Keeton maintained that the concept of insurance necessarily implies an exclusion of "intentional" losses, as seen from the standpoint of the person whose loss is the basis of the insurance claim, conceding that to include "highly expectable" losses under this rubric states a difficult distinction of degree. Keeton, Insurance Law 286-90, 297-99 (1971). As we have said, the question how far an insurance policy in the form employed in this case is understood or interpreted to imply such an exclusion has not been briefed. If coverage is to be precluded as a matter of law, however, the rule must be sought not in the meaning of "intent" but in some public policy overriding normal contractual obligations. Such a public policy may be found in legislative enactments, administrative regulations, even in the constitution, see Hendrix v. McKee, 281 Or. 123, 132, 575 P.2d 134 (1978). No such source is cited to us here.[2] Occasionally, the rule may be developed in case law. See Harrell v. Travelers Indemnity Co., 279 Or. 199, 205-208, 567 P.2d 1013 (1977), Isenhart v. General Casualty Co., 233 Or. 49, 377 P.2d 26 (1962). Defendant argues that such a rule precludes insurance against liability for injuries caused by the insured's intentional action when these injuries, though undesired, are so certain as to fall within the tort principle that one is deemed to intend the foreseen or expected consequences of one's acts. The rule is said to be required by a public policy of deterring persons from choosing to disregard known or expected harm to others because any liability for this harm will be borne by the insurer. Although the argument of "deterrence" has superficial plausibility, this court has not found in it the basis of a "public policy" restricting liability insurance. For one thing, the argument proves too much. There is a public policy, expressed by criminal, administrative, and civil sanctions, to deter negligent and irresponsible as well as intentional misconduct, yet the argument that insurance would undermine the deterrent of liability for negligence was rejected long ago. See Appleman, Insurance Law and Practice § 2105 at 9 (Revised Ed); McNeely, Illegality as a Factor in Liability Insurance, 41 Colum L.Rev. 26 (1941). Moreover, when a court is called upon to *1264 derive a public policy from assumptions about the effect of legal rules on social behavior, it is asked to act largely on faith. A rule against insurance for highly expectable losses is a blunt instrument. Fear of uninsured liability may serve to deter irresponsible conduct in one context and not in another. In the present context of a contractor's liability for harm caused by construction or repair work, for instance, it has been suggested that other costs of injuries and claims litigation remain to deter substandard operations even under liability insurance. Hall, Contractors' Liability Insurance for Property Damage Incidental to Normal Operations The Standard Coverage Problem, 16 U.Kan.L.Rev. 181, 187-91 (1968).[3] Legislators can make such policy judgments on empirical or on political grounds, but the court has been presented with nothing within the reach of judicial notice to show that liability insurance would have a greater "evil tendency"[4] to promote tortious or otherwise unlawful operations when it covers expected, though undesired, negligently caused injuries. Accordingly, this court's precedents on "public policy" restrictions on insurance coverage, Isenhart v. General Casualty Co. and Harrell v. Travelers Indemnity Co., supra, have taken a different view of excluding liability for intentional wrongdoing. In Isenhart, the insured sued the liability insurer to recover the costs of his legal defense against an action for assault and battery, which the insurer had declined to defend under its general liability policy. The terms of the policy were not part of the record, precluding a decision based on interpretation of the contract. On the insurer's defense based on public policy, Justice O'Connell wrote for the court: 233 Or. at 52-53, 377 P.2d 26 (footnotes omitted). Liability for assault and battery therefore was not within the coverage of the policy and of the promise to defend the insured.[5] In Harrell v. Traveler's Indemnity Co., supra, the court rejected an insurer's contention that public policy forbids liability insurance to cover punitive damages. In that case, punitive damages had been awarded against an insured who injured another by reckless driving after drinking. Quoting Isenhart v. General Casualty Co., supra, the court drew a distinction between the "intentional act" and "intentionally inflicted injury" for which coverage was denied in Isenhart and the driver's conduct in Harrell, even though that conduct had been found sufficiently reckless of danger to others to justify imposition of punitive damages and presumably was a serious traffic offense. See ORS 483.992, cited in Harrell v. Ames, 265 Or. 183, 189, 508 P.2d 211 (1973). The several opinions in Harrell v. Traveler's Indemnity Co., supra, make clear that the court rejected a rule denying liability coverage for the sake of deterrence and confined the rule of Isenhart to those intentional acts whose purpose is to cause an injury of the kind giving rise to the insured's liability.[6] This limited rule was again restated with reference both to an exclusion clause and to public policy in Nielsen v. St. Paul Companies, supra, 283 Or. at 281, 583 P.2d 545. Although the insurer in this case tries to place the contractor's method of operation within the class of intentional wrongdoing, nothing in the record suggests that it was any part of the contractor's purpose to spray paint on automobiles crossing the bridge while it was being painted. To the contrary, the contractor had obligated itself to maintain cleaning facilities for just this eventuality, and its contract bid included $20,000 to cover anticipated claims. No doubt the contractor would have been pleased if no cars had crossed the bridge while the painting was in progress, but those were not the conditions provided by the state. See supra note 2. The choice to paint the bridge by methods and under conditions expected to cause some compensable harm was intentional, as the insurer asserts, but it was not the kind of purposeful infliction of injury that excludes recovery of indemnity under the rule of Isenhart v. General Casualty Co. Affirmed. [1] This and related questions concerning liability insurance for predictable or unavoidable harm from construction work are helpfully reviewed in Hall, Contractors' Liability Insurance for Property Damage Incidental to Normal Operations The Standard Coverage Problem, 16 U.Kan.L.Rev. 181 (1968). [2] Insofar as there was a governmental policy in this case, it presumably was to have the bridge painted at the lowest cost while minimizing the attendant risk of harm as well as inconvenience. The contracting parties contemplated the high probability that paint would strike some vehicles and provided for facilities to clean them as well as insurance. The state did not choose to close the bridge for periods alternating with periods of painting. The case thus illustrates the obstacles to judicial creation of "public policy" restrictions on liability insurance. The costs here at issue could be spread through insurance, reflected in the contract bid, or through the tax costs of painting by costlier methods less likely to strike cars than spray painting, or they could be left to tort claims of the hapless victims against the contractor. If liability coverage is precluded, the state might be limited to contractors large enough to be self-insurers, unless it is willing to deal with contractors that may be financially unable to satisfy uninsurable claims. Policy choices like these should have a source beyond judicial speculation. [3] Mr. Hall, in the article cited in note 1, discusses the possibility that businessmen may be willing to risk liability for property damage from dangerous operations when they would shy away from gain at the cost of another's bodily injury, and that this willingness might be enhanced by liability insurance. He lists several countervailing factors nevertheless discouraging high-risk operations, such as possible injury to employees, disruption operations, penalty clauses in contracts, collateral costs in claims litigation and of loss of goodwill, the risk of higher insurance premiums, and the pressure of liability insurers for safer operations. 16 U.Kan.L.Rev. 181, 187-189. Hall acknowledges that liability insurance may encourage the use of low-cost, high risk methods in some operations, of which the present case may be typical. But a general rule precluding liability insurance coverage for predictable and expected losses does not differentiate situations where this effect is or is not likely. Hall continues: "Even if it could be established that liability insurance for property damage incidental to the contractor's normal operations would discourage utilization of safer modes of operation, it would not follow necessarily that insurance for such damage should be held to be against public policy. Deterrence is not the only objective of the tort law. Equally if not more important is the objective of compensating the injured party ... The significance of insurance as the sole source of compensation looms particularly large in the areas of contractors' liability for property damage incidental to normal operations." 16 U.Kan.L.Rev. 181, 190. Possibly a contractor might still be denied recovery under a liability insurance policy if it is shown that the contractor deliberately chose a high-risk, cost-cutting method of operation because it had shifted the financial risk to the insurer, but such a defense would have to be found in the relations between the insurer and the insured, not in a rule forbidding the insurance. [4] Pyle v. Kernan, 148 Or. 666, 673, 36 P.2d 580 (1934). [5] The court further held that the insurer had no duty to defend even against a groundless claim of damages for an intentional tort, determining the duty to defend by the allegations of the complaint against the insured. This part of the holding did not rest on public policy but on the court's assumption about the insurer's promise to defend, which presumably depends on the terms of the policy. 233 Or. at 54, 377 P.2d 26. [6] It is worth noting that both Isenhart and Harrell involved torts of the kind committed by individuals rather than by enterprises, and that these torts formed the context of the discussion of "punishment" or "deterrence." This does not mean that even an intentional tort by an individual may not be unintended and "fortuitous" from the standpoint of a corporation or other insured who is derivatively liable for the individual's act. See Keeton, Insurance Law 293 (1971). Compare Ferguson v. Birmingham Fire Ins., 254 Or. 496, 460 P.2d 342 (1969), stating that the Isenhart exclusion would apply to a trespass action against an individual landowner for the acts of a laborer only if the damages arose out of the "willful" conduct of the insured. 254 Or. at 506, 460 P.2d 342.

b3ec8dc4cd2d81812d2901aaf37c17c6d4fbe581be952a9f8798d7aa48fdc27c

1982-04-27T00:00:00Z

fd03120e-53ad-44ec-80f6-87a98b4e9d42

Matter of Farrell

292 Or. 822, 642 P.2d 1167

oregon

Oregon Supreme Court

642 P.2d 1167 (1982) 292 Or. 822 In the matter of Farrell, Sonya and Jennifer, Minor Children. State ex rel. Juvenile Department of Multnomah County, Respondent On Review, v. DEBORAH FARRELL, Petitioner On Review. CA 19784; SC 28483. Supreme Court of Oregon, In Banc.[*] Submitted on Petition for Review March 11, 1982. Decided April 6, 1982. James F. O'Rourke, Jr., Portland, for the petition. With him on the petition was John S. Marandas, Portland. *1168 MEMORANDUM OPINION. Petitioner seeks review of a Court of Appeals decision 640 P.2d 652, affirming without opinion an order terminating her parental rights to her two daughters. The trial court found the requisite facts by a preponderance of the evidence as specified in ORS 419.525(2). Petitioner contends that the statutory standard is inadequate to meet the requirements of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. Since the Court of Appeals decision, the United States Supreme Court decided the case of Santosky v. Kramer, ___ U.S. ___, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), in which it held that the preponderance standard is inadequate and the "clear and convincing evidence" standard of proof is adequate to satisfy due process requirements for parental termination cases. We therefore allow review and, upon review, summarily reverse and remand to the Court of Appeals for reconsideration in light of Santosky v. Kramer. Reversed and remanded. [*] Linde, J., did not participate in this decision.

6f282bc14f0758b446359a16b2412eee4302b253536cd9c46d2cee34fadcd772

1982-04-06T00:00:00Z

308d9783-2da5-44c8-a404-c7a63587e986

Application of Taylor

293 Or. 285, 647 P.2d 462

oregon

Oregon Supreme Court

647 P.2d 462 (1982) 293 Or. 285 In the matter of the APPLICATION OF Ronald Curtis TAYLOR, for Admission to Practice Law in the State of Oregon. OSB 89-AD; SC 27292. Supreme Court of Oregon, In Banc. Decided June 29, 1982. Argued and Submitted February 9, 1982. William B. Wyllie, Salem, filed a brief for applicant. Gary E. Rhoades, Portland, argued the cause for the Oregon State Bar. With him on the brief was Albert A. Menashe, Portland. PER CURIAM. Applicant requests admission to the Oregon State Bar. He passed the Bar examination in the summer of 1980, but was not recommended for admission by the Board of Bar Examiners. On his petition for review, a hearing was held before a trial board pursuant to the Rules for Admission of Attorneys. The trial board recommended that applicant be denied admission to the Bar and, with one modification, this recommendation was adopted by the Disciplinary Review Board. Applicant then requested review by this court. ORS 9.535. This case comes under ORS 9.220, which, at the time these proceedings began,[1] required: *463 The objections to applicant's admission are in the form of allegations of specific acts by applicant which purportedly demonstrate a lack of good moral character. Though the statute places on the applicant the burden of proving his good moral character, the Oregon State Bar went forward and proved the various facts on which it relies. Cf. In re Easton, 289 Or. 99, 101, 610 P.2d 270 (1980), cert. denied 449 U.S. 862, 101 S. Ct. 166, 66 L. Ed. 2d 79 (1980). We cannot overstate the necessity that one who seeks admission to the Bar be of good moral character. An applicant must possess this character in addition to intellectual abilities, and intellect alone cannot make up for deficiency of moral character.[2] In our opinions in cases of this kind, we have sought to stress this aspect of joining the profession, but the unfortunate fact is that these opinions are probably read only by the applicant involved and persons already admitted to practice. The person entering law school, for whom the process of admission to the organized Bar is several years down the road, is the very person to whom statements of this kind are addressed and by whom they should be read. This applicant's want of the requisite good moral character appears from his theft, perjury and bankruptcy. In 1977, while he was a first-semester law student, applicant was arrested at a Salem department store and charged with the theft of a shirt. Applicant was tried and at the close of the evidence the case was taken under advisement. Some time later, the charge against applicant was dismissed. In reviewing this application, the Disciplinary Review Board decided that applicant's arrest was not a valid objection to applicant's admission. In making this decision, the Board apparently focused on the fact that the case ended in dismissal. Applicant contends that the dismissal of the charge forecloses any further consideration of the incident against him. Of course, an arrest or a charge ending in dismissal does not establish that the accused committed the prohibited act. 3A J. Wigmore, Evidence § 980a (Chadbourne rev. 1970). As the United States Supreme Court has said: Schware v. Board of Bar Examiners, 353 U.S. 232, 241, 77 S. Ct. 752, 757, 1 L. Ed. 2d 796, 803 (1957). On the other hand, dismissal does not preclude inquiry to ascertain whether an offense was committed. We recently considered a similar question in a proceeding concerning the conduct of a judge, In re Roth, 293 Or. 179, 645 P.2d 1064 (1982). There, criminal charges had been filed and later dismissed. The judge argued that the dismissal precluded our consideration of the charges. We rejected this contention, concluding that it was our duty to determine whether or not the accused had violated the law, regardless of whether criminal charges had been filed. 293 Or. 179, 188, 645 P.2d 1064, 1070 (1982). Similarly, in this case, the trial court's dismissal of the charges in no way bars our examination of the underlying events. Application of Cassidy, 268 App.Div. 282, 287, 51 N.Y.S.2d 202, 206 (1944) [citations omitted], adhered to 270 App.Div. 1046, 63 N.Y.S.2d 840 (1946), aff'd 296 N.Y. 926, 73 N.E.2d 41 (1947).[3] We have examined both the transcript of applicant's trial and applicant's admissions to the Board of Bar Examiners, and we find that the record establishes that applicant took the shirt from the Salem department store. He avoided conviction by testifying at his trial that he had not intended to steal the shirt, but had merely forgotten to pay for it. In June, 1980, applicant met with three members of the Board of Bar Examiners (described as "the small board"), and admitted to them that he had lied in his trial. Later, under oath before the full Board of Bar Examiners in July, 1980, applicant again admitted that this testimony was not true, that, in truth, he intended to steal the shirt. Applicant's admissions provide the element missing at the trial and establish that applicant committed theft in the second degree. ORS 164.045. The most serious allegation against applicant is that he committed perjury in his 1977 trial for theft. As indicated above, when applicant met with the small board in June, 1980, he told the board members that his testimony in the 1977 trial was not true. Subsequently, testifying under oath before the full Board of Bar Examiners, petitioner again admitted that he had not told the truth in his 1977 trial. The giving of false testimony is rightly held in utter opprobrium by the legal system. State ex rel. Grievance Committee v. Woerndle, 109 Or. 461, 470 at 476, 209 P. 604, 220 P. 744 at 746 (1923). 1 C. Chamberlayne, Modern Law of Evidence § 249 at 304 (1911); In re Lenske, 269 Or. 146, 158-59, 523 P.2d 1262, 1267-68 *465 (1974), cert denied 420 U.S. 908, 95 S. Ct. 827, 42 L. Ed. 2d 838 (1975); In re Moynihan, 166 Or. 200, 111 P.2d 96 (1941); In re Ulmer, 208 F. 461 (N.D.Ohio 1913). There has been much discussion in these proceedings as to whether or not applicant's statements were actually perjury. For the sake of clarity, we set forth the relevant portions of the transcript of the 1977 trial. In his unsworn opening statement, applicant said: Later in the trial, testifying under oath as a witness in his own behalf, applicant gave the following sworn testimony: This testimony is obviously rambling and confused; we find it was an attempt to convince the judge that applicant had forgotten to pay for the shirt. Applicant's clear design was to deny an intent to commit theft. This testimony was material to the charge of theft. In his appearances before the small board and the Board of Bar Examiners, applicant admitted that this testimony was false. We find that these admitted facts establish by clear and convincing evidence that applicant committed perjury. ORS 162.065. Arguing that his testimony is technically not perjury, applicant admits that he tried to mislead the trial court: (Petitioner's Memorandum of Points and Authorities in Support of Applicant's Admission to the Bar, 3-4.) This effort to mislead the trial court is conduct sufficient to warrant our unequivocal condemnation. It is convincing evidence that applicant's sense of ethics is wanting. It is that sense of ethics with which we must be concerned. In re Alpert, 269 Or. 508, 514, 525 P.2d 1042, 1045 (1974); In re Lenske, supra. By filing bankruptcy in 1975, applicant discharged some $2,400 in student loans *466 with which he had financed his under-graduate education. The fact that petitioner filed for bankruptcy, standing alone, is not a factor which we consider in determining his moral fitness. The bankruptcy statutes prevent a rule which would preclude applicant's admission to the Bar solely because he declared bankruptcy. However, an applicant's handling of financial affairs is regularly considered in determining moral fitness. See, e.g., In re Cheek, 246 Or. 433, 425 P.2d 763 (1967); In re Connor, 265 Ind. 610, 358 N.E.2d 120 (1976); In re O'Brien's Petition, 79 Conn. 46, 63 A. 777 (1906). The bankruptcy statutes do not prohibit examination of the circumstances surrounding bankruptcy, as these circumstances illustrate an applicant's judgment in handling serious financial obligations.[4] The Supreme Court of Minnesota recently considered the application for admission of a person who had discharged student loans in bankruptcy. After reviewing the legal considerations pertinent to the evaluation of such bankruptcies, the court said: In re Gahan, 279 N.W.2d 826, 831 (Minn. 1979). The Supreme Court of Florida formulated a similar standard in cases of two applicants who had discharged student loans in bankruptcy. Florida Bd. of Bar Examiners re Groot, 365 So. 2d 164 (Fla. 1978); Florida Bd. of Bar Examiners re GWL, 364 So. 2d 454 (Fla. 1978). Examining the circumstances surrounding applicant's discharge of his student loans, we find no extraordinary hardship which would compel resort to bankruptcy. When he declared bankruptcy, applicant's current liabilities did exceed his current assets, but he acknowledged before the Board of Bar Examiners that he could have managed his debts, including his student loans, had he wished to do so. His own explanation of his resort to bankruptcy is that he felt that society owed him an education. At the time, applicant was employed in a steady position, with a gross annual income of approximately $10,000. He faced no catastrophe or unusual misfortune. Further, he made no effort to adjust, extend, or renegotiate his student loans. On the other hand, he reaffirmed several other debts, those on which his creditors held security over property which he wished to retain. Applicant had a legal right to discharge his student loans in bankruptcy as he did, and our decision herein is not based on his exercise of that right. The circumstances of his bankruptcy, however, show a selfish exercise of legal rights and a disregard of moral responsibilities. The bankruptcy statutes prescribe only the criteria needed to discharge debts; they do not say what is required to demonstrate good moral character. *467 Cf. Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 459 (1897): "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict." We need not decide whether we would find that applicant's moral character is wanting on the basis of his discharge of student loans alone. We declare to all attorneys and future applicants the importance of scrupulously honoring all financial obligations. With respect to this applicant, his discharge of student loans is a fact which we consider.[5] Applicant asserts that he has reformed himself; however, the fact that he was an adult when the actions complained of occurred causes us to approach this claim with caution. Applicant was 30 when he discharged his student loans in bankruptcy. The other acts came at an even more critical time. Applicant stole the shirt and perjured himself when he was a first-year law student. One who has set on that final stage of formal training for admission to the Bar is not still to be treated as a youth, who does not yet recognize and adhere to the rudimentary requirements of legal and moral behavior. In re Ruffalo, 390 U.S. 544, 555, 88 S. Ct. 1222, 1228, 20 L. Ed. 2d 117, 125 (1968) (White, J., concurring). These same requirements attach also to law students, who will some day seek admission to the Bar. Applicant would mimimize the theft and perjury allegations by noting that he volunteered the information about these matters to the Board of Bar Examiners. The record shows that his admissions were less soulbaring than he indicates. Our examination of the record leads us to find that applicant admitted his perjury because he believed that the Board of Bar Examiners had studied the transcript of his trial and had already discovered his perjury. Reviewing the record, we are left with the impression that applicant fails to appreciate the gravity of his conduct as it pertains to his moral character. We perceive a lack of candor in his explanations of his testimony in the 1977 trial and in his answers to questions as to whether or not that testimony was truthful. His responses are inconsistent, equivocal, and evasive. In the end, we are left with the impression that applicant does not fully accept responsibility for his actions. Applicant has submitted letters from several members of the profession in support of his application. We are also aware of applicant's academic accomplishments and other positive qualities. He has successfully completed three years of law school and passed the Bar examination. In a case of this sort, however, this court's primary responsibility is to the public, to see that those who are admitted to the Bar have the sense of ethical responsibility and the maturity of character to withstand the many temptations which they will confront in the practice of law. If we are not convinced that an applicant can withstand these temptations, we would be remiss to admit the applicant. Doubt of consequence must be resolved in favor of the protection of the public. In re Alpert, supra. In this case, as in Alpert, we have such doubt. That is not to say that we shall forever remain unconvinced of reformation. Experience teaches that true reformation does occur. See, e.g., In re Jolles, 235 Or. 262, *468 383 P.2d 388 (1963). With the passage of time, this applicant may mature; his insight may develop; he may be able to show that good moral character requisite to admission to the Bar. We hold that the Oregon State Bar is the prevailing party and that it should recover its actual and necessary costs and disbursements incurred in this proceeding. ORS 9.535(4). Application denied and judgment awarded for the Oregon State Bar for its actual and necessary costs and disbursements incurred in this proceeding. [1] Oregon Laws 1981, Chapter 193, Section 7 amended ORS 9.220. That section now reads: "An applicant for admission as attorney must apply to the Supreme Court and show that the applicant: "* * * "(2)(a) Is a person of good moral character. "(b) For purposes of this section and ORS 9.025, 9.070, 9.110, 9.130, 9.210, 9.250, 9.480 and 9.595, `good 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." No one in these proceedings contends that this new language changes the substantive requirements for admission to the bar, and we express no opinion on this question. [2] does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to `life, liberty, and property' are in the professional keeping of lawyers. * * * From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as `moral character.'" Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S. Ct. 752, 760-61, 1 L. Ed. 2d 796, 806 (1957) (Frankfurter, J. concurring). Many other courts have, in like manner, stressed that good moral character is a prerequisite to admission to the practice of law. See, e.g., Matter of Keenan, 314 Mass. 544, 50 N.E.2d 785 (1943); In re Farmer, 191 N.C. 235, 131 S.E. 661 (1926); In re Law Examination of 1926, 191 Wis. 359, 210 N.W. 710 (1926). [3] Accord, In re Schaeffer, 273 Or. 490, 541 P.2d 1400 (1975): The Bar considered a variety of traffic citations and applicant's handling of these, even though there is no record that these resulted in convictions. In re Lenske, 269 Or. 146, 158, 523 P.2d 1262, 1267 (1974): The accused was an attorney who, in two trials, gave conflicting testimony. At least one account was not true. The court said that even if the testimony was not perjurious, the conduct was unethical. Spears v. State Bar of California, 211 Cal. 183, 294 P. 697 (1930): Various charges had been brought against the applicant and then dismissed. The court looked beyond the charges to the underlying conduct. In re Stover, 65 Cal. App. 622, 224 P. 771 (1924): The applicant was a known "dice shark," had twice been arrested for cheating in dice games, and had had several other run-ins with the police, though none resulted in conviction. The court considered these facts in denying his admission. Petition of Goldman, 206 So. 2d 643 (Fla. 1968): The court looked to the circumstances which had led to an indictment against the applicant, even though the indictment was subsequently quashed. In re Monaghan, 122 Vt. 199, 167 A.2d 81 (1961): The court considered all charges that had been brought against applicant, regardless of the disposition of the charge. [4] The legislative history of the Bankruptcy Act indicates that Congress intended to bar a per se rule which would make filing in bankruptcy an automatic bar to a license or similar grant. Congress did not intend to preclude examination of the circumstances surrounding bankruptcy. "The prohibition does not extend so far as to prohibit examination of the factors surrounding the bankruptcy, the imposition of financial responsibility rules if they are not imposed only on former bankrupts, or the examination of prospective financial condition or managerial ability. The purpose of the section is to prevent automatic reaction against an individual for availing himself of the protection of the bankruptcy laws. * * * [I]n those cases where the causes of bankruptcy are intimately connected with the license, grant, or employment in question, an examination into the circumstances surrounding the bankruptcy will permit governmental units to pursue appropriate regulatory policies and take appropriate action without running afoul of bankruptcy policy." (Emphasis added) H.R.Rep.No. 95-595, 95th Cong. 1st Sess. at 165 (1977), reprinted in 5 U.S.Code Cong. & Admin. News, 95th Cong. 2d Sess. 5787, 5963, 6126 (1978). [5] We also note that the Bankruptcy Act of 1978 changed the law, restricting the right to discharge student loans. Under the current statutes, unless there is a showing of undue hardship, an individual must make payments on student loans for five years before they are subject to discharge in bankruptcy. See 11 U.S.C.A. § 523(a)(8).

e0ba71e0b492d71219f32c7e16d74d43f450f7437c1ef666168a0ac707acdb78

1982-06-29T00:00:00Z

49371019-cab2-4864-910b-a2a91f019d22

Matter of Compensation of Bracke

293 Or. 239, 646 P.2d 1330

oregon

Oregon Supreme Court

646 P.2d 1330 (1982) 293 Or. 239 In the matter of the Compensation of Sharon Bracke, Claimant. Sharon Bracke, Respondent On Review, v. BAZA'R, Inc., and General Adjustment Bureau, Petitioners On Review, Albertson's Food Centers, O.J.'s 42ND Avenue Thriftway, Aetna Insurance Company, Industrial Indemnity Company, Respondents On Review. CA 17587; SC 27825, 27819. Supreme Court of Oregon. Argued and Submitted September 3, 1981. Decided June 22, 1982. *1331 Mildred J. Carmack of Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, argued the cause and filed the petition for review for Baza'r, Inc., while self-insured. With them on the briefs were Ridgway K. Foley, Jr., and Scott M. Kelley of Cheney & Kelley, Portland. Scott M. Kelley of Cheney & Kelley, Portland, argued the cause and filed the petition for review for Baza'r, Inc., while insured through General Adjustment Bureau. R. Kenney Roberts of Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland, argued the cause for respondent on review Albertson's Food Centers. On the response to the petitions for review and brief was Margaret H. Leek Leiberan of Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland. Eugene L. Parker of Parker & McCann, Portland, argued the cause and filed the brief for respondent on review Sharon Bracke, claimant. Darrell E. Bewley, Appellate Counsel, K.R. Maloney, Gen. Counsel, and James A. Blevins, Chief Trial Counsel, State Accident Insurance Fund Corp., Salem, filed a brief amicus curiae in support of the petition for review. Richard William Davis of Lindsay, Hart, Neil & Weigler, Portland, filed the brief for O.J.'s 42nd Avenue Thriftway. Charles R. Holloway, III, of Tooze, Kerr, Marshall & Shenker, Portland, filed the brief for Aetna Ins. Co. *1332 G. Howard cliff and Bruce A. Gunter, Certified Law Students, Portland, filed the brief for Industrial Indemnity Co. Before DENECKE, C.J., and LENT, LINDE, TANZER and CAMPBELL, JJ. TANZER, Justice. This is a workers' compensation claim under the occupational disease law, ORS 656.802 to 656.824. The claimant has a pulmonary disease colloquially referred to as "meat wrappers' asthma." The issue is whether an employer may interject the so-called "last injurious exposure" rule as a defense to the worker's claim where the claimant establishes that she contracted the disease and suffered disability while working for that employer, but that she also worked for subsequent employers under conditions which could have caused the disease. The claimant worked intermittently as a food market meat wrapper for Baza'r, Inc., from 1974 until 1977, sometimes full-time and sometimes part-time. In early 1977 the claimant also worked part-time as a meat wrapper for both Albertson's and Thriftway food markets. Her employment with Baza'r terminated March 30, 1977, with Albertson's May 9, 1977, and with Thriftway, her last employer, May 13 or 14, 1977. The claimant filed claims against Thriftway, Albertson's and Baza'r, all of which were denied. She requested hearings on the denials and the three claims were consolidated. The Workers' Compensation Board, adopting the referee's order, found that the claimant suffered from a compensable occupational disease. It concluded that under the last injurious exposure rule the claimant's last employer, Thriftway, would be responsible for compensation. It denied the claim, however, because the claimant had not requested a hearing within 60 days of the Thriftway denial and had not shown good cause for her failure to do so as required by ORS 656.319. The Court of Appeals reversed the Board's order. It found the last injurious exposure rule inapplicable because the claimant had established that she contracted the disease while she was employed by Baza'r and that her later employment caused only symptoms of the underlying disease. It held that Baza'r was the responsible employer, but remanded the case to the Board because of uncertainty in the record as to whether Baza'r was insured or self-insured at the time the claimant contracted the disease. Baza'r filed two petitions in this court, one on its own behalf as a self-insured employer and one through its insurers. We allowed review to clarify the application of the last injurious exposure rule, adopted by this court in Inkley v. Forest Fiber Products Co., 288 Or. 337, 605 P.2d 1175 (1980). We affirm the Court of Appeals' decision, although on somewhat different reasoning. The Court of Appeals accepted the testimony of Dr. Emil Bardana who heads the allergy section of the University of Oregon Health Sciences Center, and we are bound by its fact resolution, Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971). Meat wrappers' asthma has only recently been generally recognized as a discrete medical condition. It is a form of reactive airway disease which results from exposure to polyvinyl chloride (PVC) fumes and thallic anhydride. The disease acquired its colloquial name because food market meat wrappers are regularly exposed to these substances. Meat is wrapped in PVC film which produces the fumes when cut with a hot wire. Price label adhesive, when heated, emits thallic anhydride. Some meat wrappers become sensitized to the fumes so that they have asthmatic symptoms when subsequently exposed to them. Although the symptoms come and go, depending upon conditions of exposure, the sensitization is permanent; once sensitized the person is sensitized for life. Sensitization does not get better or worse; it exists or it does not exist. The Court of Appeals described the term "sensitization": With that description of the disease in mind, we set out the pertinent facts in more detail. From May 1974 to September 1975 claimant was employed by Baza'r. She did not work from September 1975 to August 1976. While employed, she began experiencing mild asthmatic symptoms such as shortness of breath. It was during this period of employment that sensitization occurred. The symptoms abated during the 1975-1976 period of nonemployment. In September 1976, she returned to work part-time for Baza'r and the symptoms reappeared. On January 12, 1977, while employed cutting film with a hot wire for Baza'r, she sought hospital emergency room medical treatment for various symptoms, including shortness of breath, rapid breathing and related depression. Her condition was not then recognized, but Dr. Bardana concluded that she was suffering from "state one asthma." Six days later, claimant was employed by Albertson's and a month later by Thriftway. The working conditions at each of her employers were of the kind which could cause sensitization and activation of symptoms, except possibly at Albertson's where there was more modern equipment and better ventilation. In May 1977, her symptoms became more severe ("state two asthma") and she ceased work. Dr. Bardana concluded that she was "disabled" at this time in the sense that even after her symptoms subsided she could never successfully return to work as a meat wrapper or in any work environment with airborne lung irritants. Were there no last injurious exposure rule, the facts would support the claim against Baza'r. Meat wrappers' asthma is an occupational disease as defined by ORS 656.802(1)(a): An occupational disease is deemed an "injury" under the Workers' Compensation Law. ORS 656.804. Claimant's disease is deemed a "compensable injury" because it arises "out of and in the course of employment requiring medical services or resulting in disability," ORS 656.005(8)(a). By January 12, 1977, before employment with food markets other than Baza'r, claimant had been afflicted with the disease and had required medical service for treatment of symptoms which interfered with her ability to work at her occupation. Thus, on that date, claimant was disabled. Claimant has established a claim against Baza'r unless that claim is defeated by events occurring after January 12, 1977. Baza'r contends that the last injurious exposure rule operates to shift liability from it to the last employer where conditions could have caused the disease regardless of whether they actually did cause the disease. Thus Baza'r invokes the rule as a defense. Whether it is a defense in this case depends in part on the nature and purpose of the rule. The last injurious exposure rule originated as a judicially adopted doctrine applicable in cases involving successive incremental injuries for which successive employers or insurers might be incrementally liable. Under the rule, the last employer who materially contributes to a worker's disabling condition is liable for compensation for the entire cumulative disability. In a sense, it is a variation upon the familiar notion that an employer takes the worker as he finds him. Professor Larson states the rule: The Court of Appeals adopted the rule tacitly in the accidental injury case of Cutright v. Amer. Ship Dismantler, 6 Or. App. 62, 486 P.2d 591 (1971). Both the Court of Appeals and this court subsequently adopted the rule expressly in the occupational disease context. Inkley v. Forest Fiber Products Co., 288 Or. 337, 605 P.2d 1175 (1980); Mathis v. SAIF, 10 Or. App. 139, 499 P.2d 1331 (1972). The common reference to the rule as if it were unitary is somewhat misleading. There are at least two last injurious exposure rules, each serving a different function in different types of cases. One is a substantive rule of liability assignment; another is a rule of proof.[1] The dichotomy is evident in the caselaw and in Larson's text, although it has not, to our knowledge, been previously expressed. The substantive rule of liability is perhaps the most common. It operates to assign liability to one employer in cases of successive, incremental injuries. The rule serves as a substitute for allocation of liability among several potentially liable employers, each of whom would otherwise be liable for a portion of the disability. Typically in such cases, causation is readily determinable, but the task of allocation among several partially liable employers would be difficult and impractical. For example, where a worker suffers successive back injuries while working for successive employers, it would be difficult to determine the exact proportion of the resulting disability attributable to each employer. Allocation would also require undesirably duplicative and costly litigation. Instead, the rule assigns liability for the entire aggregate disability to the employer at the time of the last injury and dispenses with the need for allocation. For examples, see, Cutright v. Amer. Ship Dismantler, supra, and Smith v. Ed's Pancake House, 27 Or. App. 361, 556 P.2d 158 (1976). In Davidson Baking v. Ind. Indemnity, 20 Or. App. 508, 532 P.2d 810 rev. den. (1975), the rule was applied to incremental, determinable hearing loss. The other rule, the rule of proof, was the basis of our decision in Inkley. There, the claimant suffered incremental hearing loss caused over a period of time when claimant was subjected to conditions which could cause the disability. During that period, however, his employment was insured by successive insurers.[2] It could not be determined *1335 whether employment under the last insurer actually caused any additional hearing loss. This court held that the last insurer would be liable for the entire disability if the conditions of employment were of a nature which could have contributed to the disability. In such a case, the last injurious exposure rule was applied not only as a substitute for allocation, as in the first class of cases, but also for an altogether different purpose: to relieve the claimant of the "burden of proving medical causation," as to any specific insurer, 288 Or. at 345, 605 P.2d 1175. Thus, it is seen that one rule is to efficiently assign liability and another distinct rule fulfills a requirement of claimant's burden of proof. The last injurious exposure rules of liability and proof also apply to occupational disease cases, but they differ in certain respects which reflect differences between injuries and diseases. Injuries are generally caused by identifiable events, such as accidents. Diseases are more commonly acquired gradually and their existence is often not perceived until after the time of affliction. Consequently, the origin of disease often is not as easily pinpointed in time and place as that of an injury. Indeed, a disease may not become apparent until years after termination of employment, see, e.g., Fossum v. SAIF, 293 Or. 252, 646 P.2d 1337. As this court said in White v. State Ind. Acc. Comm., 227 Or. 306, 322, 362 P.2d 302 (1961): We recognized in Inkley v. Forest Fiber Products Co., 288 Or. at 342, 605 P.2d 1175, that: The Workers' Compensation Act makes no provision for allocation of liability among employers. It is desirable in occupational disease cases to designate an identifiable event for the assignment of liability, analogous to accidents in injury cases, to reduce uncertainty. This court in Inkley judicially adopted an analogous rule of last injurious exposure for the assignment of liability in occupational diseases, as had the Court of Appeals five years before in Mathis v. SAIF, 10 Or. App. 139, 499 P.2d 1331 (1972). In particular, we adopted the rule as stated by Larson establishing the onset of disability as the decisive event for fixing liability: Both last injurious exposure rules apply to cases of occupational disease as well as injury cases. They most commonly apply to two different fact situations. In cases of successive, incremental injury or disease exacerbation, the liability assignment rule comes into play. The last injurious exposure rule of proof more typically applies where one employment caused the disease, but more than one could have. By arbitrarily assigning liability to the last employment which could have caused the disease, the rule satisfies claimant's burden of proof of actual causation. The reason for the rules lies not in their achievement of individualized justice, but rather in their utility in spreading liability fairly among employers by the law of averages and in reducing litigation. The primary difference in occupational disease cases is that the onset of disability rather than the occurrence of injury is the critical event in the application of the rules.[4] Under the last injurious exposure rule of assignment of liability in cases of successive employment, each of which has contributed to the totality of the disease, the potentially causal employer at the time disability occurs is assigned liability for the cumulative whole. If the claimant is not in potentially causal employment when disability occurs, the last such employer is liable. Under the last injurious exposure rule of proof, if claimant proves that a disease was triggered at one time, claimant has carried his burden of proof by establishing that the employer on the risk at the time disability occurred could have caused it, even though previous employers provided conditions which could have caused it, and the rule relieves a claimant of any burden of proving actual causation. If a disability occurs when a claimant is no longer subject to potentially causal conditions, the last employment providing such conditions is deemed proved to have caused the disease even though the claimant has not proved that the conditions of last employment were the actual cause of the disease and even though a previous employment also possibly caused the disease. Date of disability controls. Although previous cases have not presented the occasion to distinguish these applications of the rules, they are consistent with the above analysis. Both Mathis and Fossum involve diseases incurred gradually over a period of successive employment. Disability did not occur until years after the last employment which probably caused the disease. In Mathis, the claimant had probably contracted the disease (asbestosis) 10 years prior to actual disability. Claimant retired when the disability became manifest. The last employer was held liable because the last injurious exposure rule served to fulfill claimant's burden to prove that the last employment was a "material contributing cause" of the disease. In Fossum, the disability (terminal cancer) appeared many years after the last of successive employments, any one of which involved conditions which could have caused the disease. The last such employer was held liable. In both cases, the rule was applied both as a rule of proof and as a rule of liability assignment to the employer at the time of disability or to the last employer prior to disability. In this case, the claimant has proved that she contracted her disease and suffered disability during and as a result of her employment with Baza'r. She has proved compensability and disability without reliance upon the last injurious exposure rule. The rule enters the case only because Baza'r contends in defense that a subsequent employer, not Baza'r, should be deemed liable for the disability. *1337 The operation of the rule, as we said in Inkley, provides certainty in a way which is "somewhat arbitrary." It operates generally for the benefit of the interests of claimants. It is fair to employers only if it is applied consistently so that liability is spread proportionately among employers by operation of the law of averages. We hold that employers have and may assert an interest in the consistent application of the last injurious exposure rules, either as to proof or liability, so as to assure that they are not assigned disproportionate shares of liability relative to other employers who provide working conditions which generate similar risk.[5] Liability was properly assigned to Baza'r in this case because the disease was contracted and disability occurred during employment at Baza'r. According to the evidence believed by the Court of Appeals, the employment subsequent to Baza'r did not contribute to the cause of, aggravate, or exacerbate the underlying disease. Had that occurred, a later employer would be liable under the last injurious exposure rule of liability, see n 5. Rather, claimant's subsequent employment only activated the symptoms of a pre-existing disease, a difference we discussed in Weller v. Union Carbide, 288 Or. 27, 602 P.2d 259 (1979), and need not repeat. Liability for the disability caused by the underlying disease is fixed when the disability arises. A recurrence of symptoms which does not affect the extent of a continuing underlying disease does not shift liability for the disabling disease to a subsequent employer. Had there been a finding that the underlying disease had been aggravated or exacerbated during employment at Thriftway or Albertson's, one of those later employers might have been liable under the last injurious exposure rules, but that is not the case. Baza'r is liable.[6] Affirmed as modified. [1] There are other purposes and functions of the rule. For example, one purpose is to provide certainty so that claimants are protected from the risk of late filing after an initial filing against an employer who would otherwise be liable. Inkley, 288 Or. at 343-344, 605 P.2d 1175. Because of our disposition of the case, this aspect of the rule and the ramifications which flow from it are not examined in this opinion. [2] We held in Inkley that the rule applied to successive insurers of the same employer in the same way it applied to successive employers. See also, Grable v. Weyerhaeuser Company, 291 Or. 387, 402, 631 P.2d 768 (1981). [3] We also spoke in Inkley, 288 Or. at 343, 605 P.2d 1175, of a "rule governing allocation of liability among several employers." Because only one employer is liable, it is more accurate to say that the rule assigns rather than allocates responsibility. [4] Arguably, given the wording of ORS 656.005(8), above, the date when symptoms necessitate medical treatment could also be deemed a triggering date for liability or a substitute for proof of causation. Because claimant suffered disabling symptoms when she first sought medical treatment, we need not examine the effect to be given to the date of first treatment. [5] There is no reason to apply the rule with any greater arbitrariness than is required to achieve its purposes, but there is no basis in this case to recognize an exception or qualification of the rule. It is arguable that an employer has no interest in the unnecessary dominance of an artificial rule when a claimant foregoes the benefit of the rule and relies upon proof of actual causation. It is questionable whether an employer can invoke the rule of proof as a defense to defeat the rights of a claimant who successfully proves actual causation. To allow that would be to allow an employer to inject the rule into a case to defeat the very interests of a claimant which the rule is intended to serve. Similar considerations may apply in cases presenting limitations problems, see n 1. In cases of incremental injury, such as Inkley, it may be that an employer may invoke the rule of liability assignment to shift liability to a later employer. Procedures exist whereby any causal employer can join a later causal employer in order to protect its proportional interest. See, e.g., Oregon Administrative Rule 436-54-332. Also, an employer's interests may be protected where, as here, a claimant files against all possibly liable employers. Because we hold that disability occurred during Baza'r employment, we need not consider the application of the rules in those situations. See also, Fossum v. SAIF, supra at n 1. [6] Our resolution of this case renders remand for determination of insurance coverage unnecessary. The record establishes that Baza'r was insured by New Hampshire Insurance Co. on January 12, 1977, the date claimant became disabled.

1a2c20070b181477e5a8645637f1487b236ab06d390805fd3e34efa02b262ba2

1982-06-22T00:00:00Z

6a48f4e8-f5d9-41e9-aded-ba2eaf70a3f2

Knight v. DEPARTMENT OF REV., STATE OF Or.

293 Or. 267, 646 P.2d 1343

oregon

Oregon Supreme Court

646 P.2d 1343 (1982) 293 Or. 267 Kenneth L. KNIGHT, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. Oregon Tax Court No. 1540; SC No. 28409. Supreme Court of Oregon, In Banc.[*] Argued and Submitted June 8, 1982. Decided June 29, 1982. Sam A. McKeen, Klamath Falls, argued the cause and filed the brief for appellant. Ted E. Barbera, Asst. Atty. Gen., Salem, argued the cause for respondent. With him *1344 on the brief was; Dave Frohnmayer, Atty. Gen., Salem. CAMPBELL, Justice. Plaintiff personal representative appeals from the tax court's decree affirming the Department of Revenue's assessment of certain real property for inheritance tax purposes based on its true cash value rather than its farm use value. The facts are stipulated. Louis R. Knight died June 30, 1976. Among his assets was a one-half interest in certain Oregon real property, valued at $74,470. Plaintiff paid inheritance tax based on the property's farm use value under ORS 308.370, ORS 308.380 and ORS 118.155. The Department of Revenue assessed the property based on its true cash value. On appeal the Department's assessment has been upheld. At the time of decedent's death, Oregon law provided that any land zoned for farm use would be assessed for property tax purposes at farm use value rather than true cash value, ORS 308.370(1),[1] and that land not zoned for farm use but used exclusively for farm use for two years preceding assessment would also be assessed for property tax purposes at farm use value, ORS 308.370(2).[2] At the time of decedent's death, ORS 118.155 provided: In the year after decedent's death ORS 118.155 was amended to allow a farm use valuation for inheritance tax purposes for interests in real property receiving special assessment as farm use land under subsection (2) as well as subsection (1) of ORS 308.370. Decedent's property was specially assessed under ORS 308.370(2). At the time there were no farm use zones in Klamath County. Plaintiff claims that the legislative intent from the statutory scheme and from later amendment of ORS 118.155 favors inclusion of the subject property in the farm use value classification. With this we cannot agree. Plaintiff's citation to ORS 308.380,[3] expressly providing that regulations further defining "farm use" include ORS 308.370(2) lands for property tax purposes, merely serves to emphasize the absence of intent to similarly include those lands in ORS 118.155 for inheritance tax purposes. We agree with prior tax court opinions limiting inheritance tax benefits to land which has been specially assessed as zoned farm use land under ORS 308.370(1). See Winningham et al v. Department of Revenue, 7 OTR 350 (1978). The 1977 amendment of ORS 118.155 supports our conclusion. *1345 The question remains whether ORS 118.155 as it was on decedent's death unconstitutionally discriminated among owners of Klamath County property in violation of the Oregon Constitutional provisions requiring uniformity of taxation, Article I § 32 and Article IX § 1.[4] All tax laws must operate uniformly and equally throughout the state and on the same class of subjects within the legislating body's territory. Oregon Constitution Article I § 32, Article IX § 1. These provisions were intended to permit the reasonable classification of subjects of taxation, exemption of certain property from taxation and the imposition of different rates of taxation upon different classes of property. Jarvill v. City of Eugene, 289 Or. 157, 613 P.2d 1 (1980). The legislature has wide discretion in classifying subjects of taxation. Huckaba v. Johnson, 281 Or. 23, 25, 573 P.2d 305 (1978). In this case two classifications were established by the legislature. First, the legislature distinguished between those counties enacting exclusive farm use zoning and those not enacting such zoning. Second, the legislature singled out owners of property in an exclusive farm use zone in counties having such zoning for inheritance tax benefits. See ORS 118.155, ORS 308.370(1), (2). The purpose of ORS 118.155 was to provide an incentive to counties and to individual property owners for holding property in exclusive farm use. This purpose is served by both classifications. The legislative classification limiting the benefits of ORS 118.155 to land assessed as zoned farmland under ORS 308.370(1) operates uniformly upon all property within the class, i.e., land within an exclusive farm use zone. We hold, therefore, that there has been no violation of the uniformity provisions of the Oregon Constitution. Petitioner without citation of authority contends that ORS 118.155 unconstitutionally delegates the power to provide for exclusions from tax benefits to counties. That section limits tax benefits for inheritance tax purposes to land which has been zoned for exclusive farm use. The county is delegated the power to zone for farm use. ORS 215.203. The composition of the county governing body, determined by popular vote, will affect the decision of whether to zone for farm use. This decision is influenced by many factors, not merely tax benefits. Once the decision to zone has been made, notice and hearing are required, ORS 215.223. Review of a zoning decision may be had. ORS 215.402 to .422. The safeguards are adequate to protect the interest of persons affected by farm use zoning decisions. See Warren v. Marion County, 222 Or. 307, 353 P.2d 257 (1963). Affirmed. [*] Peterson, J., did not participate in this decision. [1] ORS 308.370(1) provides: "(1) Any land which is within a farm use zone established under ORS 215.010 to 215.190 and 215.402 to 215.422 or 227.215 to 227.300, and which is used exclusively for farm use as defined in ORS 215.203(2), shall, for purposes of assessment, be valued under ORS 308.232 at its true cash value for farm use and not at the true cash value it would have if applied to other than farm use." [2] ORS 308.370(2) provides: "(2) Any land which is not within a farm use zone but which is being used, and has been used for the preceding two years, exclusively for farm use as defined in ORS 215.103(2) shall, upon compliance with ORS 308.375, for purposes of assessment, be valued under ORS 308.232 at its true cash value for farm use and not at the true cash value it would have if applied to other than farm use. The provisions of this subsection shall not apply to any land with respect to which the owner has granted, and has outstanding, any lease or option to buy the surface rights for other than farm use except leases: * * *" [3] ORS 308.380 provides in pertinent part: "(1) The Department of Revenue shall provide by regulation for a more detailed definition of farm use, consistent with the general definition in ORS 215.203(2), to be used by county assessors in determining entitlement to special assessment under ORS 308.370(2). Such regulations shall not be designed to exclude from the special assessment those lands which are in farm use as defined in ORS 215.203(2) for which tax relief is intended." [4] Article 1 § 32 provides: "No tax or duty shall be imposed without the consent of the people or their representatives in the Legislative Assembly; and all taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax. * * *" Article IX § 1 provides: "The Legislative Assembly shall, and the people through the initiative may, provide by law uniform rules of assessment and taxation. All taxes shall be levied and collected under general laws operating uniformly throughout the State. * * *"

b1184dcc0a63e3c4533a01647aa951c2da454d84c189a5c78008cd04ec838bdd

1982-06-29T00:00:00Z

b74bc9d2-d98f-4171-98d7-5fcb781bd3c9

State v. Underwood

293 Or. 389, 648 P.2d 847

oregon

Oregon Supreme Court

648 P.2d 847 (1982) 293 Or. 389 STATE of Oregon, Respondent On Review, v. Walter UNDERWOOD, Petitioner On Review. TC 80,1217; CA A20054; SC 28112. Supreme Court of Oregon, In Banc[*]. Argued and Submitted February 9, 1982. Decided July 27, 1982. Edward L. Daniels, Albany, argued the cause and submitted the brief for petitioner on review. Richard David Wasserman, Asst. Atty. Gen., argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. CAMPBELL, Justice. The issue in this case is whether an undercover police officer's recording of a telephone conversation between himself and a suspect constitutes an interception which is subject to suppression because it was not obtained under court order. The state contends that the various provisions relating to interception of communications, codified in Chapters 133, 165 and 41, which were passed as parts of the same act, must be read together to determine what constitutes an "unlawful interception" subject to suppression for failure to obtain a court order.[1]*848 Since parties are exempt from criminal liability, the state's position is that communications to which an officer is a party are not "unlawful interceptions," and need not be authorized by court order. Defendant contends that the provisions of ORS Chapter 133 concerning interception of communications must themselves be read as a whole, and that those provisions conflict unless party communications are subject to suppression if obtained without a court order. We find that no interception occurred in this case. Defendant was indicted for conspiracy to commit assault. Before trial defendant moved to suppress evidence obtained by an undercover officer's recording of an incriminating telephone conversation between himself and defendant. The court granted the motion, and granted the state's subsequent motion to dismiss the case. The state appealed from the order of dismissal. ORS 139.060. The Court of Appeals reversed and remanded for trial after finding that the recording was not "interception" subject to suppression under ORS 133.735. 53 Or. App. 771, 633 P.2d 803 (1981). We allowed defendant's petition for review. The Oregon statutes define an "interception" as "the aural acquisition, by listening or recording, of the contents of any wire or oral communication through the use of any electronic, mechanical or other device." ORS 133.721(4).[2] We find that a reading of the interception statutes as a whole makes it clear that no interception occurs when one party records a communication. This reading is consistent with federal caselaw under a prior form of the federal law regarding interception of communications, former 47 U.S.C. § 605, which allowed recording with one party consent. See Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957). Some states have amended their statutes to require the consent of all parties to a communication. In such a case, interception includes recording by a party to a communication. See State v. Tsavaris, 394 So. 2d 418 (Fla. 1981). Oregon has not so amended its statutes. The current federal act, 18 U.S.C. § 2510 et seq., allows police recording with one party consent or where a police officer is a party to the communication. Absent clear legislative intent that each party to a conversation be accorded an expectation of privacy as to interception by another party to the communication, such recording is not interceptive. Because Oregon's statutory definition of "interception" includes both "listening and recording," any other reading of that definition would lead to the absurd result of requiring a court order prior to recording a called-in confession. Our result is supported by the following interpretation of the term "interception" in Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881 (1950): We hold that when a police officer participates in a telephone communication with a person and records the communication, the evidence is not an "interception" under ORS 133.721(4) and is therefore not subject to suppression under ORS 133.735 when obtained without a court order. Affirmed. [*] Denecke, C.J., retired June 30, 1982, and did not participate in this decision. [1] ORS 133.735(1) provides: "(1) Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the state, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted under ORS 133.724, or evidence derived therefrom, on the grounds that: "(a) The communication was unlawfully intercepted; "(b) The order of authorization or approval under which it was intercepted is insufficient on its face; or "(c) The interception was not made in conformity with the order of authorization or approval" ORS 133.724 provides in pertinent part: "(1) An ex parte order for the interception of wire or oral communications may be issued by any circuit court judge upon written application made upon oath or affirmation of the individual who is the district attorney for the county in which the order is sought. The application shall include: * * *." ORS 165.540 provides, in pertinent part: "(1) Except as otherwise provided in ORS 133.724 or subsections (2) to (5) of this section, no person shall: "(a) Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which such person is not a participant, by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by at least one person. [2] A "wire communication" is one made in whole or part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception. ORS 133.721(8). An "oral communication" is one, other than a wire communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. ORS 133.721(6).

642d8a2c7425ade2415964b89d7ce8af10e9f35e4ab27b92ed95530a250d2e38

1982-07-27T00:00:00Z

4e2bdae8-29ce-4e95-bbea-3d649188d8d4

Bain v. Department of Revenue

293 Or. 163, 646 P.2d 12

oregon

Oregon Supreme Court

646 P.2d 12 (1982) 293 Or. 163 William BAIN, Director of Assessment and Taxation for Lane County, Oregon, Plaintiff-Respondent, v. DEPARTMENT OF REVENUE, Defendant, Oregon Aqua-Foods, Inc., Intervenor-Appellant. No. 1393; SC 27849. Supreme Court of Oregon, In Banc. Argued and Submitted February 9, 1982. Decided June 2, 1982. John C. Caldwell, Oregon City, argued the cause for intervenor-appellant. With him on the briefs was Hibbard, Caldwell, Bowerman, Schultz & Hergert, Oregon City. Dana A. Anderson, Asst. County Counsel, Lane County Office of Legal Counsel, Eugene, argued the cause and filed the brief for plaintiff-respondent. ROBERTS, Justice. The Director of Assessment and Taxation for Lane County assessed an ad valorem property tax against a $4.7 million salmon hatchery operated by Oregon Aqua-Foods, Inc. (Aqua-Foods) for the tax year 1978-79. The Oregon Department of Revenue ordered the cancellation of the tax on the ground that the hatchery is a "manufacturing" facility for the purpose of the tax exemption provided in ORS 307.330 and ORS 307.340. The Oregon Tax Court determined that Aqua-Foods is not entitled to the exemption. The sole issue is whether the activity engaged in by Aqua-Foods is "manufacturing" entitling it to the tax exemption on certain improvements located on its land and used in its business. The Tax Court adopted the statement of facts provided by the parties in their briefs to that court, and we do likewise. ORS 307.330 provides: ORS 307.340 provides: The parties agree that the property met the requirements of ORS 307.330(1)(a), (b), (c) and (d). Because the Aqua-Foods hatchery was used and occupied less than a year from the time its construction began, the hatchery qualifies for a tax exemption only if the production of fish conducted there cannot be construed to be "nonmanufacturing." ORS 307.330(1)(e) excludes from the exemption a nonmanufacturing facility used or occupied less than a year from the time its construction commenced. As the tax court noted, "[i]f the subject property is a `nonmanufacturing' facility, no tax exemption can be granted." 9 OTR at 35.[1] The order issued by the Department of Revenue was based primarily on cases from other jurisdictions, e.g., a fish hatchery held to be manufacturing, Miller v. Peck, 158 Ohio St. 17, 106 N.E.2d 776 (1952); making of beer held to be manufacturing because it required the application of labor, skill, or sophisticated machinery, Anheuser-Busch Assn. v. U.S., 207 U.S. 556, 28 S. Ct. 204, 52 L. Ed. 336 (1908); and a chicken hatchery held to be a manufacturing enterprise, Master Hatcheries, Inc. v. Coble, 286 N.C. 518, 212 S.E.2d 150 (1975). The one Oregon case relied upon by the Department was cited for the proposition that "manufacturing" occurs with the fermentation from grape juice to wine, State v. Marastoni, 85 Or. 37, 165 P. 1177 (1917). Marastoni was a case in which the defendant was prosecuted for violating a statute prohibiting the manufacture of intoxicating wine. The Department's order recites: The Tax Court, on appeal, concluded that many of the decisions relied upon by the Department in interpreting the terms "manufacturing" or "manufacture" were guided by "differing and often very broad statutory definitions."[2] The Oregon statutes *15 in question here contain no definitions of "nonmanufacturing" or its converse, which the parties and the tax court agreed must be "manufacturing." The Tax Court reasoned that, in the absence of a definition, The Tax Court therefore did not consider any legislative intent in the enactment of ORS 307.330 and 307.340 in concluding: The fact that a statute does not contain a definition of one of its terms does not automatically make that term one of plain or common meaning. See Springfield Education Assn. v. School Dist., 290 Or. 217, 621 P.2d 547 (1980). In Springfield this court identified three classes of statutory terms: exact terms or terms of precise meaning, such as male, rodent and 30 days; inexact terms, e.g., employee; and terms of delegation, e.g., fair, undue, unreasonable, in which an agency is given the authority to refine and execute generally expressed legislative policy. 290 Or. at 223, 225, 228, 621 P.2d 547. Inexact terms, we said, were characterized in McPherson v. Employment Div., 285 Or. 541, 591 P.2d 1381 (1979), as We noted: Because we find the term "nonmanufacturing" in ORS 307.330(1)(e) to be ambiguous or inexact, it is our duty to interpret the statute in such a manner as to be consistent with the intention of the legislature. ORS 174.020. *16 The legislative history of ORS 307.330 and its amendments abounds with comments indicating that the purpose of the statute is to promote the economy of Oregon by offering an aid in attracting and developing new industries to the state. See Minutes, Senate Taxation Committee, April 2, 1959; Minutes, House Taxation Committee, April 19, 1961. For example, testifying on behalf of the original bill, enacted in 1959 as Or. Laws Ch. 246, a representative of the State Planning and Development Department testified that the tax exemption, if enacted, would be used in national advertising to attract industrial development to Oregon. At the 1961 House Taxation Committee hearing on proposed amendments, a member of the Governor's Advisory Council for the Department of Planning and Development stated the purpose of the exemption was to attract new industry to the state. The Tax Court itself has said previously "[t]here seems to be little doubt that the legislature, in enacting ORS 307.330, wished to encourage and promote manufacturing industry in Oregon." Aero Air, Inc. v. Dept. of Rev., 8 OTR 461, 464 (1980). The 1959 bill provided that the exemption was available, under the same conditions now specified, for a building, structure or addition "[b]eing constructed primarily for use in manufacturing, processing or assembling materials into products for purposes of sale." ORS 307.330 was amended by 1961 Or. Laws Ch. 552, which removed the "manufacturing, processing or assembling" language and inserted the language now appearing at subsection (1)(e). Minutes of the Senate and House Taxation Committees for 1961 show that the Senate bill to amend ORS 307.330 initially proposed adding to the original manufacturing exemption "commercial facilities requiring a capital investment of not less than five million dollars," Minutes, Senate Taxation Committee, March 17, 1961, p. 1. When the proposed Senate bill reached the House Taxation Committee, Representative Barton, who introduced the original 1959 legislation, opined that the bill as amended by the Senate would include any size or type of building constructed to produce income, and gave the example of a Safeway store, and urged the adoption of an amendment imposing a one-year construction qualification. The "commercial facility" language was not enacted. It is a logical interpretation, therefore, of the "nonmanufacturing" provision of ORS 307.330(1)(e), enacted in 1961, derived as it is from the "commercial facility" language originally proposed, to conclude that nonmanufacturing was meant to refer to income-producing enterprises other than manufacturing, such as commerce, agriculture, mining, finance, insurance, real estate and services. This was the interpretation placed upon the Senate bill by the Department of Planning and Development. See Statement of the Department of Planning and Development before the [House] Tax Committee on SB 416, April 19, 1961. Aqua-Foods' hatchery operation does not fit easily into any of these "nonmanufacturing" categories. Respondent has suggested that the fish hatchery is more akin to agriculture, e.g., to the breeding and raising of farm animals, than it is to manufacturing. We conclude that it is not agriculture. The word "agriculture" is derived from two Latin words: "ager" meaning "field," and "cultura" meaning "cultivation." Websters Third New International Dictionary (1976). One common definition of "agriculture" is "the science or art of cultivating the soil, harvesting crops, and raising livestock"; it is also described in Websters, supra, as "the science or art of the production of plants and animals useful to man * * *." The latter definition, however, considered in light of the origin of the word, relates "the production of plants and animals" to the land. Given the state of the art, or science, of agriculture in 1961, it is doubtful that the legislature which amended ORS 307.330 to include the "nonmanufacturing" language would have considered Aqua-Foods' activities to be agriculture, or any other nonmanufacturing use. The property is therefore not subject to the use or occupancy time constraints of ORS 307.330(1)(e). *17 We find the hatchery operated by Aqua-Foods is sufficiently akin to a manufacturing facility to bring it within the general tax exemption provided by ORS 307.330(1). Like other courts faced with this same definitional problem, we have taken into account the use of highly complex equipment and processes such as the mechanical, chemical and electronic processes employed here. See Master Hatcheries, Inc. v. Coble, supra; Perdue Foods, Inc. v. State Department of Assessment & Tax., 264 Md. 672, 288 A.2d 170 (1972); Annot., 17 A.L.R.3d § 9, 33-34 (1968).[4] We have also examined the reasoning of two other courts which have interpreted similar tax exemption statutes to accomplish stated legislative objectives similar to those of our legislature: to encourage and promote industry in Oregon. In Perdue Foods, Inc. v. State Department of Assessment & Tax., supra, the Maryland Court of Appeals, after describing in graphic detail the operation of a chicken processing plant which begins with the delivery of live chickens and ends with chickens packaged for market, at the rate of 12,000 chickens per hour, held such a process to be "manufacturing" within the meaning of the state tax statute allowing an exemption for materials and machinery used in manufacturing. The court, quoting from the ruling Maryland case, Commissioners of Carroll County v. B.F. Shriver Co., 146 Md. 412, 126 A. 71 (1924), said, "* * * it was foreign to the intention of the Legislature that the industry here involved should not be regarded as a manufacturing industry within the meaning of that law * * *." 288 A.2d at 172. The court in Perdue gave considerable weight to the announced purpose of the tax exemption statute, which set forth in its title the intention "to encourage the development of manufacturing industries in the State of Maryland." 288 A.2d at 173, 179, citing Carroll County, supra. Of additional importance was the fact that in the nearly half century between Carroll County and Perdue, though the Maryland legislature had amended the tax exemption statute several times, it had never attempted to generally define the terms "manufacturer" or "manufacturing." Similarly, the Supreme Judicial Court of Massachusetts, in Charles River, etc. v. State Tax Com'n, 374 Mass. 333, 372 N.E.2d 768 (1978), relying on the legislative intent behind its 1936 tax exemption statute, held that the breeding of animals for biomedical research was not "manufacturing." While it considered the word "manufacturing" in the applicable statutes "according to its natural and ordinary meaning," 372 N.E.2d at 769, the court also said: We note that the North Carolina Supreme Court in Master Hatcheries, Inc. v. Coble, supra, held that a commercial chicken hatchery employing highly complex incubation equipment to produce 300,000 chicks a week was a "manufacturing industry," where its statute allowed a reduced tax on certain machinery used by manufacturing plants, but did not include a definition of the term. The court said *18 The Supreme Court in Master Hatcheries relied upon the previous opinion of the North Carolina Court of Appeals which said Unlike these courts, we are called upon to give meaning, not to a test that a taxpayer's activity must be shown to be "manufacturing," but to an exception for activities shown to be "nonmanufacturing." We conclude as a matter of law that the activities conducted by Aqua-Foods at its salmon hatchery were not excluded as "nonmanufacturing" from the tax exemption authorized by ORS 307.330. The industry is one which promotes the economic objectives of the legislature which enacted ORS 307.330 and 307.340. Unlike the statute construed in Charles River, ORS 307.330, as amended in 1961, indicates a legislative intent to encourage industry of all types to come to Oregon by allowing a limited property tax exemption for new construction undertaken "in furtherance of the production of income." ORS 307.330(1)(d). It is apparent that the Aqua-Foods' hatchery represents the type of economic development the legislature meant to encourage by enacting ORS 307.330 and its amendments. The enhancement of the salmon runs in Oregon is, certainly, at least as important a contribution to the economic health of this state as chicken hatcheries are to other states.[5] Based on our consideration of the legislative intent to provide industrial tax exemptions in order to promote the economy of Oregon, coupled with the technological and scientific complexity of operation involved here, we hold the Aqua-Foods' salmon hatchery is an income-producing industrial facility other than a nonmanufacturing facility, and entitled to the tax exemption provided in ORS 307.330.[6] Reversed. DENECKE, C.J., dissented and filed an opinion. TANZER, J., dissented and filed an opinion. DENECKE, Chief Justice, dissenting. I concur in Justice Tanzer's dissenting opinion except for the first and last sentences of the last paragraph. TANZER, Justice, dissenting. The majority holds that Aqua-Foods manufactures fish. I cannot concur. The legislature enacted ORS 307.330, in the words of the majority, "to provide industrial tax exemptions in order to promote the economy of Oregon" or, stated otherwise, "to encourage industry of all types to *19 come to Oregon by allowing a limited property tax exemption for new construction undertaken `in furtherance of the production of income.'" (At 18.) In pursuance of that statutory objective, two distinct classes of new construction were given tax advantages. The statute gave a one-year tax exemption for structures used for "nonmanufacturing" purposes and a two-year exemption for others. Aqua-Foods built a fish hatchery. It is a technologically advanced fish hatchery, but it is still a fish hatchery. Like many other fish hatchers, Aqua-Foods hatches eggs, provides water and food, and catches fish. Although Aqua-Foods does this in a sophisticated manner, the essential process is the same. As the majority holds, Aqua-Foods' operation appears to be the sort of new industry which ORS 307.330 is intended to promote and the structures qualify for tax exemption under the statute. The next question, however, is whether it qualifies for the standard two-year exemption or only for the one-year exemption accorded to "nonmanufacturing" industries. On this question, the majority goes awry. I cannot agree that the legislature intended that we regard fish hatching and catching as manufacturing. That conclusion is contrary to the common understanding that "manufacturing" refers to making things by hand or, in more advanced times, to fabrication, possibly aided by division of labor and use of machines. See Webster's New International Dictionary, 2nd ed. (1940). Someday, civilization's progress in genetic and biochemical engineering may enable humans to handmake or fabricate fish, but as yet Aqua-Foods claims no such power. Aqua-Foods does not claim to actually manufacture fish; it merely provides optimum conditions for nature to take its course. Nobody argues that the legislature intended "nonmanufacturing" as a term of art in tax law different from ordinary understanding, although the majority strains to do so. The majority asserts that the term "nonmanufacturing" is "inexact" and, pursuant to Springfield Education Assn. v. School Dist., 290 Or. 217, 621 P.2d 547 (1980), looks to the legislative policy behind the term. Some processes may present a difficult definitional problem (e.g., brewing beer and cultivating vaccines), but hatching and catching fish is not on the inexact definitional edges of the term. There is no need here to resort to extrinsic definitional aids. The majority classifies Aqua-Foods' hatchery as manufacturing because its "use of highly complex equipment and processes such as the mechanical, chemical and electronic processes employed here" is consistent with the legislative objective "to encourage and promote industry in Oregon." (At 17.) The fallacy in this is that technology is no evidence as to which classification applies because both manufacturing and nonmanufacturing facilities may employ advanced technology. To demonstrate, we may look to the majority's list of "commerce, agriculture, mining, finance, insurance, real estate and services" as examples of nonmanufacturing. (At 16.) Application of advanced technology to the growing and harvesting of tomatoes, for example, would not convert that agricultural enterprise from nonmanufacturing to manufacturing. Israeli tomatoes, although the product of intensely technological cultivation unheard of in 1961 when ORS 307.330 was amended are no more handmade or fabricated than are primitively cultivated tomatoes or, for that matter, Aqua-Foods' fish. Similarly, the finance industry has undergone an electronic revolution since 1961, but it is nevertheless still a nonmanufacturing industry just as if it was operated from vest-pockets and strongboxes. The essentially nonmanufacturing nature of these industries is unchanged by increased application of technology, and so it is with fish hatching and catching. This distinction by the majority is erroneous. I mention technological changes since 1961 because the majority reasons: Unanticipated technological advances do not convert nonmanufacturing industries into manufacturing. Were it otherwise, then the majority should be prepared to determine at what degree of technological development fish farming becomes fish manufacturing. Of course, they cannot, because the basic logic is flawed. The distinction depends on the nature of the enterprise, not, as the majority holds, on the devices with which it is carried out. With all respect, I believe the majority opinion reflects the fact that innovative jurisprudence satisfies the judicial need for creativity in a way that straightforward decision-making often does not. That may also account for the chicken cases from elsewhere upon which the majority relies. I would reject them and accept the reasoning quoted by the majority from Charles River, etc. v. State Tax Com'n., 374 Mass. 333, 372 N.E.2d 768 (1978). The straightforward course may not be as good for the judicial soul, but it reflects a higher regard for the will of the legislature and generally makes for better law. [1] The opinion of the Tax Court stated that, despite the fact that the word "manufacture" does not appear in ORS 307.330 or ORS 307.340, Aqua-Foods' tax exemption depended on a showing that the hatchery was a manufacturing facility: "The word `manufacturing' appeared in the original statute (Or. Law 1959, ch 246). It was not used in the legislative amendment found in Or Laws 1961, ch 552, but the parties herein accept `manufacturing' to be the converse of `nonmanufacturing,' which word was retained in the applicable amended statute. Consequently, only if the property is proved to be a manufacturing facility, as contended by defendant and intervenor, is the tax exemption applicable." 9 OTR at 35. [2] For cases relying on statutory definitions See Continental Coffee Co. v. Bowers, 174 Ohio St. 435, 189 N.E.2d 901 (1963); Red Top Brewing Co. v. Bowers, 163 Ohio St. 18, 125 N.E.2d 188 (1955); Miller v. Peck, 158 Ohio St. 17, 106 N.E.2d 776 (1952); as well as Continental Coffee Company of Washington v. State, 62 Wash. 2d 829, 384 P.2d 862 (1963); McDonnell & McDonnell v. State, 62 Wash. 2d 553, 383 P.2d 905 (1963); and Bornstein Sea Foods, Inc. v. State, 60 Wash. 2d 169, 373 P.2d 483 (1962), considering both statutory definition and tax rule. [3] The word "manufacturing" appears in Oregon Revised Statutes 130 times; the total for all derivatives of the word "manufacture" in the possessive, plural and past tenses is 810 times. The term "manufacturer" is defined five times and "manufacture" three times: at ORS 475.005(14), relating to controlled substances; ORS 633.006(14), relating to animal feed; and ORS 689.005(20), relating to pharmaceutical drugs. [4] Cf. Peterson Produce Company v. Cheney, 237 Ark. 600, 374 S.W.2d 809 (1964) (chicken hatchery); Perdue, Inc. v. State Department of Assess. & Tax, 264 Md. 228, 286 A.2d 165 (1972) (chicken hatchery). [5] See Master Hatcheries, Inc. v. Coble, 21 N.C. App. 256, 204 S.E.2d 395 (1974), aff'd 286 N.C. 518, 212 S.E.2d 150 (1975), as to the economic importance of chickens. [6] We note therefore our approval of the dissenting opinion in Golden Triangle etc. v. City of Pittsburgh, (Larsen, J., dissenting), 483 Pa. 525, 537, 397 A.2d 1147 (1979) which said: "The courts, in their development of standards for determining whether or not a particular enterprise is engaged in manufacturing, should be concerned with achieving that legislative objective. To that end, the standards must be flexible and the courts must be willing to adopt the standard to comport with rapid technological and scientific progress. As research and development in countless areas produces techniques and processes that may have been hitherto unheard of, we must not rigidly bind ourselves to outmoded concepts * * *. As the `Star Trek' era is ushered into our lives, the Court must be prepared to keep its perspectives progressive and its definitions flexible, or else the Commonwealth will fail to acquire modern, technological manufacturing operations."

a79438e40868da2bf309ba0b79ddee273d3faa923fb7a84db7fc41b45c23a91c

1982-06-02T00:00:00Z

52623ce1-cdd0-453e-939b-d362186309ab

Simpson v. Western Graphics Corp.

293 Or. 96, 643 P.2d 1276

oregon

Oregon Supreme Court

643 P.2d 1276 (1982) 293 Or. 96 Susan SIMPSON and Betty L. Jackson, Petitioners On Review, v. WESTERN GRAPHICS CORPORATION, Respondent On Review. CA 17979; SC 28052. Supreme Court of Oregon, In Banc.[*] Argued and Submitted December 7, 1981. Decided May 4, 1982. *1277 Henry H. Drummonds, Eugene, argued the cause for petitioner. With him on the petition and briefs was Kulongoski, Heid, Durham & Drummonds, Eugene. Arthur C. Johnson, Eugene, argued the cause for respondent. With him on the brief were R. Scott Palmer and Johnson, Harrang, Swanson & Long, Eugene. TANZER, Justice. Plaintiffs are former employees of defendant who were discharged for allegedly threatening violence against another employee. They brought this breach of contract action for reinstatement and back pay, claiming that they were discharged without "just cause," contrary to the provisions of defendant's Employee Handbook. The case was tried to the court. It found that plaintiffs were discharged for just cause and it entered judgment for defendant. The Court of Appeals affirmed. Plaintiffs contend that the courts below erred because the court, not just the employer, must find that the facts constituting just cause for discharge actually exist. The facts relevant to our disposition of this appeal are not disputed. When plaintiffs began their employment they were given a copy of defendant's Employee Handbook. The handbook provides that employees will be dismissed only for "just cause." Plaintiffs were dismissed after their supervisor determined that they had made threats of violence against another employee. Plaintiffs deny having made such threats. Plaintiffs then brought this action. The trial court made the following Findings of Fact and Conclusions of Law: On review, plaintiffs challenge the trial court's refusal to find whether the alleged threats were made. The Court of Appeals concluded that the trial court was correct. It held that where a private employer adopts a policy of discharging employees only for just cause, a trial court reviewing the discharge need only find that there was substantial evidence to support the employer's decision and that the employer believed the evidence and acted in good faith. Accordingly, the court affirmed the judgment for defendant. We allowed review to consider whether by agreeing to discharge employees only for "just cause," a private employer also relinquishes its right to determine whether facts constituting just cause exist. In the absence of a contract, statute or constitutional requirement to the contrary, an employee may quit or an employer may discharge an employee at any time. See, Vaughn v. Pacific Northwest Bell Telephone, 289 Or. 73, 90, 611 P.2d 281 (1980); Nees v. Hocks, 272 Or. 210, 216, 536 P.2d 512 (1975).[1] Here, the parties agree that the terms of the Employee Handbook are contractual terms of the plaintiffs' employment. See, Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 576 P.2d 356 (1978). The handbook's "just cause" provision suggests two distinct questions: (1) what is the meaning of just cause; and (2) who makes the requisite factual determination. Here, there is no dispute about the first question. The parties agree that the clause is a substantive restriction of the employer's rights to terminate employment at will and that if plaintiffs' alleged conduct occurred it constituted just cause. Consequently, we do not determine what fact constitutes just cause, or who decides whether the facts constitute just cause. Only the second question is in issue. On that issue the Employee Handbook is silent. It contains no express contractual transfer of this management decisional prerogative. Transfer of employer prerogatives can also be accomplished implicitly by accepted practice or mutual tacit understanding. In an analogous case, where no express just cause requirement was stated in a labor contract and where there was no extrinsic basis to find an implicit agreement, we declined to read a "just cause" requirement into the arbitration provision *1279 of the contract, Swanson v. Van Duyn Choc. Shops, 282 Or. 491, 579 P.2d 239 (1978). Here, the converse is true: there is a just cause provision, but no express provision transferring authority to make factual determinations from the employer to another arbiter. Neither is there reason to infer that such a meaning was intended by the terms of the Employee Handbook. Although an employer's statement of employment policy has a degree of contractual effect, see Yartzoff v. Democrat-Herald Publishing Co., supra, its terms are not necessarily to be construed in the same way as those of a negotiated labor contract. The handbook was not negotiated. It is a unilateral statement by the employer of self-imposed limitations upon its prerogatives. It was furnished to plaintiffs after they were hired and the evidence affords no inference that they accepted or continued in employment in reliance upon its terms. In such a situation, the meaning intended by the drafter, the employer, is controlling and there is no reason to infer that the employer intended to surrender its power to determine whether facts constituting cause for termination exist. Nor is there evidence of extrinsic agreement, practice or mutual understanding to that effect. In the absence of any evidence of express or implied agreement whereby the employer contracted away its fact-finding prerogative to some other arbiter, we shall not infer it. The arbitration cases cited by plaintiffs are fundamentally different from this one. Disputes go to arbitration precisely because the parties agreed that they should do so. Here, conversely, the employer agreed to the substantive standard embodied in the term "just cause," but did not agree to a secondary level of fact-finding authority. The trial court finding that the defendant-employer acted on the basis of the employer's determination that facts constituting just cause existed was proper. The decision of the Court of Appeals is affirmed. LENT, J., filed a dissenting opinion in which LINDE, J., joined. LENT, Justice, dissenting. As the majority observes, the parties agree that the terms of the Employee Handbook are contractual terms of the plaintiffs' employment. That contract enjoins the employer from discharging the employee unless there is "just cause" for discharge. The majority concludes that the absence of the actual occurrence of just cause is irrelevant as long as: (1) there is some evidence of the existence of facts constituting just cause, and (2) the employer believes that evidence and acts in good faith. The majority holds that whether facts constituting just cause actually exist need not be established because the employer never contracted away its common law right to decide unilaterally whether those facts exist. Ordinarily, if a contract gives one party a right to act with respect to the interests of the other party upon the happening of an event or fulfillment of a condition, the happening or fulfillment is a necessary predicate to exercise of the right. That the party who acts does so because there is evidence which leads that party mistakenly, albeit in good faith, to believe that the event or condition has happened is not good enough. The party injured by the action will find redress in the courts for injury resulting from the action, and the other party will not be heard to say that it is irrelevant whether the event or condition actually happened. Suppose that the Employee Handbook provided that an employee could be discharged for tardiness only if the employee were tardy more than ten times in a quarter year. Because of an honest error in keeping time records, the timekeeper informs the employer that a certain employee has been tardy eleven times in the first two months of the quarter. The employer, or managing employee with the power to fire, examines the evidence produced by the timekeeper, believes it and acts upon it in good faith by firing the putative latecomer. I cannot believe that as a matter of law it is *1280 irrelevant that the fired employee was in fact never tardy, and the employer's belief to the contrary was induced by the timekeeper's mistake. As I understand the majority opinion, however, because the contracting employer did not agree to give up its common law right to decide whether the employee was tardy the requisite number of times, the fired employee would have no redress. Because I believe this to be a dangerous departure from the rules of contract law, I dissent. LINDE, J., joins in this dissent. [*] Tongue, J., retired February 7, 1982. [1] This is not a case of public employment in which procedural due process in some degree may be required for termination, Tupper v. Fairview Hospital, 276 Or. 657, 556 P.2d 1340 (1976); Hammer v. OSP, 276 Or. 651, 556 P.2d 1348 (1976), vacated and remanded 434 U.S. 945, 98 S. Ct. 469, 54 L. Ed. 2d 306 (1977), or in which entitlement to an independent fact finder may be a question of statutory intent, see, Thompson v. Secretary of State, 19 Or. App. 74, 526 P.2d 621 (1974). Arguably, similar protection for private employees should be legislated, see C. Summers, Individual Protection Against Unjust Dismissal, 62 Va.L.Rev. 481 (1976), or judicially imposed, Note, Protecting At Will Employees Against Wrongful Discharge: The Duty To Terminate Only In Good Faith, 93 Harv.L.Rev. 1816 (1980). For resolution of this case, we need not reexamine the existing rule.

f98e32a41878b4de5235084279958c47c3e55c00e48f65d6007364618582d331

1982-05-04T00:00:00Z

49a92269-d392-4b78-9ea1-821e3c5b00c9

Matter of Compensation of Fossum

293 Or. 252, 646 P.2d 1337

oregon

Oregon Supreme Court

646 P.2d 1337 (1982) 293 Or. 252 In the matter of the Compensation of James E. Fossum, Deceased, Helen Fossum, Respondent On Review, v. STATE ACCIDENT INSURANCE FUND, Petitioner On Review, Argonaut Insurance Company, and Underwriters Adjusting Co., Respondents On Review. CA 14961; SC 27959. Supreme Court of Oregon. Argued and Submitted February 8, 1982. Decided June 22, 1982. *1338 Darrell E. Bewley, Appellate Counsel, Salem, argued the cause and filed the petition for review for the State Accident Insurance Fund. Allen T. Murphy, Jr., Portland, argued the cause for respondent on review Helen Fossum. With him on the brief was Richardson, Murphy, Nelson & Lawrence, Portland. Emil Berg, Portland, argued the cause for respondent on review Argonaut Insurance Co. On the brief were Margaret H. Leek Leiberan and Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland. Jerard S. Weigler, Portland, argued the cause for respondent on review Underwriters Adjusting Co. With him on the brief was Lindsay, Nahstoll, Hart, Neil & Weigler, Portland. Before DENECKE, C.J., and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. TANZER, Justice. This is a workers' compensation claim under the Occupational Disease Law, ORS 656.802 to 656.824, brought by the widow of a worker who died from mesothelioma, a form of cancer caused by exposure to asbestos. There are two issues: The first is *1339 which of several potentially causal employers is liable for compensation. The second is whether an inference is permissible that the deceased worker's former employer was insured by the State Industrial Accident Commission (SIAC), predecessor to the State Accident Insurance Fund (SAIF), where applicable law required the employer to secure coverage by SIAC or to file a notice of intent not to be covered. The deceased was an electrical worker. During the early 1940's he worked for three different shipbuilders, the last of which was Kaiser Company T.R.D. From 1948 to 1967 he worked primarily for W.R. Grasle Company. From 1969 to 1976 he worked for Willamette Western. Shortly after leaving Willamette Western, the deceased was diagnosed as having mesothelioma. He died on August 5, 1977. The procedural history of this claim is involved. The worker's widow filed claims with SAIF against the three shipbuilders, and against W.R. Grasle Company and Willamette Western. All the claims were denied and were consolidated for hearing before the Workers' Compensation Board. The referee found that the claimant suffered from an occupational disease and that Kaiser was the responsible employer and SAIF the carrier liable for benefits. The board reversed, finding that the claimant had not proved either medical or legal causation. The Court of Appeals concluded that the claim was barred by the applicable statute of limitations, Fossum v. S.A.I.F., 45 Or. App. 77, 607 P.2d 773 (1980). This court reversed on the limitations issue and remanded for a determination of the merits of the claim, 289 Or. 777, 619 P.2d 233 (1980). On the merits, the Court of Appeals reversed the board. It found that the deceased's mesothelioma was an occupational disease caused by exposure to asbestos in the workplace. Because mesothelioma does not generally develop until 20 to 40 years after exposure to asbestos, the court found that employment within the last 20 to 40 years could not have actually contributed to the cause of the deceased's disease. It concluded that the only exposure which could have contributed to the cause of the disease occurred while the deceased was employed in the shipyards. Under the last injurious exposure rule, Kaiser, the last shipbuilder for whom claimant worked, was the responsible employer. In addition, it found that SIAC was Kaiser's carrier during the deceased's employment there, and that SAIF was therefore responsible for benefits. SAIF petitioned for review, contending that the Court of Appeals misapplied the last injurious exposure rule in finding Kaiser to be the responsible employer, and that it impermissibly shifted the burden of proof to SAIF to establish that Kaiser was not insured by SIAC during the relevant time period. We allowed review to further refine the proper application of the last injurious exposure rule, see also, Bracke v. Baza'r, 293 Or. 239, 646 P.2d 1330, and to consider whether the claimant may rely on an inference of SIAC's coverage under the circumstances presented here. We affirm, but on different reasoning. According to the medical testimony accepted by the Court of Appeals, mesothelioma is caused by exposure to asbestos scattered in the air in very small particle form. Two physicians testified, based upon statistical evidence, that exposure to asbestos under the conditions of close containment which existed in World War II shipyards causes mesothelioma 20 to 40 years after exposure. They also testified (one as a medical probability, the other as a medical certainty) that work at the shipyards was the actual cause of the worker's mesothelioma. There was an attempt to prove that the worker was exposed to asbestos during post-1945 employment with Grasle and Willamette Western under conditions which could have caused mesothelioma. We conclude the evidence was insufficient as a matter of law to establish that fact. The nature and intensity of the worker's exposure at Grasle, an electrical construction company, is not established by evidence. Particularly, there is no evidence that the *1340 Grasle conditions of exposure were of the nature and intensity which can cause mesothelioma. Similarly, as to Willamette Western, where the worker was exposed to asbestos released in the course of making brake linings, one physician said that there was no statistical evidence that brake lining manufacture caused mesothelioma, although it was possible only in the sense that it could not be ruled out. The other physician said employment at Willamette Western could not have caused it. Again, a fact finder could not have found from the evidence that the worker was exposed at Willamette Western to conditions which could have caused mesothelioma. The Court of Appeals found that the shipyard employment caused the worker's mesothelioma and that employment at Grasle and Willamette Western did not, based on the physicians' testimony that the disease appears 20 to 40 years after the causal exposure. In applying the last injurious exposure rule to claims for occupational disease, however, the issue is not which employment actually caused the disease, but which employment involved conditions which could have caused it. If conditions of exposure at Grasle could have caused the disease, for example, the exposure would have been prior to the 20-year minimum period for disease development and Grasle would have been liable as potentially causative under the last injurious exposure rule. The Court of Appeals apparently excluded the Grasle employment because it was not an actual cause. The correct analysis under the last injurious exposure rule, however, is that Grasle is not liable because there is no evidence of exposure at Grasle to conditions which could have caused the disease. The same may be said of the employment at Willamette Western.[1] That leaves the shipyards as the only possible contributing causes of the worker's disease. Determining which of the three shipbuilders is liable requires application of the last injurious exposure rule. As we observed in Bracke, there are at least two last injurious exposure rules, one which assigns liability where successive employment contributes to the totality of the disease, and one which substitutes for proof of actual causation. Here, both rules apply. The deceased was exposed to asbestos in the shipyards during successive employments, each of which could have contributed to cumulative cause of the disease. The claimant has proved that one or more of those employments actually caused the disease, but cannot prove which did so. Under both rules, Kaiser, the last potentially causal employer, is solely liable. Kaiser no longer exists. Thus the second issue is whether SIAC was Kaiser's carrier during the deceased's employment, making SAIF the carrier responsible for benefits. Under the workers' compensation statutes in effect at that time, SIAC and only SIAC was authorized to provide workers' compensation coverage under the Workers' Compensation Law. OCLA §§ 102-1752; 102-1735. Every injured workman who sustained injury while employed by a covered employer was entitled to compensation benefits from SIAC, "in lieu of all claims against his employer." OCLA § 102-1752. Kaiser was a shipbuilder. OCLA § 102-1725(c) provided that "shipbuilding operations" were "hazardous occupations." An employer in a "hazardous occupation" which did not file a notice with SIAC was nevertheless automatically subject to the act. *1341 OCLA § 102-1721. OCLA § 102-1712 provided, however, that "hazardous occupation" employers could opt out of workers' compensation coverage: OCLA § 102-1713 set forth the procedure by which an employer engaged in a hazardous occupation could elect "not to contribute to the Industrial Accident fund." If an employer made such an election, injured employees of such employer were not eligible for compensation benefits, Carlston v. Greenstein, 256 Or. 145, 148, 471 P.2d 806 (1970), but the employer was subject to suit from the injured employee, and the defenses of assumption of risk, contributory negligence, and fellow servant, were unavailable to the employer. OCLA § 102-1713. In summary, reference to the statutes in effect at the time of last injurious exposure establishes as a matter of law that with one exception, SIAC was required to pay compensation benefits to injured workers of employers in hazardous occupations, whether or not SIAC received contribution from any such employer, even if SIAC was unaware of the employer, and even if the employer did nothing. OCLA § 102-1721. The only situation in which SIAC would have no obligation to pay compensation benefits to an injured employee of an employer in a hazardous occupation was if the employer had opted out under OCLA § 102-1713. Thus it is established that the worker was covered and there is no evidence from which a fact finder could find the sole exception to coverage to have been proved. We therefore conclude that this record establishes as a matter of law that SAIF is liable.[2] Affirmed. [1] The employment at Willamette Western could not have been an actual cause of the disease because it was during the 20-year period before which actual causation must have occurred. Had it been proved and found that the conditions of exposure at Willamette Western were of a kind which could have caused the disease, then under the last injurious exposure rule as described by Larson, Willamette Western would be liable even though that employment could not have been the actual cause. See 4 Larson, Workmen's Compensation Law § 95.21, but see, Bracke, n. 5. Where, as here, claimant's interests are protected because all potentially causal employers are parties, it is arguable that a defense of actual impossibility should be allowed to reduce the otherwise arbitrary operation of the last injurious exposure rule. Cf., Bracke, n. 5. Because there is no evidence of potentially causative exposure at Willamette Western or Grasle, however, we need not decide this issue. [2] We do not consider whether the claimant's burden of proof goes beyond establishing the identity of a liable employer. Normally, assignment of liability is litigated by potentially liable insurers with nominal participation by the claimant. See ORS 656.307. Here, the Court of Appeals' finding of coverage resolves the factual issue regardless of who had the burden of proof. Also, we realize that our decision has enormous financial implications. It subjects SAIF to an immense pool of unforeseen risk, incurred when SIAC was a monopoly. Obviously, some of the asbestos cases presently in litigation and to come will require payment from current premiums, which may leave SAIF in an untenable competitive position. The economic and humanitarian problem of asbestos-related diseases is larger than the scope of the courts' case-by-case decision-making, and may be more amenable to legislative solution.

53677efdb77a52a5227c161764c5258e1577d99ed3385a569a01a7e9e9419c72

1982-06-22T00:00:00Z

86d60a96-2721-4feb-849b-30a55ac054ee

In Re Conduct of Gant

293 Or. 130, 645 P.2d 23

oregon

Oregon Supreme Court

645 P.2d 23 (1982) 293 Or. 130 In re Complaint As to the CONDUCT OF George T. GANT, Accused. OSB 80-23; SC 28390. Supreme Court of Oregon, In Banc. Submitted on Record March 15, 1982. Decided May 18, 1982. Cameron C. Thom, Coos Bay, for accused. William G. Carter and William S. Dames, Medford, for Oregon State Bar. PER CURIAM. The first charge against the accused attorney involves another instance of the ethical difficulties so frequently encountered when a lawyer enters into a business transaction with a client. As a result of a complaint by a client, or former client, several disciplinary charges, all arising out of the relationship with the client and her then husband were made against the accused. The Trial Board found the accused guilty of the first two charges and not guilty of the third and fourth charges and recommended a 30-day suspension. The Disciplinary Review Board made the same findings but recommended a public reprimand. The accused then petitioned this court to adopt the opinion, findings of fact and recommendation of the Disciplinary Review Board. Counsel for the Bar filed a response "for the purpose of assisting the Court in making a determination herein." Counsel for the Bar made no recommendation. We adopt the pertinent portions of the opinion and findings of fact of the Disciplinary Review Board which are as follows: "In September 1971, the Accused represented Donna Losey, who at the time was Donna Thompson, in an uncontested marriage dissolution suit. The marriage was of about two years duration and no property rights, spousal support, or child custody was involved (EX. 1). "In 1975, Donna Losey was sued in District Court for Curry County by a building supply company for materials furnished to a tenant of one of her rentals. The Accused represented her. The plaintiff's case had little merit and was concluded in favor of defendant at the end of plaintiff's case in less than half a day. The trial was on September 18, 1975, and the Judgment Order was signed September 23, 1975 (EX. 2). At that time the Accused learned of Donna Losey's antique business in Brookings. "The Accused indicated his former wife, Pat Gant, might be interested in being involved in such a business. After some visits and negotiations, it was decided a partnership would be formed by the Accused; his former wife, Pat Gant; Donna Losey; and her husband, John Losey. The business would be operated in rented space in Pony Village, a shopping mall in North Bend, *24 Oregon. Articles of Partnership were drawn by the Accused and signed by the parties as of October 26, 1975 (EX. 3). "The evidence as to what was said by the Accused to the other three concerning seeking independent legal advice is uncertain, other than the testimony of Donna Losey. She states no such suggestion was made to her nor to her husband as far as she knew (TR. 22). John Losey testified the Accused did not recommend that he and his wife contact another attorney for independent legal advice, but that the Accused did say if they wanted to have an attorney check the Partnership Agreement, it was fine with him (TR. 203). Pat Gant, the Accused's former wife, testified the Accused may have suggested she talk to other counsel but that she just did not remember (TR. 218). Finally, the Accused testified he did not remember whether he had or had not given such advice (TR. 145). "The business did not do well. Originally it was in a low rent space of the shopping center in anticipation of obtaining larger and better space in a building then under construction. In the spring of 1976, leases were being offered for the new building. It appeared the rent for the store would be three times what the parties were then paying plus substantial advance payments. The parties decided to close the store. The four then met, inventoried the merchandise, loaded it on a truck and trailer, and the Loseys took it to their store in Brookings. "The partnership started with a cash contribution from the Accused and his former wife of $7,500.00 and the Loseys contributed merchandise at cost (EX. 19). When the store closed, the merchandise the Loseys took was given the same value as when it was put into the business (EX. 20). The Accused prepared an accounting which showed a balance due to the Gants from the Loseys of $3,879.03. This figure was not at the time nor has it since been challenged. Payments totalling $1,300.00 were made in March and July 1977 and September 1978. Because of business arrangements between Donna Losey and her husband, probably because Donna Losey was operating the antique store in Brookings, Donna Losey agreed she would be responsible for the balance due. "In late 1977 or early 1978, Donna Losey called the Accused concerning problems she was having with John Losey. The Accused told her he could not represent either one of them. Subsequently, Donna Losey filed a separation proceeding against John Losey, being represented by Attorney John Coutrakon of Brookings. John Losey made no appearance and Donna Losey obtained a Decree by default in July 1978. "In September 1978, Donna Losey and the Accused were apparently still on good terms because the attorney in Brookings, on her behalf, asked the Accused to assist in closing a land sale in Coos Bay in which she was involved. "In October 1978, John Losey consulted the Accused concerning the Decree obtained by default in Donna Losey's suit for separation. The Accused thought the Decree was inequitable and unfair (TR. 192). The Accused on behalf of John Losey filed a Motion, Affidavit, Response, etc., in an attempt to set the Decree aside but was unsuccessful. The Accused then appealed from the ruling of the Circuit Court. "* * *. "Later in July 1979, the Accused filed an action against Donna Losey for the balance due as a result of the dissolution of the partnership. Donna Losey attempted unsuccessfully to have John Losey brought in as an indispensable party (EX. 15 A through F). Later, John Losey agreed voluntarily to become a party defendant and by a stipulation and judgment order (EX. 16) a judgment was entered in favor of the Accused against Donna Losey and John Losey. (EX. 16 is undated, but the testimony indicates it was sometime in early 1980). It was about this time Donna Losey first complained to Oregon State Bar. "In the meantime and in December 1979, the Accused, on behalf of John Losey, filed a Petition to dissolve the marriage between John Losey and Donna Losey (EX. 14). *25 "The record indicates that commencing in the middle of 1978 Donna Losey was represented by or consulted, in addition to John Coutrakon of Brookings, J.B. Bedingfield of Coos Bay, Gary C. Peterson of Medford, and Roger Gould of Coos Bay. "1. The First Cause against the Accused is based upon Canon 5, Code of Professional Responsibility; Subsection (A) of DR 5-101, Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment; and Subsection (A) of DR 5-104, Limiting Business Relations with a Client. The Trial Committee found the Accused guilty on three of the six specifications set forth in the First Cause. "It is not necessary to determine whether the attorney-client relationship with Donna Losey still existed as a result of the dissolution proceedings in 1971. The Accused did represent her in the defense of the District Court case filed against her. At that time, an attorney-client relationship certainly existed. Shortly after the trial in September 1975, the Accused, Pat Gant, Donna Losey and John Losey entered into discussions and negotiations about opening a business. This resulted in the formation of the partnership and the signing of the Articles of Partnership.[1] "In regard to John Losey, the Accused cites In Re Geurts, 280 Or. 303 [570 P.2d 652] (1977). It is not applicable. In Geurts the Accused was charged with misconduct in borrowing money from a client. It was found the attorney-client relationship did not exist at the time of the loan. The opinion in Geurts sets forth no facts. Here we have an ongoing business. Here the Accused was doing work for the partnership. Although much of the work could have been considered `business' rather than `legal', when a lawyer is involved in a business partnership and the partnership has no outside lawyer, it must be assumed some of the work the lawyer does for the partnership is `legal' and is for each of the individual partners including himself. There is no substantial evidence that the Accused recommended or even suggested Donna Losey and John Losey should have advice of independent counsel concerning the commencement, operation, and dissolution of the partnership. "The Partnership Agreement, prepared by the Accused (EX. 3), contains nothing that is unusual or unfair. No complaints have been made about the terms of the Partnership Agreement. No complaints have been made about the activities of the Accused while the business was in operation. The testimony indicates all four partners participated in the closing of the business, although Donna Losey does not remember being present. No one objected to the determination that $3,879.03 was due to the Gants from their original investment of $7,500.00. "No evidence was produced indicating the Accused had an unfair advantage or overreached. No evidence was produced that the Loseys suffered any loss by operating in a business partnership where one of the partners was a lawyer, because a lawyer had not advised them and recommended to them that they seek independent legal advice. "Although partners in a business anticipate their individual interests will be similar, they can and often do have differing interests. In addition, the Loseys could well expect the Accused to exercise his professional judgment for their individual protection. The fact that it was possible for the Accused and Loseys to have differing interests and also possible the Loseys expected the Accused to exercise his professional judgment for their individual protection, it was incumbent upon the Accused to advise Donna Losey and John Losey to seek independent outside legal advice. "In failing to advise Donna Losey and John Losey to seek independent outside legal advice before commencing the business, during the operation of the business, and in the closing of the business, the Accused violated Canon 5 of the Rules of Professional Conduct and Disciplinary Rule DR 5-101(A) and DR 5-104(A). *26 "2. The Second Cause against the Accused is based upon ORS 9.406(5); Canon 4 of the Code of Professional Responsibility; DR 4-101(B), Preservation of Confidences and Secrets of a Client; Canon 5 of the Code of Professional Responsibility; and DR 5-105(A)(C), Refusing to Accept or Continue Employment If the Interest of Another Client May Impair the Independent Professional Judgment of the Lawyer. The Trial Committee found the Accused guilty on all four of the specifications in the Second Cause. "There is no question that in the mind of Donna Losey and probably in the mind of the Accused that the client-attorney relationship continued to exist between Donna Losey and the Accused at least until September 1978. By letter dated September 14, 1978, to Donna Losey, the Accused acknowledged receipt of the telephone call from Attorney Coutrakon stating that Donna Losey wanted the Accused to handle the sale of some real property in Coos Bay. The Accused indicated he would be happy to do this, but he wanted authorization in writing (EX. 12). A month later, the Accused, on behalf of John Losey, prepared and filed a Motion, Affidavit, and Response to set aside the Decree obtained by Donna Losey in her suit for separation against John Losey (EX. 13). Further, in December 1979, the Accused, on behalf of John Losey, filed suit to dissolve the marriage of John Losey and Donna Losey (EX. 14). "Unquestionably, an attorney-client relationship between the Accused and Donna Losey started in September 1975 (if not in 1971, the time of the domestic relations suit) and continued until at least September 14, 1978, based on the letter of the Accused to Donna Losey stating he would represent her in a land transaction. The following month the Accused was representing John Losey in an adversary type proceeding against his former client. "ORS 9.460(5) directs `An attorney shall: (5) Maintain in inviolate the confidence, * * of his clients.' In defining `confidence' the dictionary uses such terms as trust, state of feeling sure, state of mind characterized by reliance, state of trust. "The actions of the Accused violated ORS 9.460(5); Canon 5 of the Rules of Professional Conduct; and DR 4-101(B); Canon 5 of the Rules of Professional Conduct; and DR 5-105(A)(C). As did the Trial Board and the Disciplinary Review Board, we find the accused not guilty of charges 3 and 4. With regard to what discipline is appropriate, it appears to us that it should have been clear to the accused, a lawyer of 25 years experience, that it was improper for him to represent John Losey in litigation against Donna Losey. Since 1971 he had represented her individually, with John, and as a partner. As late as September 1978, in conjunction with another attorney, he had represented her in a real estate transaction and yet one month later he entered litigation against her. In In re McCaffrey, 275 Or. 23, 549 P.2d 666 (1976), the lawyer was publicly reprimanded for commencing the representation of a wife in a dissolution proceeding after he previously had represented the husband and the husband and wife in various matters. In that case, however, after the husband's lawyer complained about the accused's representation, the accused told the wife to get another lawyer; she did not want to, so the accused had his partner do most of the remaining work. We deem the accused's conduct more blatant in this case and suspend the accused from the practice of law for 30 days commencing June 7, 1982. Judgment to the Oregon State Bar for costs.

8aa3b54e793071b82dad98268aa93a71da3ad21feb9084bf140f1e365031ea1c

1982-05-18T00:00:00Z

f174693d-0b8f-4b59-867d-5500dc5831be

Keller v. Department of Revenue

292 Or. 639, 642 P.2d 284

oregon

Oregon Supreme Court

642 P.2d 284 (1982) 292 Or. 639 Astrid S. KELLER, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. OTC 1394; SC 27903. Supreme Court of Oregon, In Banc.[*] Argued and Submitted December 8, 1981. Decided March 16, 1982. Lee A. Hansen, Portland, argued the cause for appellant. With him on the brief was Brown, Hansen & Steenson, Portland. Elizabeth S. Stockdale, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief was Dave Frohnmayer, Atty. Gen., Salem. LINDE, Justice. Plaintiff, an Oregon resident whose husband lives and works in the state of Washington, appeals from a decision of the Oregon Tax Court affirming the inclusion of one-half of her husband's Washington earnings in plaintiff's gross income for the years 1975 through 1977. OTR (1981). Plaintiff maintains that under Washington's community property law she acquired no interest in her husband's earnings. We affirm. *285 The stipulated facts are that during the years in question, Mrs. Keller lived and worked in Seaside, Oregon, and Mr. Keller lived and worked in Centralia, Washington. There was no discord in the marriage. The Kellers filed joint federal income returns and Mrs. Keller filed separate Oregon returns reporting her own employment income but none of her husband's Washington earnings. Oregon imposes a tax on its residents "measured by taxable income wherever derived." ORS 316.007. Taxable income in Oregon is defined as federal taxable income with certain modifications, ORS 316.048, but when only one spouse lives in Oregon and files a separate return, the Oregon tax is computed as if the taxpayer's federal adjusted gross income had been determined separately. ORS 316.122(3). A rule of the Department of Revenue declares that "[a]n Oregon taxpayer whose spouse resides in a community property state is taxable upon a share of his spouse's community property income which is considered earned by the Oregon taxpayer according to the laws of the community property state." OAR 150-316.048. The issue, therefore, is whether a part of Mr. Keller's earnings in Washington belonged to Mrs. Keller under Washington's community property law, and if so, whether anything precludes Oregon from requiring her to pay an Oregon income tax thereon. Community property in Washington includes all property "acquired after marriage by either husband or wife or both" other than by gift, bequest, or inheritance. RCW 26.16.030. The earnings of each spouse are separate property, however, "[w]hen a husband and wife are living separate and apart." RCW 26.16.140. Plaintiff first contends that Washington's community property law does not apply unless both spouses are domiciled in Washington, in fact or by attributing the husband's domicile to the wife, and she argues that ORS 108.015 precludes the later.[1] But we do not understand Washington law to tie a wife's community property rights to a Washington domicile. Rustad v. Rustad, 61 Wash. 2d 176, 377 P.2d 414 (1963), recognized that a woman committed for life to a mental institution in North Dakota acquired community property rights in the acquisitions of her husband who moved to Washington after her commitment. There is no suggestion in Rustad that the result hinged on whether the wife remained domiciled in North Dakota; to the contrary, the court stated that "[w]hatever may the validity of this theory, it does not answer the question here." 61 Wash. 2d at 178, 377 P.2d at 415. Plaintiff has found no Washington decision that expressly requires a Washington domicile for acquiring community property rights in a spouse's Washington earnings, and without such a precedent the rule does not strike us as a likely interpretation of RCW 26.16.030.[2] *286 Washington decisions also do not support plaintiff's claim that she and her husband were "living separate and apart" within the meaning of RCW 26.16.140. The words "and apart" were added to the previous phrasing of this section in 1972 in accordance with judicial opinions that had used both words in order to distinguish between the mere fact of separate residences and a separation due to a breakup or abandonment of the marital relationship. Only the latter causes the spouses' acquisitions in Washington to be separate rather than community property. Compare Kerr v. Cochran, 65 Wash. 2d 211, 396 P.2d 642 (1964) and Togliatti v. Robertson, 29 Wash. 2d 844, 190 P.2d 575 (1948) with Rustad v. Rustad, supra, and Hokenson v. Hokenson, 23 Wash. 2d 908, 162 P.2d 592 (1945).[3] It is stipulated that nothing of the kind had occurred to the marriage in this case. Nothing in the Washington cases suggests that if Mrs. Keller, under a different motivation than to save Oregon taxes, were to assert community property rights to her husband's earnings in that state, the Washington courts would not hold those earnings to be community property. Finally, plaintiff claims that to tax her community property share of her husband's earnings "discriminates against plaintiff because of her status as a wife," contrary to Oregon Constitution, article I, section 32.[4] The argument is based on the premise that if the spouses' residences were reversed, Mr. Keller would not be taxed on Mrs. Keller's Washington earnings because Washington law would regard her domicile as that of her husband's in Oregon. That merely repeats the argument about the role of domicile in Washington community property law which we have already found unsupported by that state's community property decisions.[5] The decision of the tax court is affirmed. [*] Tongue, J. retired February 7, 1982. [1] ORS 108.015: "(1) Each married person may establish and maintain a domicile in the State of Oregon as if that person were not married. "(2) The domicile of a minor shall follow the domicile of the parents of the minor unless the parents establish separate domiciles. If the parents establish separate domiciles, the minor's domicile shall be that of the parent with whom the minor resides. However, if there has been a legal separation, the minor's domicile shall be that of the parent to whom custody of the minor has been legally given." [2] In a case involving the interest of a wife who resided in Canada in her husband's earnings in California (a community property state), a federal court described the wife's interest in her husband's income as being determined by the law of domicile where earned and not by the law of matrimonial domicile. Commissioner of Internal Revenue v. Cavanagh, 125 F.2d 366, 368 (9th Cir.1942). The Supreme Court of New Mexico, on "scant authority," has stated that "even though both husband and wife are residents of a state following the common-law rule that such earnings are the separate property of the husband, their earnings in a community property state are community property...." Mounsey v. Stahl, 62 N.M. 135, 136, 306 P.2d 258, 259 (1956). An article in an early volume of the Washington Law Review, though not specifically on Washington law, stated that "generally... the law of the husband's domicile at the time of acquisition determines the rights of the spouses to post-nuptial movables." Horowitz, Conflict of Laws in Community Property, 11 Wash.L. Rev. 212, 215 (1936). The author observed that when the husband's domicile is in a common-law jurisdiction this rule produces unsatisfactory results contrary to marital partnership interests in assets acquired in a community property state, and he suggested that one could choose between the law of the domicile or of the state of acquisition whichever would create such marital partnership interests. Id. at 219-20. [3] Cross, The Community Property Law in Washington, 49 Wash.L.Rev. 729, 750-53 (1974), suggests that the marriage is "defunct" and community property acquisitions end when both spouses accept or acknowledge that the separation is terminal. [4] Or.Const.art. I, § 32: "[A]ll taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax." Plaintiff also assails the tax as "so palpably arbitrary or unreasonable as to infringe the 14th amendment," quoting Lawrence et al. v. State Tax Comm'n, 286 U.S. 276, 52 S. Ct. 556, 76 L. Ed. 1102 (1932). [5] Even assuming plaintiff's premise, the Oregon tax would not be a denial of equal protection unless Washington's community property law, which the tax simply follows, is unconstitutional. We are not inclined to interpret another state's law in a manner designed to invite us to declare it unconstitutional.

bbc9c2effbde00cebe65c84542a0ce3422df060bf85ef555bc2b95bc3af664c4

1982-03-16T00:00:00Z

ae7e9271-fabd-4d69-a0f1-bc56a527304c

Hazen v. Cook

293 Or. 232, 646 P.2d 33

oregon

Oregon Supreme Court

646 P.2d 33 (1982) 293 Or. 232 Herbert C. HAZEN and Robert M. Crowe, Petitioners On Review, v. Jack L. COOK, Respondent On Review, and James N. Richmond, Defendant. CA 19800; SC 28611. Supreme Court of Oregon, In Banc. Submitted on Briefs January 22, 1982. Decided June 9, 1982. *34 Terrence J. Hammons, Eugene, filed briefs for petitioners on review. With him on the briefs were Hammons & Mills, Eugene. Michael F. Jarvill, Eugene, filed brief for respondent on review. With him on brief was Jarvill & Jarvill, Eugene. MEMORANDUM. Plaintiffs sued on a promissory note which provided for recovery of "reasonable attorney's fees" in an action to collect the debt. The trial court found that the note was usurious and entered judgment that the defendants pay the amount of the note to the State of Oregon for use of the Lane County School Fund pursuant to former ORS 82.120(5). The Court of Appeals reversed and remanded for entry of judgment in favor of plaintiff. 55 Or. App. 66, 637 P.2d 195 (1981). The court denied the demand of both parties for attorney fees. 56 Or. App. 407, 642 P.2d 318 (1982). Plaintiffs petition for review of this denial. We allow the petition for review and reverse. ORS 20.096 provides that the prevailing party, defined as "the party in whose favor final judgment or decree is rendered," is entitled to attorney fees in any action or suit to enforce a contract that provides for such fees to one of the parties.[1] After the mandate of the Court of Appeals to enter a judgment in favor of plaintiffs for the principal amount due under the note, plaintiffs were the prevailing party within the meaning of ORS 20.096(5). They therefore were entitled to reasonable attorney fees. U.S. Nat'l Bank v. Smith, 292 Or. 123, 637 P.2d 139 (1981).[2] The decision of the Court of Appeals is reversed and remanded for further proceedings consistent with this opinion. [1] ORS 20.096: "(1) In any action or suit on a contract, where such contract specifically provides that attorney fees and costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the prevailing party, whether that party is the party specified in the contract or not, at trial or on appeal, shall be entitled to reasonable attorney fees in addition to costs and disbursements. "... "(5) As used in this section and ORS 20.097 `prevailing party' means the party in whose favor final judgment or decree is rendered." [2] Dan Bunn, Inc. v. Brown, 285 Or. 131, 590 P.2d 209 (1979), cited by the Court of Appeals, is not in point. Plaintiff in that case did not "prevail" in enforcing the contract that provided for attorney fees; instead, plaintiff recovered some money under a subsequent oral agreement. 285 Or. at 148, 590 P.2d 209.

aed30231858793d33e3dad85c7c1da7788bc151d855d4f57aada656b0de0d343

1982-06-09T00:00:00Z

ccf26127-e9d5-450f-b188-ec17d77ea7fb

Hall v. Paulus

292 Or. 787, 643 P.2d 343

oregon

Oregon Supreme Court

643 P.2d 343 (1982) 292 Or. 787 Myron Maurice HALL, Petitioner, Stephen Kanter, Intervenor-Petitioner, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent. SC 28470. Supreme Court of Oregon. Argued and Submitted March 19, 1982. Decided April 6, 1982. Rex E.H. Armstrong, Portland, argued the cause and filed petition to review ballot title for petitioner. With him on the petition was Charles F. Hinkle, Portland. Stephen Kanter, Portland, argued the cause and filed motion to intervene as intervenor-petitioner. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the answering memorandum for respondent was David B. Frohnmayer, Atty. Gen., and John Reuling, Chief Counsel, Opinion Section, Salem. Before DENECKE, C.J., and LENT, LINDE, TANZER, PETERSON and ROBERTS, JJ. PER CURIAM. We are called upon to review a ballot title for a proposed initiative measure to amend the Oregon Constitution. The initiative measure proposes the following constitutional amendment: Pursuant to ORS 250.035 and 250.065, the Attorney General provided a ballot title consisting of the following caption, question, and explanatory statement: Petitioner challenges this ballot title as "insufficient or unfair." ORS 250.085. We allowed the motion of Stephen Kanter to intervene and to participate in oral argument. Both petitioner and intervenor submit alternative proposals for the ballot title. The challengers' criticisms are directed primarily at the use of the verb "bars" and at the failure to explain the sections cited by number in the statement of the question. Petitioner argues that "bars" erroneously implies that the measure only would eliminate constitutional barriers to the death penalty as such, whereas it would also withdraw these restraints from measures governing the manner of executing a death penalty. The intervenor adds that the use of the constitutional section numbers "gives the voter no inkling of the substance of the Constitutional provisions" involved. The section numbers refer to two guarantees in the Bill of Rights adopted with the original Constitution in 1859. Article I, section 15, provides: "Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice." The "part of Section 16" referred to in the question drafted by the Attorney General is the guarantee against "cruel and unusual punishments."[1] Few people know Oregon's Bill of Rights well enough to recognize these guarantees by their section numbers. We agree that the question as drafted is insufficient insofar as it uses section numbers rather than words to describe the principles at issue. The challengers offer several rewordings of the question to avoid this difficulty.[2] We think the following is an accurate statement of the question presented by the proposed initiative set forth above: This change in the question also eliminates the ambiguity in the use of the verb *345 "bar" criticized by petitioner. The same can be done in the explanation. "Bars" is insufficient, not because it misstates that part of the effect of the measure which it describes, but because it needlessly leaves other potential effects unmentioned. Although it is often impractical fully to describe a complex ballot measure in the space allowed by law, here there is enough space to communicate a more complete idea of its reach by adding a few words. An examination of the proposed initiative measure shows that it does not refer to a "bar" on death penalty laws as such. Rather, it states that not only laws authorizing or requiring the death penalty shall "not be deemed to contravene" the constitutional guarantees, but also any laws "relating to the imposition of the death penalty." How far this phrase reaches may remain an open question, but it can be read to extend beyond mere authorization of death as punishment and of the manner of execution. As to the latter, respondent agreed in oral argument that the initiative measure may well leave Oregon's Constitution with no restraint against punishment by drawing or quartering or other historical forms of painful execution. With minor changes in the Attorney General's draft, the explanation can describe the existing provisions and the scope of the proposed measure as follows: For the reasons already stated, the caption similarly is insufficient insofar as it refers to "possible bars" to death penalty laws. Although sections 15 and 16 may only be "possible" bars to the death penalty as such, they presently apply generally to laws governing punishment for crime, not excluding punishment by death. The measure would remove not only a "possible bar" but exempt death penalty laws entirely from the cited provisions. Because of the ten-word limit on the caption, this shortcoming is less easily corrected by changing a word or two in the caption as drafted. But the sequence of the words in the draft is somewhat awkward in any event, and it inaccurately suggests that sections of the constitution which may possibly bar the death penalty are being "removed" rather than that a special exemption for the death penalty is added. The following caption will correspond to the amended question and explanation set forth above: Accordingly, we certify the following ballot title to the Secretary of State: LENT, Justice, dissenting. I write separately and label my remarks as a dissent because although I agree that the Attorney General's ballot title may be insufficient in some respects, I do not agree with that proposed by the majority. A ballot title consists of a caption of not more than 10 words, a question of not more than 20 words and an explanation of not more than 75 words. ORS 250.035. *346 The majority quarrels with the Attorney General's title because of its reference to the constitution by section number rather than by substantive content of the pertinent constitutional clauses. The majority states that the two clauses are constitutional "guarantees," and that well may be. I shall not quarrel with that characterization although I believe it to be a loaded one. The majority states that few people would know the Oregon Constitution well enough to recognize "these guarantees by their section numbers." I agree. Apparently, however, the majority believes many people will better and more easily recognize the referent of the words, "CONSTITUTIONAL GUARANTEES," which the majority would use. I disagree. In either case, the truly concerned person, faced with either choice alone, would have to go to the text of the constitution to discover what portions are concerned. It seems to me that it would be much easier to find the pertinent parts of the constitution if a person had the Article and Section numbers than to search the entire constitution for the pertinent subject matter guarantees. Neither the Attorney General nor the majority have sought to explain how their respective proposed captions comply with ORS 250.035(1)(a): This is understandable because the measure has not yet acquired such an appellation. If one wants to be fair to both the public and the sponsors, however, one can attempt a caption which will refer to the measure according to what it is designed to accomplish, leaving the legalese to be fleshed out in the question and explanation. I find nothing in ORS 250.035(1)(a) demanding a legally perfect exposition of the measure. If that were the case, the question and explanation would not be needed. Nevertheless, the challengers, amicus and the majority attack the caption because of technical niceties. If we are going to hold the Attorney General's caption to be insufficient, then I believe it should be because it fails to satisfy the part of ORS 250.035(1)(a) that I have above emphasized. I would suggest the following caption as being likely to meet the statutory command: That is what this measure is all about, and that is how it is going to be advocated and opposed. Coming to the 20 word question, I believe that one can accomplish the majority's desire to refer to subject matter rather than Article and Section number and state the question so as to comply with the statutory command of ORS 250.035(1)(b): I propose the following as being more truly in harmony with the proposed measure and a fairer statement than any discussed in the majority opinion: This question would use the words of the proposed measure without presently interpreting the effect of those words. Both the Attorney General and the majority impliedly interpret the words of the proposed measure, "not be deemed to contravene," by the questions they suggest. I do not believe we need render any such advisory opinion. Having gone this far, I would reword the explanation so as to incorporate some of the "minor changes" which the majority finds necessary to correct the Attorney General's explanation for its insufficiency or unfairness, ORS 250.085. I would suggest a minor change in the majority's last sentence *347 of the explanation so as to carry through my thought that the words of the proposed measure be used rather than an interpretation of those words: I suggest the following explanation: I believe my proposal complies with the statute, ORS 250.035(1), does not attempt any subtle argument of the merits of the measure and avoids prior judicial interpretation of the language chosen by the sponsors of the measure. I would certify the following ballot title to the Secretary of State: PETERSON, J., joins in this dissenting opinion. [1] Or.Const. art. I, § 16 in its entirety provides: "Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases." [2] Petitioners proposed these alternative ballot title questions: "Shall a death sentence which constitutes cruel and unusual punishment or vindictive justice be permitted by the Oregon Constitution?" Intervenor's proposed ballot title questions: "1. [quotes petitioner's proposal] "2. Shall the limits in the Oregon Constitution on cruel and unusual or vindictive, non-reformative, death sentences be removed? "3. Shall the Oregon Constitution permit executions constituting cruel and unusual punishment or executions based on vindictive justice rather than reformation? "4. Shall the Oregon Constitution permit death sentences which constitute cruel and unusual punishments, or which are non-reformative and vindictive? "5. Shall the Oregon Constitution permit some executions constituting cruel and unusual punishment, and some executions based on vindictive justice, not reformation?"

59b1cbbcbf9dce077623a69522ce8994fff6324ff07f60fcf7a81216f7551cfc

1982-04-06T00:00:00Z

ddda694d-2ccb-48db-8245-c8a525691ad4

Compensation of Harris v. SAIF Corp.

642 P.2d 1147

oregon

Oregon Supreme Court

642 P.2d 1147 (1982) In the matter of the COMPENSATION OF Rex HARRIS, Claimant, Petitioner On Review, v. SAIF CORPORATION, Respondent On Review. WCB No. 79-7093; CA 19723; SC 27908. Supreme Court of Oregon, In Banc.[*] Argued and Submitted November 2, 1981. Decided March 23, 1982. Rehearing Denied May 4, 1982. *1148 Cynthia L. Barrett, Portland argued the cause for petitioner. Charles Paulson, Portland, filed the brief for petitioner. Darrell E. Bewley, Salem, filed the brief and argued the cause for respondent. With him on the brief were K.R. Maloney and James A. Blevins, Salem. CAMPBELL, Justice. Claimant Harris, who had been adjudged permanently totally disabled in 1970 as a result of a work-related accident, appealed from an order of the Workers' Compensation Board (Board) which found him no longer permanently totally disabled and prospectively reduced his disability compensation award. The Court of Appeals, 52 Or. App. 233, 628 P.2d 799, affirmed without opinion and claimant petitioned this court for review contending that (1) the Board had erroneously placed the burden of proof upon him to show continuance of his disability rather than upon the insurer to establish a change of circumstances warranting award modification, and (2) the Board erred in basing its finding that he was no longer permanently totally disabled upon income he had earned through real estate investments. There is no dispute in this action that claimant was substantially disabled by a compensable on-the-job injury and that he remains disabled to some degree. The dispute centers upon the present extent of his disability and the propriety of the Board action in reducing his compensation award. For reasons set out below, we agree with the basic contentions of the claimant and reverse and remand this cause to the Board for reconsideration of its order. In September of 1967, claimant suffered a severe job-related injury when a rock shattered the windshield of the pickup he was driving and struck him in the head. He sustained multiple skull fractures and organic brain damage and was hospitalized for two weeks after the accident. His initial complaints were memory failure, sinus difficulties, tenderness and stiffness in the neck, a deformed face, and inability to open his mouth. At the time of the accident, claimant had had a long and stable work history, including 17 continuous years as a stock delivery driver for his employer, an oil products firm. Despite his injuries, claimant was highly motivated to return to work. After recuperation, he was examined by doctors of the Workers' Compensation Board; the discharge committee eventually found him to be only minimally physically disabled, ineligible for vocational rehabilitation, and well enough to be released to resume his former job. Claimant returned to his job in February 1968, but during the summer of 1969 he made serious errors at work, improperly mixing fuels, which cost his employer a considerable amount of money. The errors were apparently the result of claimant's continuing memory and attention problems. Soon after the incident, claimant was demoted. Even with a position of less responsibility, however, claimant was not able to perform satisfactorily and his employment was eventually terminated. He was thereupon reevaluated by the Board and by a Determination Order dated June 3, 1970, he was found to be permanently totally disabled. Claimant's permanent physical impairments, though significant, were relatively minor; injury-related mental and psychological problems, however, including distractability, loss of memory, depression and anxiety adversely affected his employability in the type of positions in which he was formerly employed. *1149 During December 1970, claimant began an extended course of psychotherapy with a psychiatrist and enrolled in Columbia Basin Community College for coursework in real estate sales. The psychiatrist's initial report was that claimant had extremely regressed following the accident and was slowly learning to cope with his disability. Therapy was discontinued in July 1972 with the doctor reporting that claimant "is going to make a satisfactory adjustment but he definitely will have some permanent, partial disability." The next medical reports in the file, dated March 1976 and December 1977, found claimant's condition essentially unchanged over the preceding seven years, but noted that he was adjusting well to his disabilities. In late 1977 claimant started seeing his psychiatrist again in drug therapy as well as psychotherapy. In October of 1979, his psychiatrist opined that despite the therapy claimant remained totally disabled, only marginally adjusted to life, and in need of further treatment. Notwithstanding the medical reports which continued to state that claimant's disability remained essentially unchanged since his accident, the State Accident Insurance Fund (SAIF), his insurer, requested a reevaluation and reduction in his award pursuant to ORS 656.206. Citing the fact that claimant had become a licensed real estate agent in 1972 and had enjoyed rather high incomes in the years 1973 through 1979, SAIF argued that claimant was no longer permanently totally disabled. After investigation, the Evaluation Division of the Workers' Compensation Department agreed and recommended to the Board that claimant's permanent total disability be terminated and his compensation be reduced to 48 degrees for 15 percent unscheduled head disability. By order dated July 31, 1979, the Board concurred with the Division recommendation. Claimant then requested a hearing to seek reinstatement of his award. See ORS 656.283(1), OAR 436-65-225(2). By opinion and order dated April 25, 1980, the Board referee found that claimant remained permanently and totally disabled, reversed the July 31, 1979, order reducing his disability award, and reinstated his prior permanent and total disability award. Pursuant to ORS 656.295, SAIF requested Board review alleging that claimant had not proven himself to be permanently totally disabled. After de novo review, the Board by order dated December 19, 1980, again revoked claimant's permanent total disability award, modified the referee determination and awarded claimant compensation equal to 240 degrees for 75 percent unscheduled disability in lieu of prior awards. It is this order from which claimant appealed. The threshold issue to be resolved is: In a proceeding to diminish or terminate a prior disability compensation award, does the claimant have the burden of proof to establish that his or her disability is continuing, or does the employer or insurer bear the burden to establish a change in circumstances sufficient to justify award reduction? Claimant contends that the burden should have been on SAIF in this case and that the Board had erroneously placed the burden upon him. The record is unclear on the issue. SAIF was the initiator of this proceeding to reduce claimant's permanent total disability award; pursuant to ORS 656.206(5) it reexamined claimant's file, forwarded its results to the Workers' Compensation Department, and requested a reevaluation and reduction of claimant's award.[1] The July 31, 1979, *1150 Board order reducing claimant's award is ambiguous regarding the burden of proof issue, concluding only that "claimant can no longer be considered permanently and totally disabled * * *." After the hearing requested by claimant, the April 15, 1980, opinion and order issued by the referee indicates only that he agreed with claimant on the merits and found it "convincing that claimant is permanently totally disabled, and has been since June 1, 1970." In seeking Board review of the referee determination in claimant's favor, SAIF contended that "claimant had not proven he is permanently and totally disabled." The Board agreed with SAIF both on the merits and on the burden of proof issue: "After making an independent review of the record in this case, we find the claimant has lost a considerable portion of wage earning capacity, but he has not proven he is permanently and totally disabled." (Emphasis added.) In his appeal to the Court of Appeals, claimant assigned this placement of the burden of proof as error, citing Bentley v. SAIF, 38 Or. App. 473, 590 P.2d 746 (1979). In Bentley SAIF was appealing a Board refusal to reduce a permanent total disability award; it alleged that the claimant there had not proven that she remained so disabled. The Court of Appeals held: In its brief before the Court of Appeals, SAIF acknowledged the Bentley rule but argued that the evidence in the record was sufficient to uphold the Board decision on the merits; that is, SAIF contended that, even if it had the burden of proof, it had carried it. The Court of Appeals, in affirming without opinion or any citation, left the parties and this court without an inkling as to the rationale for its decision did it conclude that the Board did not err in placing the burden of proof upon the claimant (thereby implicitly overruling or distinguishing Bentley), or did it agree with SAIF's contention and decide that, based upon its own de novo review of the record, SAIF had carried its burden of proof?[2] In his petition for review here, the claimant reiterates his arguments below, but SAIF has changed its tack. Contrary to its earlier acquiescence in the Bentley rule, SAIF now contends that the Board was correct in placing the burden of proof upon the claimant. We accepted review in part to clarify this procedural problem. It is quite clear that a disability claimant seeking, in the first instance, permanent total disability status has the burden of proving that he is so disabled, that he is willing to seek regular and gainful employment, and that he has made reasonable efforts to obtain such employment. ORS 656.206(3); OAR 436-65-700(4). As the Bentley quote above notes, however, there is no express statutory provision dealing with burden of proof in award adjustment proceedings. Although the Board has the authority to adopt procedural rules to govern its consideration of claims (ORS 656.704(1); OAR 436-83-010), it has adopted no rules on the subject. Bentley, moreover, is the only Oregon case on point. *1151 Thus, the resolution of this issue will turn upon traditional notions of burden of proof. The general rule is that the burden of proof is upon the proponent of a fact or position, the party who would be unsuccessful if no evidence were introduced on either side. See, Oregon Evidence Code Rules 305-307 (replacing ORS 41.210); ORS 183.450(2).[3] Where modification or termination of an award is sought upon the ground that there has been a significant change in claimant's condition since the grant of the original award, it is generally held that the burden to allege and prove the requisite change should be upon the party requesting the modification. 3 Larson, Workmen's Compensation Law 15-523, § 81.33 (1976); note, Burden of Proof in Proceedings to Modify Workmen's Compensation Agreements, 75 Dickenson L.Rev. 352 (1971). Where a party to a disability compensation award seeks to have the award modified or terminated, it is generally necessary to establish a change of circumstances sufficient to warrant the relief sought. See Gettman v. SAIF, 289 Or. 609, 614, 616 P.2d 473 (1980); Bentley v. SAIF, supra, 38 Or. App. at 478, 590 P.2d 746; 3 Larson, supra at §§ 81.20-81.33. Thus, where the insurer or employer seeks to reduce or terminate a claimant's disability compensation award, it is incumbent upon it to establish sufficient change of circumstances. Bentley v. SAIF, supra. Conversely, where the claimant seeks to have his or her award increased, the claimant has the burden of proof. See Hisey v. State Indus. Acc. Commn., 163 Or. 696, 700, 99 P.2d 475 (1940); Fisher v. Consolidated Freightways, Inc., 12 Or. App. 417, 507 P.2d 53 (1973). SAIF argues, for the first time before this court, that because of the procedure set out in the statutes for Board reevaluation of awards, the rule should be different. SAIF's argument is as follows:[4] ORS 656.206(5) requires employers or insurers to periodically reexamine permanent total disability cases and to forward the results of such reexamination to the department. The Evaluation Division then reevaluates the claim to see if an award modification is justified. If the division determines that the award should be changed, the recommendation is sent on to the Board. If the Board concurs, it will issue an order modifying the award. The aggrieved party may then demand a hearing on the modification; in the absence of a timely hearing request, however, the order becomes final. If the award is reduced or terminated, the claimant has the right to demand a hearing before a referee and seek reinstatement of the original award. SAIF argues that since the claimant at such a hearing is seeking to overturn a Board order, the burden of proof should be upon him or her to establish that the extent of disability is greater than the order recognizes. This argument misconstrues the nature of the procedural process. The claimant in the post-modification hearing is not in the same posture as an initial claimant such a claimant has had his or her prior final award unilaterally modified by the Board and is challenging the propriety of that action. The post-modification hearing is not strictly an "appeal" from the modification order, but rather a substitution for a pre-modification hearing. The Board's action in unilaterally modifying a claimant's award without a prior hearing does not *1152 serve to ipso facto shift the burden from the insurer/employer (to establish sufficient change in claimant's condition) to the claimant (to establish that his or her condition is worse than the modification order recognizes). Where the Board unilaterally modifies a prior award and the aggrieved party demands a hearing, the cause is heard de novo before the referee and the issue to be decided is whether there has been a sufficient change in claimant's condition to justify the modification. Thus in the award adjustment proceeding the burden of proof is upon the party alleging change in condition and not necessarily upon the party who demanded the hearing. In the case at bar, it is evident that the Board placed the burden of proof upon claimant despite the fact that SAIF was the party alleging a change in circumstances and seeking a modification of the award. We hold this to have been error. Our decision that the Board had erroneously placed the burden of proof upon claimant does not resolve this case. The Court of Appeals decision affirming the Board's action may have been based upon its de novo review of the evidence and a finding for SAIF on the facts. Thus, the second issue to be resolved is whether there was sufficient evidence to justify the diminution of claimant's award.[5] Claimant contends that the Board based its determination that he was no longer permanently totally disabled on earnings he had made through real estate investments and that such "passive" income should be deemed irrelevant to a disability determination. It is his position that a mere finding that he is capable of earning money is not sufficient in and of itself to justify revocation of his permanent total disability status; he argues that such an action can be based "only upon a specific finding that the claimant presently is able to perform a gainful and suitable occupation." See Gettman v. SAIF, supra, 289 Or. at 614, 616 P.2d 473; ORS 656.206(1)(a). SAIF contends that the evidence in the record and the findings below are sufficient to justify the Board's action. The evidence in the record is largely undisputed and shows that, despite his disabilities, claimant has been able over the past several years to earn a considerable amount of money. Soon after completing his coursework in real estate sales at the community college and obtaining a real estate agent's license in 1972, claimant invested in a large tract of land for subdivision. To finance his investment he borrowed $70,000 from an acquaintance, cashed in $14,000 in stock benefits obtained through his former employer, and withdrew $8,000 from his savings. In addition to the return on his investment in the tract, claimant was to receive a portion of the broker's fee on each lot sold. Although claimant has been "hired" by a real estate agency as a result of this investment, he receives neither a salary from the firm nor any portion of its income other than the commissions from sales within the subdivision. Besides his subdivision investment, claimant has also purchased several mobile home lots and rental homes, which he manages and from which he receives rental income. There is evidence in the record to suggest that claimant has been relatively active in the subdivision's development. He testified before the referee that he decided which prospective builders could build and where and that he showed homes, wrote up earnest money agreements, advised on financing, and otherwise dealt with the builders. In addition, there is evidence that claimant advised his investment partner in other financial dealings. As a result of sales within *1153 in the subdivision between the years 1973 and 1979,[6] claimant reported earnings ranging from $9,000 in 1974 to $55,000 in 1978.[7] This is not to say, however, that claimant is working regularly; the record indicates that because of his mental, physical, and psychological problems his work schedule has been inconsistent and variable. The referee, after hearing the testimony and reviewing the evidence, concluded: On review the Board concluded: As the referee correctly noted, income is not the criterion for determining whether a claimant is permanently totally disabled. A severely injured and incapacitated worker, to take an extreme example, who is able to "earn" a living through income received from bank deposit interest, trust distributions, or stock dividends is nonetheless disabled, despite the fact that this income may exceed to a considerable extent the wage he earned at his former job prior to his disabling injury. In Gettman v. SAIF, supra, we set out the relevant test for adjusting permanent total disability awards: See also ORS 656.206(1)(a) which defines "permanent total disability" as: The determination of permanent total disability status does not turn upon whether the claimant has money-earning capacity, but rather upon whether the claimant is currently employable or able to sell his services on a regular basis in a hypothetically normal labor market. See Bentley v. SAIF, supra, 38 Or. App. at 478, 590 P.2d 746; Wilson v. Weyerhaeuser Co., 30 Or. App. 403, 408-409, 567 P.2d 567 (1977); OAR 436-65-700(5); 2 Larson supra, § 57.21 at 10-101 to 10-102. In discussing *1154 the "odd-lot" doctrine,[8] Larson notes: The fact that a claimant may have an income, even a substantial one, or that he or she is able to perform a variety of activities does not mean ipso facto that he or she is no longer permanently totally disabled.[9] As we expressly held in Gettman, There is no such specific finding in this case. In rejecting the referee's finding that claimant remained permanently and totally disabled, the Board merely concluded that claimant "is very active" and "has been able to earn money." There was no finding that claimant is currently employable in any recognized labor market or that he is presently able to regularly perform any gainful and suitable occupation. A severely disabled worker who through luck or pluck is able to generate an income cannot be denied permanent total disability status simply because he or she has demonstrated an ability to "earn money." The claimant's ability to work, not his or her financial situation is the criterion for disability compensation. This is not to say, of course, that investment or self-generated income is irrelevant to a disability determination or that employability only in the manual labor, 9-to-5 job market may be considered. An injured worker capable of earning a significant income through mental labor alone on a regular basis may be found to be non-permanently totally disabled despite severe physical handicaps. Claimant suggests a "passive" vs. "active" dichotomy with regard to income, making the latter but not the former relevant to a disability determination. Although the suggestion is not without appeal, we need only to reiterate our Gettman holding that a claimant's permanent total disability award can only be revoked or diminished upon a specific and express finding that he or she is presently able to regularly perform a gainful and suitable occupation and further note that a claimant's ability to generate income is only relevant insofar as it tends to establish his or her employability at some such occupation. A claimant's demonstrated ability to earn money is, in and of itself, insufficient. Since we are unable to ascertain on this record whether the Board or the Court of *1155 Appeals applied the correct rule of law and whether they would have reached the same result, in their fact-finding function, under the analysis set out above, the matter must be remanded to the Board to reconsider the evidence in light of this opinion. Inkley v. Forest Fiber Products Co., 288 Or. 337, 345-346, 605 P.2d 1175 (1980). Reversed and remanded to the Court of Appeals with instructions to remand to the Workers' Compensation Board. [*] Tongue, J., retired February 7, 1982. [1] ORS 656.206(5) provides: "Each insurer shall reexamine periodically each permanent total disability claim for which the insurer has current payment responsibility to determine whether the worker is currently permanently incapacitated from regularly performing work at a gainful and suitable occupation. Reexamination shall be conducted every two years or at such other more frequent interval as the director may describe. Reexamination shall include such medical examinations and reports as the insurer considers necessary or the director may require. The insurer shall forward to the director the results of each reexamination." See also ORS 656.325(3), which provides: "A worker who has received an award for unscheduled permanent total or unscheduled partial disability should be encouraged to make a reasonable effort to reduce his disability; and his award shall be subject to periodic examination and adjustment in conformity with ORS 656.268." For the administrative rules governing reevaluation of awards under these provisions, see OAR 436-65-100 to -225. [2] The concerns we expressed in Gettman v. SAIF, 289 Or. 609, 612-613, 615-616, 616 P.2d 473 (1980) (Linde, J., specially concurring), Rogers v. SAIF, 289 Or. 633, 616 P.2d 485 (1980), and Grable v. Weyerhaeuser Co., 291 Or. 387, 391 (n. 4), 631 P.2d 768 (1981), are apropos here. [3] Where the Workers' Compensation Act does not provide for a procedure for administrative review of actions or orders of the department or SAIF, the relevant provisions of the Oregon Administrative Procedure Act (ORS 183.310 to 183.500) are applicable. ORS 656.704(1); OAR 436-83-010. ORS 183.450(2) provides that "[t]he burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position." To the extent that there is ambiguity regarding the burden of proof placement, not only is there a well-established general rule of liberal construction vis-a-vis the Workers' Compensation Act in favor of injured workers and compensation (see Fossum v. SAIF, 289 Or. 777, 782-783, 619 P.2d 233 (1980)), but also the department's administrative procedural rules are expressly required to be liberally construed in their favor. OAR 436-83-020. [4] See generally ORS 656.206(5), 656.268-.298, 656.319-.325; OAR 436-65-100 to -225, 436-83-810; 38 Op AG 2069, 2074-2077 (1978). [5] The Court of Appeals reviews Board orders de novo on the facts. ORS 656.298. This court, on the other hand, reviews only for errors of law; we do not review the evidence independently, but will rely upon the findings of fact below. Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971). Inasmuch as the Court of Appeals did not issue any written findings of fact, we must use those of the Board and referee, and the undisputed facts appearing in the record. In essence, we must determine whether these findings and facts would have been sufficient to allow the Court of Appeals, on its de novo review, to properly affirm the Board's order. [6] Due to sewer permit problems, sales within the subdivision ceased in 1979 and have not resumed. There is no evidence that claimant has received any income since 1979 from his real estate activities or otherwise. [7] Claimant's income for those years is as follows: $11,019 in 1973; $9,242 in 1974; 1975's figures are missing; $22,228 in 1976; $23,499 in 1977; $55,366 in 1978; and $25,197 in 1979. Claimant's income tax statements are not in the record and there is no indication whether these figures are gross or net income, or whether they include income from other sources, such as his wife and family. [8] See generally Wilson v. Weyerhaeuser Co., 30 Or. App. 403, 567 P.2d 567 (1977); Mansfield v. Caplener Bros., 10 Or. App. 545, 500 P.2d 1221 (1972); Skelton, Workmen's Compensation in Oregon: Ten Years After, 12 Will.L.J. 1, 30-34 (1975). [9] See Hill v. U.S. Plywood Champion Co., 12 Or. App. 1, 503 P.2d 728 (1972), rev. den. (1973) (claimant permanently totally disabled even though has some income from fishing and cattle raising). See also Hoffmeister v. State Indus. Acc. Comm., 176 Or. 216, 222-223, 156 P.2d 834 (1945), where this court, under a somewhat different statutory scheme, held that a claimant's disability award could only be modified where there was found to be a significant change in his or her physical condition and that economic changes were irrelevant.

734e80a351e0e13ae02184dc88ebb708bfce96f8fdfd837417249b8ec9a574de

1982-03-23T00:00:00Z

cb9ae743-5cd0-456e-a7b5-a41e75dcf64e

In Re Conduct of Chambers

292 Or. 670, 642 P.2d 286

oregon

Oregon Supreme Court

642 P.2d 286 (1982) 292 Or. 670 In re Complaint As to the CONDUCT OF Donald W. CHAMBERS, Accused. OSB 79-62; SC 28183. Supreme Court of Oregon, In Banc[*]. Submitted on the Record January 14, 1982. Decided March 16, 1982. *287 Eric C. Larson, Gresham, filed a Petition for Adoption of the Decision and Recommendation of the Review Board. No appearance contra. PER CURIAM. The Oregon State Bar filed a complaint against Donald W. Chambers, a member thereof, accusing him of unethical conduct in three separate causes: Chambers did not answer the complaint and allowed the Oregon State Bar to enter a default against him. Chambers did not appear either in person or by counsel at the hearing before the Trial Board. Documentary evidence was received and one witness testified at the hearing before the Trial Board. Findings of fact were entered and Chambers was found guilty of the third cause and guilty of a part of the specifications set out in each of the first and second causes. The Trial Board recommended that Chambers be suspended from the practice of law in this state for a period of two years. The Disciplinary Review Board concurred with the Trial Board in its findings of fact, conclusion, and recommendation. It is this court's obligation to make an independent review of the evidence. The accused is entitled to the presumption that he is innocent of the charges made against him. The charges must be proved by clear and convincing evidence. In re Galton, 289 Or. 565, 578, 615 P.2d 317 (1980). "Clear and convincing evidence means that the truth of the facts asserted is highly probable." Supove et al. v. Densmoor et ux., 225 Or. 365-372, 358 P.2d 510 (1961). The first cause of complaint arises out of Chambers' representation of Lisa L. Hartel in connection with an automobile collision. On May 4, 1973, the Hartel automobile collided with an automobile driven by Ella G. Drennen at Brazee and Ninth Streets in the city of Portland. Hartel suffered personal injuries and damage to her vehicle and within one week retained Chambers to represent her. Chambers requested and received a medical report describing Hartel's injuries. Chambers negotiated with Drennen's insurance company and received offers of settlement, but did not inform Hartel or consult with her about them. On November 9, 1974, Hartel verified a complaint prepared by Chambers. The complaint was not filed until May 2, 1975. The summons Chambers prepared was defective on its face because it failed to set a return time and did not contain the address and telephone number of the attorney. The summons was not returned for filing within the 60 days required by former ORS 15.060. Drennen's attorney filed a motion to quash the service of summons but did not call it up for argument in order to allow Chambers an opportunity to negotiate a settlement directly with the insurance company. Eventually the motion to quash came before the presiding judge of Multnomah County who conditionally granted Chambers' motion to amend the summons by interlineation to cure the defects provided the original summons was returned to the court within one week. Chambers failed to comply. Later when the case was back before the presiding judge Chambers represented to the court that the case had been settled and it was dismissed under a 60 day dismissal order, effective April 12, 1976. In June 1976, after many unsuccessful attempts to contact Chambers, Hartel contacted another attorney to find out the status of her case.[1] In September, 1976, after being substituted as attorneys of record, Hartel's new lawyers moved to set aside the order of dismissal and Drennen's attorney filed a supplemental motion to quash the service of summons. The court allowed both motions. The net effect was to cut off Hartel's cause of action because the statute of limitations had expired. In April, 1977, Hartel through her new attorneys filed a malpractice action against Chambers alleging that he had been negligent *289 and reckless in his representation of her. Chambers filed an answer generally denying the complaint, but failed to appear for the trial. The trial court on December 15, 1977 entered a judgment for Hartel and against Chambers for $7,000 general damages and $5,000 punitive damages.[2] As of the middle of February, 1980 Hartel had been unable to collect any money on her judgment. The charging part of the first cause of complaint in this case is as follows: The portions of the Disciplinary Rules which the Oregon State Bar apparently relied upon as to the first cause of action are as follows: The Trial Board found Chambers guilty of negligence in failing: (1) to properly prepare the summons in the case filed on behalf of Hartel, (2) to abide by the conditions imposed by the trial court regarding the return of service of the summons, and (3) to communicate with his client. We agree with the Trial Board and find Chambers in direct violation of DR 6-101(A)(3) in that he neglected a legal matter entrusted to him. As to the first cause of complaint Chambers is not in violation of DR 7-101 or DR 7-102(A)(5) because those disciplinary rules concern "intentional" and "knowing" acts and only "negligent" acts are alleged in that cause. The Trial Board found Chambers not guilty because of failure to prove the allegations that he negligently failed to: (1) *290 effectuate service of process within the time limitations set by statute, and (2) proceed effectively prior to the time limit set by the statute of limitations with reference to his client's cause of action. We agree with the Trial Board, although maybe for a different reason. The Trial Board did not expand upon the reason for its finding. Because this matter is uncontested it is before us without the benefit of argument or briefs. The only proof in this case to support the allegations that Chambers failed to "effectuate service of process" or "proceed effectively prior to the time limit set by the Statute of Limitations" is the same evidence used to prove the allegations that Chambers failed "to properly prepare the summons" and "to abide by the conditions imposed by the Circuit Court." It seems to us that the allegations of failure to "effectuate service" and failure to "proceed effectively" are redundant when viewed with the other allegations in the cause. The summons was actually served before the expiration of the statute of limitations. Chambers' negligence was that he did not properly prepare the summons or amend the return. The fact that the summons was quashed and could not be served again because of the statute of limitations is the "result" of the negligence, and not the act of negligence. We agree with the Trial Board that Chambers is not guilty of these allegations. In connection with the first cause of complaint the Trial Board also found that Chambers was guilty of: The proof supports this finding, but the pleadings do not. The complaint contains no allegation that would put Chambers on notice that he was charged with this misrepresentation. The second cause of complaint arises out of Chambers' representation of Charles Willhite in a criminal case. Willhite was charged with a crime as a result of a confrontation in 1977 between the Brothers Free and the Outsiders motorcycle clubs at a swap meet at the Memorial Coliseum in Portland. The record before us in this regard is scant we have only 14 selected pages out of the 500 plus page transcript in the criminal case. We have the transcript of a subsequent post-conviction case entitled Charles A. Willhite, Petitioner v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary together with the trial judge's decision and the judgment order. We do not have the exhibits in either case. Willhite was indicted by the grand jury. A person by the name of Moore had been killed and a man by the name of Holland was wounded at the confrontation. The trial took four or five days and as far as we know Chambers was the sole counsel for the defendant. Willhite was convicted of attempted murder.[4] The post-conviction case was tried in July and August, 1979. The petition in that case is not a part of this record. The trial judge made the following findings of fact: As a part of his letter decision the trial judge recommended "that Mr. Chambers' ineffectiveness and conduct be considered by the Oregon State Bar." As a conclusion of law the trial court found that Willhite "was not provided with *291 reasonably effective representation and * * was prejudiced thereby, * * *." The conviction was set aside and the case remanded to Multnomah County for a new trial. The Oregon State Bar in its second cause of complaint charged that Chambers' representation of Willhite was not reasonable or effective in that: The second cause concluded that the actions of Chambers were in direct contravention of DR 6-101(A)(1), (2), (3), and DR 7-101(A)(3), supra, The Trial Board found Chambers not guilty on the third and fourth specifications of the second cause of complaint because of a lack of proof. We agree. The instructions in the criminal case are not a part of the record so there is no way for us to know if Chambers should have taken an exception to any of them. The proof is not clear and convincing that Chambers failed to consider his own physical condition in his representation of Willhite or that his diabetic condition affected his ability to try the case to an extent that would have changed the result. The only evidence was that Chambers was tired during the later stages of the case and that on final argument he had to talk in a low voice. The Trial Board found Chambers guilty of the first and second specifications of the second cause in direct violation of DR 6-101(A)(1), (2), (3) and DR 7-101(A)(3). We agree with the Trial Board on the first specification that Chambers failed to properly investigate the facts of the case prior to trial. From reading the transcript in the post-conviction case one gets the distinct impression that Chambers prepared and tried the criminal case "by the seat of his pants." For example, he did not ask to see the evidence in the State's possession including the medical reports on the victims.[5] On the second specification Chambers is guilty of failing to prepare an instruction on the use of physical force in defense of self or others.[6] At the post-conviction trial Chambers testified as follows: We cannot find Chambers guilty of failure to prepare any other instructions because there is no evidence that it was necessary for him to prepare or request an instruction on any other particular subject.[7] For all we know from this record the trial judge may have given all of the other necessary instructions. Under the first specification of the second cause Chambers is guilty of violating DR 6-101(A)(2) in that he handled a legal matter without preparation adequate in the circumstances. Under that portion of the second specification of the second cause wherein Chambers failed to request an instruction on the use of physical force and self-defense he is in violation of DR 6-101(A)(3) in that he neglected a legal matter entrusted to him. Chambers is not in violation of DR 6-101(A)(1). Although from reading the record one gets the impression that Chambers was "over his head," there is not sufficient evidence to find that he handled a legal matter which he should have known that he was not competent to handle without associating a competent lawyer. Nor is Chambers in violation of DR 7-101(A)(3) because there is no evidence that he intentionally prejudiced or damaged his client. The third cause of action arises out of Chambers' representation of Delbert Marshall in connection with a collision between Marshall's vehicle and Nedra B. Thatcher's vehicle. At 2:00 o'clock in the morning of January 6, 1980 a van struck Thatcher's automobile which was parked in front of her residence. The driver of the van fled on foot. The next event is described by Thatcher in her testimony before the Trial Board: The next month after learning that Chambers was a lawyer and not an insurance agent Thatcher reported the above conversation to the Oregon State Bar. Chambers' allegedly false statement that he was an insurance agent to Thatcher then became the gravaman of the third cause of complaint. The Bar alleged that Chambers' conduct was in direct contravention of DR 7-102(A)(5). The Trial Board found Chambers guilty of the third cause. We agree, though Chambers' motive does not appear to be clear and there is no apparent prejudice to Thatcher. This is simply a question of judging the credibility of Thatcher's testimony.[8] She testified before the Trial Board: In addition a note which Thatcher had written at the time of the conversation tended to corroborate her testimony. We find that Chambers is in violation of DR 7-102(A)(5) in that he knowingly made a false statement of fact. Although Chambers is not before this court asking for consideration, we would be remiss if we did not mention his physical condition. There is non-medical evidence in the record that he has suffered from phlebitis and hypertension and was diagnosed in September, 1977 as being a diabetic. We find that this condition may help explain some of Chambers' conduct, although it cannot excuse it. We will consider this as evidence of mitigation in imposing the sanction. We do not have to decide in this case whether or not "negligent" conduct which violates a disciplinary rule (first cause) or conduct which is "not reasonable or effective" and therefore violates a disciplinary rule (second cause) standing alone or together are sufficient to suspend an attorney from practice of law in the Oregon State Bar. In this case the "negligent" conduct and the "unreasonable" and "ineffective" conduct are coupled with an act of moral turpitude (third cause) knowingly making a false statement of fact. By way of summary: On the first cause we find Chambers guilty of negligence in failing: (1) to properly prepare the summons, (2) to comply with the conditions imposed by the trial court on the return of the summons, and (3) to communicate with his client. All three specifications are in violation of DR 6-101(A)(3). On the second cause we find that Chambers' representation was not reasonable or effective in that he failed to properly investigate the facts before trial and failed to request an instruction on the use of physical force and self-defense in violation of DR 6-101(A)(2), (3). On the third cause we find that Chambers is in violation of DR 7-102(A)(5) in that he knowingly made a false statement of fact to Thatcher when he represented that he was an insurance agent. It is the order of this court that Donald W. Chambers be suspended from the practice of law in the State of Oregon for a period of two (2) years and thereafter, 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 to the administration of justice, nor subversive of the public interest. The Oregon State Bar is awarded costs. [*] Tongue, J., retired February 7, 1982. [1] Chambers worked out of his home and did not have a secretary or answering service. [2] The punitive damages in this case were awarded before our decision in Chamberlain v. Jim Fisher Motors, Inc., 282 Or. 229, 237, 578 P.2d 1225 (1978) wherein we held that negligence or recklessness is not, in and of itself, sufficient to support an award of punitive damages. [3] We call attention to the fact the first cause alleges that Chambers was "negligent" in his representation of Hartel and that he was in violation of DR 6-101(A)(3) which provides that an attorney shall not "neglect" a legal matter entrusted to him. Although not an issue in this case we point out that "negligence" and "neglect" are not synonymous or interchangeable terms. A lawyer's neglect of a client's business does not necessarily give rise to actionable negligence. [4] The conviction was affirmed without opinion by the Court of Appeals. State of Oregon v. Willhite, 38 Or. App. 89, 589 P.2d 1213 (affirmed without opinion 1/22/79). [5] According to the testimony of the former deputy district attorney of Multnomah County who tried the criminal case the medical reports would have shown the number of gunshot wounds and the angles at which the bullets entered the bodies. This information may have been important to a self-defense theory. [6] This would have been a simple matter of requesting the trial court to give the Uniform Jury Instruction on the subject. [7] Chambers submitted no instructions to the court. At the post-conviction trial he testified: "I am inclined not to submit instructions because I think juries do not listen to instructions." [8] In a later telephone conversation Chambers denied to Thatcher that he had told her he was an insurance agent. Chambers also denied the statement to the attorney who investigated the matter for the Oregon State Bar. The investigator thought that Thatcher had simply misunderstood Chambers and recommended that no action be taken. We have to take into consideration the fact that Chambers has allowed this matter to go by default and the allegation in the complaint and the testimony of Thatcher are not contradicted. The third cause of complaint is the most important part of this case because it contains the only allegation involving moral turpitude.

44d3f586a07d21a7f625a529e9f40f3f5b9a1f1ea5ca47ded5445c811dbd2163

1982-03-16T00:00:00Z

108a56e2-ded5-4257-a09e-50da806870a9

1000 Friends of Oregon v. LAND, ETC.

292 Or. 735, 642 P.2d 1158

oregon

Oregon Supreme Court

642 P.2d 1158 (1982) 292 Or. 735 1000 FRIENDS OF OREGON, Petitioner On Review, v. LAND CONSERVATION AND DEVELOPMENT COMMISSION, Respondent On Review. CA 19269; SC 27956. Supreme Court of Oregon, In Banc.[*] Argued and Submitted November 4, 1981. Decided March 30, 1982. *1159 Robert E. Stacey, Jr., Portland, argued the cause and filed the petition and brief. Mary J. Deits, Asst. Atty. Gen., Salem, argued the cause for respondent. On the 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. TANZER, Justice. This is judicial review under ORS 183.400 of a Land Conservation and Development Commission (LCDC) rule[1] amending *1160 Statewide Planning Goal 14, the Urbanization Goal. 52 Or. App. 703, 629 P.2d 831. Goal 14 specifies requirements for local government comprehensive planning for conversion of rural land to urban land. It requires classification of land into two categories, rural and urban. It also establishes a third transitional category, urbanizable land, as that rural land which is most suitable to become urban as needed to accommodate urban population growth. Urban growth boundaries are planning devices which bound areas composed of urban and urbanizable land, separating them from rural land. The terms are defined in the goals: Rural: Urbanizable: Urban: It is the transitional category, urbanizable land, which is most troublesome because it is the focal point of conflict between forces promoting conservation of rural resources and those who desire urban development. Goal 14 is written to assure that the decisions involved in the designation of urbanizable land are guided by consideration of all material aspects of public policy. To that end, Goal 14 specifies a broad range of seven physical, economic and environmental "factors" relating to the need and suitability of land for urbanization which cities and counties must consider when they establish or change urban growth boundaries. The first two factors relate to urban growth needs; the other five relate to broader concerns. The challenged goal amendment is in two parts: It provides that prior to establishment of an urban growth boundary, all land within city limits shall be classified as urban or urbanizable automatically and without need to consider the urban need, physical, economic and environmental factors which otherwise would have to be considered. Second, it allows city limits to be designated as an urban growth boundary if the enclosed land is adequate under the two factors relating to urban need and without regard to the other five factors.[2] If the city area is insufficient to serve urban growth needs, then an area larger than the city may be included within the urban growth boundary by application of Goal 14 generally. Goal 14, in its entirety, with the challenged amendment italicized, provides: Absent the amendment, city limits would have no presumptive effect. The designation of an urban growth boundary would be guided by the seven "factors" of Goal 14, and any other of the 19 statewide planning goals which are applicable because of the use or nature of the land to be included within the boundary. The city limits, while perhaps relevant, would not be determinative. As a clear example, if a city had an estuary within the city limits, it might not be free to include the entire estuary within its urban growth boundary because Goal 16, the Estuarine Resources Goal, severely limits permissible uses within certain areas of the estuary. Or, if a city had agricultural land within its city limits, it could only include that land within the urban growth boundary by applying the "conversion factors" *1162 of Goal 3,[4] the Agricultural Lands Goal, and by following the exception procedures of Goal 2,[5] the Land Use Planning Goal. Other goals might also be applicable. We intend by these examples only to illustrate Goal 14's operation before it was amended. As a result of the goal amendment, land within the municipal boundaries of a city is automatically deemed urban or urbanizable regardless of the actual nature or use of the land. The factors and other goals no longer affect many situations in which they formerly were to be applied. Now, a municipal boundary alone is determinative that the enclosed land is urban or urbanizable without regard to the seven factors of Goal 14 and without regard to the policies of the other goals. That land must be automatically deemed urban and urbanizable wherever the urban growth boundary is ultimately established. If land within the city is not sufficient to satisfy the needs of urban growth population under factors (1) and (2), then a comprehensive plan may designate a larger area to be enclosed by the urban growth boundary, applying factors (3) to (7) as well. If the land within the city is adequate to serve urban growth needs, then the city limits may be designated the urban growth boundary even if the boundary contains far more land than is adequate for need, including unneeded land which would be treated differently if the Goal 14 factors and other goals were applicable. For example, if a substantial area of Class I agricultural land is within city limits, it is automatically deemed urban or urbanizable for inclusion within the urban growth boundary, even though consideration of Goal 14 factor (6) and Goal 3, the Agricultural Goal, would probably require conservation of the land as agricultural. More starkly, if all or part of an estuary is within the city, it would be deemed urban or urbanizable regardless of the prohibition of Goal 16 (although state ownership would probably preclude an inappropriate use, see ORS 274.710). In essence, the amendment adopts a baseline for planning which authorizes cities to plan on the development of all city land regardless of its nature and present use.[6] *1163 The parties agree that the validity of the amendment may be determined as if it were a part of Goal 14 initially, and that is correct. Petitioner challenges the amendment on the ground that it "exceeds its [LCDC's] statutory authority." LCDC counters that it is within its statutory authority. Although they agree that this is the basic issue, however, their analyses are different. Petitioner argues that the effect of the amendment is to exempt land within cities from application of the goals because LCDC's review responsibilities under ORS 197.251(5) are unlawfully precluded. If, for example, a city annexes agricultural land, nobody seeks LCDC review of that annexation as a land use decision, and the land is committed to non-agricultural use, the change becomes an accomplished fact. Later, when LCDC reviews the comprehensive plan for acknowledgment, the goal amendment would authorize inclusion of the annexed land within the urban growth boundary regardless of the application of the other goals and Goal 14 factors. LCDC responds in several steps. First, it argues that petitioner's argument is wrong because, regardless of the amendment, any land use decision can be reviewed for goal compliance upon petition to LCDC. More significantly, it argues that the issue of whether the amendment exceeds LCDC's statutory authority is substantive rather than procedural. There may be procedural effects of the amendment, LCDC argues, but there is no exemption of land from the application of the goals or retreat from responsibility to review for goal compliance. Rather, the applicable goal has been changed. At oral argument, counsel for LCDC synthesized its contention this way: It is not true that LCDC has declined to apply the goals, she argued. Rather, the goals are still applicable but they have been changed. We agree with the substantive framing of the issue by LCDC. A rule (or goal) is within or without the legislative delegation of authority, when adopted. Its lawfulness does not depend upon the existence or the adequacy of procedures for review of specific applications of the rule after its adoption. The rule stands or falls on its content, even though it may have procedural consequences. We consider petitioner's arguments regarding exemption from goal application as they affect the substantive issue. We therefore examine whether LCDC, by goal, can lawfully require local government to make land available for urban development on the sole basis that the land is within a city boundary. Goal 14 was adopted and amended by LCDC pursuant to its general authority to do so under ORS 197.225. The legislature might have enacted permanent goals, but it chose not to. Rather, it enacted broad policies and delegated to a new agency, LCDC, legislative authority to refine and particularize those policies by adoption of land use goals and rules. In Springfield Education Assn. v. School Dist., 290 Or. 217, 229, 621 P.2d 547 (1980), we described the role of the court and the agency in the process of judicial review of an agency exercise of delegated legislative authority: Here, we review to determine if the rule "exceeds the statutory authority of the agency," see ORS 183.400(4)(b). The issue on review is whether it is within LCDC's delegated legislative authority to adopt a statewide land use planning goal which requires local governments to make all land within city limits available for urban development without regard to the use and nature of the land and without regard to the policies of the goals generally. We address the issue by inquiring into the policies which underlie the legislation. Land use planning and regulation in Oregon occurs within a framework enacted in 1973 as Senate Bill 100 which, with some amendments, now appears as ORS ch. 197.[7] The impetus was legislative concern that state intervention was needed to stop a process of cumulative public harm resulting from uncoordinated land use. To stop that threat and to provide for a more satisfactory future, the legislature established our now familiar system of local and state comprehensive land use planning performed in compliance with statewide land use goals adopted by LCDC. The legislative concern and remedy are reflected in the legislative findings and policy statement which preceded SB 100 and, with slight modification, are now codified as ORS 197.005 and 197.010: ORS 197.005: "The Legislative Assembly finds that: *1165 The first legislative finding in particular indicates an intention to put a prompt halt to the threatening consequences of uncoordinated land use, and it is significant that the legislature used the word "threaten" in its present, not future, tense. The threat was stated as a present one, not an anticipated or potential threat. A type of uncoordinated land use pertinent to this case, was the historical process by which municipal boundaries had been designated. Prior to 1973, land might have been initially incorporated within a city or annexed to it for varying political reasons of policy or expediency. For example, City A might have taken a highly conservative approach to annexation to avoid burdening municipal services such as police protection or water or to preserve a homogeneous population or simply as a matter of political intuition. Nearby City B, however, might have expanded aggressively into the countryside to enlarge its tax base, to extend fire protection to a nearby cannery, to serve personal interests or for any number of other reasons. Senate Bill 100 was intended to change the prevailing inconsistent practice of land use decision-making and to substitute a systematic decisional process based on comprehensive consideration of all relevant facts, affected interests and public policies. The reasons for which city boundaries were drawn historically are not necessarily consistent with the policies which, under the legislation, must now be applied for the conservation and development of land. Indeed, land might have been included or excluded from city boundaries for reasons which are entirely contradictory to the procedural and substantive public policies which SB 100 was intended to effectuate. It is inconsistent with the legislative intention to require coordinated land use for LCDC to require that substantial areas of agricultural or other protected land be made available for urban development for the sole reason that the land happens to be within city limits and without regard to social, economic and environmental policies. The alacrity with which the legislature acted is significant. The adoption of goals by LCDC was expected to take time, but land use decisions could not come to a halt. The legislature did not postpone action. It adopted interim statutory goals to guide comprehensive planning and land use decisions until LCDC goals were adopted. By its example in the adoption of interim statutory goals, the legislature indicated the breadth of substantive legislative concerns to be addressed in the administratively adopted goals: The interim statutory goals reflect a legislative intention that land use decisions, even during the transitional period, be based upon consideration of a full range of environmental, conservation, recreational, *1166 agricultural, economic and other substantive legislative concerns. The authority for LCDC to formulate and adopt goals was general, but every indication from the legislative history is that LCDC's concerns were to be at least as comprehensive as those expressed in the interim statutory goals. It is unlikely that the legislature which promulgated such broadly ranging interim goals intended that substantial areas of agricultural lands be made available for urban development for the sole reason that they are within city boundaries. Most of the legislative directives to LCDC were procedural. The legislature did not define "goals," "preferring the definition to be refined in the process of citizen input, commission approval and legislative review." Senate Journal, April 18, 1973, Morning Session (SB 100). Nor did it dictate to LCDC the content of the goals which were to be adopted, but it gave some substantive guidance. Of particular pertinence here, it directed LCDC, in the formulation of goals, to "consider" the existing plans of cities and counties, and to "give priority consideration" to natural resources such as agricultural land. What is now ORS 197.230(1) provides: These statutory requirements for goals demonstrate the high degree of legislative concern that the goals protect agricultural land and the natural treasures of our state. These directions also suggest that the legislature intended that agricultural land not be made available for urban development solely because it is within a city boundary. The statutory definition of "comprehensive plan" also reinforces our perception of the breadth of public policies which the legislature intended be considered in the course of land use planning. A comprehensive plan must take into account such urban needs as sewer and water systems, but also "all functional and natural systems and activities relating to the use of lands" such as "natural resources and air and water quality management programs." ORS 197.015(5) provides: In other words, ORS 197.015(5) requires that a comprehensive plan be truly comprehensive. *1167 This statute is also indicative that LCDC cannot lawfully require local governments to designate agricultural land for urban development without a comprehensive consideration of pertinent public policies. This review of the statutory setting of LCDC's authority to adopt and amend rules leads to the conclusion that LCDC's goal amendment is not authorized by the legislative delegation. The consistent requirement by the legislature in its findings and policy statement, in its interim goals, in the statutory directions for priority consideration by LCDC in its adoption of goals, and in the breadth of definition of "comprehensive plan," is that the full range of affected public interests be considered in the process of comprehensive planning for land use decisions. That requirement is offended by a goal which would make substantial areas of land available for urban development for the sole reason that they are within city boundaries.[8] Also, the finding of uncoordinated land use as a presently threatening process to be dealt with, the alacrity with which the legislature acted in establishing interim goals to avoid damage to the state's resources during the planning process, and the direction in ORS 197.230(1) that LCDC consider existing plans but give priority consideration to various natural resources, all lead us to the conclusion that the legislature did not intend that LCDC goals be drawn to require or tolerate inappropriate future use of land for the sole reason that the land had been included within a city prior to the adoption of the goal. As we discern the intention of the legislation, comprehensive plans must designate future uses of land based upon consideration of all relevant public policies. LCDC asserts that the purpose of the amendment is a practical one, recognizing the planning difficulties of local government. Local governments are not equipped to "go through all the motions" required for planning for use of agricultural land and should not be required to do so "when it doesn't make any sense." ORS ch. 197 does not require LCDC to require cities without substantial areas of agricultural or other protected land to engage in useless planning. Nor does it authorize LCDC to require cities which have chosen to include such lands within their limits to ignore public policies favoring their conservation. We are confident that LCDC can find a more specific means to serve practical needs. For these reasons, we conclude that the amendment to Goal 14 is invalid. Reversed. [*] Tongue, J., retired February 7, 1982. [1] Although LCDC is authorized by ORS 197.040 to promulgate rules in accordance with the Administrative Procedures Act (APA), ORS 183.310 to 183.500, other procedures are specified for the preparation, adoption and amendment of goals. ORS 197.230 and 197.235 to 197.245. It is not clear, and we need not decide, whether the procedures are in lieu of or in addition to APA procedures. In any event, the goals are clearly rules within the meaning of ORS 183.310(7): "`Rule' means any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency." Petitioner has not challenged the amendment for noncompliance with ORS 197.230(1)(c), which provides: "(1) In preparing, adopting and revising state-wide planning goals and guidelines, the department and the commission shall: * * * * * * (c) Make a finding of state-wide need for the adoption of any new goal or the revision of any existing goal." In adopting this amendment, LCDC found that it was needed "* * * to effectuate past Commission policy on the application of the goals inside city limits." This may be a statement of convenience or reason, perhaps occasioned by the decision of the Court of Appeals in Willamette University v. LCDC, 45 Or. App. 355, 608 P.2d 1178 (1980), that an order approving an urban growth boundary was unlawful. It is at least questionable, however, whether it suffices as a "finding of statewide need" for the amendment. See ORS 183.400(4)(c). In any event, because it was not raised, we do not reach the issue. [2] LCDC, in its brief, summarizes the effect of the amendment as: "* * * The amendment revises Goal 14 so as to allow a city and county to establish an existing city limits as an Urban Growth Boundary (UGB) without consideration of certain UGB establishment factors which remain applicable to jurisdictions with UGB's larger than the city limits." Except for the word "certain," that is also an accurate summary. [3] The goal also states planning and implementation guidelines dealing with population needs, air, land and water capacity, financial and regulatory devices, management, etc. The reference in factor (1) to "LCDC goals" is ambiguous. We read the reference to qualify only the determination of urban population growth requirements. We do not read it as a back door requirement for application of all LCDC goals in determining the validity of a city boundary as an urban growth boundary. If that were so, inclusion of the remaining five factors would be redundant. Factor (6), for example, parallels Goal 3. There would be no reason to provide Factor (6) if Goal 3 had already been incorporated by reference to the goal in Factor (1). Similarly, the other factors are the subjects of goals. The drafters could not have intended that governing bodies apply the goals specifically in considering factor (1) and then apply them again generally in applying the remaining factors. [4] Goal 3 provides: "GOAL: To preserve and maintain agricultural lands. "Agriculture lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open spaces. These lands shall be inventoried and preserved by adopting exclusive farm use zones pursuant to ORS Chapter 215. Such minimum lot sizes as are utilized for any farm use zones shall be appropriate for the continuation of the existing commercial agricultural enterprise with the area. Conversion of rural agricultural land to urbanizable land shall be based upon consideration of the following factors: (1) environmental, energy, social and economic consequences; (2) demonstrated need consistent with LCDC goals; (3) unavailability of an alternative suitable location for the requested use; (4) compatibility of the proposed use with related agricultural land; and (5) the retention of Class I, II, III and IV soils in farm use. A governing body proposing to convert rural agricultural land to urbanizable land shall follow the procedures and requirements set forth in the Land Use Planning goal (Goal 2) for goal exceptions." [5] Goal 2 provides: "PART II EXCEPTIONS: When, during the application of the statewide goals to plans, it appears that it is not possible to apply the appropriate goal to specific properties or situations, then each proposed exception to a goal shall be set forth during the plan preparation phases and also specifically noted in the notices of public hearing. The notices of hearing shall summarize the issues in an understandable and meaningful manner. "If the exception to the goal is adopted, then the compelling reasons and facts for that conclusion shall be completely set forth in the plan and shall include: (a) Why these other uses should be provided for; (b) What alternative locations within the area could be used for the proposed uses; (c) What are the long term environmental, economic, social and energy consequences to the locality, the region or the state from not applying the goal or permitting the alternative use; (d) A finding that the proposed uses will be compatible with other adjacent uses." [6] We find this to be the most probable meaning and effect of the amendment. We recognize, however, that it is capable of a partially different construction. The first sentence could be read to apply only to land use decisions made prior to establishment of urban growth boundaries, but not to control the process of establishing the boundary itself. The second sentence could be read to allow all needed land within city limits to be included when establishing urban growth boundaries, but not to require it, leaving the cities free to apply the other factors or not in their discretion. Cf. Willamette University v. LCDC, supra at n 1. If that construction is given the amendment, then the goals applicable to land use decisions made prior to urban growth boundary establishment would differ from those to be applied after. An incremental process allowing pre-acknowledgment land use decisions which would be impermissible if made later or as a part of the comprehensive plan would appear to be inconsistent with the legislative policies discussed in this opinion. [7] Chapter 197 has been amended extensively by the 1981 legislature, Or. Laws 1981, ch. 748, but not in ways which affect this case. References throughout are to the 1981 codification of ORS chapter 197, unless otherwise noted. [8] If the goal amendment is read to require urbanizable status only for land use decisions made prior to establishment of urban growth boundaries as suggested above at n. 6, then, even in that limited way, it would still be contrary to legislative policy.

c23918630debb24264527a222a7717ef97689980343ccc645cc6cefea1c91157

1982-03-30T00:00:00Z

67460914-3ea1-4460-837b-3c53b4b1153c

State Ex Rel. Harmon v. Blanding

292 Or. 752, 644 P.2d 1082

oregon

Oregon Supreme Court

644 P.2d 1082 (1982) 292 Or. 752 STATE ex rel. Darlene Mae Harmon, Plaintiff-Relator, v. Howard J. BLANDING, Circuit Court Judge of Clackamas County, Defendant. SC 28206. Supreme Court of Oregon, In Banc. Argued and Submitted February 9, 1982. Decided March 30, 1982. Joyce J. Cresswell, Oregon City, argued the cause and filed the brief for plaintiff-relator. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for defendant. With him on the brief were David B. Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. TANZER, Justice. This mandamus proceeding arises from termination of pretrial diversion in a criminal case in which the plaintiff-relator is defendant and the defendant here is the circuit judge. The issue in this proceeding is whether, under ORS 135.901, when the district attorney decides to terminate diversion, the court is required to hold a hearing to determine if diversion should be terminated and, if so, the nature of the hearing. Plaintiff was indicted and arraigned in circuit court on a charge of theft. (For convenience, we shall refer to plaintiff as "defendant" when referring to her in the original criminal proceedings.) One month later, defendant, with the advice and assistance of counsel and the district attorney, entered into a "PRE-TRIAL DIVERSION AGREEMENT and ORDER STAYING PROCEEDINGS." Among the many recitals in that document, it recites that it is understood and agreed between the defendant, her attorney and the district attorney *1083 that the criminal proceedings will be stayed for diversion pursuant to ORS 135.881 et seq., that at the end of the diversion period, the defendant may move for dismissal with prejudice upon an affidavit of compliance, which the state may oppose or not. It further recites that the defendant waives her speedy trial rights, regardless of prejudice due to the stay, and she agrees to the use in trial of her admissions and other evidence which might be obtained as a result of the diversion agreement. The agreement then sets out certain conditions, including that defendant will give a statement of the offense detailing her and Ernie Vance's involvement in the offense and she will make monthly reports.[1] The agreement concludes with the signature of the defendant, her counsel and the prosecutor. The appended order stays the proceedings for nine months based upon the agreement of the parties and is signed by a circuit judge. Two months later, the district attorney sent a letter to the circuit court giving the following "NOTICE": The defendant appeared in circuit court and moved "for a hearing on the question of whether she had complied with the diversion agreement."[2] The court granted the motion. After the case was transferred to the defendant-judge for further proceedings, he denied the motion for a hearing. Defendant moved for reconsideration of the denial of a hearing. Her lawyer's supporting affidavit asserted that upon a hearing she would offer evidence that the defendant gave a statement to a detective from the district attorney's office admitting that she had paid money for a tractor she knew was stolen, but denying any culpable involvement by Ernie Vance. The affidavit also asserted Reconsideration was denied and this mandamus proceeding followed. First, plaintiff contends that she is entitled to a hearing on whether she had complied with the diversion agreement because the first order allowing the motion for a hearing had established the "law of the case." She cites R.L.K. and Co. v. Tax Commission, 249 Or. 603, 608, 438 P.2d 985 (1968), in which binding effect was given to "an adjudication of issues which have culminated in a final [judgment or] decree," and Wampler v. Sherwood, 281 Or. 261, 574 P.2d 319 (1978), in which it was held that where the parties acquiesce concerning the law to be applied in a trial, they are foreclosed from attacking the ruling on appeal. This is not such a case. Here, the court, acting through different judges, changed its institutional mind. At the very least, a court is not barred from changing a ruling which it believes to be erroneous if neither party has been prejudiced beyond simply ending up on the losing side of the ruling. Otherwise, motions to reconsider would be less common. Here, the court properly reconsidered its ruling. See Highway Comm. v. Superbilt Mfg. Co., 204 Or. 393, 281 P.2d 707 (1955). Plaintiff's next contention is that a judicial hearing is required by the implications of the diversion statutes, ORS 135.881 to 135.901. On their face, those statutes place the responsibility for offering and terminating diversion in the district attorney. The responsibility assigned to the court is largely passive: the court holds proceedings in abeyance during the course of diversion, dismisses proceedings upon successful completion of diversion or resumes proceedings in the event of termination or unsuccessful completion. ORS 135.886 governs the initiation of diversion. It provides: *1085 ORS 135.891 provides conditions which may be included in a diversion agreement: ORS 135.896 provides that if the parties agree to diversion, "the court shall stay further proceedings for a definite period."[4] ORS 135.901 provides for termination of diversion and for further proceedings following completion or termination: ORS 135.901 gives no support for the contention that the trial court has a mandatable legal duty to decide whether a defendant has complied with a diversion agreement as sought by this alternative writ. The statute specifically assigns authority to the district attorney to find that a divertee has not complied with the diversion agreement. In such case, the statute authorizes the district attorney, not the court, to terminate diversion. The only responsibility assigned to the court is that it "shall resume criminal proceedings" and will take the diversion into account at sentencing, if any. On its face, the statute gives to the district attorney the authority which this plaintiff would have us direct the court to exercise. Plaintiff contends that a different meaning results when ORS 135.901 is read together with ORS 135.891, which provides that She contends that this provision implies a responsibility of the court to act only if it finds the agreement not to have been complied with. Assuming for argument that there is merit in plaintiff's contention that *1086 it is possible to find a "conflict between ORS 135.891 and ORS 135.901," we would be guided by the intent of the legislature in resolving that conflict. The legislative history provided by defendant indicates a legislative intention contrary to plaintiff's reading of the statutes. Diversion in one form or another has always been practiced informally. The 1977 session of the legislature considered several proposals to establish formal procedures for diversion in lieu of completed prosecution. Most consideration was given to House Bill 2247, as proposed by the Governor's Task Force on Corrections, which provided that diversion was to be court administered and supervised. The debate before the House Committee on Judiciary focused on whether diversion should be formalized at all and, if so, whether it should be under the control of the courts or of the prosecutors. Representatives of the judicial branch were unenthusiastic about the prospect of administering the program. Representatives of the prosecution insisted that a diversion program should operate, if at all, under the discretion of the district attorneys without supervision or intervention by the courts. The result was that the court-oriented proposal of HB 2247 was gutted and a prosecution-based proposal substituted. All references to pretermination hearings by either the court or the district attorney were deleted. All references to court orders were deleted. The thoroughness of the change and clarity of the legislature's resolve can be readily seen in a comparison of ORS 135.901 as proposed in HB 2247 and as changed and adopted. The implication is clear that the legislature intended that all decisional discretion (other than sentencing) be vested in the district attorney and that the court simply suspends, resumes or dismisses the proceedings in consequence of the district attorney's decisions. The legislative history does not support plaintiff's request for a circuit court hearing to determine whether she has complied with the diversion agreement. *1088 A more limited hearing may be required by the statutes, however. Although the statutes place decisional responsibility for diversion in the district attorneys, they do not require that trial courts act automatically at the direction of the prosecutors. Under ORS 135.896, the trial court is required to stay criminal proceedings upon agreement of the parties to diversion. It may not resume proceedings unless two events specified in ORS 135.901(1) occur. Under that statute, the trial court has no authority to resume the proceedings unless it is preliminarily established that (1) the district attorney has found that the divertee has not fulfilled the terms of the diversion agreement, and (2) the district attorney has terminated diversion. These are stated as separate events because it is possible for a district attorney to find noncompliance but, nevertheless, for reasons of discretion, continue the diversion program. Similarly, if the district attorney terminates diversion, as he has authority to do, but he has not made a finding of noncompliance, the court would have no authority to resume the suspended proceedings. We do not suggest that a court, when asked to resume proceedings, has decisional authority beyond determining whether it has been established that the district attorney has found noncompliance and has terminated the diversion. Statutory responsibility to make findings regarding failure to fulfill terms of the diversion agreement is assigned solely to the district attorney and not to the court. On the other hand, the statute does not contemplate that the district attorney can make findings without any reasonable basis. The statutory word "find" describes a process of ratiocination rather than mere preference or whim. For a court to determine that a finding has been made, it must determine that the district attorney's act is actually a finding i.e., a determination of fact based upon a reasonable basis, satisfactory and persuasive to the district attorney, to believe the existence of that fact. The court need only determine whether a reasonable basis exists. It need not determine whether the district attorney's basis would persuade the court to come to the same finding, for those decisions are for the district attorney. When the district attorney seeks resumption of proceedings, he must establish that he has made a finding of noncompliance, that there is a reasonable basis for that act, and that he has terminated diversion. The statutes prescribe no procedure for the establishment of these two facts. Obviously, an evidentiary hearing for judicial fact-finding as envisioned by this alternative writ of mandamus is not required, but some lesser procedure adequate for a fair determination of the existence of the requisite facts must be provided. If the district attorney notifies the court and the defendant that he has found noncompliance and has terminated the diversion and the defendant makes no challenge, the court may resume the proceedings without further inquiry. If the existence of findings or termination is disputed, however, the court may follow such procedures as will enable it to fairly determine the existence of the two requisite facts. That may be by submissions or testimony or in some other form appropriate to the nature of the case. We need not prescribe a uniform procedure at this time. We do not address whether the district attorney's procedure whereby he finds facts or terminates diversion is subject to any form of procedural requirements or judicial review for lawfulness. See, e.g., Davis, Administrative Law of the Seventies, ch. 28, 605 (1976). That subject is not raised by a writ of mandamus to the circuit judge.[5] Counsel for the plaintiff, in her commendably zealous and diligent representation, has offered a number of theories in *1089 addition to law of the case and statutory construction for use by the court as a basis for a favorable decision. In view of our disposition of this case, we need not discuss our analysis of each of the theories that she has put forth. A peremptory writ will issue directing the defendant to provide such further proceedings as will enable it to fairly determine, if challenged, whether the district attorney has found that the divertee has failed to fulfill the terms of her diversion agreement and has terminated diversion. [1] a condition to the within Diversion Agreement the defendant agrees as follows: * * * * * * That he will, within thirty days of the date of this Agreement, give to Pat Detloff, Clackamas County Sheriff's Office, a full and complete written statement detailing his participation in the instant offense, that said statement is true and may be offered in evidence against him in any subsequent proceedings without objection on any grounds other than relevance. * * * * * * That he will submit a monthly written report to the District Attorney or Community Corrections (whichever is supervising) regarding his residence address, employment status and status of restitution payments (if any are due). * * * * * * That the defendant will give a truthful and complete statement to Clackamas County Sheriff's Office, forthwith, regarding the involvement of co-defendant, Ernie Vance, and will agree to waive her 5th amendment privilege and testify in behalf of the State at his trial." Some of the confusion as to gender results from use in part of a printed form. We do not mean to approve or disapprove of the forms used in these proceedings. [2] The body of the motion states: "Defendant moves the court for an order directing that a hearing before the court be held to determine whether or not the defendant has complied with the terms of her diversion agreement. "Defendant further moves the court for an announcement on the following questions with regard to such hearing: (1) Who has the burden of proof? (2) What is the standard of proof? (3) In general, what protections are due defendant in such hearing?" [3] Subsection (2) provides the factors which must be considered by the district attorney: "In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider at least the following factors: (a) The nature of the offense; however, the offense must not have involved injury to another person; (b) Any special characteristics or difficulties of the offender; (c) Whether the defendant is a first-time offender; if the offender has previously participated in diversion, according to the certification of the Department of Justice, diversion shall not be offered; (d) Whether there is a probability that the defendant will cooperate with and benefit from alternative treatment; (e) Whether the available program is appropriate to the needs of the offender; (f) The impact of diversion upon the community; (g) Recommendations, if any, of the involved law enforcement agency; (h) Recommendations, if any, of the victim; (i) Provisions for restitution; and (j) Any mitigating circumstances." [4] ORS 135.896: "If the district attorney elects to offer diversion in lieu of further criminal proceedings and the defendant, with the advice of counsel, agrees to the terms of the proposed agreement, including a waiver of the right to a speedy trial, the court shall stay further criminal proceedings for a definite period. The stay shall not exceed 270 days in the case of a defendant charged with commission of a felony, and shall not exceed 180 days in the case of a defendant charged with the commission of a misdemeanor. If the defendant declines diversion, the court shall resume criminal proceedings." [5] At oral argument a question was raised whether the decision of the district attorney to terminate diversion based on his finding of noncompliance with the diversion agreement was an "order" within ORS 183.310(5) and reviewable as such under ORS 183.484. As the parties had not raised or brief this issue and the petition for the writ of mandamus did not demand judicial review under those sections, we do not pursue the question in this opinion. For this reason, plaintiff's post-argument motion to file a supplemental brief on this point was denied.

c4b10ad27b1d6ec28b1ad15a12d0be8621e775775d02822390b9ba8580ae2442

1982-03-30T00:00:00Z

fbd696cb-8bef-4fea-b921-11e5df088fdf

In Re Conduct of Loew

292 Or. 806, 642 P.2d 1171

oregon

Oregon Supreme Court

642 P.2d 1171 (1982) 292 Or. 806 In re Complaint As to the CONDUCT OF Ronald J. LOEW, Accused. OSB No. 80-26; SC 28180. Supreme Court of Oregon, In Banc.[*] Submitted on the Record December 18, 1981. Decided April 6, 1982. PER CURIAM. This is a disciplinary proceeding brought by the Oregon State Bar. The accused is charged with violation of the following Disciplinary Rules of the Code of Professional Responsibility: The Trial Board found the accused not guilty of the first charge (Misconduct) and *1172 guilty of the second two charges (Failing to Act Competently and Representing a Client Zealously). The Disciplinary Review Board found the accused guilty of all three charges. We decide the facts upon the record made by the Trial Board. The charges flow from the accused's representation of a client in a licensing proceeding before the National Transportation Safety Board (NTSB). The client retained the accused to represent him in an administrative hearing to challenge the denial of an upgrading of his pilot's license. The accused performed that responsibility satisfactorily, but the administrative law judge ruled against the client. The client then retained the accused to handle an appeal of the administrative law judge's ruling to the NTSB. The accused filed a notice of appeal dated June 18, 1979. He obtained three extensions of time for the filing of his brief on appeal, the last being to October 1, 1979. The accused never filed the brief. In December, 1979, the NTSB dismissed the appeal because no brief had been filed. Counsel for the Federal Aviation Administration, the adverse party in the proceeding, assured accused she would not object to reopening of the appeal, but no petition for reopening the appeal was filed. From the commencement of the appeal in June, 1979, until August, 1980, when the client terminated accused's representation, the client made about 40 telephone calls to the accused to determine whether the brief had been filed and to urge the accused to do so. Most of the calls reached an answering recorder or the accused's secretary. On each occasion, the client left a request that the accused return the call. On no occasion did the accused do so. The client kept notes of the date and content of each telephone conversation. We need not recite each conversation, but the pattern was similar. The accused consistently said that he was working on the brief, that it will be ready and filed soon ("tomorrow," "Thursday," "weekend," etc.) and that he would send the client a copy. On one occasion, October 24 and 25, the accused told the client that he had finished the brief and had filed it. In his only written reply to the client, the accused wrote on November 27, 1979: In February, 1980, the client hired another lawyer who pressed the accused to petition to reopen the appeal and to file the brief. The accused assured the second lawyer that he would do so immediately. In April, 1980, the Assistant General Counsel of the Oregon State Bar inquired of the accused regarding the client's complaint. The accused wrote back that "I am therefore preparing a petition to the Board to request that it accept the appeal brief." In July, 1980, this matter was before the Multnomah County Professional Responsibility Committee. The accused told an investigating member of that committee that he would promptly file a motion to reinstate the appeal and the brief.[1] In August, 1980, the client sent a registered letter to the accused terminating the relationship and requesting return of the file. The letter was returned unclaimed. The client sent it once more and receipt was acknowledged by the accused's wife who acted as his secretary. The request was not complied with. We find, and the accused does not contest, that he neglected a legal matter entrusted to him in violation of DR 6-101(A)(3). We also find that the accused's conduct constituted misrepresentation in violation of DR 1-102(A)(4). His repeated representations to his client and to others that he *1173 was working on the brief, that he would promptly file it and, on October 25 that he had filed it, and also his representations that he would file a petition to reopen the appeal, accurately represented neither his present conduct nor his intentions as to conduct in the near future. They were intended to mislead the client and the representatives of the Bar so they would not take action which would be appropriate if they knew that the accused was not working on the brief and would not file it and the petition in the near future. We also find that the accused violated DR 7-101(A)(2) by intentionally failing to carry out a contract of employment entered into with a client for professional services. The accused disputes only whether his failure to carry out the contract was intentional. He testified that at all times he intended to serve the client, but was unable to bring himself to actually do the work. The Bar counters that he intentionally did the acts which constituted a failure to carry out the contract and we agree. At some point, the accused's continuing act of omission, extending over a year, could no longer be characterized as procrastination. His failure to act despite the urgings of the client and the client's second lawyer, and despite his own knowledge of his professional duty to act, must be characterized as intentional conduct. As intolerable as the accused's conduct was, the purpose of this proceeding is not to punish him but to restrict his license to practice law to the extent necessary for the protection of the public from future unethical conduct. To that end, we next inquire into the background of the accused and his ethical violations. The conduct described above is uncharacteristic of the accused's practice. His academic performance in law and international relations was impressive. He spent the first 12 years of his practice in governmental employment of high responsibility, handling domestic and international matters of air travel and other transportation. In 1971, he returned to Oregon and entered private practice. We are unaware of any prior blemish on his record. In January, 1980, the accused, acting out of concern for the manner in which he handled this client's affairs, sought psychiatric aid. His psychiatrist testified at the hearing that the accused was suffering from "burnt out syndrome," common to professionals. A common pattern of the syndrome is that a professional person feels obliged to help each person who seeks his help, takes on more work than he can handle, including work he finds unpleasant, and evades such work by procrastination and self-denial.[2] The psychiatrist also testified *1174 that the accused had gained understanding of his problem and was dealing with it constructively. He felt that the accused was more than halfway down the "road to recovery." We conclude that the conduct of the accused was an isolated event caused by emotional difficulties with which he is now dealing effectively. Disbarment is not required for the protection of the public. On the other hand, his conduct is serious enough to warrant suspension. We therefore adopt the recommendation of the Disciplinary Review Board that the accused be suspended. We also conclude that he should repay to the client $500, his retainer for the appeal to the NTSB. We therefore order that the accused be suspended from the practice of law for 30 days from the date this decision becomes final and thereafter until such time as the accused presents satisfactory evidence to this court that he has repaid $500 to his former client and a written statement by his psychiatrist that the accused is sufficiently free of emotional difficulties to competently practice law. Accused suspended for 30 days. Judgment to Oregon State Bar for costs. PETERSON, Justice, concurring. The court's opinion should be required reading for every lawyer, for almost every practicing lawyer becomes involved in situations which create pressures and stresses akin to those which are present in this case. The scenario is not unusual. A strong-willed, competent client (in this case, a retired USAF Lieutenant Colonel). An intelligent, successful attorney, highly trained in the subject matter involved in the matter at hand. An unsuccessful result. Inability of the lawyer to bring himself to do comparatively simple work which he was trained to do and was capable of doing, and which had to be done. And finally, inability of the lawyer to ask for help. Almost every lawyer almost every person, for that matter encounters similar situations at one time or another. The non-lawyer may lose a job. The lawyer may lose a license to practice law. How can the lawyer recognize the danger signals? What should the lawyer do? If a lawyer is in a group practice, opportunity exists for discussing the problem with associates.[1] The sole practitioner sometimes has no ear to bend, no ready assistance and no sympathetic counsel. Of course, the file can be referred to another lawyer. But this case proves that that alternative, for inexplicable reasons, is not always followed. Often it is not. The lawyer-client relationship is a complex one. Lawyers are trained to exclude emotional considerations from their analysis of most cases. Yet relations between a lawyer and a client involve the same type of emotional considerations as in many other interpersonal relationships and require highly developed communications skills. Lawyers must be alert to the emotions involved in practicing law. In a provocative article, Andrew Watson states: Unfortunately, few lawyers are trained to detect the existence of a deteriorating client relationship or to discuss the causes of the problem. Smith and Nester claim that the best place to develop lawyer-client communication skills is in the law school. Id. at 324. Mr. Watson echoes that view: Over the years I have seen a host of intelligent, capable lawyers get into trouble because of their inability to recognize and resolve problems such as faced Loew in this case. I am not trained or skilled in psychological matters. The psychiatrist who testified for Mr. Loew in this case stated, "* * * [O]ne of the behavior skills that [one in Loew's position lacks] is the ability to go to somebody or anyone and ask for help, seek support when you're feeling like you're getting a little bit overwhelmed. * * *" One thing seems to be clear: The lawyer in that situation often is incapable or unwilling to face the problem (courts rarely say which, usually because the record lacks expert testimony such as we have in this case) and has lost the ability to discuss *1176 the problem with anyone, including the client.[2] The problem is complex. The decision as to the appropriate sanction in such cases is more difficult because the lawyer's motivation is different from that of the lawyer who steals or lies to obtain advantage. But the need for protection of the public and integrity in the administration of justice is as great as that which exists in the case of dishonest lawyers. [*] Linde and Roberts, JJ., did not participate in this decision; Tongue, J., retired February 7, 1982. [1] The lawyer testified that the accused told him he had actually filed the petition and the accused denied it. The lawyer was certain in his memory. The accused was adamant that he said only that he was working on it and would file it. We cannot say that the evidence is clearly and convincingly persuasive that there was not a miscommunication in the course of that conversation rather than an intentional falsehood by the accused. [2] The psychiatrist testified in response to the accused's questioning: "A number of things occur when somebody has reached this so call burn out point. They feel fatigue all the time, they have difficulty sleeping, they feel drained, may have an array of physical ailments which occur which are quite real, maybe hospitalized as you were, have memory lapses, impaired concentration, frequently miss deadlines, backlog of work, financial problems, begin to view patients or clients or whatever people you're working with, or you begin to view your work as the enemy and `Oh, my God, here comes another patient, another client', and so on. Rather than someone who is a team member, it's an opponent. "And they represent more trouble to you, you begin to have marital and family problems and a wide variety of chaotic situations begin to develop. So that any situation which presents a challenge that has to be dealt with in a special attentive emotional manner can be viewed as something overwhelming. For example, [the client in this case] who really irritated you. Really irritated you. Would be somebody you'd have to sit down and deal with directly and say, `[Client], I don't like this, I don't think you're behaving appropriately, I don't want to take your case.' That's tough for you to do. You have no good history of doing that very well. So that takes a lot of energy and when you're at the point of burnt out, that kind of behavior is overwhelming and is avoided. So I don't feel your treatment of him was particularly unusual." * * * * * * "[The client] was very annoying to you because of his behavior, his frequent phone calls, his pushing you and essentially sounding as though he was bothering you quite a bit, calling you at home, calling you many times a day and so on. "And since you've never been very effective at setting limits on who you take and who you say no to and who you tell you're mad at, you had some difficulty telling this man that his behavior was making it difficult for you to work for him and that you, in fact, didn't want to work for him anymore. And instead of doing that, you used a fairly popular defense of procrastination and putting it off, sliding it by and all of it not a conscious effort to bury this guy, but more as a denial of your own hostile feelings about him." Incidentally, the accused testified that he did not find the client's behavior excessively aggressive or otherwise improper in any way. The references to the client in the psychiatrist's testimony relate more to the emotional effect on the accused than to the actual nature of the client's behavior. [1] Ronald E. Mallen, in "Legal Malpractice," § 14, 32 (1977) points out: "The interaction between attorneys within a firm can be an important factor in preventing malpractice. Without suggesting a catharsis, it can be helpful for attorneys to share with each other the types of errors they have made, the reasons the errors occurred, and the solutions (if any) which were found. * * *" [2] lawyers and clients are reluctant to engage in mutual discussion about the dynamics of their relationship. This kind of discussion requiring a skill that many lawyers lack has been referred to as `immediacy.' Immediacy as a communicative technique can be useful to both lawyer and client. "A lawyer may find an immediacy discussion useful when he senses that unmentioned thoughts and feelings of the client are affecting the client's behavior and getting in the way of success. Such thoughts and feelings may simply reflect differences of style between the lawyer and the client, or they can result from mistrust. Both lawyer and client may experience interpersonal difficulties and immediacy may be useful in reducing these problems." A. Smith and P. Nester, Lawyers, Clients, and Communication Skill, B.Y.U.L.Rev. 275, 318-319 (1977). (Footnote omitted.) See also, C. Kelso, Conflict, Emotion, and Legal Ethics, 10 Pac.L.J. 69 (1979).

453413cf3ea25abccff696b2573c34abd7d33405393af41130f1e87492e4911c

1982-04-06T00:00:00Z

47d3ce79-6d5c-42c3-b82b-8e5d93bb5f8a

In Re Greene

290 Or. 291, 620 P.2d 1379

oregon

Oregon Supreme Court

620 P.2d 1379 (1980) 290 Or. 291 In re Complaint As to the Conduct of Donald H. GREENE, Accused. No. 78-38; SC 27265. Supreme Court of Oregon. Argued and Submitted December 1, 1980. Decided December 30, 1980. *1380 Thomas E. Cooney, of Cooney & Van Hoomissen, Portland, argued the cause and filed a brief for the accused. Grant V. Mumpower, Portland, argued the cause for Oregon State Bar. With him on the brief was Ronald D. Thom, Oregon City. Before DENECKE, C.J., and TONGUE, LENT, LINDE, PETERSON and CAMPBELL, JJ. PER CURIAM. This disciplinary case involves Donald H. Greene, a member of the Oregon State Bar. Greene is charged with unethical conduct in connection with work performed in a conservatorship in which his then wife was the conservator of the estates of her two minor children from a previous marriage. The Trial Board and the Disciplinary Review Board found Greene innocent of all charges except one. He was found guilty of this charge: The Trial Board recommended that Greene receive a public reprimand.[2] The Disciplinary Review Board recommended a 30-day suspension. In 1964 Greene married Nancy Soderberg, a divorcee with two minor children. He never adopted the children. The children's natural father died in 1967, after which the children received Social Security funds, Veteran's Administration funds and, due to their father's Indian ancestry, considerable funds from the Bureau of Indian Affairs. His wife was appointed as conservator[3] of the estates of her two minor children in 1967, and all legal services were thereafter performed by Greene without charge. Greene and his wife separated in the spring of 1975, and for a short time thereafter he continued to provide these legal services gratis. They were divorced in 1976. In July, 1975, Greene prepared a petition for Mrs. Greene, as the conservator of the children's estate, requesting permission to invest conservatorship funds "in real estate."[4] The real estate involved was her home, owned by her,[5] and she intended to pay off the mortgage on the home (in which she and the children resided) with conservatorship funds. Greene did not advise the court that the investment by the conservator was in property the conservator individually owned. However, Greene prepared, and Mrs. Greene executed, deeds conveying to each child a one-quarter interest in the property. In October, 1975, Greene prepared a petition requesting authority to expend conservatorship funds "to make capital improvements on the real property owned by said wards." The "capital improvements" were for the purchase of carpeting and wallpaper. In fact, the wards owned no more than a one-half interest in the real property. The evidence is without substantial dispute. Greene is an experienced lawyer who has practiced law since 1959. Prior to his admission he worked as a probate clerk in the Multnomah County Circuit Court. Prior to 1975 he had handled "several hundred" guardianships, either as a guardian or as an attorney for a guardian. The two petitions involved in this case were apparently handled as follows. The petition was presented by Greene to the judge ex parte, either in open court or in chambers, or left with a probate clerk. Greene did not recall which method was followed, and there is no transcript of Greene's oral request, if any, for the court order. After the probate judge's verbal approval, the order was given to the judge for signature. Both orders bear the same date as the date the petitions were filed. There is evidence that where court approval was requested involving conservatorship purchase of property owned individually by the conservator, the probate judge would carefully examine the matter. A probate clerk testified that if the ex parte motion had disclosed that the property was owned by the conservator, the judge "would not allow it." Greene admitted that the July petition should have revealed the fact that the conservator was the owner of the property. He testified: We have held that any use of conservatorship funds for a conveyance, purchase, or sale by which the conservator derives a personal benefit is presumptively invalid and voidable. Brown v. Hilleary, 133 Or. 26, 38, 286 P. 593 (1930). Greene should have advised the court that the money was being used to acquire an interest in real property owned by the conservator. Greene is charged with violating ORS 9.460(4) and DR 1-102(A)(4), (5) and (6). ORS 9.460(4) provides: DR 1-102(A)(4), (5) and (6) provide: Greene's lawyer, in his argument to the Trial Board, stated: *1383 The issue is not whether the investment was good or bad, nor whether the court would have authorized it had the court been fully advised, nor whether harm ensued. The issue is whether the failure to advise the court violated ORS 9.460(4) or DR 1-102(A). We view the violation of the disclosure requirements of ORS 9.460(4) and DR 1-102(A)(4) as a serious matter, particularly in the context of an ex parte presentation to the judge. The evidence shows that neither the probate judge nor the probate clerks made much, if any, investigation into the merits of such requests. Our experience has been all judges regularly rely upon the candor, honesty and integrity of the lawyer in handling ex parte matters which are presented to them. Extremely important judicial decisions are often made in probate cases, injunction cases and domestic relations cases on ex parte application of lawyers. Judges must be able to rely upon the integrity of the lawyer. A half-truth or silence can be as much a misrepresentation as a lie, Heise v. Pilot Rock Lbr. Co., 222 Or. 78, 90, 352 P.2d 1072 (1960). In effect, the petitions here involved are half-truths, for they fail to advise the court of very important necessary information-that the property was owned by the conservator. The necessity for complete candor when dealing with the court, particularly in an ex parte context, cannot be overemphasized. We find that Greene intentionally failed to advise the court that the property being purchased was then owned by the conservator. The more difficult question is whether such intentional failure to inform the probate court of the nature of the real estate investment arose because of Greene's ignorance of the necessity for such disclosure or was deliberate. We further find that the failure to properly advise the court was deliberate. Greene had worked as a probate clerk in this very court and he was aware of the need for disclosure to the court when the conservator was using conservatorship funds to deal with herself in her personal capacity. True, the estate suffered no loss, and the preparation of the deeds reflects Greene's insistence upon obtaining adequate security to protect the estate. But the failure to fully advise the court remains. We find that Greene violated ORS 9.460(4) and DR 1-102(A)(4), (5) and (6). His conduct is violative of ORS 9.460(4) because he employed means which were not consistent with truth. His conduct violates DR 1-102(A)(4) because it constituted a misrepresentation which, in turn, "adversely reflects on his fitness to practice law" (DR 1-102(A)(6)) and "is prejudicial to the administration of justice" (DR 1-102(A)(5)). Determination of the appropriate sanction remains. This was a difficult time for Greene. He and his then wife had separated earlier in 1975. Their problems were further complicated due to the serious mental problems of one of the children. Greene remained devoted to his wife and was attempting to assist her in handling her problems. There is no evidence of any bad motive, either by Greene or the conservator. Greene stood to gain nothing by failing to fully disclose the necessary facts in the petitions. There was no loss to either child. Though we find that the omission to advise the court was intentional, we do not find that he designed to gain any unfair advantage. One of the purposes of proceedings such as these is to demonstrate to the public and the Bar that the obligation of a lawyer requires ethical conduct, and that the violation of such obligation is a serious matter. Greene should be, and is, suspended from the practice of law for 60 days.[6] Costs to the Oregon State Bar. [1] The Bar's complaint contained seven counts. We agree that Greene is only guilty of the fourth count, quoted in the text. We therefore will discuss only the evidence pertaining to the fourth count. [2] The Trial Board found: "The trial board finds that Mr. Greene intentionally failed to inform the court of the nature of the real estate investment. * * *" [3] Prior to 1973 different statutory provisions existed for guardianships and conservatorships. Mrs. Greene was originally appointed as guardian of the estates of the two children. Because of amendments to the law in 1973 (1973 Or. Laws, ch. 823), she was called a conservator. Her responsibilities and duties did not change, nor did Greene's. The words guardian and conservator, as used herein, have the same meaning. [4] The text of the petition reads as follows: "COMES NOW Nancy L. Greene, the duly appointed, qualified and presently acting conservator of the above entitled conservatorship estate, and respectfully petitions the court for authority to have Certificate of Deposit no. XXXXXXXXX and savings account no. XXXXXXXXX, both held at the Cedar Hills Branch of Equitable Savings and Loan Association released so that said funds may be invested in real estate. "Petitioner believes and therefore alleges that said investment would be more advantageous to said minors, than to allow the funds to remain where they are presently invested." [5] The Bar was mistaken when it alleged the property was owned by Greene. [6] In reaching this conclusion, we note that this is a "second offense." See In re Greene, 276 Or. 1117, 557 P.2d 644 (1976), reh. den. 277 Or. 89 (1977), which involved misconduct in connection with the handling of a decedent's estate in 1973. The events here involved occurred in July of 1975. His trial on the earlier complaint was in April of 1975 and the Trial Board opinion was handed down late in 1975. It cannot be said that Greene was then definitely aware that his earlier conduct was unethical, and we therefore do not consider it in determining the appropriate sanction. Since that time, as we required in Greene, supra at 1123, 557 P.2d 644, Greene has successfully completed, at our direction, law school courses in Professional Responsibility and Administration of Estates. In some cases we have imposed harsher discipline where a lawyer, after having been disciplined, again violates an ethical standard. Here, the violation did not occur after the earlier discipline, and we therefore decline to impose a more substantial disciplinary sanction, as we would were this a "second offense" in the usual sense. See In re Means, 218 Or. 480, 343 P.2d 1119 (1959).

393da2baed899a8d7338b4733002dbf18cd0d86a65325a32fd470e65716115f1

1980-12-30T00:00:00Z

64fe4ad5-63e8-47ae-8bec-13ae30e6b538

Beveridge v. King

292 Or. 771, 643 P.2d 332

oregon

Oregon Supreme Court

643 P.2d 332 (1982) 292 Or. 771 John W. BEVERIDGE and Shirley A. Beveridge, Husband and Wife, Respondents On Review, v. William D. KING, Sr., Petitioner On Review. CA 16889; SC 27693. Supreme Court of Oregon, In Banc.[*] Argued and First Submitted June 30, 1981. Supplemental Memoranda Filed February 12, 1982. Decided April 6, 1982. James K. Belknap, Portland, argued the cause and filed briefs and the supplemental memorandum for petitioner on review. Gary A. Gluesenkamp, Hillsboro, argued the cause and filed a brief and the supplemental memorandum for respondents on review. LENT, Justice. Plaintiffs commenced this action more than two but less than six years after their cause accrued. The issue is whether the action is barred by the two-year statute of limitations prescribed in ORS 12.110(1): We hold that the cause is not barred. It is not disputed that defendant was a builder of residential homes and that in 1975 plaintiffs entered into a written contract with defendant for the purchase of land and a new house that was under construction by defendant. After defendant purported to have completed construction, plaintiffs moved in and thereafter came to believe that there were numerous "things that had to be completed and fixed" by defendant and so advised him by letter dated September 13, 1976. In their complaint plaintiffs averred that defendant had contracted "to furnish all *333 labor and materials necessary for completing construction of the house," that an implied term of the written contract was that defendant would "construct the house in a workmanlike manner" and that he had "failed substantially to perform under said contract in that he failed to construct such residence in a good and workmanlike manner." Plaintiffs then pleaded some 18 particulars of defendant's alleged failure to perform his contract. Some of the particular complaints were of failure to complete certain work; some complaints were of the use of improper technique; and some complaints were a mixed bag of the first two categories. The damages sought were the amounts of money necessary to remedy the defects alleged. Defendant pleaded an affirmative defense that the action had not been commenced within two years from the date that plaintiffs were aware of "the breach of said contract as set forth in their complaint."[1] Plaintiffs moved for partial summary judgment on the affirmative defense, contending that a six-year statute of limitations governed the case. In a memorandum in support of that motion and filed therewith, plaintiffs cited and quoted ORS 12.080(1) and (3), which provide: Defendant moved for summary judgment, contending that the case was governed by ORS 12.135(1), citing the Court of Appeals' decision in Securities-Intermountain v. Sunset Fuel, 40 Or. App. 291, 594 P.2d 1307 (1979).[3] ORS 12.135(1) provides: The trial court denied plaintiffs' motion, allowed defendant's motion and dismissed the case with prejudice. Plaintiffs appealed, and in their brief in the Court of Appeals both challenged and sought to distinguish the Court of Appeals' decision in Securities-Intermountain. By the time defendant filed his brief in the Court of Appeals, we had decided that ORS 12.135(1) is not applicable to this kind of claim. Securities-Intermountain v. Sunset Fuel, 289 Or. 243, 611 P.2d 1158 (1980). In his brief, therefore, defendant relied upon statements from our opinion and ORS 12.110(1). Considering the case at bar en banc, the majority of the Court of Appeals concluded our decision in Securities-Intermountain was not apposite, held that this action was upon a contract and was governed by ORS 12.080(1), and accordingly reversed. The dissenters in the Court of Appeals believed our decision in Securities-Intermountain required the opposite result. *334 Beveridge v. King, 50 Or. App. 585, 623 P.2d 1132 (1981). We allowed defendant's petition for review, ORS 2.520, 291 Or. 1 (1981), to consider whether some clarification or refinement of our decision in Securities-Intermountain should be undertaken. Having studied what we there said and held, we are still of the opinion that ORS 12.135(1) is concerned with cases involving bodily injuries and physical injury to existing tangible property and has no application to financial losses resulting from inadequate performance or completion of the work or services described in ORS 12.135(1). The claim in the case at bar is not for bodily injury or physical injury to existing tangible property; therefore, the applicable statute of limitations is other than ORS 12.135(1).[4] In Schmauch v. Johnston, 274 Or. 441, 547 P.2d 119 (1976), there was a written contract in which defendants had agreed to build a home for a sum certain, including the price of the lot. There the contract expressly provided that the building "shall be constructed in a good workmanlike manner." Plaintiffs "discovered numerous defects and omissions in the construction of the home." They sought damages in a sum equal to the cost of remedying the defects. In describing the cause of action, we stated: "This is an action to recover damages for breach of contract." 274 Or. at 443, 547 P.2d at 120. Except for the circumstance that the obligation to construct in a workmanlike manner was express rather than implied, the cause in Schmauch was the same as that pleaded in the case at bar. If the cause predicated upon the express obligation was an action to recover damages for breach of contract, it would seem to follow that the cause on the implied obligation is also for damages for breach of contract. Defendant's position, however, is that plaintiffs' cause is really one for damages resulting from alleged negligence of the defendant in performing the services of his trade or calling. He contends that we have previously held that such actions are governed by ORS 12.110(1), citing cases which we have previously discussed at length in Securities-Intermountain v. Sunset Fuel, supra. See note 4, supra. Whatever may be true as to the continuing vitality of those decisions, such as Ashley v. Fletcher, 275 Or. 405, 550 P.2d 1385 (1976); Lindemeier v. Walker, 272 Or. 682, 538 P.2d 1266 (1975); Bales for Food v. Poole, 246 Or. 253, 424 P.2d 892 (1967); and Dowell v. Mossberg, 226 Or. 173, 355 P.2d 624 (1961), as applied to the fact situations which gave rise to them, we do not find them controlling upon the facts presented in the case at bar.[5] *335 In order for the part of ORS 12.110(1) with which we are here concerned to control disposition of an action, two factors must be present: (1) the action must not be one "arising on contract" and (2) the action must be "not especially enumerated in this chapter [12]." Some of the above-cited cases discussed in Securities-Intermountain involved actions for damages which we found to be for negligent "injury to the person," in the words of ORS 12.110(1), and our holding that those cases did not arise on contract and the fact that they were not actions especially enumerated elsewhere in ORS chapter 12 required that they be commenced within two years. The actions against medical practitioners were in that category. In other cases, not involving injury to the person, we found the cases to be for "injury to the * * * rights of another [plaintiff]" in the words of ORS 12.110(1), not arising on contract and not especially enumerated elsewhere in ORS chapter 12. As noted above, the plaintiffs, in support of their motion for partial summary judgment in the trial court, relied upon either ORS 12.080(1) or ORS 12.080(3) as being controlling. In other words, they contend that this is either an action upon contract, express or implied, or an action "for interference with or injury to [an interest of plaintiffs] in real property." If it is either of those kinds of action, it is not governed by ORS 12.110(1), as we have above stated, because the express language of ORS 12.110(1) excludes those categories of actions from its ambit. If we accept, as did the majority of the Court of Appeals, that this is simply an action upon a contract under ORS 12.080(1), the judgment of that court must be affirmed, and the defendant loses. If we assume, as defendant necessarily contends, that it is not an action upon a contract, the defendant can prevail only if this is not an "action * * * for interference with or injury to any interest of another in real property." ORS 12.080(3). The cases upon which defendant relies, other than those dealing with "injury to the person," dealt with what ORS 12.110(1) calls "injury to the * * * rights of another." (Emphasis added) ORS 12.080(3) deals with "injury to any interest of another in real property." (Emphasis added). An action for damages for injury to any interest of plaintiffs in the real property which was the subject of this sale is "especially enumerated" in ORS 12.080(3). Defendant does not take the position that his alleged misperformance injured property that still belonged to him, i.e., injured his own rights in the property; if he did, he could not rely upon ORS 12.110(1), which is concerned with injury to the rights of another. Necessarily, therefore, it is defendant's position that his alleged wrongdoing concerned the rights of another in that property. The only other persons who had any material rights in the real property were the plaintiffs, the contract purchasers of the property. This is because of the doctrine of equitable conversion. The parties to this case are the parties to a contract for the sale and purchase of real property. From the time they entered into an enforceable contract for the defendant to sell and the plaintiffs to buy the real property, the plaintiffs became the beneficial owners of the interests in this real property, and the defendant held legal title as security for the payment of the agreed purchase price. Panushka v. Panushka, 221 Or. 145, 149-50, 349 P.2d 450 (1960). To sum up, defendant cannot prevail here upon any theory that a two-year statute of limitations is applicable. The two-year period prescribed by ORS 12.135(1) is not applicable because of our construction of that statute in Securities-Intermountain v. Sunset Fuel, supra. ORS 12.110(1) is not applicable either because the action does arise on contract or because the injuries here were to the interests of "another" in real property and the action to recover damages for *336 those injuries is especially enumerated in ORS 12.080(3).[6] The judgment of the Court of Appeals is affirmed. [*] Tongue, J., retired effective February 7, 1982. [1] Plaintiffs have not contended that the quoted language from the affirmative defense is a concession that the alleged defects constituted a "breach of said contract." [2] None of the exceptions mentioned in ORS 12.080(1) and (3) are pertinent to decision in this case. [3] Defendant's motion and the trial court decision both antedated our decision in Securities-Intermountain v. Sunset Fuel, 289 Or. 243, 611 P.2d 1158 (1980). [4] We do not believe it profitable again to review the older cases which we discussed in Securities-Intermountain v. Sunset Fuel, 289 Or. 243, 252-259, 611 P.2d 1158, 1163-1167 (1980). That discussion demonstrates that until Securities-Intermountain, at least, there was truth to criticism of our approach to this problem: "In applying the two-year or six-year limitation period, the court has merely settled the specific case at bar, leaving no pattern of precedent for the future." Comment, Tort in Contract: A New Statute of Limitations, 52 Ore.L.R. 91, 97 (1972). To this writer, some of our decisions discussed in Securities-Intermountain seem to reflect too much solicitude for those who injure others by failing to keep their implied promises to perform their trades or callings in a workmanlike manner. Perhaps the best solution would be to start with what, in Securities-Intermountain, we quoted, 289 Or. at 255, 611 P.2d at 1165, note 7, from Ashmun v. Nichols, 92 Or. 223, 234-235, 180 P. 510, 512 (1919). To paraphrase as applicable to a contract to construct a building, I would say: "If the only injury is one directly contemplated by the construction contract, as the decreased value of the premises, the action of the contractee would be purely on the contract." [5] ORS 12.080(3) provides: "An action for waste or trespass upon or for interference with or injury to any interest of another in real property * * * shall be commenced within six years." The underlined language was added to the subsection by amendment in 1973. Bales for Food v. Poole, 246 Or. 253, 424 P.2d 892 (1967), was decided before the 1973 amendment. Ashley v. Fletcher, 275 Or. 405, 550 P.2d 1385 (1976), was commenced after the effective date of the 1973 amendment, but neither party cited the amendment or argued its effect to this court. This court disposed of the case on the authority of Bales for Food, and our opinion in Ashley makes no mention of ORS 12.080(3). It is not necessary for us here to decide whether the 1973 amendment would govern cases such as Bales for Food and Ashley. [6] As we noted in Securities-Intermountain v. Sunset Fuel, supra, the plaintiff in that case did not invoke ORS 12.080(3). See footnote 1, 289 Or. at 246, 611 P.2d at 1160.

1d685c8f1409d6282b434e2f8a0149cda7886003920e7693fd55a3a5feb1affa

1982-04-06T00:00:00Z

1764e815-e9d1-424d-9c37-0268dc014c83

Fellman v. Department of Revenue

292 Or. 569, 640 P.2d 1388

oregon

Oregon Supreme Court

640 P.2d 1388 (1982) 292 Or. 569 Mary C. FELLMAN and Richard Fellman, Deceased, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. TC 1450; SC 27575. Supreme Court of Oregon, In Banc. Argued and Submitted September 4, 1981. Decided February 24, 1982. Barbara Rose, Beaverton, argued the cause and filed the brief for appellant. Ted E. Barbera, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem. Before DENECKE, C.J., and TONGUE[*], LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ. *1389 DENECKE, Chief Justice. The plaintiff taxpayers' attorney[1] filed a complaint in the Oregon Tax Court appealing from an order of the defendant Department after the 60 days prescribed as the time limit for filing by ORS 305.560 had expired. The Tax Court granted the Department's motion to dismiss on the ground that the appeal was barred by the time limitation in ORS 305.560.[2] The taxpayers appealed to this court and we affirm. ORS 305.425(2) provides: The taxpayers contend, and their contention was supported by affidavits filed in the Tax Court, that their failure to file on time was due to the neglect of their attorney. They argue that this entitled them to relief under ORS 18.160. That statute provides: The taxpayers' attorney did not attempt to proceed under ORS 18.160. No motion to the Tax Court was ever made requesting that the order of dismissal be set aside. Even if a motion to set aside the order had been made, the motion should have been denied. The statute has no application to instances in which an order of dismissal was made because a complaint was filed after the statute of limitations had run. The taxpayers also argued that a statute of limitations is not involved, but rather the equitable doctrine of laches. They further contend that pursuant to the equitable principles of laches they should be able to proceed although their complaint was not filed on time because the Department suffered no prejudice because of the late filing. ORS 305.425 provides that the appeal to the Tax Court "shall be an original proceeding in the nature of a suit in equity to set aside such order or determination.[3] Assuming, without deciding, that the doctrine of laches is applicable, we conclude the trial court correctly dismissed plaintiffs' complaint. Laches will bar a plaintiff if there is no reasonable excuse for the late filing. See Dahlhammer and Roelfs v. Schneider, 197 Or. 478, 498, 252 P.2d 807 (1953). The affidavit of the taxpayers' original attorney states no reasonable excuse. The Tax Court was of the same conclusion. The attorney's negligence is imputed to his client. Sekermestrovich v. SAIF, 280 Or. 723, 726, 573 P.2d 275 (1977). Affirmed. PETERSON, Justice, specially concurring. I concur with the opinion of the court except as follows. *1390 The opinion assumes without deciding that because ORS 305.425 provides that appeals to the Tax Court are "in the nature of a suit in equity," the laches doctrine might excuse a late filing under ORS 305.560(1). Laches has nothing to do with this case. The ambiguous provision of ORS 305.425(2) that "* * * the proceeding shall be an original proceeding in the nature of a suit in equity to set aside such order or determination * * *" (emphasis added) is, at most, intended to make applicable to such proceedings substantive and procedural rules of equity. However the "in the nature of a suit in equity" language of ORS 305.425(2) should be construed, it was not intended to affect the 60-day limitations period of ORS 305.560(1). ORS 18.160 has no application to this case because the order from which the taxpayers have appealed was not "* * * taken against [the plaintiffs] through [their or their attorney's] mistake, inadvertence, surprise or excusable neglect." The neglect of the taxpayers' attorney occurred subsequent to the taking of the order. TANZER, J., joins in this opinion. [*] Tongue, J., retired February 7, 1982. [1] The attorney for the taxpayers is not the attorney who represented the taxpayers in the attempt to appeal to the Tax Court. [2] ORS 305.560 provides, in part: "(1) Except for an order, or portion thereof, denying the discretionary waiver of penalty or interest by the department, an appeal from an order of the department on an appeal taken pursuant to this chapter may be taken by filing an original and one certified copy of a complaint with the clerk of the Oregon Tax Court at its principal office at Salem, Oregon, within 60 days after a copy of the order or notice of the order has been served upon the appealing party by mail as provided in ORS 306.805 or within six months after notice of the order has been given to him under paragraph (b) of subsection (1) of ORS 306.805. * * *." [3] No issue was raised concerning Rule 2 of Oregon Rules of Civil Procedure providing: "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."

53aab6c35afb61310b8e513e3a807609b469c68ff760315dc7e8eb541b68e702

1982-02-24T00:00:00Z

0548fb9d-221c-4d2b-9c5e-7138a4950892

Cook v. Employment Division

293 Or. 1, 643 P.2d 1271

oregon

Oregon Supreme Court

643 P.2d 1271 (1982) 293 Or. 1 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. Argued and Submitted November 4, 1981. Decided April 27, 1982. *1272 Tom Steenson, Oregon Legal Services, The Dalles, argued the cause for petitioner on review. With him on the briefs were Amy Veranth, Multnomah County Legal Aid Service, Portland, and Robert A. Payne and David L. Slansky, Oregon Legal Services, McMinnville. On the brief in the Court of Appeals was David L. Slansky, Oregon Legal Services, McMinnville. Stanton Long, Deputy Atty. Gen., Salem, argued the cause for respondent on review. On the brief was Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. On the briefs in the Court of Appeals were James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and James C. Rhodes, Asst. Atty. Gen., Salem. LENT, Justice. We review a decision of the Court of Appeals construing ORS 183.495, which provides: Petitioner initially sought judicial review of an Employment Division order, affirmed by the Employment Appeals Board, ruling that petitioner had actually been self-employed while claiming unemployment benefits, ordering repayment of all unemployment benefits, and additionally declaring petitioner ineligible for an additional period of twenty-six weeks. In the Court of Appeals, the Employment Division conceded that it had no evidence to support the finding that petitioner was self-employed in any but three of the nineteen weeks in question and, therefore, urged that the order be modified accordingly. The Court of Appeals affirmed the Division's order as to the three weeks in question, reversed as to the remainder, and remanded for reconsideration of the twenty-six weeks disqualification. Cook v. Employment Division, 47 Or. App. 437, 614 P.2d 1193 (1980). We denied review, 290 Or. 157 (1980), and the merits of that case are not before us. Petitioner then filed a petition for attorney fees pursuant to ORS 183.495. In Cook v. Employment Division, 51 Or. App. 307, 625 P.2d 668 (1981), the Court of Appeals denied the petition for attorney fees, noting that in a related case, Brown v. Adult and Family Services, 51 Or. App. 213, 625 P.2d 160 (1981),[1] the court had held that attorney fees would be awarded where the agency had acted arbitrarily. The court held that this standard would not apply, being "inappropriate when the agency is attempting to carry out its statutory duty of enforcing the Act it is established to administer." 51 Or. App. at 310, 625 P.2d at 669. The court reasoned that the award of attorney fees might make agencies timorous in undertaking enforcement proceedings. Though recognizing that there might be extraordinary circumstances in which an award of attorney fees might be appropriate, the court held "that as a general proposition an award of attorney fees in agency enforcement proceedings is inappropriate." 51 Or. App. at 311, 625 P.2d at 670. We allowed the petition for review, 291 Or. 151 (1981), ORS 2.520, in order to consider the standard of discretion to be applied by the Court of Appeals in deciding whether or not to allow attorney fees under ORS 183.495. *1273 As we read the opinion of the court below, it strongly implies that even if a state agency acts without a basis in law or fact, the agency will not be held accountable for attorney fees so long as it contends it was attempting to carry out its statutory duty. In almost any case an agency will have a colorable claim that it is acting in furtherance of its statutory mandate. This will always be the case in any situation leading to contested hearings under the Administrative Procedures Act. The effect of this ruling is that attorney fees under ORS 183.495 can be awarded only if the agency cannot offer even a colorable claim that it is operating under its statutory mandate. In justification of such a rule, the Court of Appeals stated that the threat of awards of attorney fees would make agencies timorous in enforcing their statutorily imposed duties. We think that an overstatement. We believe a rule can be fashioned which limits the award of attorney fees to appropriate cases. A rule effectively eliminating attorney fees is unnecessary. The court below concluded that its decision is consistent with the statutory mandate. We disagree. The legislature which enacted ORS 183.495 clearly intended that in some cases there should be attorney fees. Had it felt that enforcement actions should not come under this standard, it could have made such an exemption explicit in ORS 183.495. It did not, and we think the Court of Appeals oversteps its bounds by inserting such an exemption by judicial fiat. The legislature recently reconsidered the question of attorney fees in administrative actions and provided by Oregon Laws 1981, Chapter 871 (now ORS 183.497), for an award of attorney fees where the agency acted without a reasonable basis in law or in fact. Though Oregon Laws 1981, Chapter 871, was enacted after the Court of Appeals ruled in this case and is not directly applicable in this case, we think it shows the on-going view of the legislature on this matter. Again, there is no suggestion that the legislature intended to place agency enforcement actions under a different standard from that applied to other agency actions. We reverse and remand this case to the Court of Appeals for a ruling on the matter of attorney fees on a basis which is consistent with ORS 183.495. [1] See Brown v. Adult and Family Services, 293 Or. 6, 643 P.2d 1266 (1982), also decided today.

80023586ac27faf9e8525e231e2ad10a6ab7b8ee5a73abe0992fdea48744c420

1982-04-27T00:00:00Z

065f108d-7341-4af1-a92f-b28f11e5f185

In Re Conduct of Heath

292 Or. 562, 640 P.2d 617

oregon

Oregon Supreme Court

640 P.2d 617 (1982) 292 Or. 562 In re Complaint As to the CONDUCT OF Nathan J. HEATH, Accused. OSB 81-13; SC 28372. Supreme Court of Oregon, In Banc. Submitted January 14, 1981. Decided February 10, 1982. *618 MEMORANDUM OPINION. The Oregon State Bar's formal disciplinary complaint alleged that the accused was guilty of various violations of the "rules of professional conduct," apparently referring to the Disciplinary Rules of the Code of Professional Responsibility. The first cause of complaint alleged that the accused undertook to represent a client for the purpose of litigation but procrastinated to the point that the client took his case elsewhere. It was alleged that the accused failed to cooperate in turning over to new counsel materials that should have been promptly forwarded and that the accused failed to account properly for money advanced by the client for costs of litigation. The complaint alleged violation of the following Disciplinary Rules: The second cause of complaint alleged that the accused undertook to represent another client in the conduct of litigation, failed effectively to prosecute the case and failed to communicate with the client concerning her case. The complaint alleged violation of the same Disciplinary Rules quoted above. This is the first case to come before us pursuant to Section 37.1, Rules of Procedure Relative to Admission, Discipline, Resignation and Reinstatement. Section 37.1 became effective July 8, 1981. That section provides: A document entitled "PLEA OF NO CONTEST" was filed as response to the formal disciplinary complaint. That document is neither purely a plea of no contest as described in Section 37.1(b) nor a stipulation for discipline as described in Section 37.1(c). Rather, it partakes of the nature and requirements of each to some extent. It does not contain or bear a verification in the form we associate with verification of pleadings, but it does refer to a portion of the writing that the Bar and the accused intended as compliance with the requirement of both subsection (b) and subsection (c) that a plea or stipulation, as the case might be, be verified by the accused. That portion of the writing is subjoined by a jurat, and we deem it sufficient to comply with the requirement that the accused verify the plea or stipulation. We believe that in future cases in which the Bar and the accused desire to dispose of a formal disciplinary complaint under Section 37.1, it would be better to follow the requirements of either subsection (b) or (c) rather than some hybrid, and that verification be in the same form as used in pleadings in courts of this state prior to the effective date of ORCP 17 A. The document does contain the necessary statements described in both subsections (b) and (c). It has been signed by the General Counsel of the Bar, and we assume, although there is no statement to that effect, that the General Counsel reviewed the document as required by subsection (d). The document does indicate that it was "Approved" by the Board of Governors, and from this and the contents of the document we infer that the document was acceptable to the Board of Governors under subsection (d). Further, the document states that the Board and the accused "submit this matter" to the Disciplinary Review Board, and we deem this to be substantial compliance with the requirement of subsection (d) that the plea or stipulation "be submitted by the General Counsel to the Disciplinary Review Board." *620 The Disciplinary Review Board treated the document as a plea of no contest, recommended its acceptance and filed its memorial of that action as required by subsection (d). Pursuant to subsection (e), we have reviewed the document and the recommendation. The designated form of discipline contained in the document is "a refund of a fee and the imposition of a public reprimand." We approve. It appears from the file that the General Counsel of the Bar is satisfied that the accused has already refunded the fee. If it should later be shown to us that he has not done so, we reserve jurisdiction to enter an appropriate order and to take such further action as may be necessary to enforce the order. This opinion shall serve as a public reprimand to the accused for his conduct of which complaint was made. We exercise our discretion under subsection (e) to fix the amount of the Bar's actual and necessary costs and disbursements incurred in this disciplinary proceeding. The amount of costs and disbursements shall be fixed in the same manner as the procedure described in Rule 11.05, Rules of Appellate Procedure. At the time the amount can be fixed pursuant to that procedure, we shall enter an order fixing the amount and ordering the accused to pay that amount to the Oregon State Bar.

4e9a0d4c4487edc195f2560018f033743f22aab2d49c22c1d39a00b649d38232

1982-02-10T00:00:00Z

492e06bd-de46-4fb2-83ae-a92510f19352

State v. Charles

647 P.2d 897

oregon

Oregon Supreme Court

647 P.2d 897 (1982) STATE of Oregon, Respondent On Review, v. Anthony Arnold CHARLES, Petitioner On Review. CA No. 16674; SC No. 28238. Supreme Court of Oregon, In Banc. Argued and Submitted March 4, 1982. Decided June 29, 1982. J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief was Gary D. Babcock, Public Defender, Salem. William F. Gary, Sol. Gen., Salem, argued the cause for respondent on review. With him on the brief was James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. *898 Gen.,[*] and Robert C. Cannon, Asst. Atty. Gen., Salem. ROBERTS, Judge. We allowed review in this case to consider a single issue: under Oregon law, does a defendant, confronted by an assailant using deadly physical force, having an opportunity to retreat in safety, have a duty to retreat, or may he stand his ground and use deadly physical force against the assailant? The facts of this case arose out of a street fight in Eugene which involved defendant and four other individuals; it is not necessary to recite the details. What is significant is that a homicide occurred and defendant was convicted of murder. At trial defendant relied on the defense of self-defense. He requested the following instruction: The court refused to give the requested instruction; defendant claims that was error. Defendant relies on State v. Rader, 94 Or. 432, 443, 186 P. 79, 83 (1919) in which it was held to be error not to give the following instruction. Defendant maintains that the language of Rader establishes that the law of Oregon is one of "no duty to retreat." There is, however, a long line of Oregon cases before and after Rader which can be read to hold that a defendant has a duty to retreat. Confusion is perhaps understandable. The historical development of the question whether one is required to "retreat to the wall" or may stand his ground and defend himself contains many contradictions. One early twentieth century writer reports: The two views have developed concurrently; jurisdictions have simply adopted one rule or the other. According to W. LaFave & A. Scott, Criminal Law, § 53 at 395-96 (1972)[2] the majority of jurisdictions hold that a defender, who was not the original aggressor, need not retreat even if he can do so safely before using deadly force upon an assailant whom he reasonably believes will kill him or do him serious bodily harm.[3] A strong minority holds a defender must retreat before using deadly force if he can do so in complete safety. In 1926 the American Law Institute took a position favoring the "retreat" rule, recognizing it as the minority view. Restatement (First) of Torts § 65(2) (1934); Perkins, Self-Defense Re-examined, 1 U.C.L.A.L.Rev. 133, 150 (1954). Professor Perkins concludes that the concurrent development of the "retreat" or "no retreat" rules is the basis of the current split among jurisdictions. He, likewise, concludes that the prevailing view is a "no retreat" rule, and identifies Oregon as one of the "no retreat" jurisdictions. Perkins, supra, 1 U.C.L.A.L.Rev. at 145, n. 76, citing State v. Rader, supra. However, Oregon cases decided subsequent to Rader have not followed it: there appears to be only a single instance in which it has been cited.[4] On the other hand, no Oregon case has explicitly held that there is a duty to retreat, but cases before and after Rader hold consistently that self-defense is to be justified on the basis of necessity, that is, retreat is excused when the danger to the defendant is so absolute and imminent that there is no possibility of avoiding the conflict with safety. The Oregon legislature has had the opportunity to consider adopting a general rule requiring retreat. The final draft of the proposed 1971 Criminal Code specifically dealt with this subject. It provided: The rule was rejected. The commentary to the proposed code noted that, under the case law as it had developed in Oregon, the statute was probably not necessary. Commentary, Proposed Oregon Criminal Code, § 23 at 23-25 (1970); Commentary, Oregon Criminal Code of 1971 § 23 at 22-24 (1975). Oregon case law, then controls the subject, and we turn now to a review of that case law. *900 In State v. Porter, 32 Or. 135, 157, 49 P. 964, 970 (1897) this court found no error in an instruction stating that the danger justifying self-defense "must be absolute, imminent, and unavoidable, or the defendant must, from all the circumstances, have honestly believed it to be so." State v. Gibson, 43 Or. 184, 73 P. 333 (1903) lays down guidelines for various self-defense situations. See infra note 3. Where the attack is without deadly force, "[t]he right of self-defense being founded upon necessity, the party who would invoke it must avoid the attack, if he can do so without danger or peril to himself." Where the defendant provoked the attack, he must withdraw and Where the assault is without provocation, and Soon after Rader, in State v. Butler, 96 Or. 219, 242-43, 186 P. 55, 60-61 (1920), overruled on other grounds, 260 Or. 416, 490 P.2d 491 (1971), the following instruction was found to be without error: In State v. Holbrook, 98 Or. 43, 71, 188 P. 947, 956 (1920), reh den 98 Or. 43, 192 P. 640 (1920) second reh den 98 Or. 43, 193 P. 434 (1920), defendant objected to an instruction which stated: Defendant there argued that the use of the word "absolutely" required him to establish with mathematical certainty his claim of self-defense. Relying on Porter, supra, which upheld the use of the word "absolute", we said, "[t]he measure of proof required of [defendant] in such a case is not mathematical demonstration, but enough merely to raise a reasonable doubt of his guilt in the minds of the jurors." 98 Or. at 72, 188 P. at 956. The Holbrook instruction was upheld. State v. Banks, 147 Or. 157, 32 P.2d 571 (1934) also allowed the use of the word "absolutely", relying on Porter, supra, and Holbrook, supra. The challenged instruction in Banks stated: The relationship of "necessity" to "duty to retreat," outlined in the Court of Appeals opinion in this case,[5] was hinted at by this court in State v. Barnes, 150 Or. 375, 382, 44 P.2d 1071, 1079 (1935). The challenged jury instruction in that case stated: The defendant challenged this instruction, saying that it improperly implied a duty to retreat if opportunity was available. The court said: Barnes, however, rules out the notion that Oregon adheres to a "no retreat" rule, making it clear that there are some situations in which retreat will be required. In State v. Joseph, 230 Or. 585, 371 P.2d 689 (1962) the issue again was whether the jury instruction given implied a duty to retreat. The defendant objected to an instruction which said: This court responded, using language similar to that in Barnes: It appears, taking the instruction and the court's comment together, that the court found the jury could not have inferred a duty to retreat given the facts of the case.[6] The court noted that the language of the instruction was similar to that of instructions approved in Porter, Holbrook and Butler, all supra.[7] According to two authorities, the rationale for the "no retreat" rule is based on a policy against making men act as cowards and experience the humiliation of ignominiously running from a physical encounter.[8] This court expressly rejected that policy in State v. Nodine, 198 Or. 679, 714, 259 P.2d 1056, 1071 (1953), stating: "[a]ny civilized system of law recognizes the supreme value of human life, and excuses or justifies its taking only in cases of absolute necessity." This language from Nodine was cited in State v. Joseph, supra. It is clear, therefore, that the standard for self-defense in Oregon has always embraced the concept of "retreat" as part of the larger concept of necessity, i.e., the imminence and gravity of the threat posed to a defendant in a particular fact situation. This was noted by the Court of Appeals in its opinion, 54 Or. App. 272, 280 n. 3, 634 P.2d 814, 818 n. 3. As a result, this court has never laid down an absolute rule endorsing *902 either "retreat" or "no retreat" as the rule in Oregon, as noted previously in this opinion. The duty has depended upon the threat posed and the facts of each case. Putting aside for a moment the question of whether the law of Oregon requires the defendant in this fact situation to retreat before using deadly force in his defense, we examine whether State v. Rader, in fact, stands for the clear "no retreat" rule which defendant suggests it does. Part of the instruction requested in Rader stated "I instruct you that when a man is where he has a right to be, retreat is not necessary * * *." 94 Or. at 443, 186 P. at 83. (Emphasis supplied.) The facts in Rader make that part of the instruction particularly significant. Defendant's father owned the premises where the homicide occurred. Defendant had served notice on the deceased to quit the property, and had attempted to collect money due from him. On the day of the homicide defendant went on the property and into the house. He asked deceased, "What are we going to do about this business"? and the latter answered, "I ain't going to do a damn thing about it," picked up a pan that was on the stove and slammed it on a bench. A struggle ensued. A third person came to the aid of defendant and was dragging him from the house when the deceased attacked defendant again. Defendant then shot and killed the deceased. Although the Rader court did not analyze the case in terms dealing with a defendant's right to be where he is when the homicide occurs, it concluded This language from Rader makes two things clear: The continuing Oregon rule that self-defense is founded upon necessity, and that there is an exception to a duty to retreat situation when a defendant is where he or she has a right to be. The language relied upon from Gray is as follows: It is well established that one is not required to retreat if he is in his "castle." State v. Robinson, 42 Del. 419, 36 A.2d 27 (1944); Watkins v. State, 197 So. 2d 312 (Fla. 1967); People v. McGrandy, 9 Mich. App. 187, 156 N.W.2d 48 (1967); People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914); Commonwealth v. Fraser, 369 Pa. 273, 85 A.2d 126 (1952); State v. Preece, 116 W. Va. 176, 179 S.E. 524 (1935). Rented or temporarily occupied rooms have been included in this concept of "castle," Thomas v. State, 255 Ala. 632, 53 So. 2d 340 (1951); State v. Sorrentino, 31 Wyo. 129, 224 P. 420 (1923), and in some instances also the grounds surrounding the premises. Bowen v. State, 217 Ala. 574, 117 So. 204 (1928); Naugher v. State, 105 Ala. 26, 17 So. 24 (1894); but see Lee v. State, 92 Ala. 15, 9 So. 407 (1891). The "castle" concept has been enlarged to include a person's place of business or employment, Foster v. Territory, 6 Ariz. 240, 56 P. 738 (1899); State v. Baratta, 242 Iowa 1308, 49 N.W.2d 866 (1951); State v. Gordon, 128 S.C. 422, 122 S.E. 501 (1924); but see State v. Davis, 214 S.C. 34, 37, 51 S.E.2d 86, 87 (1948) finding self-defense justified if a person is "on property owned or lawfully occupied by him," but not on the specific facts of that case when the defendant, at the time of the homicide, was at his place of employment, an open field, for a purpose unrelated to his employment. Except for the language in Davis relating to property ownership, we find no case similar to Rader, in which defendant's claim to being rightfully on the premises was that he was on business for his father, who *903 owned the premises. The language in Rader respecting the doctrine of retreat when a man is where he has a right to be, however, rather than standing for an all-encompassing "no retreat" rule, as defendant and Professor Perkins have suggested is the law in Oregon, simply provides that the victim of an attack is, in some instances not required to retreat when he is in his "castle" or a similarly legally recognized place. See also State v. Gibson, supra. Thus Rader is not the aberration suggested, but simply recognizes an exception to the general retreat-type "necessity" rule which, we now conclude, this court has consistently adopted by stating that the danger justifying self-defense be "absolute, imminent, and unavoidable" (Porter), that "the necessity of taking human life is actual, present, urgent" (Butler), that "the killing is absolutely or apparently absolutely necessary" (Holbrook and Banks), that there was no "reasonable opportunity to escape and to avoid the affray" (Barnes) and that "there was no other means of avoiding or declining the combat" (Joseph). Whether the Rader exception is still valid we need not decide under the facts of this case. Having held that Rader does not present a general "no retreat" rule and that the Oregon cases require a defendant in a situation such as this to avoid the threatened danger where it is possible to do so without sacrificing his own safety, we hold it was not error for the trial court to refuse to give the instruction requested by defendant. Affirmed. [*] Sol. Gen. at the time brief was filed. [1] The court in Rader, supra, specifically relied on State v. Gray, 43 Or. 446, 454, 74 P. 927, 930 (1904) which held that the following instruction should have been given: "It is not necessary that the assault made by the deceased at the time upon the defendant * * *, if you find that an assault was made, should have been made with a deadly weapon. An assault with the fist alone, if there was an apparent purpose and the ability to inflict death or serious bodily injury by the deceased upon the defendant * * *, is sufficient to justify the killing in self-defense, if the defendant * * *, at the time he shot and killed the deceased, had reason to believe and did believe that he was in imminent danger of death or great bodily harm at the hands of the deceased." [2] See also Beale, Retreat from a Murderous Assault, 16 Harv.L.Rev. 567 (1903); Beale, Homicide in Self-Defense, 3 Colum.L.Rev. 526 (1903). [3] The question of whether one is required to retreat arises, in fact, only in a situation in which the alternative is to use deadly force to repel an attacker. There is no obligation on the part of an innocent person to retreat rather than use nondeadly force in his defense. People v. Katz, 263 App.Div. 883, 32 N.Y.S.2d 157 (1942); State v. Gough, 187 Iowa 363, 174 N.W. 279 (1919); and see Perkins, Self-Defense Re-examined, I U.C.L.A.L.Rev. 133, 136 (1954). [4] In State v. Shumway, 44 Or. App. 657, 663, 607 P.2d 191 (1980) aff'd 291 Or. 153, 630 P.2d 796 (1981), the Court of Appeals said: "Defendant argues that retreat is not a necessary element of self-defense under Oregon law, at least when the killing occurs in the dwelling of the person claiming to have acted in self-defense. (State v. Rader, 94 Or. 432, 186 P. 79 (1919)), * * *." The Court of Appeals, however, rejected reliance on Rader. It said the language in the instruction objected to by defendant was substantially similar to language approved by this court in State v. Joseph, 230 Or. 585, 371 P.2d 689 (1962) and State v. Barnes, 150 Or. 375, 44 P.2d 1071 (1935). [5] "It appears that the subject of retreat is adequately and neutrally covered by a general instruction to the effect that the use of deadly force in self-defense is justified only when apparently necessary to prevent the imminent infliction of death or great bodily harm upon the assailed. See State v. Gray, 43 Or. 446, 455, 74 P. 927 (1904); State v. Smith, 43 Or. 109, 116, 71 P. 973 (1903). * * *" 54 Or. App. 272, 280 n. 3, 634 P.2d 814, 818 n. 3. [6] Defendant in Joseph claimed the victim was attacking him with a knife; the court, in approving the instruction, said "the jury could not have doubted its duty to acquit defendant if defendant's testimony was to be accepted at face value." 230 Or. at 592, 371 P.2d at 692. [7] Because the exact wording of jury instructions is a matter left to the trial judge, this court's opinion cannot be read to approve or require certain instructions in any case; we can only say whether it was error to give, or refuse to give, specific instructions in a given case. [8] See W. LaFave & A. Scott, Criminal Law, § 53 at 395; Perkins, supra, 1 U.C.L.A.L.Rev. at 160-61.

5e8d64dc3b6a178b3931bb32b4ca2dbd8d0820fc2503fa625340143e8141a718

1982-06-29T00:00:00Z

8b250ce3-8d7a-45c2-81b5-5c80b6203ce2

Department of Revenue v. McCann

293 Or. 522, 651 P.2d 717

oregon

Oregon Supreme Court

651 P.2d 717 (1982) 293 Or. 522 DEPARTMENT OF REVENUE, State of Oregon, Respondent, v. Gene M. McCann, Appellant. TC 1509; SC 27971. Supreme Court of Oregon, In Banc[*]. Argued and Submitted February 10, 1982. Decided September 28, 1982. Barbara J. Rose, Portland, argued the cause and filed the brief for appellant. Walter J. Apley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem. LENT, Chief Justice. Defendant appeals from the issuance of a peremptory writ of mandamus by the Oregon *718 Tax Court directing him to file Oregon personal income tax returns for the calendar years 1976 through 1979 inclusive. He contends that the issuance of the writ was error in that (1) there exists an adequate legal remedy, (2) there is insufficient evidence to justify the writ, and (3) compliance with the writ may necessitate incriminatory disclosures in violation of his Fifth Amendment right against self-incrimination. We try the cause "anew upon the record." ORS 305.445 and 19.125. Defendant is an Oregon resident and the operator of a small business, Gene's Carburetor & Electric, in Beaverton. He filed Oregon income tax returns in 1974 and 1975 but has not done so since. In 1980, the Oregon Department of Revenue (department) sent letters to defendant, demanding that he file income tax returns for the years 1976 through 1979. ORS 314.370. The letters contained the following statement: When defendant failed to comply or respond, the department petitioned the tax court for a writ of mandamus to compel him to file as requested. ORS 314.365. The court issued an alternative writ, directing him to either file or show cause why he had not done so. Defendant still refused to comply and, after the show cause hearing, the tax court issued the peremptory writ of mandamus challenged here. Defendant's first contention is that the tax court was without authority to issue the writ inasmuch as the department has adequate administrative and legal remedies. In particular, defendant cites ORS 305.265(9),[1] which allows the department to make an estimation of a taxpayer's tax liability and so assess him where such taxpayer has failed to file a return. As a general rule, a writ of mandamus is not to be issued where there is a "plain, speedy and adequate remedy in the ordinary course of the law." ORS 34.110; Sexson v. Merten, 291 Or. 441, 445, 631 P.2d 1367 (1981). The writ of mandamus here, however, was not issued pursuant to the general mandamus statutes (see ORS 34.110 et seq.), but pursuant to a special statute providing for writs to compel taxpayers to file returns. ORS 314.365. That statute provides, in relevant part: The general statute governing writs of mandamus, ORS 34.110, not only conditions the issuance of such a writ on the absence of "a plain, speedy and adequate" legal remedy, it also provides only that "[a] writ of mandamus may be issued * * *" (emphasis added), indicating that Buell v. Jefferson County Court, 175 Or. 402, 408, 152 P.2d 578, 154 P.2d 188 (1944). In contrast, the statute upon which the writ at issue here was based, ORS 314.365, does not condition use of the writ on the absence of an adequate legal remedy and directs that the tax court "shall issue" the writ upon the department's petition. We conclude, from a comparison of these two statutes, that the legislature did not intend that the issuance of writs of mandamus pursuant to ORS 314.365 be discretionary with the Tax Court or that issuance be conditioned on the absence of an adequate legal remedy. Accordingly, defendant's argument on this point is without merit. See Dept. of Rev. v. Rombough, 293 Or. 477, 650 P.2d 76 (1982). Defendant's second contention is that there was not sufficient evidence to justify issuance of the peremptory writ. At the show cause hearing on the alternative writ, the only evidence adduced in support of the writ was that defendant had filed Oregon personal income tax returns in 1974 and 1975 and that he is, and has been since that time, operator of a small business in Beaverton; ownership of the business was not established. Defendant produced neither witnesses nor evidence on his own behalf. The tax court concluded that the department "has complied with all the necessary conditions to require production of the defendant's" requested returns, that it had "shown good cause for the issuance of the alternative writ of mandamus," and that defendant had failed to comply with the alternative writ by producing the returns or showing good cause why he need not comply. Defendant argues that the department and the tax court have effectively and improperly placed the burden upon him to prove that he is not a taxpayer subject to Oregon income tax. The statutes upon which the department's demand for the filing of returns and the tax court's mandamus are based, ORS 314.370 and 314.365, respectively, employ the word "taxpayer." That term, for purposes of these two statutes, is not further defined. The "personal income tax" chapter (ORS Chapter 316), the one applicable here, defines "taxpayer" as, inter alia, "any person * * * whose income is in whole or in part subject to the taxes imposed by this chapter * * *." ORS 316.022(6). ORS 316.362 specifies those resident and nonresident individuals, estates, and trusts which are required to file annual returns under ORS Chapter 316; subsection (6) provides: In addition, ORS 314.370, the statute pursuant to which the department demanded that defendant file the requested returns, provides that the department may demand a return with regard to a taxpayer's income "whether or not [it is] taxable under the provisions of the applicable tax law." The legislature evidently intended that where the department determines that an individual or entity may have earned income taxable under ORS Chapter 316, it can require the person or entity to file a return listing all income received. Although the statutes do not so specifically provide, we conclude that if the putative taxpayer chooses to refuse to comply and the department is able to establish a reasonable basis for its demand, the burden will be upon him to establish that the demand is baseless, i.e., that he is not subject to Oregon's personal income tax laws. Orderly and efficient administration of the tax laws necessitates the voluntary compliance and cooperation of this state's citizens. Defendant's contention that the department should be required to prove that he has earned taxable income and the amount of his tax liability before it can demand the filing of a return, although perhaps not unreasonable when viewed in *720 the abstract, is without merit when viewed in context. In a state such as Oregon with a large number of taxpayers, many of whom have complex financial situations, just a few recalcitrants could effectively paralyze the department's administration of the tax laws if the system were as envisioned by defendant. There is evidence that defendant had income in 1974 and 1975, that he has operated a business in the ensuing years in question and that the business appeared to have customers who have had work performed at that place of business. We hold that the evidence presented by the department was sufficient to justify its demand that defendant file the requested returns and that defendant's failure either to comply with the demand or to offer any substantial reason for his failure to do so justified the issuance of the peremptory writ of mandamus. Defendant's final contention is that mandamus cannot be employed to compel a person to file a late tax return where the information disclosed on the return could be used against the person in a criminal prosecution for failure to file a return. Defendant argues that compliance with the writ, coerced by the threat of a contempt sanction, may result in incriminatory disclosures (i.e., that he had had income subject to tax during the past years) in violation of his Fifth Amendment right against self-incrimination.[2] ORS 314.075 provides that "[n]o person * * * shall, with intent to evade any requirement of any law imposing taxes upon or measured by net income or any lawful requirement of the department thereunder: (1) Fail to pay any tax or to make * * * any return or to supply any information required * * *." Violation of this statute is punishable as a Class C felony and subjects the taxpayer to a $1,000 fine. ORS 314.991(1).[3] Defendant's dilemma is that if he fails to comply with the writ he may be punished for contempt, but if he complies by filing returns disclosing that he did in fact have tax liabilities for the years in question, he would be disclosing information which may be used by the department in a prosecution against him pursuant to ORS 314.991(1). As a general matter, compelling the filing of tax returns for past years through use of a writ of mandamus does not of itself violate a taxpayer's Fifth Amendment rights. Dept. of Rev. v. Greaves, 289 Or. 511, 614 P.2d 100 (1980), cert. den. 449 U.S. 1112, 101 S. Ct. 921, 66 L. Ed. 2d 840 (1981). Broad and unspecific claims that filing a return might be self-incriminatory are insufficient: Dept. of Rev. v. Rombough, supra, 293 Or. at 481, 650 P.2d 76 (citations omitted). Further, in Greaves we held that the Fifth *721 Amendment cannot be relied upon to justify a complete refusal to file a return; the privilege must be exercised specifically as to particular questions. 289 Or. at 514, 650 P.2d 76.[4] Thus, defendant's assertion of his Fifth Amendment privilege is premature. The judgment of the Oregon Tax Court is affirmed. [*] Chief Justice Denecke retired June 30, 1982. [1] ORS 305.265(9) provides: "In the case of a failure to file a report or return on the date prescribed therefor (determined with regard to any extension for filing), the department shall determine the tax according to the best of its information and belief, assess the tax plus appropriate penalty and interest, and give written notice of the determination and assessment to the person required to make the filing. The amount of tax shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be lawfully claimed upon the return." Defendant does not explain how the department is to make an assessment under this statute when he has failed to file returns for several years and has ignored repeated requests from the department for information. The department does have broad subpoena power (ORS 305.190), but even assuming arguendo that inadequacy of legal remedies is a condition of issuing the writ of mandamus here, it is questionable whether ORS 305.265(9) is an adequate alternative remedy in the situation presented. [2] The United States Constitution, Amendment V, provides in relevant part: "[N]or shall [any person] be compelled in any criminal case to be a witness against himself * * *." Defendant makes no argument under the Oregon Constitution. See Oregon Constitution, Article I, Section 12; Department of Revenue v. Greaves, 289 Or. 511, 513-514, 614 P.2d 100 (1980), cert. den. 449 U.S. 1112, 101 S. Ct. 921, 66 L. Ed. 2d 840 (1981). [3] See also ORS 305.265(12) and ORS 314.400, which provide for interest and civil penalties for underpayment of taxes due, and 26 U.S.C. §§ 7201 et seq., the federal Internal Revenue Code provisions imposing criminal penalties for failure to properly file required federal tax returns. [4] The federal courts, in reference to the federal Internal Revenue Code, have uniformly held that although the Fifth Amendment is applicable in the tax area, the privilege against self-incrimination does not justify an outright refusal to file any income tax return at all. United States v. Sullivan, 274 U.S. 259, 47 S. Ct. 607, 71 L. Ed. 1037 (1927); United States v. Neff, 615 F.2d 1235, 1238-1240 (9th Cir.), cert. den. 447 U.S. 925, 100 S. Ct. 3018, 65 L. Ed. 2d 1117 (1980).

7ab95df3225563c21a1d49cad56455b2c10f3cacbb868f504bf71dfa193de5cf

1982-09-28T00:00:00Z

e6e76fb3-cdfc-4445-ac93-bc59c249d01b

State v. Carson

292 Or. 451, 640 P.2d 586

oregon

Oregon Supreme Court

640 P.2d 586 (1982) 292 Or. 451 STATE of Oregon, Petitioner On Review, v. Frank Wesley CARSON, Respondent On Review. No. CA 17606; SC 27943. Supreme Court of Oregon, In Banc. Argued and Submitted October 5, 1981. Decided February 3, 1982. James E. Mountain, Deputy Sol. Gen., Salem, argued the cause for petitioner. With him on the brief was Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. *587 James L. Susee, Salem, argued the cause for respondent. With him on the brief was Allen, Stortz, Barlow, Fox & Susee, Salem. CAMPBELL, Justice. Defendant was convicted of attempted manslaughter in the first degree under an indictment for attempted murder.[1] The issue for decision is whether the evidence of extreme emotional disturbance was sufficient to justify giving the state's requested jury instruction on attempted manslaughter in an attempted murder prosecution. Defendant appealed to the Court of Appeals alleging the following assignments of error: The circuit court erred in giving instructions that were both contradictory and confusing; the instructions on Attempted Manslaughter were error in that the concept of extreme emotional disturbance applies only to consummated intentional homicides and in that there was insufficient evidence to establish the existence of extreme emotional disturbance. The Court of Appeals reversed and remanded for a new trial on the ground that there was no evidence of extreme emotional disturbance, therefore the jury instruction on attempted manslaughter was improper. 52 Or. App. 55, 627 P.2d 514. Because of its result, the Court of Appeals did not reach defendant's other assignments. We allowed the state's petition for review. Defendant lived in a trailer home beside a motel near Gates, Oregon. An Oregon State Policeman named Richard Tenderella moved into the motel to operate undercover. His task was to investigate recent burglaries in the area, specifically the theft of a .44 magnum handgun from the motel, and, to that end, to befriend defendant and his brother. On August 23, 1979, defendant sat outside his trailer. With him were defendant's brother, his brother's wife, their two children, aged one and two, and defendant's girlfriend. Tenderella walked by with a .38 handgun and a sixpack of beer. Defendant asked for and received a beer from Tenderella. Tenderella went into the woods and fired the .38 handgun until told to stop by the motel manager. Tenderella put the .38 handgun in his car, visited with the group outside defendant's trailer until the beer had been consumed, and then volunteered to go to town for more beer. He returned with a case of beer, which the party completely consumed. Various topics were discussed by defendant and Tenderella, among them was the subject of a gun trade for *588 Tenderella's .38 handgun. Tenderella was hoping that defendant would mention the possibility of a trade for the stolen .44 magnum handgun. During the course of the conversation, Tenderella got the .38 out of the trunk of his car, simultaneously concealing a .45 handgun in the small of his back under his shirt. He gave the .38 to defendant and defendant fired two shots in the air. Defendant's testimony showed that Tenderella was behaving in a drunken manner by this point in the interaction. At one point Tenderella fell off the bench he was sitting on. There was testimony to the effect that Tenderella's speech was slurred and that he was "slobbering." Tenderella said that the .38 was a "hot gun," meaning stolen, but that the owner was dead and that defendant should not be concerned about possible tracing of the gun. He also mentioned that there were warrants out for his arrest in Portland. At one point Tenderella picked up a knife from the table and threw it into a nearby tree. Defendant testified that he was sufficiently alarmed by Tenderella's behavior that, when Tenderella went out behind the trailer to relieve himself, defendant took the .38 into his trailer and concealed it in a drawer. After a while, Tenderella noticed the absence of the .38 and requested its return. Defendant told Tenderella that the gun was in a safe place. Tenderella became belligerent and demanded the return of the .38 several times. Finally, Tenderella jumped up, called defendant an obscene name and pulled out the concealed .45 handgun. He began waving it wildly in the air, pointing it at defendant. Defendant retreated into the trailer. Defendant's girlfriend rushed up to Tenderella and attempted to get him to put the .45 away. Tenderella hit her, pushed her away, and pointed the gun at her, all the while addressing obscenities to her. She was screaming "He's got a gun, Frank." Tenderella also pointed the gun at defendant's brother, cautioning him not to move or "I'll blow you away." Defendant saw and heard all this from his position inside the trailer. Tenderella fired the first shot, wildly demanding the return of his .38. Defendant threw the .38 out the trailer door, loaded his shotgun with buckshot and shot into the ground to frighten Tenderella into leaving. Tenderella returned fire at defendant whereupon defendant fired into the truck in front of Tenderella, about 15 feet from the trailer. More shots were fired, none of which hit anyone. Defendant's family and girlfriend testified at length to their fright during the exchange of gunfire and as a result of Tenderella's conduct, particularly for the small children in the immediate area of the firing. We focus on circumstantial evidence to decide this case since there was no direct evidence of extreme emotional disturbance at the time of the shooting.[2] According to defendant's evidence, Tenderella did not identify himself as a police officer at any point in the confrontation. Defendant learned that Tenderella was a police officer only after his girlfriend went to the motel office to call the police about the "maniac" creating a disturbance in the *589 area. At that point she was restrained by Tenderella, who told her he was a police officer. She then shouted to defendant that Tenderella was an officer. Defendant, his brother and his girlfriend were arrested for attempted murder. The latter two charges were later dropped. Defendant was also charged with being an exconvict in possession of a firearm.[3] At trial, the jury was instructed on attempted murder, former ORS 163.115, and also on attempted manslaughter based on extreme emotional disturbance, ORS 163.118(1)(b), and attempted assault, ORS 163.185. Defendant objected to the instructions on attempted murder and attempted manslaughter.[4] On defendant's appeal from his conviction for attempted manslaughter in the first degree the Court of Appeals reversed, finding insufficient evidence of extreme emotional disturbance to justify the attempted manslaughter instruction. We reverse the Court of Appeals decision, effectively reinstating defendant's conviction for attempted manslaughter. As originally enacted in the Oregon Criminal Code of 1971, the statutes describing murder and manslaughter provided: The Oregon Criminal Code sections treating criminal homicide are versions of the Model Penal Code § 210.1-.3. The comments to the Model Penal Code sections clearly illustrate the distinctions between the common law doctrine of heat of passion and the doctrine of extreme emotional disturbance. Model Penal Code and Commentary § 210.3, Commentary at 49 (1980). A major departure from prior common law was intended by the adoption of the doctrine of extreme emotional disturbance, specifically by the change in language from requiring a "heat of passion" upon "adequate provocation" to "under the influence of extreme emotional disturbance" for which there is a "reasonable explanation or excuse."[5] The explanation of reasonableness *590 injected a subjective element into the jury's determination. Such reasonableness is to be determined from the viewpoint of a person in the actor's situation under the circumstances as the actor believes them to be. After the Model Penal Code went into effect, more cases could be found to be manslaughter, since the jury could now view the actor's "situation" and the circumstances "as the actor believed them to be." The drafters of the Oregon Criminal Code adopted this view, and discussed some of the circumstances which could give rise to a jury finding of extreme emotional disturbance. The Oregon Code drafters pointed out that more than the classic provocation case, i.e., adultery or the infliction of serious injury, would be covered by the extreme emotional disturbance doctrine. The addition of a subjective element allows application of the doctrine where the provocative circumstance is one calculated to arouse extreme emotional disturbance in the particular defendant. Words alone can now be sufficient to invoke the doctrine, although they were not at common law. See Proposed Oregon Criminal Code § 89 at 89 (1970). "Extreme emotional disturbance" has been defined as: Viewing defendant's situation at the time of the shooting, it is not difficult to put oneself in defendant's shoes and empathize with his protective instincts regarding his brother's wife and babies, as well as his girlfriend. Although it cannot definitively be said that Tenderella was the "aggressor" in the shooting, it also cannot be said that defendant instigated it. In a situation such as this, where both parties are engaged in combat, and where close relatives are in the immediate vicinity of the shooting, we cannot say as a matter of law that the circumstances render the application of the doctrine of extreme emotional disturbance improper either in the view of the Oregon Criminal Code drafters or under the definition quoted, supra, assuming there is sufficient evidence in the record to justify submission of the issue to the jury. In 1975, the legislature amended the sections on criminal homicide as follows in pertinent part: The significance of the 1975 amendments lies in their exposition of legislative intent as to the quality of extreme emotional disturbance. By amending ORS 163.115(1) to require the absence of extreme emotional disturbance, the legislature expressed its view that the absence of extreme emotional disturbance is an integral component of the offense of murder, to be proved beyond a reasonable doubt once raised. Where the state must rely on circumstantial evidence to prove an essential fact for conviction, the test is "whether a reasonable person, based upon all the evidence adduced in the case, would be warranted in finding beyond a reasonable doubt that the defendant committed the offense charged." State v. Zauner, 250 Or. 105, 110, 441 P.2d 85 (1968). The evidence of extreme emotional disturbance in this case is circumstantial. We find that this test applies to the absence of extreme emotional disturbance, which must be found beyond a reasonable doubt once raised. The state requested the instruction on attempted manslaughter in the first degree. There was substantial circumstantial evidence, most of which was controverted, which supported the jury's finding of extreme emotional disturbance. Tenderella was the instigator of the shooting. Tenderella assaulted defendant's girlfriend. Defendant's relatives and girlfriend testified to extreme fright as a result of Tenderella's erratic behavior, and to concern for the infants in the immediate area of the shooting. We find as a matter of law that the jury would be warranted in not finding the absence of extreme emotional disturbance to have been proved beyond a reasonable doubt as is required for an attempted murder conviction. Therefore, the instruction on attempted manslaughter in the first degree was proper. See State v. Krause, 251 Or. 318, 445 P.2d 500 (1968); State v. Rawls, 247 Or. 328, 429 P.2d 574 (1967); State v. Nodine, 198 Or. 679, 259 P.2d 1056 (1953); State v. Wilson, 182 Or. 681, 189 P.2d 403 (1948). See also State v. Flygare, 18 Or. App. 292, 525 P.2d 181, rev den (1974). The dissent criticizes us for failing to endorse the trial court's instruction of the definition of "extreme" as applied to emotional distress. The trial court adapted an instruction from State v. Akridge, 23 Or. App. 633, 543 P.2d 1073 rev den (1975). The defendant did not assign the giving of the instruction as error and therefore there was no need for this court to discuss it. The dissent comments that "the evidence discussed by the majority indicates that the defendant kept his head when all about him were losing theirs and did not lose his self-control." To reach this conclusion the dissent was required to assume the role of a factfinder. The jury could have just as easily drawn the opposite inference from the circumstantial evidence and found that the defendant's reason was overborne resulting in his loss of self-control. The Court of Appeals opinion, 52 Or. App. 55, 627 P.2d 514 (1981), seems to hold that there is not enough direct evidence in this case to prove extreme emotional disturbance. It ignores the circumstantial evidence. The dissent refers only to direct evidence as to the defendant's emotional *592 state. It confines that evidence to testimony of witnesses that the defendant was "scared, amazed, taken aback, startled, shocked and/or stunned and (was) aware that his dear ones (were) very frightened." The jury cannot look inside the defendant's head and is entitled to consider the chain of circumstances that include but are not limited to: (1) Tenderella jumping up, calling the defendant an obscene name and pulling out a concealed handgun, (2) Tenderella hitting the defendant's girlfriend, pointing a gun at her, and calling her obscene names, and (3) Tenderella pointing a gun at defendant's brother and telling him not to move or "I'll blow you away." It is the jury's duty to determine whether or not the defendant was suffering from extreme emotional disturbance from all the evidence in the case under proper instructions from the trial court. This is a stronger fact pattern than that which this court approved under the "heat of passion" doctrine in State v. Jones, 241 Or. 142, 405 P.2d 514 (1965) (see footnote 5). Because of the result we reach in this case, we must proceed to consider defendant's other assignments of error before the Court of Appeals. Defendant's assignment that the circuit court erred in giving jury instructions which were both contradictory and confusing, in that the verdict forms given the jury were only guilty of attempted murder, guilty of attempted manslaughter, guilty of attempted assault and not guilty of attempted murder is without merit. The defendant was indicted by separate indictments charging him with the crimes of Attempted Murder and Ex-Convict in Possession of a Firearm. The charges were consolidated for trial. The trial court instructed the jury as to the verdict forms on the charge of Attempted Murder as follows: The defendant argued in his brief in the Court of Appeals that the above instructions were confusing: In the trial court the defendant excepted to the instructions on the verdict forms for a different reason: This case was tried in December, 1979, and at that time former ORS 17.510 provided in part: The purpose of former ORS 17.510 was to point out any error that may have occurred in the instructions so that the trial court could be given an opportunity to correct it. Brigham v. Southern Pacific Co., 237 Or. 120, 390 P.2d 669 (1964). Here the defendant did not point out to the trial court the alleged error that he complained of in his assignment of error in the Court of Appeals. Given the opportunity the trial court could have reworded the instruction to meet the defendant's objection set out in his assignment of error. The dissent suggests that a simple "not guilty" verdict form should have been submitted to the jury under ORS 136.455: We disagree and are of the opinion that the trial court gave the jury the correct verdict forms as required by ORS 136.460: Defendant also assigned as error the court's instruction on attempted manslaughter based on extreme emotional disturbance. Defendant claimed that extreme emotional disturbance applies only to consummated homicides. This contention is apparently grounded on the principle that one cannot attempt to commit a reckless act. Since the form of manslaughter in this case does not involve recklessness, we find no merit in defendant's contention. Reversed. LENT, Justice, dissenting. I am unable to join in the lead opinion in finding that there was evidence sufficient to allow the jury to consider whether the defendant was "under the influence of an extreme emotional disturbance." The evidence summarized in the lead opinion shows that there was taking place an exciting and dangerous event involving the use of firearms by the police officer and the defendant. There was evidence that members of defendant's family and his girl friend were very frightened by the officer's conduct, and I am willing to concede that the jury could infer that defendant was aware of the fright of those other persons. *594 The lead opinion rejects the state's contention that defendant's testimony that he was scared, amazed and taken aback referred to the time the shots were being fired. My reading of the transcript indicates to me that the testimony is ambiguous and could be construed to mean that defendant was scared, amazed and taken aback by the officer's conduct at the time the shooting was transpiring. I shall assume for the sake of this opinion that defendant was "scared, amazed and taken aback" during that time. Defendant's brother testified that the officer threatened to kill defendant if he did not return the .38 to the officer. The brother was asked what defendant did at that time and answered: This evidence will permit a finding that defendant was stunned just before the shooting started, and I am willing to assume that condition carried on into the time of the shooting. At the time after the shooting had ceased the officer had restrained defendant's girl friend at or near the motel office. She testified that at that time defendant looked "rather shocked." I shall assume that he looked rather shocked while the shooting was going on. Defendant testified that after the officer had fired two shots from the .45, defendant fired the shotgun into the air "to let him know I had a gun and that it was loaded, you know, that he should leave." He testified that the officer then fired another shot, that defendant did not know where it went, but that it "startled" defendant. There is no evidence as to how long defendant remained startled, but that very word carries a connotation of brevity. In summary, I am willing to accept that there is evidence that during the time the shooting incident was proceeding, defendant was startled, shocked, stunned, scared, amazed, taken aback and was aware that those dear to him were very frightened by the officer's conduct. All of that, however, does not present sufficient evidence to justify a rational factfinder to find beyond a reasonable doubt that defendant was under the influence of extreme emotional disturbance. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). I come to this conclusion for two reasons: (1) Assuming that evidence to be sufficient to support a finding of emotional disturbance, it falls far short of satisfying the statutory requirement that the emotional disturbance be "extreme." (2) There is no evidence sufficient to justify a rational factfinder to find beyond a reasonable doubt that defendant acted "under the influence" of his emotions. There is no evidence to justify a finding beyond a reasonable doubt that his reason was overborne or that loss of self-control resulted in his firing the shotgun. The lead opinion discusses the history of the statute to show that the term "extreme emotional disturbance" was intended to mean something broader than the old "heat of passion" concept attendant upon earlier versions of the crime of manslaughter. Except for a quotation from People v. Ford, 423 N.Y.S.2d 402, 404, 102 Misc.2d 160 (1979), a New York trial court decision, however, the lead opinion pays no heed to the presence of the adjective "extreme." That quotation does attempt a description of the required emotional state by reference to "intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions." I shall assume that the defendant's emotional state here rises to the level of anger or distress, yet every feeling of anger or distress does not rise to the level of extreme emotional disturbance. The lead opinion makes no effort of its own to enlarge upon the meaning and significance of the adjective "extreme" even though this court has not yet spoken to that point. The Court of Appeals had done so in State v. Akridge, 23 Or. App. 633, 635-636, 543 P.2d 1073 (1975). The court there approved a trial court instruction which had informed the jury that 23 Or. App. at 635, 543 P.2d 1073. In the case at bar, the trial court quite obviously followed the lead of Akridge, for on this point the court instructed as follows: I believe the lead opinion should inform the litigants in this case and the bench and bar generally that this court endorses that or a similar characterization of the meaning of "extreme." The lead opinion says there is no need for that on the record in this case. If "extreme" should be given the dictionary meaning used in Akridge and by the trial judge in the case at bar, it becomes very clear that the evidence here falls short of that meaning. On my first reason for disagreement, therefore, I believe it is clear that the word "extreme" has to be given some significance; that it should be given the dictionary meaning in light of the absence of any other definition by the statutes; and that the evidence falls far short of showing this defendant's emotional disturbance to be extreme as so defined. As the Court of Appeals said, emotional disturbance described as "scared," "amazed," "taken aback," etc., does not rise to the level of "extreme." The lead opinion says that from "the circumstances" it may be inferred that defendant was extremely emotionally disturbed. That opinion does not tell what manifestation of such disturbance, other than pulling a trigger, might be inferred. My second reason is that even assuming that defendant's emotional disturbance was extreme it did not have that effect which is necessary to make an attempted homicide an attempt to commit manslaughter rather than murder. I rely upon the same authority as does the lead opinion, but I certainly interpret it differently. The lead opinion has quoted from People v. Ford, supra, where that trial judge quoted from an earlier opinion of another trial judge. I repeat the pertinent part of the quotation for ease of reference: 423 N.Y.S.2d at 404. The parts of the quotation to which I have given added emphasis demonstrate that the author was aware that the disturbance must be such as to overbear reason and to cause a loss of self-control on the part of the defendant, i.e., to influence him. The lead opinion draws attention to the Criminal Law Revision Commission's Commentary to the Proposed Criminal Code considered by the 1971 legislature. In that Commentary at page 89, the Commission makes it clear that the term "influence of extreme emotional disturbance" is derived from the Model Penal Code. The comment in Tentative Draft No. 9, page 48, of the compilers of the Model Penal Code contains a discussion of the fact that the term was deliberately chosen to avoid the application of the old rules of law which had grown up around the concept of provocation and heat of passion with respect to manslaughter. In summing up what the critical difference between murder and manslaughter would be the comment states: *596 That comment was quoted at page 89 by Oregon's Criminal Law Revision Commission. At a later date, in the final version of the Model Penal Code and Commentaries, the American Law Institute at page 63 has reworded the sentence: The critical issue has been, and remains, evidence of "loss of self-control." The lead opinion nowhere points to any evidence that the defendant's reason was overborne or that he acted out of a loss of self-control. Indeed, the evidence discussed in the lead opinion does not permit of a finding beyond a reasonable doubt of anything other than that the defendant kept his head when all about him were losing theirs and did not lose his self-control. I can find no evidence in my own search of the record to justify a rational factfinder to find beyond a reasonable doubt that defendant was under the influence of extreme emotional disturbance. I fear that the lead opinion's proposed holding in this case would serve as the authority to require giving a defendant's requested instruction on manslaughter in any murder prosecution if the evidence shows that the defendant is involved in an affray and that he is scared, amazed, taken aback, startled, shocked and/or stunned and is aware that his dear ones are very frightened, regardless of whether these emotions caused his reason to be overborne or caused a loss of his self-control. Having concluded that the trial court erred in submitting the charge of attempted manslaughter to the jury, I must turn to the state's contention that if such error is found, it is harmless.[1] The state's argument is as follows: The state relies upon two decisions of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or. 24, 31-32, 79 P. 53 (1905); State v. Hood, 225 Or. 40, 48, 356 P.2d 1100 (1960); State v. Smith, 1 Or. App. 153, 161-164, 458 P.2d 687 (1969); and State v. Miller, 6 Or. App. 366, 371-372, 487 P.2d 1387 (1971). In State v. Gray, supra, the defendant had been indicted originally for murder and was found guilty of manslaughter. On appeal this court reversed and remanded for a new trial. State v. Gray, 43 Or. 466, 74 P. 927 (1904). Upon the second trial the case was tried and defended as a prosecution for manslaughter, and defendant was convicted of that crime. On second appeal he contended *597 that the trial court erred in instructing on excusable homicide on the ground that excusable homicide "is outside the testimony." This court held that the instruction was favorable to the defendant because from the giving of the instruction an inference could be drawn that there was some evidence tending to show the killing was excusable. The court reasoned that defendant could not have been harmed by this instruction which suggested to the jury that the killing might have been excusable. Gray does not present the same question as that presented here. It is true that in Gray the court instruction concerned a matter which would have absolved the defendant from guilt completely. The defendant was found guilty of the crime charged and the jury must have rejected the unwarranted opportunity to absolve him. In State v. Hood, supra, the defendant was charged with, tried and convicted of the crime of assault with a dangerous weapon. The trial judge apparently instructed upon "lesser crimes" of Assault and Battery While Unarmed by Means of Force Likely to Produce Great Bodily Harm and Assault and Battery Not Being Armed with a Dangerous Weapon. This court disposed of his claim of error as follows: 225 Or. at 48, 356 P.2d 1100. Hood is not in point because even if the other crimes on which the trial court instructed were not lesser included offenses, he was found guilty of the greater offense. I shall turn to the language concerning "improvement" of the defendant's condition later. In State v. Smith, supra, the indictment charged that defendant did "purposely and of deliberate and premeditated malice, kill one Christ Anton by shooting the said Christ Anton with a pistol." Although defendant denied that he was the killer, the evidence was overwhelming that he was the person who shot the victim while robbing him. The trial court instructed the jury that if it found the state had failed to prove first degree murder beyond a reasonable doubt, it could find defendant guilty of second degree murder if it found that he purposely and maliciously shot the victim. In instructing on second degree murder, the trial court gave an inapplicable instruction on the meaning of malice. The defendant did not except to submitting second degree murder to the jury. He excepted only that the definition given by the court was inapplicable as applied to the kind of malice with which Oregon's murder statutes were then concerned. Defendant was convicted of second degree murder. The Court of Appeals stated that only first degree murder should have been submitted to the jury. The court, relying upon State v. Hood, supra, held that the alleged error in definition of malice did not harm defendant because only first degree murder should have been submitted.[2] The court reasoned that the jury necessarily found that defendant had shot and killed the victim while engaged in the commission of a robbery and therefore was guilty of first degree robbery under the state's felony-murder theory. From that the court concluded that the error in misinstructing on "malice" did not harm defendant. There are several puzzling things about the decision in Smith. I cannot tell from either the decision or the briefs, Oregon Briefs, vol. 1874, whether the jury was instructed on first degree murder as charged in the indictment or only on felony murder insofar as the crime of first degree murder was concerned. The transcript is no longer available to us. Second degree murder differed *598 from "ordinary" first degree murder in that the absence of premeditation and deliberation in a homicide that would otherwise be first degree murder, made a killer guilty of second degree murder only. The briefs show that the trial judge drew that to the jury's attention in telling the jury of the elements required to establish second degree murder. If the decision means that defendant should be convicted of a crime, an element of which was misdefined to the jury, I do not agree with the decision, and I fail to see how this court's decision in Hood supports the decision in Smith. In State v. Miller, supra, defendant was indicted and convicted of the murder of a storekeeper during an armed robbery. Defendant had testified that he had been a party to a plan to commit the robbery and had gone to the store for that purpose. He testified that after he had gone into the store and purchased some gum he came out and informed his accomplice that he didn't want to go ahead with the robbery. He testified that the accomplice assented and then entered the store and shot the victim. Defendant requested instructions on second degree murder and manslaughter and on attempt to commit the "three grades of homicide." The trial court instructed upon premeditated first degree murder and apparently on the other "grades of homicide" but not on attempt. The Court of Appeals held that the instructions on the "included grades of homicide" were unnecessary but harmless to defendant, citing State v. Smith, supra, as authority. As to the refusal to instruct on attempts, the court pointed out that defendant's own theory was that if he was attempting to commit any crime, it was robbery and not homicide. Miller does not seem to present anything pertinent to resolution of the case at bar, except perhaps its implied approval of Smith. In summary, Gray is a case in which the defendant was convicted as charged and complained only of the giving of an instruction which was not warranted by the evidence but could only have served to exculpate him of guilt altogether. In Hood the defendant was found guilty of the greater offense even though the court instructed on some crimes which may or may not have been included in the greater offense. In Smith, defendant was convicted of a lesser degree of crime than that charged, when he was held not to be entitled to submission of the lesser degree. His only claim of error, however, did not go to the submission of the lesser included charge but to its definition, and I disagree with the decision. Miller is completely foreign to the issue here. The state's argument, as a matter of logic however, is at first blush appealing. As the state points out, the verdict of attempted manslaughter necessarily encompasses a finding by the jury that defendant intentionally attempted to cause the death of the officer by shooting at him with a shotgun. If this was shown to have occurred while the defendant was not under the influence of extreme emotional disturbance, the state had established the elements of attempted murder. Because, however, the jury was permitted to consider whether the defendant was under the influence of extreme emotional disturbance and did so find, the elements of the crime of attempted manslaughter were established. It is tempting to say that the error in submitting the charge of attempted manslaughter "improved" defendant's condition because the effect of the error was to deprive the prosecution of a conviction of attempted murder, a Class A felony, and because of the error defendant has been convicted of only a Class B felony. The problem inheres in the way in which the statute treats the existence or nonexistence of the influence of extreme emotional disturbance. The state took the position that the statutory framework required the state to prove beyond a reasonable doubt that the defendant was not under the influence of extreme emotional disturbance to obtain a guilty verdict of attempted murder. The jury was so informed. The state took the position at trial that to obtain a guilty verdict of attempted manslaughter, the state had to prove beyond a reasonable doubt that defendant was under the influence *599 of extreme emotional disturbance. The jury was so informed. The state further took the position at trial that attempted manslaughter was a lesser included offense of attempted murder. There may be types of manslaughter described in ORS 163.118 and 163.125, of which that would be true. For instance, a charge might be made that a defendant intentionally committed a criminal homicide while not under the influence of extreme emotional disturbance, but the evidence would support either a finding that he acted intentionally or a finding that he acted recklessly under circumstances manifesting extreme indifference to the value of human life. Since recklessly denotes a less culpable mental state than intentionally, it would seem both murder and manslaughter as defined in ORS 163.118(1)(a) should be submitted. With respect to manslaughter as defined in ORS 163.118(1)(b), however, I have serious doubts that it can be considered as a lesser included offense at all. It is not lesser in the sense that criminal trespass may be a lesser included offense in a charge of burglary where the jury may find that the intent to commit a crime at the time of the unlawful entry has not been proved. It is not a lesser included offense in the sense that a lesser rather than a greater culpable mental state of the defendant existed. Rather, the difference in the two crimes lies in the state's obligation to prove one or the other of two diametrically opposed facts. If the state proves all other elements of murder but fails to prove the absence of influence of extreme emotional disturbance, the result is not a conviction of manslaughter as we are here concerned with that crime. The result would presumably be the same as in any other case in which the state failed to prove an element of the crime; the defendant would be entitled to an acquittal. To return to my thesis that the difficulty inheres in the statute, I would point out that this is a criminal case and that each element of a crime must be proven beyond a reasonable doubt. To convict this defendant of attempted murder the state would have to prove beyond a reasonable doubt that he was not under the influence of extreme emotional disturbance. To convict him of attempted manslaughter in the first degree the state would have to prove beyond a reasonable doubt that he was under the influence of extreme emotional disturbance. That the evidence was insufficient, as a matter of law, to prove beyond a reasonable doubt that defendant was under the influence of extreme emotional disturbance does not compel the conclusion that the evidence was sufficient to find beyond a reasonable doubt that he was not under the influence of extreme emotional disturbance. The evidence might be such that the factfinder could not find beyond a reasonable doubt that the necessary condition either existed or that it did not, yet one of those conditions had to be proven by the state to obtain a conviction. If the evidence had been in equipoise or merely preponderated one way or the other, the state was not entitled to a conviction on either charge. The concurring opinion labels this result as absurd, and I agree, but the absurdity inheres in what the legislature has enacted. Undoubtedly, the legislature could have written the law as the concurring opinion interprets it, but that the legislature did not do, as the state realized when it successfully requested the trial court to instruct the jury that in order to prove attempted murder, the state had to prove absence of the influence of extreme emotional disturbance but, in order to prove attempted manslaughter, the state had to prove defendant was under the influence of extreme emotional disturbance. Moreover, the supposition that the jury would have convicted defendant of attempted murder had this case been properly presented is not all that clear to me. This jury might be likened to the customer at the cafeteria. There were three[3] main *600 dishes offered: (1) Attempted Murder, (2) Attempted Manslaughter I, and (3) Attempted Assault I. The customer chose the second dish. That dish was placed among the choices by mistake. Had it not been there, who is able to say which of the other two dishes might have been selected by the customer? This court in the past has noted that we are unable to say what a verdict might have been had the case been properly presented. See State v. Naylor, 291 Or. 191, 629 P.2d 1308, 1311 (1981), and State v. Davis, 70 Or. 93, 140 P. 448 (1914). To accept the state's argument that the error is harmless, I should have to say to this defendant, As a judge, I am not willing to say that. Defendant's remaining claim of error which deserves attention is that concerned with the verdict forms and the court's instructions there concerning. This trial was not one upon an indictment in two counts; rather, there were two separate cases. In one case the defendant was charged with the crime of being an ex-convict in possession of a concealable firearm. In the other case he was charged with the crime of attempted murder. Those two cases were joined for the purpose of trial, but each case, of course, retained its own title and clerk's number. The record upon this appeal does not have with it the verdict forms which were submitted with respect to the case involving the charge of being an ex-convict in possession of a concealable firearm, so we have no way of knowing what title and clerk's number were on the forms of verdict submitted on that charge. The four forms of verdict submitted in the case concerning attempted murder are before us, however, and have upon each form the trial court clerk's number 115,743. The record before us does indicate that the trial court clerk's number for the other case was 116,441. I believe that one might safely assume that the two forms of verdict submitted on the other charge and case bore the correct trial court clerk's number. According to the transcript, the trial judge submitted two forms of verdict with respect to case number 116,441: On the other case consolidated for trial, the trial judge submitted four forms of verdict as described in the lead opinion. In neither case, it is seen, did he submit a simple verdict form substantially as follows: The statutes provide, however, that just such a form should be submitted. ORS 136.455 provides: Submission of the simple form above suggested would have made it clear to the jury that, by voting for and signing that form, they would be finding the defendant "not guilty" of all of the three offenses submitted for their consideration. Perhaps the trial judge did not wish to submit such a simple form because he feared the jury would become confused with respect to the two cases being tried. The trial court clerk's numbers on the verdict forms should have prevented that possibility. Those numbers are certainly not so similar as to admit readily of confusion. *601 In any event, the defendant took timely exception to the instructions concerning the verdict and the forms submitted. I believe that the defendant properly raised the failure of the court to submit a form of general verdict finding the defendant "not guilty" in case number 115,743. The exception was as follows: The lead opinion holds that defendant's contentions that these instructions and forms were misleading should not be considered because he didn't bring the matter to the trial court's attention at a time when it could still be corrected. I most strongly disagree. He specifically complained of the failure to submit a "not guilty form," cf. ORS 136.455, and after the court defended the instructions and forms, defendant advised the court of his contention that not guilty verdicts should have been submitted for each of the three charges submitted to the jury in connection with the case involving attempted homicide. I find the exception to be timely and adequate. The lead opinion takes the position that ORS 136.455, providing for the jury to have a form of verdict finding a defendant to be "not guilty," is modified by the immediately following section of the code, i.e., ORS 136.460: My first answer is that this section does not in any way deal with the forms of verdict. The statute deals rather with the power of the jury to find a defendant guilty of an attempt or lesser degree of a crime "consisting of different degrees * * *." The section is not applicable to a choice between (attempted) murder on the one hand and (attempted) manslaughter on the other hand. The crime of murder is not a "crime consisting of different degrees." This is clear from State v. Wilson, 182 Or. 681, 189 P.2d 403 (1948), a case cited by the lead opinion for a different point. In that case this court was dealing with the criminal statutory scheme at a time when murder was a crime consisting of two degrees. That scheme also provided for a crime known as manslaughter. The court pointed to what is now ORS 136.455 as authority for submitting to the jury the two degrees of murder and pointed to what is now ORS 136.465 as authority for submitting other "grades" of homicide, namely, in that case, manslaughter. ORS 136.465 provides: The court having thus correctly differentiated between the subjects of the two sections, namely, (1) crimes consisting of different degrees, and (2) lesser included offenses, inexplicably went on to discuss the submission of different "degrees" of homicide. There was no crime of homicide. In the case at bar, if attempted manslaughter could be submitted at all when the defendant was accused of attempted murder, it could not be under ORS 136.460, but rather, under ORS 136.465, as a form of attempted criminal homicide included within that form defined as murder. As I discussed earlier, I have grave doubts that, as defined at the time with which this case deals, manslaughter was a lesser included offense under a charge of murder. The defendant did not raise that point, however, and I needn't examine it further. I think the defendant's exceptions concerning the forms of verdict submitted are an adequate basis upon which he might argue that the court's instructions were confusing and contradictory. They were confusing and contradictory to me, at least upon a first reading. The jury had no opportunity to re-read them, let alone read them. The jury only heard them. Whether I am confused is, of course, not the test, but I would challenge anyone to paraphrase correctly those instructions on a first hearing, or even a first reading. Had the trial court in this case simply heeded the defendant's complaint that it had failed to submit a plain, old "not guilty form," defendant would have no cause for complaint upon this particular score. I agree with the Court of Appeals that the trial court should be reversed and the case remanded for another trial. TANZER, Justice, specially concurring. Like Justice Lent, I cannot join the conclusion in Justice Campbell's lead opinion that there was sufficient evidence that defendant acted under the influence of extreme emotional disturbance. There is evidence that defendant acted in defense of self and others. He requested and received an instruction submitting that defense. There is no evidence, however, that defendant suffered an "emotional disturbance," or if so, that it was "extreme" or that defendant acted under the influence of that condition. If the defendant's testimony is believed, defendant was perhaps the only cool-headed, deliberate person on the scene. The lead opinion discussion of law does not support its conclusion that there was evidence of extreme emotional disturbance. It is true that "extreme emotional disturbance" was intended as a broader concept than "heat of passion" in the sense that it was intended to refer to a range of situations broader than discovered adultery. There is no suggestion in the statutory phrase or in its history, however, that it was intended to refer to emotional states of lesser intensity than heat of passion. Surely there was no suggestion that the phrase "extreme emotional disturbance" was to refer to emotional states of the intensity of having been "taken aback" or fear for safety. The lead opinion cites not a single case analogous to this fact situation from any of the many jurisdictions which have enacted the concept of extreme emotional disturbance propounded in the Model Penal Code. The lead opinion offers only an explanation of "extreme emotional disturbance" by a New York court which contradicts its holding and supports the conclusions of Justice Lent and myself: *603 There is no evidence in this case of "an extreme emotional reaction." There is none of a resulting "loss of self-control." Nor is there evidence that defendant's "reason [was] overborne." To the contrary, defendant's evidence is that he was acting deliberately and reasonably in defense of self and others. The holding of the lead opinion is inconsistent with the statutory meaning and I am aware of no support for it anywhere. I conclude that it was error to have given an instruction on extreme emotional disturbance because there was no evidence from which that fact could be found. In this I agree with Part I of Justice Lent's dissenting opinion. Although submission of the issue of extreme emotional disturbance to the jury was error, I conclude that it was harmless error. Indeed, it was probably an error favorable to the defendant. In order to understand that conclusion, it is necessary to understand the strange statutory history of the concept of extreme emotional disturbance, part of which is set out in the lead opinion. Prior to the 1971 comprehensive revision of the criminal code, murder was prohibited in the traditional two degrees: Second degree murder was homicide done First degree murder was homicide done One form of manslaughter was homicide committed by Thus, under the pre-revision code, proof of "heat of passion" was essentially a means of negating malice or deliberation in the course of a purposeful (i.e., intentional) homicide. See State v. McCoy, 17 Or. App. 155, 173 n. 2, 521 P.2d 1074 (concurring opinion of Tanzer, J.), aff'd on other grounds 270 Or. 340, 527 P.2d 725 (1974). For reasons we discussed more fully in State v. Quinn, 290 Or. 383, 402-403, 623 P.2d 630 (1981), in 1971 the legislature revised the code to provide but one degree of murder, intentional homicide. ORS 163.115 (1971). "Heat of passion" was abandoned because it had no independent significance if malice and deliberation were no longer elements of murder. Nevertheless, a compassionate intention to recognize intentional homicide committed under certain extenuating circumstances as a lesser crime resulted in one form of manslaughter being defined as: In the new statutory scheme, extreme emotional disturbance was not a condition which negated elements of murder, as heat of passion negated malice and deliberation under the older scheme. It was an additional mitigating fact, rather than a contradictory fact, to be proved by one who did not wish to be convicted of murder despite evidence of intentional homicide from which murder could be found. In 1975, the legislature lifted the concept of extreme emotional disturbance from the manslaughter statute and added it to the murder statute. ORS 163.115(1)(a) now defines one form of murder as criminal homicide Manslaughter is now in two degrees. One form of first degree manslaughter is now defined by ORS 163.118(1)(b) as criminal homicide What the legislature intended to accomplish by this amendment is unclear and the legislative history of the change is not helpful. The impetus for change was apparently the Court of Appeals decision in State v. McCoy, supra, in which three judges wrote three opinions on the burden of proof of extreme emotional disturbance. In State v. Keys, 25 Or. App. 15, 548 P.2d 205 rev den (1976), the Court of Appeals traced the inconclusive legislative history of the amendments,[1] concluded that extreme emotional disturbance was sui generis, and assigned responsibility to the state in a murder prosecution to disprove extreme emotional disturbance only if there is first some affirmative evidence of that fact from either the state or the defendant. My review of the legislative history confirms that set out by the Court of Appeals. Moreover, I conclude that their analysis and assignment of the burden of proof under the 1975 amendments is the most sensible, consistent with what we can discern of legislative intent.[2] If there is any evidence from which it can reasonably be inferred that a defendant intentionally killed under the influence of extreme emotional disturbance, the state has the burden of proving the absence of that fact. The instructions to the jury were as ambiguous as the statute. The jury was instructed that the state had the burden of proving every element, that murder was intentional homicide not committed under the influence of extreme emotional disturbance and that manslaughter was intentional homicide committed under the influence of extreme emotional disturbance. By finding defendant guilty of attempted manslaughter, the jury necessarily found that defendant has attempted to commit intentional homicide. If extreme emotional disturbance is not in issue because there was no evidence of it to trigger the state's burden to disprove it, then the result of the jury's finding that defendant attempted to commit intentional homicide should have been a verdict of *605 guilty of attempted murder. The only effect of the erroneous injection of the issue of extreme emotional disturbance was to enable the jury to find defendant guilty of a less severe crime than that for which they had found all the elements to have been proved beyond reasonable doubt. Thus the error was to defendant's benefit, not to his prejudice. If, as Justice Lent suggests, the absence of extreme emotional disturbance is now an element of attempted murder and the state has the burden of proving it, then the instruction on murder was correct and the instruction on manslaughter was erroneous, but the error was also harmless. A trial judge is obliged to submit lesser included offenses, the elements of which may be inferred from the evidence, even over objection. State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975). If the absence of extreme emotional disturbance is an element of murder and if the jury found that the state had failed to prove that element, but had proved the other elements, i.e., attempted intentional homicide, then they would necessarily have found, in the words of ORS 163.118(1)(b), "criminal homicide * * * committed intentionally under circumstances not constituting murder." The jury was instructed that to find defendant guilty of the lesser charge they must affirmatively find extreme emotional disturbance, whereas it would have been sufficient to merely determine that the state had not proved the absence of extreme emotional disturbance. The error would have been significant if the jury had found defendant guilty of the greater charge because the erroneous instruction increased the proof necessary for the lesser charge. Where, as here, however, the jury nevertheless found defendant guilty of the lesser charge, the error made no difference in the verdict, i.e., it was harmless. Therefore, even if the state had an initial burden to prove the absence of extreme emotional disturbance, this instruction was harmless error. On the assignment of error regarding submission of verdict forms, the better practice would have been the submission of a simple not guilty verdict form, but the explanation of the court clearly covered all possible verdicts. I concur with the lead opinion that there was no error in this respect. DENECKE, C.J., and PETERSON, J., join in this specially concurring opinion. [1] Murder was defined by former ORS 163.115: "(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when: "(a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance; "(2) For the purpose of paragraph (a) of subsection (1) of this section, a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be. * * *." The 1981 Oregon Legislature amended ORS 163.115 to read: "(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when: "(a) It is committed intentionally except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of extreme emotional disturbance; * * *." Oregon Laws 1981 ch. 873 § 5. Manslaughter in the first degree is defined by ORS 163.118(1)(b): "(1) Criminal homicide constitutes manslaughter in the first degree when: (b) It is committed intentionally under circumstances not constituting murder. * * *" Assault in the first degree is defined by ORS 163.185: "(1) A person commits the crime of assault in the first degree if he intentionally causes serious physical injury to another by means of a deadly or dangerous weapon. * * *." Attempt is defined by ORS 161.405: "(1) A person is guilty of an attempt to commit a crime when he intentionally engages in conduct which constitutes a substantial step toward commission of the crime. "* * *" [2] The state claimed that there was some direct evidence of extreme emotional disturbance in this case, but we disagree. Defendant's testimony on direct examination that he was "scared," "amazed" and "taken aback" referred to a time after the shooting was over: "Q: When did you first remember seeing Sharon Taylor (defendant's girlfriend) after the shooting stopped? A: She told me that he had left and I seen her out the doorway of the trailer. Q: What did you do then? A: I asked Sharon if she would go over to the manager's office and call the police because I didn't know what was wrong with the dude. Q: Were you scared? A: Yes. Q: Were you amazed, were you taken aback? A: Oh yeah." (Parenthetical added). Analysis of this case has been made more difficult because although the state requested the instruction on attempted manslaughter in the first degree based on the presence of extreme emotional disturbance, neither party tried to prove the presence of extreme emotional disturbance. Defendant tried to prove his innocence of all offenses. The state tried to prove defendant's guilt of the offense of attempted murder. There was, therefore, a studied attempt on the part of both parties to avoid any introduction of evidence of extreme emotional disturbance. [3] Defendant's conviction for the offense of exconvict in possession of a firearm is not in issue here. [4] Defendant's objections to the jury instructions as they relate to the central issue in this case are as follows: "I also object to the summary of the charge of Attempted Murder which was given which starts out as to the charge of Attempted Murder you are to consider this summary in light of all the previous instructions given and then you give the first four elements and I object to the fifth element which states, `While not under the influence of an extreme emotional disturbance'. I give the same reasons for this exception as I did the other Attempted Murder instruction and that is this is a defense that should be raised by the Defendant. There was no evidence presented on this and it should not be an instruction. "I take exception to the instruction on Attempted Manslaughter. First of all, I'm not sure there is such a crime. I object to the fourth element you gave which said `Unlawfully and intentionally attempting to cause the death of another human being'. I believe that `recklessly' should be added between intentionally and attempted. I believe that after the words, `by shooting him with a shotgun' should be added, `under the circumstances, manifesting an extreme indifference to the value of human life'. I take exception to it because first of all, I don't believe there is such a thing as Attempted Manslaughter. I also object to the fifth element which you gave which has to do with under the influence of extreme emotional disturbance in its entirety. I object to this element because here again it is a defense raised by the Defendant and there was no evidence of extreme emotional disturbance." [5] Under the former version of ORS 163.118(1)(b), the killing of another intentionally without malice and deliberation "upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible" constituted voluntary manslaughter. ORS 163.040(1). In State v. Jones, 241 Or. 142, 405 P.2d 514 (1965), this court discussed the criteria for applying the doctrine of heat of passion. In that case, Jones and the victim were sitting at a lunch counter. An argument arose regarding some minor matter, and the victim hit Jones several times with his fist. Defendant stabbed the victim three times. Jones was convicted of second degree murder, and Jones appealed on the ground that there was no evidence of malice and therefore as a matter of law he could only be convicted of manslaughter. The court elaborated the requirements of the heat of passion doctrine as follows: the jury must weigh the variables of degree of provocation and the measures employed by the defendant in response to it to determine whether the passion was irresistible. An assault may or may not be sufficient provocation to invoke the doctrine. Some of the factors cited by the court for jury consideration are the size of the assailant, the manner in which he approached the defendant, the language used, the instrument employed by the defendant, defendant's language and his size in relation to that of his assailant. The defendant's conduct must be measured against the standards of the community by the jury. Thus, the test for heat of passion was an objective one to be made by the jury unless the court could find as a matter of law that the passion was or was not irresistible. The court found that the evidence raised a jury question as to heat of passion, but that the jury found against the defendant on that question and therefore affirmed the conviction. [1] The Court of Appeals found error in the same respect in which I do, but that court made no express determination as to whether that error was harmless. [2] This holding is at least questionable in light of this court's decision in State v. Wilson, 182 Or. 681, 189 P.2d 403 (1948). In that case the defendant was indicted for felony murder, and this court reversed his conviction because the trial court failed to instruct on the lesser "grades" or "degrees" of homicide, namely, second degree murder and manslaughter. [3] I shall have something further to say about the fourth offering, Not Guilty of Attempted Murder, later in this opinion. I would note at this point, however, that the jury was offered no form of verdict which, by its express terms, enabled the jury to return an out and out verdict of "Not Guilty." [4] I disagree with the trial judge that the forms were self-explanatory. For instance, there were no instructions or explanations on the forms such as we commonly see in comparative fault cases. [1] State v. Keys, 25 Or. App. 15, 18-19, 548 P.2d 205 rev den (1976): "In State v. McCoy, supra, we attempted to settle most of the interpretation problems, but may not have been successful because each of the members of the McCoy panel wrote a separate opinion. Nevertheless, it is clear that the majority in McCoy at least agreed that the burden of proof on the extreme-emotional-disturbance issue is on the state once it has been injected into a murder prosecution by competent evidence. "McCoy was mentioned frequently during the legislative deliberations on HB 2540, which became Oregon Laws 1975, ch 577, p 1305. These 1975 amendments to the homicide statutes had several apparent purposes. One was to create an additional degree of criminal homicide, apparently to facilitate plea bargaining; thus, the present scheme is murder (life imprisonment), first-degree manslaughter (20-year imprisonment), and second-degree manslaughter (10-year imprisonment). Another change proposed to the legislature was that extreme emotional disturbance be labeled an affirmative defense; the proponents of this change made it clear they were seeking a legislative overruling of McCoy. It is equally clear, however, that the legislature, in rejecting this proposed change, was familiar with McCoy and did not intend that Oregon Laws 1975, ch 577, be any change in the basic McCoy rule that the burden of proof on the extreme-emotional-disturbance issue is on the state, once it has been properly raised in a murder prosecution. "* * * "We deduce from the legislative history that the new first-degree manslaughter offense (`intentionally under circumstances not constituting murder') means intentionally under extreme emotional disturbance. Thus the sole distinction between murder, ORS 163.115(1)(a), and first-degree manslaughter, ORS 163.118(1)(b), is the presence or absence of extreme emotional disturbance." (Footnote omitted.) [2] By contrast, Justice Lent's construction of the 1975 amendments leads him inexorably to the absurd conclusion that in a trial for murder and manslaughter: "* * * If the evidence had been in equipoise or merely preponderated one way or the other, the state was not entitled to a conviction on either charge." (Slip op at 599.) Whatever the legislature may have intended, it was surely not that.

acdde8d233b4349c0a3164abd7808fd184bb5fe9f4ee46cbdf67b193e61c587f

1982-02-03T00:00:00Z

5bd8ab64-04ba-4ab1-b349-2b9dc4df51bb

In Re Conduct of Drake

292 Or. 704, 642 P.2d 296

oregon

Oregon Supreme Court

642 P.2d 296 (1982) 292 Or. 704 In re Complaint As to the CONDUCT OF Dale R. DRAKE, Accused. OSB No. 79-74; SC 28166. Supreme Court of Oregon, In Banc. Argued and Submitted February 9, 1982. Decided March 23, 1982. *297 Asa L. Lewelling, Salem, argued the cause and filed a brief for accused. Glen D. Baisinger, Lebanon, argued the cause for the Oregon State Bar. With him on the brief was Daniel A. Post, Albany. *298 PER CURIAM. This case is before us upon a recommendation of the Disciplinary Review Board that the accused attorney, Dale R. Drake, be suspended from the practice of law for three years and thereafter until such time as he makes application for reinstatement upon a showing that he is fit to practice law. We decide the facts upon the record made before the Trial Board. In re Robertson, 290 Or. 639, 642, 624 P.2d 603 (1981). ORS 9.535(3). On December 5, 1980, the Oregon State Bar filed a multiple count complaint against Drake. The first count alleged that Drake, on or about June 19, 1976, The second count contained this allegation: The Bar claims that the foregoing conduct of the accused was in violation of the following Disciplinary Rules: Drake filed an answer admitting that he received $10,000 from Gallagher on or about June 19, 1976; that he did not advise Gallagher to seek independent counsel; that he gave his promissory note to Gallagher on August 23, 1977; and that payments on the note had been made. Otherwise, he denied the allegations of the complaint. At a hearing before a Trial Board, ORS 9.525, evidence was produced as follows: *299 In 1976, Merrill Gallagher, a retired iron worker living in Salem, was 62 years old. With his wife, he owned his home; a cabin at Detroit; a lot, tavern, mobile home and five-bedroom home in Blue River, Oregon; and he had about $18,000 in the bank. Prior to June of 1976, Drake had represented members of the Gallagher family, and had represented Mr. and Mrs. Gallagher in litigation involving the tavern in Blue River. The tavern had been purchased in 1973 or 1974. Drake testified that the plaintiff in the tavern litigation was a sign company, and that the defendants were the original owners of the tavern, who tendered the defense to the Gallaghers, who accepted the defense. Drake testified that Gallaghers "* * * were in effect defendants in the suit." The sign company suit was dismissed on May 3, 1976. Prior to June 3, 1976, Gallagher would come by from time to time and inquire as to the status of the litigation. Gallagher testified that he also consulted Drake about the possibility of getting a divorce. On June 3, 1976, Gallagher went to Drake's office "* * * checking on some business, some other business." Gallagher told Drake that he was dissatisfied with the interest rate that he was receiving on the money deposited in the bank. Drake asked Gallagher if Gallagher had "* * * ever loaned out any money on real estate * * *." Gallagher testified that Drake told him that "* * * he had this customer, or this party, who was interested in $10,000 for 90 days' use of the money." Drake told Gallagher that this third person was "trustworthy," and that the loan would be repaid in 90 days at 25 percent interest. Gallagher agreed to loan the money, went to the bank and got a cashier's check for $10,000 made payable to Dale Drake. Gallagher testified that Drake "was going to give me a deed, or note, rather." Drake testified that, at or near the time of the delivery of the money to him, he prepared a promissory note for his (Drake's) signature, to evidence the loan. Drake testified that although he intended to deliver the note to Gallagher, because of oversight the note was never delivered to Gallagher. The cashier's check which Gallagher obtained on June 3, 1976, bears the endorsement of Dale R. Drake. The back of the check also bears a stamp dated June 4, 1976, of the Bank of California, Portland. Drake at no time offered any evidence apart from his testimony to show that all or any part of the money had been delivered by him to any other person. Drake testified that the money was in turn lent to a client named Dave Waldner. "* * * I had a client who was a young whirlwind. He was involved in two or three businesses. He was involved mainly in the car business. He was building some spec houses." After the loan was made in June, 1976, in August, 1976, Drake undertook to represent Gallagher in Gallagher's divorce case. The tavern litigation had concluded no earlier than May of 1976. Drake continued to represent Gallagher in several other legal matters in 1977, 1978, 1979, and 1980. The loan was not repaid within 90 days. One year later, on June 14, 1977, Drake wrote Gallagher as follows: Promptly after receipt of the letter, Gallagher went to Drake's office and told Drake that he did not want to re-loan the money. According to Gallagher, Drake told him that he "* * * had already loaned the money out." Gallagher testified that Drake told him that he (Drake) had already loaned the money to some lumber brokers, at the same rate of interest, 25 percent. At about this time, Drake delivered to Gallagher a promissory note dated June 15, 1977, in the amount of $10,000, which provided for payment on demand with interest at the rate of 25 percent per annum from June 15, 1977, signed by Dale R. Drake. Full payment of this note has not been made. After the hearing on May 14, 1981, on June 12, 1981, the Trial Board rendered a decision in which they made specific findings as follows: 1. That an attorney-client relationship existed between Drake and Gallagher "* * * for a considerable time before and after the alleged loan." 2. That "* * * the testimony of the accused is not credible * * *." 3. That the accused "* * * failed to advise the client to seek other counsel, to make a full disclosure of the person to whom and purpose for which the loan was to be made, and of the illegality and consequences of lending at an usurious rate of interest. * * *" That the accused had failed to keep a proper account of the sums received from Gallagher and had failed to return the money to Gallagher upon request. The Trial Board concluded that Drake violated DR 5-101(A), DR 5-104(A), DR 1-102(A)(4), DR 5-105, DR 9-102(A) and DR 9-102(B)(3) [sic DR 9-102(B)(4)][2] and recommended that he be disbarred.[3] This matter was thereafter considered by the Disciplinary Review Board pursuant to ORS 9.535(1) and (2). On September 12, 1981, the Disciplinary Review Board issued a decision in which they concurred with the findings that the accused had violated DR 5-101(A), DR 5-104(A) and DR 1-102(A)(4). They found the accused not guilty of violating DR 9-102(B)(4). They recommended a three-year suspension. Our findings, which are discussed in detail below, are: *301 1. Gallagher loaned Drake $10,000 in June of 1976 at 25 percent interest.[4] 2. At the time the loan was made a lawyer-client relationship existed between Drake and Gallagher. 3. At the time the loan was made Drake prepared, but did not deliver to Gallagher, a note to reflect Drake's promise to repay the money to Gallagher, with interest at 25 percent per annum. 4. Drake did not advise Gallagher that the loan constituted a business transaction in which they had differing interests, took no steps to protect his client, failed to advise the client to seek other counsel, and prepared no documents to adequately protect Gallagher relative to the investment. 5. Subsequently, Drake misrepresented the status of the loan, implying that the original loan had been repaid to Drake from the unnamed third person, and stating that the money had been re-loaned to another person. Drake has consistently contended that at the time the loan was made, the relationship of attorney and client did not exist between Drake and Gallagher. We are convinced that a lawyer-client relationship existed. When this matter first came to the Bar's attention, it wrote Drake and asked for a response. In his response to the Bar, Drake stated: The evidence shows that as recently as the previous month, May of 1976, Drake was handling litigation involving Mr. and Mrs. Gallagher. Gallagher testified that he came to see Drake in June of 1976 concerning his (Gallagher's) marital problems. In August of 1976, Drake undertook to represent Gallagher in the dissolution case which by that time had been filed by Mrs. Gallagher. Drake has argued that Mrs. Gallagher was "the principal client," that his representation of Gallagher was "for a limited purpose, i.e., the defense of litigation to which the Gallaghers were not parties. * * *." The evidence is clear, beyond any doubt, that although the Gallaghers were not named as defendants in the tavern litigation, they had assumed the defense of the defendants (by reason of their contract with the defendants) and Gallagher was, so far as the litigation is concerned, as much a party to the litigation as was Mrs. Gallagher. Drake argues that "* * * experience tells us that people frequently regard a lawyer acquaintance as `their lawyer' based on past representation or friendship, when in fact the lawyer/client relationship does not exist." That statement may, in the abstract, be true, but it begs the question in the matter before us. There is direct, uncontroverted evidence that Drake was handling legal matters for Gallagher as late as May of 1976 and that by August of 1976, he had agreed to represent Gallagher in Gallagher's dissolution case. Gallagher testified that the loan conversation occurred while he was in Drake's office "* * * checking on some business, some other business." We have no doubt that Gallagher was Drake's client at that time and, as discussed below, was relying upon Drake's professional judgment incident to the making of the loan. The relationship between lawyer and client is one of trust and confidence. The client's trust and confidence in the lawyer is, in many cases, an indispensable ingredient in the relationship. This observation of the Disciplinary Review Board is very much in point: See In re Robertson, 290 Or. 639, 624 P.2d 603 (1981); In re Galton, 289 Or. 565, 581, 615 P.2d 317 (1980). The Code of Professional Responsibility is a set of rules of minimally acceptable lawyer conduct. We first examine the charge that Drake's conduct was in violation of DR 5-104(A). DR 5-104(A) has four subparts. The first clause ["a lawyer shall not enter into a business transaction with a client"] contemplates (a) a lawyer-client relationship and (b) "a business transaction." As stated above, a lawyer-client relationship existed. A loan from the client to the lawyer of a substantial sum of money to be repaid within a given period of time certainly constitutes a "business transaction." A contract was created between Gallagher and Drake, which Drake promptly breached. The second clause ["if they have differing interests therein"] refers to a business transaction in which the interests of the lawyer and the client are not identical. A debtor-creditor relationship is an adverse relationship. Unquestionably, the interests of Gallagher and Drake were "differing interests." The third clause ["and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client"] requires a showing that the client expected the lawyer to protect the client by the exercise of professional judgment. The complaint alleged that Drake "* * * borrowed the sum of $10,000.00 from his client * * * [and] represented to Mr. Gallagher that the funds were being borrowed on behalf of another client of the Accused * * *." Drake's own testimony confirms that he (Drake) was the debtor. Were this simply a loan between Gallagher and Drake with Gallagher looking only to Drake's credit, there would be a failure of proof as to the element of reliance upon the lawyer's "exercise of professional judgment." The evidence shows that to some extent, Gallagher was relying on Drake's advice as to the reliability of the third person (the unnamed third person was said to be "trustworthy") and the collectibility of the loan. As well, Gallagher was unaware that the loan was at a then usurious rate of interest and implicitly was relying on Drake's professional judgment. Gallagher was unaware that a usury defense might successfully be asserted to defeat collection of the amount loaned. Because of the rate of interest, the defense of usury could have been asserted by anyone against whom Gallagher might have sought to recover his money.[5] The final clause ["unless the client has consented after full disclosure"] concerns the obligation of the lawyer to tell the client that (a) their interests in the business transaction are adverse, and (b) the existence of the differing interest has or may have effects upon the lawyer's ability "* * * to exercise his professional judgment therein for the protection of the client * *303 * *." Ideally, the lawyer's "full disclosure" and the client's consent should be in writing. The client should be advised to seek outside counsel. In re Bartlett, 283 Or. 487, 496, 584 P.2d 296 (1978), contains this holding: The evidence clearly establishes a violation of DR 5-104(A). Not only was there no full disclosure, there was no disclosure at all. No consent was obtained. Lawyers would be well advised, if in doubt as to the existence of the lawyer-client relationship, to assume its existence, and govern themselves accordingly.[6] DR 5-101(A) requires a lawyer to refuse employment "[e]xcept with the consent of his client after full disclosure * * * 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." The rule requires that employment be undertaken only after full disclosure and with the consent of the client. Unquestionably, Drake's "own financial interests" were involved. The evidence is convincing that this financial interest affected Drake's exercise of professional judgment. As stated in footnote 6 and as discussed above (see discussion under DR 5-104(A)), Drake did virtually nothing to protect his client by obtaining a note to evidence the debt or by obtaining security. There was no disclosure of the illegality of the interest rate. Truly independent professional judgment can best be given in an atmosphere in which the lawyer is truly independent. Although DR 5-101(A) may well have primary reference to other financial, business, property or personal interests of the lawyer, the existence of a debt between the lawyer and client may, and in this case did, constitute such an interest and had an effect upon the lawyer's ability to exercise independent professional judgment incident to the loan transaction itself. DR 1-102(A)(4) provides that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. On June 14, 1977, Drake wrote Gallagher as follows: Gallagher testified that after he received the letter, he went to see Drake and told him that he (Gallagher) wanted his money. According to Gallagher, Drake told him that he "had already loaned the money out." The name of the person to whom Drake had supposedly lent the money was not given. Drake disputes this testimony, but we resolve the testimonial dispute against Drake. The Disciplinary Review Board, in referring to Drake's letter of June 14, 1977, stated: We concur with the Disciplinary Review Board that Drake's conduct in June of 1977 was intended "to deceive Gallagher as to the actual state of affairs," and violated DR 1-102(A)(4).[7] The Trial Board found that Drake "* * * failed to produce any files, office records, judgments, decrees or letters to establish dates. He did not produce as witnesses either Mr. Waldner, to whom he testified he gave the money, or the secretary who allegedly handled the matter of disbursing the money." We, too, are concerned about the lack of such evidence. The Trial Board also found that Drake was "not credible."[8] We, too, are concerned with Drake's credibility, for his credibility is properly considered in determining his innocence or guilt of the charges made and his fitness to practice law. An unethical lawyer who has done nothing to conceal guilt or mislead the Trial Board and this court is a better candidate for continued practice of law than one who conceals the truth or tries to mislead the Trial Board and this court. In that sense, credibility is relevant alike to guilt and sanction. Unlike the Trial Board, however, we are not clearly and convincingly persuaded that Drake was "not credible." On this record, we are not convinced that he should be permanently disbarred. We have found that Drake violated DR 1-102(A)(4), DR 5-101(A) and DR 5-104(A). The violation of DR 1-102(A)(4) is particularly significant because it involves dishonesty, fraud, deceit or misrepresentation. *305 The appropriate discipline in this case is that Drake be suspended from the practice of law as a member of the Oregon State Bar for a period of three years from the effective date of this decision, and thereafter until he has made application for reinstatement and until he shall affirmatively show that he is in all respects able and qualified to resume his position as a member of the Bar of this state and that his resumption of the practice of law will not be detrimental to the Bar or to the public interest. The Oregon State Bar is also awarded judgment for its costs and disbursements. TANZER, J., filed a specially concurring opinion in which LINDE, J., joined. TANZER, Justice, specially concurring. I write separately because I do not believe the majority's disposition adequately protects the public or promotes public confidence in the legal profession. The 1976 and 1977 incidents should be separately considered. Each is a separate instance of intolerable professional conduct. In my view, in the absence of extenuation, either is cause for permanent disbarment because each involves dishonesty to a client regarding his funds. The Bar showed that the accused solicited a loan from Gallagher, telling him it was for an unnamed client, and received the money. There is no documentation or other evidence to suggest that the accused transmitted the money to any client. In the normal course of business, such documentation would exist. This leaves the inference that the money stopped at the accused and that the accused lied to his client, Gallagher. Obtaining money from a client by false pretenses is a grievous breach of professional conduct. That inference is not successfully rebutted. The accused attempted to rebut the inference by testimony regarding a client, Waldner, who engaged in short-term, speculative business deals. His testimony is the first introduction of Waldner's name into these proceedings or the preceding investigation. There is no documentation of payment of $10,000 to Waldner. The accused has had time to find Waldner and call him as a witness, but has not done so, has shown no effort to do so, and did not request a continuance in which to do so. The accused's conduct is not that of a person who knows of an exculpatory witness. Instead, he testified that he did not remember the circumstances of the transaction, but that his former secretary actually gave Waldner the $10,000, apparently in cash. He did not call her as a witness, did not assert that she was unavailable, and made no showing that he had attempted unsuccessfully to obtain her testimony. Again, this is not the conduct of an accused person who expects a witness to provide exculpatory testimony. The accused's testimony regarding Waldner has all the earmarks of recent fabrication. The Trial Board, which observed the accused testify, found: My reading of the transcript confirms that finding and causes me also to find that the accused's testimony is false. His false testimony fails to rebut the inference that the accused solicited $10,000 from his client by use of false pretenses and kept the money for his own purposes.[1] The majority finesses this by a cryptic finding that Gallagher loaned the money to the accused, without reference to whether it went on to Waldner. I would find that *306 the accused falsely solicited and obtained the loan on his own behalf. The reluctance of the majority to come to a specific finding as to disposition of the 1976 loan should not detract from our recognition of the gravity of the 1977 transaction. The latter transaction, standing alone, sufficiently reflects dishonesty in the lawyer-client relationship to warrant more than a three-year suspension. When Gallagher inquired about his 90-day loan, a year after it was made, the accused lied to him about the disposition of the money. The accused wrote that he had loaned it to another client. In fact, the money had never been loaned to a client or (if the accused is to be believed) it was still loaned to the same client, Waldner, who had not paid it back, who had gone broke and whose meager assets were tied up in tax liens. Either way, the accused deliberately lied to his client in 1977 about his handling of the client's funds and their whereabouts. That act is utterly inconsistent with the maintenance of public trust in the legal profession. In In re Pierson, 280 Or. 513, 571 P.2d 907 (1977), we said This accused's conduct is at least as culpable as that in the Pierson case. It is equally intolerable professional conduct, and it is equally deleterious to public safety and public confidence. This record discloses no extenuation. This is not a case of inexperience or a lapse of judgment due to mental or emotional problems with which the accused is effectively dealing. Nor does the accused face up to his conduct and profess a repentant intention never to repeat it. Any such circumstances might allow us to conclude that the public would be adequately served by a less severe sanction. Here, however, there is only evidence of lying to a client and using his money improperly. I take no pleasure in assuming a position separate from my associates but, as for me, I shall vote to permanently disbar lawyers guilty of dishonesty to clients regarding clients' funds unless there are extenuating circumstances. I do not do so as a matter of leniency or harshness, but rather of the responsible exercise of our public trust in the regulation of licensure to practice law. Justice Linde agrees that the accused's admitted misrepresentation concerning the relending of Gallagher's money in 1977, when Gallagher clearly was a client, justifies disbarment in the absence of mitigating circumstances, without regard to the original 1976 transaction. LINDE, J., joins in part in this opinion. [1] A check drawn by Drake and made payable to Gallagher was enclosed with the letter of June 14, 1977. [2] The Trial Board also found that Drake violated DR 5-105 and DR 9-102(A). The Bar's complaint made no claim that DR 5-105 or DR 9-102(A) had been violated and we will not consider those disciplinary rules in this opinion. [3] The opinion of the Trial Board contains findings that "(c) The accused failed to produce any files, office records, judgments, decrees or letters to establish dates. He did not produce as witnesses either Mr. Waldner, to whom he testified he gave the money, or the secretary who allegedly handled the matter of disbursing the money. "(d) The only document to show the disposition of this large sum of money was the certified check given to the accused by Gallagher, which had an unrestricted endorsement of `Dale Drake'. The accused stated his secretary went to the bank and got one or two Cashier's checks, one to pay an obligation to the bank and the other for Waldner. "* * *. "(h) The Board finds that the testimony of the accused is not credible; that it is not in accord with representations made in his letter of November 15, 1979, to the Oregon State Bar; * * *." Drake, in a letter to the Oregon State Bar dated November 15, 1979, made no reference to any loan to another client. The letter contains this statement: "I did borrow $10,000.00 in June of 1976 at 25% Interest. I gave Mr. Gallagher a promissory note for the same." [4] The fact that the money was to be re-loaned or delivered to an unnamed third person does not alter the fact that the loan was made to Drake, who testified that he prepared his note to give to Gallagher. By oversight, the note was not delivered at or near the time the loan was made. [5] Although Drake testified that he felt morally bound, had he died or become incompetent his personal representative or conservator might successfully have avoided the payment of any interest by asserting that the interest rate was usurious, and Gallagher would have been unable to recover either the principal or a legal rate of interest. See ORS 82.010 (1975), amended in 1981, and ORS 82.120(5) (1975), repealed in 1981. Or. Laws 1981, ch. 412. [6] We also observe that Drake's "exercise of professional judgment" to protect his client was virtually nil. We have no doubt that, had Gallagher come in to see Drake about loaning $10,000 to some third person, the credit of whom was in doubt, Drake would have insisted upon some evidence of the debt, and in the exercise of his professional judgment might well have insisted upon some collateral to secure the loan. The interest rate was usurious under then-existing law. ORS ch. 82 (1975). There was no disclosure to the client regarding the illegality of the interest rate, no documents were prepared to secure the debt, and the only document prepared to evidence the debt the note was never delivered to Gallagher. When an attorney is involved in a business transaction with a client in which they have differing interests, the existence of the differing interests renders the exercise of independent professional judgment difficult if not impossible, which is the reason for the rule. [7] The Disciplinary Review Board concluded that no violation of DR 9-102(B)(4) had been shown. We concur with their analysis and conclusion: "DR 9-102(B)(4) generally refers to funds which are owned by a client but held by the attorney as trustee. In the case at hand, Accused entered into a debtor-creditor relationship with Gallagher. Had the funds been available to Gallagher in June 1977, as Accused's letter inferred they were, then Accused's failure to pay the money to Gallagher would have been a violation of the rule DR 9-102(B)(4) in his efforts to have Gallagher believe they had been repaid and reloaned. We find the Accused not guilty of violating DR 9-102(B)(4)." [8] The Trial Board observed that the only evidence in the case that Drake re-loaned the money to anybody is his unsubstantiated oral testimony. He made no effort to call the third person to whom the money had been purportedly lent, nor did he call his secretary to verify her participation in the transaction. The $10,000 check which was delivered to Drake by Gallagher on June 3, 1976, is a cashier's check made payable to Dale Drake. The reverse side bears Drake's endorsement and shows that it was negotiated at the Bank of California in Portland, Oregon, on the following day, June 4, 1976. [1] The Trial Board also noted that even under the accused's version of the 1976 loan, he admittedly acted contrary to the interests of the client by encouraging him to make an unsecured, undocumented usurious loan to an unnamed debtor who was at best a poor risk.

41a5ffa146daa1c0b1e10021018eb9122b87a88fce86a96b5e274a35b2a1ed59

1982-03-23T00:00:00Z

7d0c5457-8cce-49f5-afd5-2e15d8be008f

State Ex Rel. Emerald People's Util. v. Joseph

292 Or. 357, 640 P.2d 1011

oregon

Oregon Supreme Court

640 P.2d 1011 (1982) 292 Or. 357 STATE ex rel. Emerald People's Utility District, Plaintiff-Relator, v. George M. JOSEPH, Chief Judge of the Court of Appeals, and the Court of Appeals, Defendants. SC 28313. Supreme Court of Oregon. Argued and Submitted January 11, 1982. Decided January 15, 1982. *1012 Jennifer Friesen, Eugene, argued the cause for plaintiff-relator. With her on the brief were Kulongoski, Heid, Durham & Drummonds, Eugene. Charles F. Hinkle, of Stoel, Rives, Boley, Fraser & Wyse, Portland, argued the cause and filed the briefs for defendants. Before DENECKE, C.J., and LENT, LINDE, PETERSON and TANZER, JJ. DENECKE, Chief Justice. In response to a petition by the plaintiff, Emerald People's Utility District, filed on December 29, 1981, we issued an alternative writ of mandamus ordering the defendant, the Chief Judge of the Court of Appeals, to vacate the order of the Court of Appeals denying plaintiff's motion to expedite the briefing schedule in two appeals and to enter an order allowing such motion or show cause why he had not done so. Briefs were filed and oral arguments were held on January 11, 1982. The appeals underlying this mandamus proceeding were from judgments entered in favor of the plaintiff in two actions challenging the validity of a revenue bond election held by the plaintiff. One of these was a special proceeding authorized by ORS 261.605-261.635. ORS 261.615 provides that an appeal from such a special proceeding "must be heard and determined within three months from the time of taking such appeal."[1] After the Court of Appeals denied the motion to expedite briefs, the plaintiff moved for reconsideration of its motion and the Court of Appeals denied that motion. Its action was memorialized in a letter by legal counsel of the Court of Appeals to counsel for the parties which stated, in part: The principal and most important issue raised is whether the legislative command to the judiciary that a proceeding such as the one here involved be heard and determined within three months can be ignored by the judiciary because the command violates the Oregon Constitution. Art IV, § 1 of the Oregon Constitution provides: Art VII, § 1 (as amended) provides, in part: Art III, § 1 provides: The defendant has cited a number of cases from other jurisdictions holding that a *1013 legislative command to the judiciary that cases, or certain types of cases, be decided within a certain time is invalid. These jurisdictions have constitutional provisions regarding the separation of powers similar to those of Oregon. An example is Schario v. State, 105 Ohio St. 535, 138 N.E. 63 (1922). An Ohio statute provided that appeals from convictions for violation of a specified statute "shall be heard by such reviewing court within not more than thirty court days after filing such petition in error." 138 N.E. at 64. In this particular case the appeal was from a city court to a "court of common pleas." The Supreme Court of Ohio held the statute void, stating: Other examples cited are State ex rel Kostas v. Johnson, 224 Ind. 540, 69 N.E.2d 592 (1946); and Atchison, T. & S.F. Ry. Co. v. Long, 122 Okl. 86, 251 P. 486 (1926). This court has not been so adamant. In U'Ren v. Bagley, 118 Or. 77, 81, 245 P. 1074, 46 ALR 1173 (1926), we stated: In Ramstead v. Morgan, 219 Or. 383, 399, 347 P.2d 594, 77 A.L.R.2d 481 (1959), we stated: We followed the principle stated in Ramstead in Sadler v. Oregon State Bar, 275 Or. 279, 285, 550 P.2d 1218 (1976), and State ex rel Acocella v. Allen, 288 Or. 175, 179, 604 P.2d 391 (1979). In both those decisions we upheld legislation affecting judicial power because we concluded the legislation did not "unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions." 288 Or. at 181, 604 P.2d 391. Prior to the articulation of this principle we held the legislature could validly require courts to act within a specified time. A statute was enacted providing that a court must determine a motion for a new trial within 55 days or it was deemed denied. We upheld the statute. Nendel v. Meyers, 162 Or. 661, 664, 94 P.2d 680 (1939): See, also, Armstrong, Oregon Survey, Constitutional Law, 56 Or.L.Rev. 387, 391 (1977). Turning to the statute here invoked, we conclude that the legislative command to the Court of Appeals to hear and determine the case within three months from the time of taking the appeal does not on its face necessarily "unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions." "Unduly," in this context, means that it is impossible in the individual case, within the statutory deadline, for counsel to complete proper briefing or other documentation adequate for a responsible judicial decision, and for the court to arrive at a reasoned decision consistent with the judicial responsibility imposed by Art VII. We do not infer in the abstract that the three-month limitation does or does not unduly interfere with the court's conscientiously and competently performing its judicial function under Art VII, § 1 (amended). Defendant also argues that legislation to expedite some cases over others may create "privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens," Oregon Constitution, Art I, § 20, or deny some persons the "equal protection of the laws," United States Constitution, Fourteenth Amendment. ORS 261.615 was enacted to expedite a final decision on the validity of bonds sought to be sold by public utility districts, which are governmental entities, not private persons or citizens. The statute does not violate these constitutional provisions. Cf. State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), and State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981). For these reasons the Court of Appeals was in error in disregarding the legislative command in the court's consideration of plaintiff's motion to expedite. We will not, however, issue a peremptory writ ordering the Court of Appeals to expedite the briefing schedule. The notice of appeal in these cases was filed October 22, 1981. The three-month period will expire on Monday, January 25, 1982, six judicial days from the date of this opinion. The appellant's brief, is not due until February 7, 1982. (Apparently, settling of the transcript caused a delay.) We know it is possible to have a case briefed, heard and decided by an appellate court in the time remaining between now and January 25; however, we conclude that to require such action at this late stage might well interfere unduly with the court's well-considered and responsible decision of the cases involved here.[2] Alternative writ dismissed. Costs and attorney fees to neither party. PETERSON, Justice, specially concurring. When I came to work on the morning of January 14, 1982, a draft opinion in this case was on my desk. The case had been argued three days earlier, on January 11, 1982. We had received the defendants' brief on January 4, 1982, and on the day of the argument we received the answering brief of the plaintiff and the defendants' reply brief. Accompanying the draft opinion was a memorandum from its author concluding with this clause: "Goal: To have opinion issued before close of Thursday [January 14, 1982]." At the conference of the court following oral argument, I had stated my concerns relative to the constitutionality of the statute involved in this case, but I had by no means thoroughly studied the applicable law. The fact that the opinion was on my desk compelled me to do one of three things. First, I could join in the opinion without further research or further real consideration of the issues. Second, I could do research. *1015 Or third, I could express tentative disagreement with the opinion and ask for time to prepare a separate opinion. I was unwilling to join in the opinion, and after rereading it, I told its author that I would probably write separately. I have other opinions to write. Some people might say that other cases that have been assigned to me for opinion have as much or more importance or significance than this one. In any event, I put those cases aside, and began to work on this case, which was largely completed on the following day, January 15, 1982.[1] I will return to this aspect of the case later in this opinion. The statute involved in this case requires that the appeal must be "* * * heard and determined [by the Court of Appeals] within three months from the time of taking such appeal." The general issue is whether the statute is unconstitutional under the separation of powers doctrine, Or Const. Art III, § 1, and Art VII, § 1. The specific question is whether a statute which requires the hearing and decision of a case within three months of the time of taking an appeal "* * * unduly burdens or unduly interferes with the judicial department in the exercise of its judicial functions." Ramstead v. Morgan, 219 Or. 383, 399, 347 P.2d 594, 601 (1959). Accord, Sadler v. Oregon State Bar, 275 Or. 279, 550 P.2d 1218 (1976); State ex rel. Bushman v. Vandenberg, 203 Or. 326, 276 P.2d 432, 280 P.2d 344 (1955). The chronology in this case is as follows: The legislature has imposed, by statute, procedures applicable to the appeal of cases (including the cases in the Court of Appeals) as follows: The normal appeal procedures permit 30 days after filing the notice of appeal for preparation of the transcript, and up to 30 days thereafter for settlement of the transcript.[2] The transcript in this case was settled on December 9, 1981, 48 days after the notice of appeal was filed, and three months from October 22, 1981, would end *1016 on January 25, 1982.[3] In this case, then, from the time the transcript was deemed settled until the time that the case must be "heard and determined" under ORS 261.615 would be between six and seven weeks. The fact that it is possible for the appeal to be "heard and determined" within three months is by no means dispositive of the constitutionality of ORS 261.615. In fact, the possibility of hearing and decision within such a period is, to my way of thinking, largely irrelevant in considering whether the statute is constitutional. The principle of separation of powers is well established. It exists under the constitution of the United States and under the constitution of each of the 50 states. The principle prohibits the legislature not only from exercising judicial functions, but also from unduly burdening or interfering with the judicial department in its exercise of judicial functions.[4] The majority make reference to this rule on page 1013 of its opinion. The majority conclude that the "* * * legislative command to the Court of Appeals to hear and determine the case within three months from the time of taking the appeal does not on its face necessarily `unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions.' * * *," largely because it is possible for the case to be heard and determined within three months. The majority apparently rely largely upon Nendel v. Meyers, 162 Or. 661, 94 P.2d 680 (1939). I will discuss that case below. I am persuaded that, even though the Court of Appeals could possibly hear and determine the appeal in this case within the statutorily prescribed time, the intrusion by the legislative branch into affairs which are peculiarly the responsibility of the judicial department violates the separation of powers clauses of the Oregon Constitution. The Court of Appeals has had outstanding success in its handling of one of the heaviest caseloads-per-judge of any intermediate appellate court in the United States.[5] It controls the time the cases shall be set for hearing, the manner of hearing, and the *1017 manner of disposition of cases coming to it. I believe that legislative intrusion into this uniquely judicial function is prohibited by the Oregon Constitution. I have found no case from any other state reaching the conclusion that the majority reaches in this case.[6] In fact, virtually every court which has considered this problem holds that such legislative action is prohibited. The appendix to this opinion lists most of the courts which have considered this problem. Without exception, they have reached a contrary conclusion. Of course, on the issue involved in this case, this court is not bound by the decisions of the courts of any other state. Indeed, on this question, this court is not bound by the Supreme Court of the United States, for the construction of the Oregon Constitution is the responsibility of Oregon courts, not federal courts. Even so, as any reader of our reports knows, we often refer to the decisions of other courts for guidance and direction, and I, for one, believe that the decisions of other courts which have considered the identical issue should be looked to. More to the point, however, if we have an Oregon precedent which has decided the identical issue now presented, we must follow that precedent unless we now decide to overrule it. The majority's principal reliance is upon the case of Nendel v. Meyers, supra. That case involved the application of a statute which provided that a trial court must determine a motion for a new trial within 55 days after entry of judgment, and that if the motion was not "heard and determined within said time, the said motion shall conclusively be taken and deemed as denied."[7] The court held that an order setting aside a judgment more than 55 days after the entry of judgment was "null and void," because the trial court had no jurisdiction over the matter. On the constitutional issue, the court held: The provision in the statute in Nendel provided that the motion would be deemed denied 55 days after the entry of judgment. The effect of that provision is similar to the provision in ORS 19.078(4), providing that the transcript is deemed settled if no objections are filed within 15 days after the transcript is filed. The purpose of such statutes is to prevent a losing litigant from indefinitely postponing the ability of the winning party to obtain the benefits of a victory. The legislature can give, and the legislature can take away. That is the basis for the decision in Nendel v. Meyers, supra. But the legislature cannot take away a power that it did not give. State ex rel Oregon State Bar v. Lenske, 243 Or. 477, 492-493, 405 P.2d 510, 407 P.2d 250 (1966). Perhaps the legislature could pass a statute providing that no appeal would exist in cases such as the case at bar.[8] But having provided for an appeal, the disposition of the case by the judicial department is largely a matter for the judicial department, once the procedural steps provided for by the legislature have been met. I am sensitive to and agree with the statement that because courts have the last word as to when there has been a transgression upon their domain, the power should be exercised with extreme caution and only when there has been a plain and palpable abridgement of the powers of one department *1018 by another. U'Ren v. Bagley, 118 Or. 77, 81, 245 P. 1074, 46 ALR 1173 (1926). I disclaim any "knee-jerk" reaction to the statute in this case and aim to suppress judicial arrogance. But the doctrine of the separation of powers is more than a theoretical, philosophical concept. It is a practical, workaday principle. Although each of the three departments do not exist in watertight compartments, a line must be drawn to separate judicial functions from legislative functions. I would draw that line in favor of the decision of the Court of Appeals.[9] I concede that the Court of Appeals was created by the legislature; it could be abolished by the legislature. But having established the Court of Appeals, the legislature cannot unduly interfere with purely judicial functions. The institutional independence of the judicial branches has been preserved as the doctrine of separation of powers and has consistently caused courts to declare void legislation which insisted on judicial action with a set period of time. I concede that it is possible for the Court of Appeals to decide this case within three months. Considering its outstanding record in the disposition of cases that come before it, perhaps it could even be said that the Court of Appeals could decide this case within three months without substantial difficulty. But, as I have set aside other important work to work on this case, so the consideration of the cases in the Court of Appeals will require them to set aside other important cases. Normally, courts decide how and when cases should be heard and determined. This is historically true. Permitting the legislature to tell us when and how to hear and determine cases will impermissibly affect judicial functions the manner in which cases are prepared, argued, considered and determined. Considering all of the aspects of the problem, although the question is a close one, I would follow the lead of other courts that have considered the issue, and hold that the statute is unconstitutional. For as this opinion may reflect, opinions spurred by a sense of urgency, with adrenalin flowing, the banner of advocacy waving, and the *1019 opportunity for detached consideration lacking, often result in passionate statements of position reflective of advocacy more than reason. APPENDIX State ex rel. Kostas v. Johnson, 224 Ind. 540, 69 N.E.2d 592, 168 A.L.R. 1118 (1946). (Statute provided that if judge (in trials on questions of fact) fails to determine, within 90 days, any issue of law or fact taken under advisement, the submission of the issue will be withdrawn and the judge will be disqualified); Resolute Ins. Co. v. Seventh Jud. Dist. Ct. of Okl. Co., Okl., 336 F. Supp. 497 (WD Okl. 1971) (Statutory provision required judge to act within 30 days on motion to set aside order of forfeiture of bail); Sands v. Albert Pike Motor Hotel, 245 Ark. 755, 434 S.W.2d 288 (1968) (Statute required affirmance of Worker's Comp order in Circuit Court within 60 days, or order deemed affirmed); In re Estate of Barker, 24 Ill. App.3d 959, 321 N.E.2d 709 (1974); Siskoy v. Walsh, 22 Wis.2d 127, 125 N.W.2d 574 (1963) (Statute required that court hear motion within 20 days); State v. Merialdo, 70 Nev. 322, 268 P.2d 922 (1954) (Statute requiring judges to file affidavit of "no cases over 90 days" as condition of getting paycheck); United States v. Brainer, 515 F. Supp. 627 (D.C.Md. 1981); Schario v. State, 105 Ohio St. 535, 138 N.E. 63 (1922) (Statute required that petition in error must be heard by reviewing court within 30 days of the filing of the petition); Atchison, T & S.F. Ry. Co. v. Long, 122 Okl. 86, 251 P. 486 (1926) (Statute provided that court shall try certain cases within 10 days after answer); Holliman v. State, 175 Ga. 232, 165 S.E. 11 (1932) (Statute imposed time limit in which Supreme Court could act on petition for certiorari); Riglander v. Star Co., 98 App.Div. 101, 90 N.Y.S. 772, 794 (1904), aff'd 181 N.Y. 531, 73 N.E. 1131 (1905) (Declaring unconstitutional a statute requiring court to set certain cases for trial on certain day, to the preference of other cases). See annotation in 168 A.L.R. 1125. [1] The plaintiff recognized ORS 261.615 did not expedite the other proceedings but asked that the briefs be accelerated in that case also because it involved the same issues as the special proceeding. [2] The issue of the legal effect of failure to decide an appeal within the statutory period is not before us, and we express no opinion on it. [1] As my secretary typed this opinion I was rushing to complete a rewrite of one opinion and to complete a third opinion. [2] In practice, the time can be longer, because the statute, ORS 19.078(4) does not require that the trial judge set the hearing on objections to the transcript within 15 days after the objections to the transcript are filed. [3] To calculate the period of "three months," see ORS 174.120. [4] Sadler v. Oregon State Bar, 275 Or. 279, 287, 550 P.2d 1218, 1222-223 (1976); Ramstead v. Morgan, 219 Or. 383, 399, 347 P.2d 594, 601 (1959); State ex rel. Bushman v. Vandenberg, 203 Or. 326, 276 P.2d 432, 280 P.2d 344 (1955). See discussion in H. Rottschaefer, American Constitutional Law 52 (1939). [5] The statutes are largely silent upon the procedures to be followed in the appellate courts of Oregon. The Supreme Court and Court of Appeals have promulgated rules which provide, in part, as follows: The appellant's brief shall be served and filed within 60 days after the transcript is settled or deemed settled under ORS 19.078(4). Rule 7.45 The respondent's brief shall be served and filed within 60 days after the filing of the appellant's brief. Rule 7.45. The appellant's reply brief must be served and filed within 30 days after the filing of the respondent's brief. Rule 7.45. The monthly statistical reports issued by the Court of Appeals and Supreme Court reveal the following time intervals: The mean yearly rate of increase in appeals in Oregon between 1971 and 1978 was 18 percent. No state has had a higher annual increase. In 1978, the filings per judge on the Court of Appeals in Oregon were 311, fourth in the nation among states having intermediate appellate courts. In cases decided, the Oregon Court of Appeals ranked third. Marvell and Kuykendall, Appellate Courts Facts and Figures 9 et seq., Spring 1980, State Court Journal. The Summer 1980 issue of the State Court Journal, at page 9 et seq, reveals that the Oregon Court of Appeals, during the period described in the article, (1) had the shortest period between court judgment and submission of any intermediate appellate court, (2) had the shortest elapsed time between the time when the case was "at issue" and oral argument of any intermediate appellate court, and (3) had the shortest time between oral argument and decision of any intermediate appellate court. [6] There are, however, cases which reject the claim that speedy trial statutes in criminal cases violate the separation of powers doctrine. They turn upon the constitutional guarantee of a speedy trial. See, e.g., State v. Pachay, 65 Ohio St.2d 218, 416 N.E.2d 589, 591-592 (1980), and State v. Warren, 224 Kan. 454, 580 P.2d 1336, 1339 (1978). Contra, United States v. Brainer, 515 F. Supp. 627 (D.C.Md. 1981). [7] ORCP 64 F is still to that effect. [8] See Klamath Falls v. Winters, 289 Or. 757, 762, 619 P.2d 217 (1980). [9] See A. Vanderbilt, The Doctrine of the Separation of Powers 50-51 (1963).

1b2f976c57b70cdbf309e5a1ee20a42df1241535c5b428397d8c1cae37d9f9e9

1982-01-15T00:00:00Z

6c4c2947-772c-4ae3-94f8-6dea330978c8

Wilson v. BF Goodrich

292 Or. 626, 642 P.2d 644

oregon

Oregon Supreme Court

642 P.2d 644 (1982) 292 Or. 626 Steven J. WILSON, by and through His Conservator, Marguerite Wilson, Respondent On Review, v. B.F. GOODRICH, a Corporation, Petitioner On Review, General Motors Corporation; and Murray Chevrolet Co., a Corporation, Defendants. TC A7704-05292; CA 15106; SC 27885. Supreme Court of Oregon, In Banc.[*] Argued and Submitted September 8, 1981. Decided March 18, 1982. Rehearing Denied May 4, 1982. *645 Donald C. McClain, Portland, argued the cause for petitioner on review. With him on the brief were Stewart M. Whipple and Alan H. Johansen, Portland. Elden M. Rosenthal, Portland, argued the cause and filed brief for respondent on review. With him on the brief was Charles Paulson, Portland. James F. Spiekerman, Portland, with the firm Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, filed a brief amicus curiae for Oregon Association of Defense Counsel. With him on the brief were Jere M. Webb and Charles F. Adams, with the firm Stoel, Rives, Boley, Fraser & Wyse, Portland. No appearance by defendants. LINDE, Justice. Plaintiff was injured when a tire manufactured by defendant exploded while plaintiff was inflating it. The tire was a so-called "space saver" spare tire, different from tires used on regular automobile wheels, and instructions affixed to it stated that the tire and wheel should be fixed to the car or to a tire mounting stand before being inflated. There was evidence that plaintiff did not follow this and other precautions in attempting to use the tire. The present action against defendant manufacturer, along with other defendants, was brought on separate allegations of negligence and marketing a dangerously defective product. Defendant's answer alleged that plaintiff's injuries were caused by his "knowing, voluntary, and unreasonable express assumption of the risk" and his own negligence in certain specified respects. In a form of verdict containing nine separate questions, the jury found that defendant B.F. Goodrich was at fault for the design, manufacture, or sale of a dangerously defective tire, that it was negligent, that plaintiff was at fault "in misusing the tire which caused injury to plaintiff as contended in defendants' answers," that plaintiff was negligent, that the "percent of each of the parties' fault which caused damage to plaintiff" was 50 percent each, and that plaintiff's "total money damages" were $60,000. The jury found in favor of the other defendants. Plaintiff's major assignments of error on appeal were that his alleged contributory negligence should not have been submitted to the jury in defense against his products liability count and that the trial court erred in striking expert testimony on plaintiff's loss of earning capacity. Agreeing with both contentions, the Court of Appeals reversed and remanded the case for retrial, 52 Or. App. 139, 627 P.2d 1280 (1981), and we allowed review. We affirm the remand for a new trial but without the restriction imposed on the contributory negligence defense. We have dealt with the question whether an injured party's negligence can diminish or defeat recovery on a products liability claim in Sandford v. General Motors, 292 Or. 590, 642 P.2d 624 (1982), also decided today. As Sandford sets forth in detail, we understand the references in ORS 18.470 to the "fault" of the several parties as intending such an effect under certain circumstances.[1] To summarize, *646 ORS 18.470 applies to products liability claims like Sandford and the present case when both the product defect and the claimant's conduct that is alleged as "fault" in fact joined to cause an unsegregated injury. Each must be found to have been a necessary cause of the injury, assuming that this is open to dispute. See Sandford, supra, at 593-594, 642 P.2d 624. A claimant's conduct can be "fault" for being negligent as well as in other respects, except that it will not reduce or defeat a products liability claim when unobservant, ignorant, or awkward failure to discover the defect or to guard against it is the kind of user conduct that is considered in finding the product dangerously defective in the first place. See Sandford, supra, at 598, 642 P.2d 624. When ORS 18.470 applies, it calls for the factfinder to assess the relative magnitude of the fault charged against each party as measured against the respective governing norm, the degree to which a product is defective against what would be an adequately safe product, and the plaintiff's misconduct against what would be faultless conduct. See Sandford, supra, at 598, 642 P.2d 624. In this case, there was evidence from which a jury could find that the tire was dangerously defective in design or in manufacture and that but for this defect, the tire would not have exploded or caused the same injuries when plaintiff inflated it as he did.[2] The jury also could find that plaintiff's attempts to install and inflate the tire were negligent in a number of respects and that the defect otherwise would not have caused plaintiff's injuries. This therefore was a proper case for instructions under ORS 18.470 and ORS 18.480.[3] At the time of his injuries plaintiff was just short of 20 years old. He had left high school with poor grades at the beginning of his third year, worked briefly in a MacDonald's restaurant, and served two years and four months in the Army. After returning home, he found employment as an assembly worker in an aluminum door and window plant at a wage of approximately $2.30 an hour. He had worked for three days when he was disabled by his accident with the tire. There was evidence that plaintiff suffered brain injuries that would permanently disable him from gainful employment. Plaintiff called an economist, Dr. Russell Dawson, as an expert witness on the financial measure of his consequent loss of earning capacity. Over defendants' objections Dr. Dawson, upon certain stated assumptions, placed the value of plaintiff's lost lifetime income at $597,866.00. He also placed a present value of $105,576.00 on the cost of future nursing assistance to plaintiff. At the conclusion of the trial, the court granted defendant's motion to strike the economist's testimony and exhibits and instructed the jury that this evidence was withdrawn from their consideration. The trial court considered itself bound to strike Dr. Dawson's testimony on plaintiff's loss of earning capacity by this court's decision in Plourd v. Southern Pac. Transp. Co., 266 Or. 666, 513 P.2d 1140 (1973). The parties and the Court of Appeals have analyzed the ruling in the light of that decision, its contemporary, Conachan v. Williams, 266 Or. 45, 511 P.2d 392 (1973), and its sequel, Plourd v. Southern Pac. Transp. Co., 272 Or. 35, 534 P.2d 965 (1975), as well as language found in earlier cases. There is no need to repeat the analysis at length here. The question is how it applies to evidence adduced to estimate the earning capacity of a young person with no prior employment history and no special educational background or skills pointing toward any specific future occupation or employment. The general principles are not disputed. The testimony of an expert is admissible if it can be of appreciable help to the factfinder. Koch v. Southern Pacific Co., 266 Or. 335, 341, 513 P.2d 770 (1973); see also State v. Stringer, 291 Or. 527, 633 P.2d 770, aff'd on reh. 292 Or. 388, 639 P.2d 1264 (1982). In principle, expert testimony is admissible to assist the factfinder in placing a present value on future earning losses. In doing so, an expert may testify to economic assumptions about the future, such as inflation, wage levels, and interest rates. Plourd v. Southern Pac. Transp. Co., 266 Or. at 676-679, 513 P.2d 1140. These assumptions necessarily rest on estimates and predictions of uncertain future events, whether made by a witness or by a factfinder without expert assistance, that weakness can be explored by crossexamination or contrary evidence; it does not make the expert testimony inadmissible. Id. at 678-679, 513 P.2d 1140. The problem lies in relating general economic data and forecasts of future trends to the prospects of the unique individual in a given case. When the evidence offered to show the probable earning capacity of one individual was the earning records of other individuals in similar employment, the prior decisions have been concerned that there be a showing of substantial similarity of earning capacity between the respective individuals. Thus Conachan v. Williams, supra, found error in the admission of evidence of the average earnings of other division managers of an insurance company as proof of the earnings capacity of an injured manager, when these earnings depended on the production of salesmen working under each manager and there was no evidentiary showing that the situations of the several division managers were substantially similar. Similarly a majority in Plourd v. Southern Pac. Transp. Co., supra, found error in admitting a computation of a railroad brakeman's loss of earning capacity based on the earnings of another brakeman, in view of an unexplained history of lower earnings by the injured brakeman. 266 Or. at 687, 513 P.2d 1140. On retrial, plaintiff offered explanatory evidence on that issue, *648 and this court held that the computations then had a sufficient foundation of similarity of circumstances. Plourd v. Southern Pac. Transp. Co., 272 Or. 35, 40-42, 534 P.2d 965 (1975). The problem in the present case is not like that in Conachan or Plourd. The occupations of those men were well established. The computations in their cases were offered to prove what they might have earned in those occupations by showing the actual earnings of other individuals in the same occupations. They did not purport to estimate the injured men's potential earning capacities in other lines of work. Cf. Conachan v. Williams, 266 Or. at 61-62, 511 P.2d 392.[4] In making such direct comparisons with the earnings of other individuals, it was deemed necessary to support the proffered comparison with evidence that the individuals being compared in fact were comparably skilled, diligent, or otherwise similarly situated. This question of comparability between identified individuals, however, often will be distinct from the inferences that an expert may draw from the comparison and not itself be a matter of expertise. But in the present case no comparison with the actual earnings of specific persons was offered. Steven Wilson had been employed for only three days at his first regular job, before he turned twenty years old. Evidence of his earning capacity could not well be limited to projecting a lifetime wage for elementary assembly work because that happened to be his work at the moment. It might indeed be less as well as more. But when assessing the earning capacity of a young person who has not prepared for or settled into even an initial line of work, the factfinder necessarily must draw some inferences from the available evidence as to the individual's likely level of earnings and continuity of employment over many years. The factfinder must do so whether those inferences are aided by expert testimony or not. Of course proof of lost earning capacity is part of the plaintiff's burden of proof, but the adequacy of evidence to support these inferences is a different question from whether expert testimony is admissible to aid them. The Court of Appeals cited the decision of the Montana Supreme Court in Krohmer v. Dahl, 145 Mont. 491, 402 P.2d 979 (1965), which dealt with the earning capacity of a deceased college student, for the proposition that in the absence of an established record of actual employment expert testimony could be based on the possible earnings of "classes of people of the same type as the decedent if they had survived through their normal life expectancy." The Montana court saw the issue before a trial court as being "whether the testimony of [the expert] should be allowed, in order to give the jury some basis upon which to reach a conclusion in regard to possible future earnings of the decedent, or whether to leave the jury unguided and hope that by their common knowledge and sense of justice they might arrive at a more accurate estimation of damages," and it concluded that the expert's testimony could only reduce the element of conjecture. 145 Mont. at 495, 402 P.2d at 981. For the same reasons, Judge Richardson's opinion for the Court of Appeals concluded that in a case like the present, "any failure by the offering party to demonstrate substantial similarity between himself and his expert witness's statistical model should go to weight rather than admissibility." It continued: 52 Or. App. at 147-8, 627 P.2d 1280. We agree with these statements. Problems predictably can arise in determining what are "classes of people of the same type" as the injured person, in the words of the Montana court. Should "college student," as in Krohmer v. Dahl, supra, be regarded as a "class" or "type" without regard to field of study, academic record, or other indications of probable occupational qualifications? Should an expert testifying about "classes" or "types" take into account statistical employment expectations by sex or ethnic origins? The college student may be a basketball player or a basket weaver, a future unemployed architectural historian or a millionaire builder. A skilled as well as an unskilled worker may find himself in an industry with steady employment, good wages and benefits, and opportunities for further training or in a shrinking industry beset with seasonal or cyclical unemployment or geographic dislocation. The witness in this case made clear that his testimony rested on very simple and undifferentiated premises. He postulated the national average hourly wage rate, including fringe benefits, for factory production work not involving special skills. He explained that an individual worker's actual wage would be lower than this average when he first begins work and higher than the average in the later years of a working career. He testified that, over extended periods of time, the rate of increases in this average wage have approximated the interest rate by which lifetime earnings must be discounted to arrive at their present value. Accordingly the discount rate could be disregarded, and the present loss of earning capacity could be reasonably approximated as equal to the actual loss of lifetime earnings. The witness then multiplied the postulated hourly wage rate by the average expected working life of a man of plaintiff's age, reducing this by allowing three years for periods during which such a person might be unemployed for one or another reason. The multiplication produced an estimate of lost lifetime earnings for a factory worker of plaintiff's age in the amount of $707,533, reduced by estimated federal and state income taxes to a total after tax income of $597,866. As already mentioned, Dr. Dawson equated this to lost earning capacity on the premise that average wages historically have risen at a rate equal to the discount rate. Obviously this testimony is very different from the evidence of the income of specific individuals offered for comparative purposes in Conachan and Plourd, supra. The witness clearly stated that he was presenting general national statistics for factory workers of all kinds. Defendants' counsel subjected his assumptions and methodology *650 to searching crossexamination. Any weaknesses in these respects would call for argument and opposing evidence, not for exclusion of his testimony. The crux of the dispute is whether calculations based on average factory wages were relevant to this plaintiff's situation. Again, Dr. Dawson disavowed any intention to evaluate Steven Wilson as an individual future worker. He stated that his testimony was based on the general occupational potential of a 20-year old with two years of high school attendance and prior military service. He had no personal knowledge of plaintiff's past record or wage rate when injured. On crossexamination, the witness was asked whether certain assumed facts would affect his estimate, for instance, if the individual had a record of drug or alcohol abuse or of poor performance in school or in the military. He answered that this might indeed reduce the individual's earning capacity below the statistical assumptions. In support of the withdrawal of Dr. Dawson's testimony from the jury, defendant argues that the role of the economist is to provide "statistical assistance" but not to fill factual gaps in the foundation for his calculations. In the calculation of lost earnings capacity from projected future earnings, that distinction does not draw a clear and simple line. The assumption that someone with ten years of school ordinarily can qualify at least for nonsupervisory, lowskilled factory work was itself presented as a statistical datum of labor economics, not as an assertion about Steven Wilson. The need for more individualized evidence increases as the expert's testimony is focused more narrowly, for instance, if he were asked to assume that an individual would work in a plywood plant instead of merely in some kind of production work, or that an employee might shift from an existing occupation into a specific different one or succeed in a narrow and competitive speciality such as the performing arts, as in Weinstein v. Wheeler, 127 Or. 406, 257 P. 20, 271 P. 733 (1928). It is the very generality of this economist's statistical assumption that saves its admissibility here. For in the case of a young person disabled before establishing any regular work experience it surely is not less relevant to inquire in the most general terms what kind of work and earnings others of similar background statistically obtain over their working lives than to assume that such a person would work a lifetime at the statutory minimum wage, if at all. We speak only of admissibility; of course the factfinder need not believe that a particular disabled person's experience would approximate the general norm. If there are reasons why it probably would not, they can be brought out. The homogenization of statistics is as apt to understate as to overstate an individual case. The distribution of actual numbers around the mean can be explored in more informative detail than happened in this case. None of this makes the expert's testimony inadmissible under the test whether it might be of appreciable help to the factfinder in projecting the value of a young person's earning capacity over his working life. The answer to the charge of speculativeness is that the factfinder must arrive at such a conclusion with or without help, see Conachan v. Williamson, supra, 266 Or. at 64, 511 P.2d 392; the question is whether the offered evidence is more help than it is misleading or confusing. This court has said that the trial court has some latitude of judgment in determining whether any given expert's testimony is of a kind that will meet this test. State v. Stringer, supra, 292 Or. at 394, 633 P.2d 770; Cooney v. McGee, 268 Or. 521, 525, 521 P.2d 1051 (1974); Yundt v. D & D Bowl, Inc., 259 Or. 247, 259, 486 P.2d 553 (1971). If the trial court had excluded Dr. Dawson's testimony for that reason, we would face the question of the scope of appellate review of that latitude. In this case, however, Judge Unis initially admitted the testimony and later withdrew it from the jury's consideration only under what he believed to be the compulsion of the prior holdings of this court, specifically in the Plourd cases, supra. After searching for a *651 distinction he ultimately decided "reluctantly" that Dr. Dawson's testimony and exhibits had to be stricken. He did not reach that conclusion by exercising his own judgment on the relevancy and potential helpfulness of the evidence. This case differs from Plourd for the reasons set out herein and in the opinion of the Court of Appeals. We do not deal with the admissibility of every detail of the offered testimony and exhibits. We hold only that it was error to withdraw it from the jury's consideration in its entirety, and that this withdrawal of evidence relevant to plaintiff's loss of earning capacity requires a new trial. The decision of the Court of Appeals to this effect is affirmed. LENT, Justice, concurring. I write separately only because I had recused myself in the case of Sandford v. General Motors, 292 Or. 590, 642 P.2d 624 (1982). In the case at bar I concur in the majority opinion, which follows the decision of this court in Sandford. Had I participated in the decision in that case, I would have joined in the majority opinion except for the rather minor reservation expressed in the next paragraph of this opinion. The opinion of the court in Sandford, 292 Or. at 599, 642 P.2d at 629, observes that this court has disavowed risk spreading as the basis of adopting the concept of products liability. It is true that the cases cited for that observation so indicate, but I have previously indicated my doubts as to the clarity of that characterization of this court's position. See, Allen v. The Heil Company, 285 Or. 109, 119, 589 P.2d 1120 (1979), footnote 6, concerning the "balancing test" to be used in deciding whether the evidence in a given case presents a question for the trier of fact. As I stated in that footnote, some of the criteria involved in the balancing test are appropriate only if strict products liability is viewed as a risk-spreading device. This case does not require resolution of that question, however, and I join in the majority opinion. [*] Tongue, J. retired February 7, 1982. [1] ORS 18.470: "Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for death or injury to person or property if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the person recovering. This section is not intended to create or abolish any defense." [2] The products liability count of the complaint also alleged that defendant knew that the "space saver" tire had caused serious injuries but "continued to use instructional labels rather than warning labels." Possibly this might intend to allege that the tire was dangerous by reason of defective warning, but the allegation appears only in a section of the complaint demanding punitive damages. By contrast, the second count alleged inadequate warning as a specification of negligence. The verdict on the products liability count only referred back to the complaint without specifying the alternative allegations of defect. [3] ORS 18.480: "(1) When requested by any party the trier of fact shall answer special questions indicating: "(a) The amount of damages to which a party seeking recovery would be entitled, assuming that party not to be at fault; "(b) The degree of each party's fault expressed as a percentage of the total fault attributable to all parties represented in the action. "(2) A jury shall be informed of the legal effect of its answer to the questions listed in subsection (1) of this section." Plaintiff objected only to submitting contributory negligence in a products liability case; neither party objected to the form of the verdict. Cf. Sandford, supra, 292 Or. 593, 642 P.2d 624. Defendant also pleaded that plaintiff's injuries were caused by his "knowing, voluntary and unreasonable express assumption of the risk that the tire could cause injury if inflated" as alleged (emphasis added), and by "plaintiff's misuse of a Space Saver Tire" in specified respects. The verdict form submitted to the jury a question on "misusing the tire" separate from a question on plaintiff's negligence. It is not clear whether "express assumption of the risk" was meant in a sense other than that plaintiff expressly stated to a defendant his willingness to assume the risk of any defect in the tire, cf. Restatement (Second) of Torts § 496 B, nor whether "misuse" here was meant in any sense different from negligence in attempting to use the tire for its intended purpose. Cf. Anderson v. Klix Chemical, 256 Or. 199, 208-209, 472 P.2d 806 (1970), recognizing "misuse" as a defense to a products liability claim before the enactment of ORS 18.470 and 18.475, at a time when the status of contributory negligence as a defense was unsettled. Voluntary disregard of cautionary instructions might raise an issue of causation if a product was alleged to be defective only in having inadequately prominent warnings. Cf. McEwen v. Ortho Pharmaceutical, 270 Or. 375, 407, 528 P.2d 522 (1974). No issue about the quoted terms is before us, but because the case may be retried, we do not want to be understood as having endorsed the specific details of the manner in which these issues were submitted. [4] See also Brown v. O.-W.R. & N. Co., 63 Or. 396, 409, 128 P. 38 (1912), quoted in Conachan v. Williams, 266 Or. at 59-60, 511 P.2d 392: "A fair rule would seem in cases of this character to be that any evidence which would indicate fairly the capacity of the plaintiff to earn money in his usual vocation, and the probability of his being able to do so in the future should be admitted; but, where such evidence consists of mere guesswork and speculation upon what might happen in the future, it should be excluded. Such testimony in any court is seldom, or never, conclusive, and merely furnishes one factor insolving the equation of a man's earning capacity."

212e0dd7a04b7443e4a1484feba7b2d27b6d52a7eb500ed26cbeee7267de080d

1982-03-18T00:00:00Z

589ac685-7520-49f8-9269-fc26ec0a9002

State v. Roberti

293 Or. 59, 644 P.2d 1104

oregon

Oregon Supreme Court

644 P.2d 1104 (1982) 293 Or. 59 STATE of Oregon, Petitioner On Review, v. Gary Patrick ROBERTI, Respondent On Review. TC T79-12-0348, CA 18838; SC 27840. Supreme Court of Oregon, In Banc.[*] Argued and Submitted September 4, 1981. Decided May 4, 1982. Reargued April 6, 1982. *1105 Virginia L. Linder, Asst. Atty. Gen., Salem, argued and reargued the cause for petitioner on review. With her on the petition were David B. Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. With her on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem. Sid Brockley, Oregon City, argued and reargued the cause and filed the brief for respondent on review. *1106 TANZER, Judge. Defendant appeals his conviction of the crime of driving under the influence of intoxicants. He assigns as error the admission into evidence, over objection, of a statement he made in response to police questioning after the officer had pulled over his car. The case was tried to the court and the judge relied upon defendant's statements in coming to its finding of guilt. The Court of Appeals reversed, 51 Or. App. 783, 627 P.2d 28, holding that the statement made after the officer had formed, but not communicated, his intention to arrest defendant was the product of custodial interrogation and should have been suppressed. We reverse and uphold the trial court. Defendant was driving his car at 2:10 a.m. on a major highway in a rural area. The officer paced defendant's car at about 80 miles per hour and observed it weaving in the right hand lane, crossing over the fogline several times, and traveling at times close to the guardrail. The officer turned on the overhead lights on his police patrol car, and defendant brought his car to a stop at the side of the road, apparently in response to the officer's signal given by the overhead lights. Defendant stepped out of his car and began to walk toward the rear of the car, where he was met by the officer. The officer detected an odor of alcoholic beverage on defendant's breath. He also noticed that defendant's eyes were watery and bloodshot and his face was flushed. The officer told defendant of the officer's observations concerning defendant's operation of the vehicle. Defendant answered that he knew he had been going too fast, that he had had "fight" with his wife, a passenger in the vehicle, and that he had had three drinks over the course of the preceding six hours, the last two after 11:00 p.m. Defendant swayed back and forth while talking to the officer. Before administering the field sobriety tests, the officer asked defendant how much education he had, and defendant replied, "You name it, I've got it." The officer then asked defendant to say the alphabet, and defendant did so very well. Defendant was unable, however, correctly to count backward from 100 to 85. Next, the "heel-to-toe" test was conducted on an asphalt-paved portion of the roadway with a slight uphill grade, the area being illuminated by the police car's "rear lights" and the officer's flashlight. Defendant did not maintain his balance well and staggered several times. When asked to stand on one leg, defendant lost his balance immediately, and on a second try maintained balance for about four seconds. Defendant did well on the "finger-to-nose" test, but when asked to say the months of the year, he so slurred his words as to be barely understandable. At that point the officer had determined that he was going to arrest defendant for driving while under the influence of intoxicants. He did not communicate that determination to defendant or utter any words of arrest to defendant. Rather, the officer then asked defendant to rate himself on a scale of intoxication of zero to ten, zero "being like he hadn't had anything to drink" and ten being falling-down drunk. Defendant responded that he was a "low five" and that he should not have been driving and should have let another passenger drive. It is this statement which is in issue. The officer "then placed the defendant under arrest for DUII and read the defendant his rights at 2:20 A.M." Upon trial the defendant was successful in excluding from evidence a tape recording made by the officer on the scene after defendant stopped his car. Moreover, test results of a chemical analysis of defendant's breath and related testimony were stricken because the test was found to have been improperly conducted. These rulings are not in issue. Defendant objected to the reception of the officer's testimony concerning the defendant's response to the officer's invitation to rate himself on the scale of intoxication: At the time of making his decision as fact finder, the trial judge stated: Upon appeal the sole assignment of error was the failure to sustain the objection to the testimony of the officer as to defendant's response to the invitation to rate himself. In his brief, defendant made it clear that he was relying on the failure of the officer to advise defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and several decisions of the Court of Appeals of Oregon[1] pertaining to the issue of when custody has obtained. The state joined legal issue on whether defendant was in custody when the question was put to him. The Court of Appeals held that at the time the question was asked and answered, the encounter had become a custodial interrogation, that the trial court erred in not sustaining the objection, and that the error was not harmless beyond a reasonable doubt. We allowed the state's petition for review, in which the state urged: Defendant has not contended that any right guaranteed to him by either the constitution or the statutes of this state has been violated. His sole claim is that his rights under the Fifth and Fourteenth Amendments to the United States Constitution have been invaded. We do not approach the case therefore upon any independent state ground; rather, we seek to divine what the United States Supreme Court should do if it had this case. Defendant makes no assertion that his statements were involuntary in the sense that his will was overborne. His contention is only that the evidentiary use of his statement was improper because it was the product of custodial interrogation as that term is used in Miranda v. Arizona, supra, and it was not preceded by advice and waiver of rights as required in that case. The simple answer is that defendant was not yet in custody when the challenged statement was made and Miranda procedures were not applicable. Justice Lent, in dissent, however, would hold as did the Court of Appeals that once the officer decided to arrest defendant, defendant was not actually free to leave and was in custody even though the officer had not so informed him. Justice Linde, in dissent, would hold that whenever an officer investigating a crime, whether a traffic crime or not, stops a car and asks questions, that is sufficient detention to be deemed custody for purposes of triggering Miranda requirements. *1108 To fully examine these views, we must more closely inquire into the meaning of "custody" as used in Miranda. Miranda is a Fifth Amendment case dealing with voluntariness. The issue of voluntariness put the defendant's subjective state in issue, not the officer's. The historical setting and the text of Miranda indicates that its purpose was to simplify judicial determinations of voluntariness of statements made in custody. Miranda was preceded by a generation of cases in which the court made case-by-case determinations of voluntariness from the "totality of the circumstances," e.g., defendant's age, education and intelligence, the length of interrogation, access to family or counsel, etc., as to whether defendant's will was overborne.[2] An obvious intended effect of laying out specific procedures for advice and waiver of rights prior to custodial interrogation in Miranda was to eliminate the necessity of making circumstantial determinations about the subjective state of each defendant and to substitute a simple advice-and-waiver procedure to be followed whenever a readily discernible objective fact exists, i.e., custody. If those procedures are followed, voluntariness may generally be inferred.[3] Absent custody, as here, the law of the pre-Miranda totality-of-circumstances cases continues to apply. Were we to decide that the officer's subjective state (i.e., his uncommunicated intention to arrest) triggered Miranda procedures, that holding would be exactly contrary to the purpose of the Miranda opinion: Instead of looking to an objective event, i.e., custody, we would look to a subjective state the officer's, not the defendant's. That cannot be. The answer to Justice Linde's thesis requires a review of the nature of the restriction which in Miranda is referred to as "custody." The premise of Miranda is that custody is an inherently coercive situation and that procedural safeguards are a necessary device to assure voluntariness in answering custodial interrogation. The intertwined relationship of custody, coercion and safeguards was clearly stated as the underpinning of the Miranda opinion: "Custody" is an "elastic" term which in criminal law generally denotes "imprisonment." Black's Law Dictionary. The concern of the court in Miranda touched coercive situations less restrictive than actual imprisonment. Part I of that opinion dwells extensively on the court's concern about the potential evils of arrests on suspicion for the purpose of incommunicado, knee-to-knee, unceasing interrogation in the gray, windowless recesses of police stations, intended to obtain evidence of guilt to warrant a formal arrest. The totality-of-circumstances cases involving that widespread practice culminated with Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). In retrospect, Escobedo was a false start: it applied Sixth Amendment analysis based on whether defendant was a *1109 "focal suspect." In Miranda, the court corrected course and returned to Fifth Amendment analysis of voluntariness of custodial interrogation. In doing so, the court specified that it intended a broader meaning of custody which would include situations short of imprisonment, such as detention for questioning: The significance of the disjunctive definition is emphasized by repetition. In later passages the opinion says: The "otherwise deprived" phrase was intended to more fully explain the meaning of "custody"; it was not intended to describe another class of situations to which Miranda was applicable in addition to custody. Rather, the phrase reflects a realistic recognition that imposition of custody is not always formal. Custody may commence without the word "arrest" being uttered. Involuntariness which presumably is caused by the police-dominated atmosphere of custody, and which the Miranda procedures are intended to overcome, is equally likely in circumstances which are situationally equivalent to actual custody, whether a formal arrest has been made or not. A review of post-Miranda United States Supreme Court cases and our own interpretive cases persuades us that the phrase "otherwise deprived of his freedom of action in any significant way," blurs the "bright line" somewhat, but was intended to refer to situations which are inherently coercive in the way that formal custody is deemed to be inherently coercive. It refers to situations of greater deprival of freedom of action than the ordinary stop of a car (or of a pedestrian, for that matter), but short of formal arrest. The four cases decided under the name Miranda v. Arizona all involved actual custody, so there was no occasion to elaborate on the intended meaning of the alternate phrase. There are a few post-Miranda United States Supreme Court cases dealing with the meaning of custody other than imprisonment, i.e., the phrase "otherwise deprived of his freedom of action in any significant way." In Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969), the court made clear that Miranda was equally applicable to custody outside the confines of police stations. There, four policemen, investigating a homicide, entered a suspect's bedroom uninvited. They identified him, arrested him and then questioned him.[4] That was held to be custodial *1110 interrogation even though in the defendant's residence. By the use of italics, the court indicated that this situation of questioning following an arrest illustrated what they had meant to describe by their "otherwise deprived" phrase: In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), the United States Supreme Court was asked to rule that custodial consent to search should be subject to the same procedures as those imposed in Miranda for custodial questioning. That case, like this, involved an investigative stop of an automobile. The court declined to apply Miranda, primarily because Fourth Amendment searches are subject to different considerations than Fifth Amendment interrogation. The court took pains, however, to point out that common highway stops are not what they intended to describe in Miranda as custodial. The court stated: This court has previously examined the nature of restraint which triggers the need for Miranda safeguards. Although the cases differ on their facts, they demonstrate the principle that actual (not potential) custody or significant deprival of freedom is what triggers the Miranda safeguards. In State v. Travis, 250 Or. 213, 441 P.2d 597 (1968), this court upheld use of statements made to an investigating officer during interrogation conducted in a police car, without an arrest. We recognized, as in Orozco, that Miranda applies to questioning outside the police station. We also recognized (as Miranda states in its footnote 4, set out above) that actual custody in the form of arrest or restraint, not mere focal suspicion, is the triggering event. This court said: It is also significant to this case that the court went on to note and implicitly reject early post-Miranda cases from elsewhere which held that Miranda applies to "field interrogation of suspects * * * if police have probable cause to believe the suspect is guilty." ibid. In State v. Taylor, 249 Or. 268, 437 P.2d 853 (1968), an officer investigating an accident, questioned defendant at the scene. The defendant gave incriminating answers indicating he had been drinking intoxicants. The officer's observations also indicated that defendant was intoxicated. Upon completion of the interrogation, the defendant was formally arrested. The officer testified, however, that from the beginning he would not have allowed the defendant to leave until the investigation was completed.[5] Thus, in Taylor, as here, questioning *1112 occurred at a time when the questioning officer had subjectively determined that he would not allow the defendant to leave, i.e., that he would deprive the defendant of his freedom of action in a significant way, but had not yet actually restrained him or communicated that intention to the defendant. In that situation, this court held that actual custody, not the police officer's subjective intent as to action not yet taken, is controlling. It is possible that the defendant in this case was motivated by a purpose less lofty than "responsible citizenship," but he was not yet subject to the coercion which inheres when custody begins. More likely, a driver who voluntarily undergoes field sobriety tests does so in hopes that he will pass them and not be arrested. We never see those cases. Miranda deals only with the pressure which inheres in custody, not that which may inhere in trying to avoid custody. The opinion of this court in Taylor correctly applies the holding of Miranda. Finally, in State v. Mathiason, 275 Or. 1, 549 P.2d 673 (1976), the defendant came to a police station upon the officer's invitation. He was told that he was a suspect in a burglary and that there was evidence of his guilt, but that he was not under arrest. He answered questions and was allowed to leave. By a 4-3 decision, this court held that Miranda compliance was required because the questioning took place in a "`coercive environment'" equivalent to the Miranda phrase "`the compelling atmosphere inherent in the process of in-custody interrogation.'" 275 Or. 4-5, 549 P.2d 673. Our holding was reversed in Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). The United States Supreme Court made clear that its holding in Miranda regarding custody was intended to be applied literally rather than expansively. That court held: There are factual differences between this case and Mathiason, to be sure, but Mathiason reflects continuing adherence of the United States Supreme Court to what it held in Miranda and gives no evidence of any intention to expand that holding. Justice Linde suggests that the rule of custody should be more definite so that police officers will know with greater certainty when to follow Miranda procedures. Perhaps so, but any uncertainty exists by virtue of the imprecision of the phrase "otherwise deprived of his freedom of action in any significant way." We cannot improve on the Miranda opinion; we can only do our best to discern and apply its meaning. In summary, Miranda, and the subsequent cases of the United States Supreme Court and this court dealing with custody as that term is used in Miranda, hold that actual custody or deprival of liberty in a significant way greater than that involved in on-the-scene investigation is the triggering event for Miranda safeguards. In the absence of actual custody or a significant deprival of liberty, there is not the subjective pressure upon a defendant which inheres in actual custody that Miranda was intended to overcome. If an officer merely intends to restrict freedom or impose custody, but has not yet communicated that intention or converted it into action, the pressures with which Miranda deals have not necessarily come into being. It would be an unwarranted extension of Miranda to apply it to inchoate, contemplated custody that exists only as a subjective intention in the mind of the officer as to future action. Actual custody, not intended custody, is the so-called "bright line" triggering device. Justice Lent, in dissent, argues: It is true that the Miranda opinion does not expressly exclude every possible misinterpretation, but the interpretation by the Court of Appeals is inconsistent with the underlying rationale of Miranda: Psychological pressures upon a defendant inhere in the fact of custody which are not necessarily present where there is no custody. It is also inconsistent with all subsequent interpretive cases dealing with custody.[6] *1114 We therefore conclude that Miranda was intended to apply to custodial situations or those situations of deprival of freedom which are sufficient in degree and apparent indefiniteness to be similarly inherently coercive. To decide this case, we need not define the line with greater precision than in Miranda; here, it is sufficient to conclude that the Miranda definition of custody refers to restrictions of greater magnitude and apparent duration than exist in an ordinary investigative traffic stop such as this. Therefore, we would conclude that the statements in issue were properly admitted because they were the product of noncustodial questioning and because there were no indicia of involuntariness in the totality of the circumstances. The Court of Appeals is reversed; the district court is affirmed. ROBERTS, Justice, concurring. I voted with the majority in this case because I believe requiring the police to be sensitive to the impact of an interrogation upon a defendant is, in the long run, more protective of a defendant's constitutional rights and more consistent with the kind of safeguards Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) meant to provide than is requiring a police officer to give a defendant the warnings required by Miranda at the point at which the officer has made a decision to arrest. Were our opinion here only deciding this case and nothing more, I would have voted with the dissent by Justice Lent. My concern with the position of that dissent applied generally, however, is that making a police officer's decision to arrest the trigger point for issuance of Miranda warnings points the way to the possibility of police abuse, and leaves the investigatory procedure too susceptible to police manipulation. Only the officer knows at what point he or she makes a decision to arrest. By requiring that something other than the officer's state of mind be considered in determining whether or not a defendant is "deprived of his freedom of action in any significant way," Miranda, 384 U.S. at 444, 477, 86 S. Ct. at 1612, 1629, 16 L. Ed. 2d at 706, 725, the officer has to make a determination of whether or not that individual would feel a significant, coercive deprivation of his or her freedom of action. It is my belief that this inquiry ultimately provides the standard of protection enunciated in Miranda and with which we struggle here. LENT, Justice, dissenting. The problem in this case is to determine when a uniformed police officer's questioning of a motorist halted for improper driving became custodial interrogation. I would hold that it was from at least as early as the time when the officer had arrived at a decision, although uncommunicated to the motorist, to arrest him for driving while under the influence of intoxicants. The majority purports to follow and apply the precepts of the United States Supreme Court pronounced in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Rather than doing so, however, the majority actually attempts to go behind the plain words of the Miranda decision and to retreat to a rule that the Miranda warnings *1115 need be given only when the defendant is found to be in some situation at least equally as coercive to his will as obtains in station house custody. I cannot help but feel that the majority reaches that result on the basis of what it wished the Miranda court had said, rather than what that court did say. That court did say, as acknowledged by the majority, that the need to give the famous warnings is triggered by custodial interrogation. By that, the court said it meant questioning of a person in custody "or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706.[1] The majority first concedes that "actual (not potential) custody or significant deprival of freedom is what triggers the Miranda safeguards." 293 Or. at 70, 644 P.2d at 1111. Having made that concession, the majority then blithely ignores the fact that this defendant was not free to go because the officer would not have let him go. The majority opinion, in effect, holds that more than actual deprivation of freedom of action is required; in addition, the defendant must realize that he is not free to go. That holding proceeds on the theory that the Miranda decision is somehow directed to a defendant. That is not the case. The decision does not say to the defendant: "As soon as you are aware that you are in custody or not otherwise free to leave, you must invoke your rights under the constitution if you wish to keep your answers to subsequent questioning out of evidence." The defendant's right to remain silent and to counsel does not depend upon custody. He could invoke those rights at any time if he were aware of them. Miranda simply demands that at a certain point he be made aware of those rights if the defendant's questioner desires to use information gained by further questioning. Miranda is directed to the officer; it says to him: "As soon as you have the defendant in custody or have otherwise deprived him of his freedom of action in any significant way, you must discontinue questioning defendant and give him warnings. If you fail to do so, you may not use his ensuing answers against him." The majority's insistence that Miranda means that there must be some realization by the defendant that he is not free to go so as to produce a coercive atmosphere is simply an attempt to retreat to an inquiry as to whether the defendant's will has been overborne. That was the law before Miranda, not since. I would commence our solving of this legal problem by proceeding to the source, the spirit and language of Miranda. Underlying the enunciation of the Miranda rules was the Court's awareness of the need to prohibit overbearing governmental intrusion into personal privacy, that is, to protect the dignity and integrity of the persons subject to the laws sought to be enforced. After reviewing Anglo-American history of the privilege against self-incrimination, the Miranda Court said: 384 U.S. at 459-60, 86 S. Ct. at 1620, 16 L. Ed. 2d at 715. To enforce that respect required of the government in dealing with those subject to its laws, the Court promulgated the famous safeguards. Statements of those subjected to custodial interrogation were to be subject to exclusion from evidence unless the safeguards were used. The Court, at three places in its opinion, stated what it meant by custodial interrogation: 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725. 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. Thus, we see that the Miranda court intended that the safeguards apply to questioning in circumstances that would not, in ordinary parlance, be considered to amount to custody. Before proceeding to the particular aspects of the issue which grew out of the fact that we are dealing with a charge of driving while under the influence of intoxicants, I shall consider the decisions of the United States Supreme Court, other than Miranda, and of this court upon which the state relies. They are Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); State v. Taylor, 249 Or. 268, 437 P.2d 853 (1968); Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); and United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). The state argues that the decision of the Court of Appeals in the case at bar that defendant was in custody at the time when *1117 the officer made the decision to arrest offends the holding of Hoffa v. United States, supra. The state relies upon a statement extracted from that decision: 385 U.S. at 310, 87 S. Ct. at 417, 17 L. Ed. 2d at 386. That statement is not applicable to when Miranda warnings are to be given. The Miranda court was not concerned with the question as to when an arrest is to be made in the evidence gathering continuum or when a criminal investigation must cease. Nothing in Miranda states that the criminal investigation must cease when the suspect is in custody or otherwise deprived of his freedom of action in a significant way. That decision simply requires that the police must at that time and in those circumstances give the prescribed warnings. The failure to give the warnings may result in being unable to use the suspect's further statements in evidence, but the police are not required to discontinue investigation. Indeed, if the suspect gives up his right to remain silent and to have counsel, the police may continue the investigation by interrogation of the suspect. When it made the statement here relied upon by the state, the Hoffa court was not even discussing a claim of violation of the defendant's rights under the Fifth Amendment to the United States Constitution and Miranda; rather, the statement was made in the course of discussing the defendant's claim that his Sixth Amendment right to counsel had been invaded by the actions of a government informer. As the Court pointed out, defendant was trying to assert a claim cognizable in the circumstances concerned in Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and the circumstances of the informer's evidence gathering in Hoffa simply did not fit the Massiah mold. That the state did rely upon the quotation from Hoffa is understandable, however, because of the statements of this court in State v. Taylor, supra. We there made the same misuse of the language of Hoffa. In Taylor a police officer heard the sound of a vehicle collision and went to investigate. The officer asked the defendant several questions designed to elicit information as to ownership of one of the vehicles, whether defendant had been driving, whether he had been drinking and how much, and whether defendant was oriented as to his surroundings. This conversation also gave the officer an opportunity to observe defendant's appearance, demeanor and speech. After the conversation, the officer advised defendant that he was being arrested and gave him warnings of his right to remain silent and to counsel. The officer later testified that he would not have allowed defendant to leave until the officer had completed his investigation. Defendant objected to the evidence of any of the conversation, relying upon his rights under the Fifth and Sixth Amendments as interpreted in Miranda and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). We noted that those cases dealt with "custodial interrogation" and espoused our view of the "thrust" of those cases. We then observed that there was nothing in those cases to prevent on-the-scene investigation by interviewing "any person not in custody and not subject to coercion in any form for the purpose of determining whether a crime had been committed and who committed it." 249 Or. at 271, 437 P.2d at 855. We were quite correct in that observation if we used the word "custody" in the Miranda sense. We went on to state that the officer was performing his duty to investigate the collision and its cause and, in doing so, to determine whether the cause was due to a violation of the law and, if so, to cite defendant for violation. We further stated that such information was necessary in order to justify placing a person under arrest and then quoted the language from Hoffa set forth above. We noted that the officer had asked more questions than the minimum "necessary to establish probable *1118 cause" but that "as soon as he concluded that an arrest should be made he stopped the questioning." We concluded, therefore, that the officer's investigation did not produce inadmissible evidence under the Miranda rule. Our decision in Taylor, insofar as it relied upon the quotation from Hoffa, simply missed the mark for the reasons set forth above. Our decision in Taylor proceeded upon an implicit assumption that the fact that the defendant was not free to leave was immaterial and that since the officer asked no questions after he concluded that defendant should be arrested, defendant's Miranda rights had not been violated. In that last respect we were certainly correct, but we failed explicitly to come to grips with whether "custody" in either of the two Miranda senses occurred prior to formal arrest. Certainly, our adoption of the words from Hoffa uttered concerning a claim of infringement of the constitutional right to counsel was not apropos to determining when the police had deprived the defendant of his freedom of action in any significant way. Insofar as our decision in State v. Taylor, supra, could be understood as fixing the time a person is placed under arrest[2] as the earliest time at which he is entitled to Miranda warnings, that decision should be disavowed. The state and the majority both rely upon Oregon v. Mathiason, supra. The majority quotes at length from dictum of Mathiason. I find nothing in that quotation to support that proposition for which the state and the majority contend. Having iterated the Miranda holding by quoting the same language pertaining to custodial interrogation I have above quoted from that decision, the Mathiason court proceeded to the holding of the case and found that the defendant there did not come within the scope of the Miranda language: 429 U.S. at 495, 97 S. Ct. at 714, 50 L. Ed. 2d at 719. The key to the decision in Mathiason was that defendant was invited to go to the station house, that he went there voluntarily, that he was told that he was not under arrest and that he was allowed to depart after the half-hour interview. The difference between those circumstances and those presented in the case at bar are readily apparent. This defendant was not advised he was free to leave; he was, in fact, not free to leave; he did not, in fact, leave. The state relies upon United States v. Mendenhall, supra, for the contention that, absent communication to the defendant of the officer's decision to arrest, "it cannot be said that the officer's subjective intention operated to create a compelling or coercive environment." We have not been directed to any particular part of the Mendenhall opinion for support of that contention. My review of that opinion reveals that the entire concern of both the concurring and dissenting judges was with Fourth Amendment issues and that nothing in the various opinions in that case touches upon the Fifth Amendment or the cases concerned with custodial interrogation.[3] Accordingly, I shall forego any further consideration of that authority. *1119 Having concluded my review of the decisions of the United States Supreme Court and of this court upon which the state relies, I now turn my attention to a decision which I believe casts some light on how the United States Supreme Court might view the question of custodial interrogation as it applies to a person questioned away from the station house and in circumstances where the officers would not have let him depart and, in fact, considered that he was under arrest, although this had not been communicated to the interviewee. That case is Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969). In Orozco defendant had been involved in a quarrel shortly after midnight. A shot was fired, killing a man. Defendant left the scene. About four hours later, four police officers came to defendant's bedroom in a boarding house and began to question him. 394 U.S. at 325, 89 S. Ct. at 1096, 22 L. Ed. 2d at 314. The officers did not give defendant any warning that he had a right to remain silent[4] but continued to question him and elicited highly incriminating evidence. Defendant timely objected to the evidence thus obtained on Fifth/Fourteenth Amendment grounds, but the evidence was received and defendant was convicted. The conviction was reversed, the Orozco majority finding that the questioning occurred while defendant was in custody within the meaning of Miranda. I suppose that Orozco has not been cited to us because of confusion as to whether defendant had been placed under "arrest" prior to the pertinent questioning. The Orozco majority opinion refers to arrest as I have above quoted, and I think that a fair appraisal of that manner of presenting the scene was meant to convey the fact that the officer considered that defendant was under arrest although defendant had not been so informed. On the other hand, the Orozco majority opinion later states: 394 U.S. at 327, 89 S. Ct. at 1097, 22 L. Ed. 2d at 315. That this last quotation erroneously indicates that defendant had been placed under arrest is borne out by the way in which the Orozco dissent treats the case. The dissenters acknowledged that "[o]nce arrest occurs, the application of Miranda is automatic." 394 U.S. at 329, 89 S. Ct. at 1098, 22 L. Ed. 2d at 316. Further on in the dissent it is stated: 394 U.S. at 330-31, 89 S. Ct. at 1099, 22 L. Ed. 2d at 317. If, as the majority in the case at bar believes, Orozco was believed by the United States Supreme Court to have been placed under arrest as soon as he identified himself to the officers, the dissenters in that court were certainly obtuse in failing to recognize that fact. My reading of Orozco causes me to conclude that the United States Supreme Court believed that from the time defendant gave his name to the officers he was not free to leave and that the officers considered him to be under arrest although they had not advised the defendant that he was under *1120 arrest.[5] In the case at bar, as in Orozco, the defendant had not been "arrested," although the officer had decided to arrest him and would not have let him depart. The majority in the case at bar asserts that an examination of the opinion of the state court, Orozco v. State, 428 S.W.2d 666 (Tex.Cr.App. 1967), demonstrates that Orozco was under formal arrest. I submit the language which the majority quotes from the Texas court's opinion does not show that the magic concept of "arrest" had been communicated to Orozco. Moreover, it is not important what the actual situation was; it is what the United States Supreme Court perceived it to be that must be considered in determining the effect to be given to that court's decision. The majority does not meet what I have pointed out as to how the various opinions in Orozco indicate that formal arrest had not occurred. The state argues that the circumstances of "[t]his case" did not "involve any of the coercive restraints or psychological pressures to which the procedural safeguards of Miranda were intended to apply." This argument simply misses the mark; it ignores what the Miranda court did. Prior to Miranda the relevant inquiry was whether, in fact, the defendant's confession or admission was made voluntarily. This required an ad hoc determination in every instance in which voluntariness had to be litigated. The Miranda court reviewed the circumstances attendant upon custodial interrogation and found that inherent in such interrogation were elements of coercion and pressure that often overcame the will of the person interrogated. The court decided to draw a "bright line," i.e., to announce a per se rule. Henceforth, one subjected to custodial interrogation, as defined by the court, was to be given certain warnings concerning his rights. If the warnings were not given to the person entitled thereto, his statements made by him during the custodial interrogation could not be used against him over his objection. If he were in custody, as defined, it would make absolutely no difference at all that the interrogation was, in fact, completely polite and gentle, devoid of all actual coercion or pressure, insofar as the government's right to use the results of the interrogation was concerned. The inquiry, therefore, is not whether a given case presents actual "coercive restraints or psychological pressures," but whether the person is in custody as defined in Miranda. It does not matter whether "this case" involves elements which, pre Miranda, would have been used to test for voluntariness. The only relevant inquiry is whether this defendant was "in custody or otherwise deprived of his freedom of action in any significant way." If so, at that point the officer had to administer the Miranda warnings in order for the state to use the fruits of further interrogation. The state also contends that this was a "typical traffic stop investigation." That may or may not be so, depending upon how one looks at it. Consider, that in cases in which one is accused of violation of the basic rule, violation of the rules of the road, operating a vehicle with improper or defective equipment, and like charges, the officer has already personally observed all of the elements of the offense before he signals the motorist to stop the vehicle. It is the officer's observation of a violation of the law which occasions the stop. He has no *1121 further need to investigate except to obtain identification of the driver in order to charge him by correct name. Such is not the case with respect to the offense of operating a vehicle while under the influence of intoxicants. True, the officer has probably observed some other traffic violation which triggers his decision to signal the motorist to stop. A good example is found in the case at bar where the officer has observed a vehicle being operated in a winter month at a time of darkness in a rural area at a very high rate of speed and in a manner so erratic as to arguably support a charge of reckless driving. At the time the officer signalled defendant to a stop, he had more than enough evidence to support a charge of violation of the basic rule, and this could well have been a typical stop upon that charge. In order to gather evidence of driving while under the influence of intoxicants, however, the officer had to do something after the "typical traffic stop." He had to obtain evidence that the defendant was "under the influence." The typical way in which an officer goes about gathering that additional evidence which would prove the element of being under the influence is by way of exercise of the officer's senses of smell, sight and hearing and by way of interview. The officer may determine through his sense of smell that the driver has consumed an alcoholic beverage. Through his sense of sight he may observe whether the driver's face is flushed, the appearance of his eyes and the orderliness of his clothing. Through the same sense the officer may observe the driver's ability to control his body and limbs. Through the sense of hearing the officer can determine whether the driver's diction and enunciation are apparently out of norm and whether the driver is able to express his thoughts in a logical manner. The process of interviewing is an aid to the officer in gathering that kind of evidence, but it is also utilized to gather evidence by way of admissions and to rule out claims of injury or illness as a cause of the driver's condition. In this case the officer employed such methods of investigation. He smelled the odor of alcoholic beverage on defendant's breath and observed that defendant's face was flushed and that his eyes were watery and bloodshot. The officer saw that defendant swayed back and forth and heard him make a cocky answer to a question as to the extent of his education. Apparently, it was the totality of those things, taken together with the defendant's improper driving, which led the officer to the decision to conduct the "field sobriety tests" described in the majority opinion. According to his testimony, when the tests had been completed the officer had decided to arrest, and the defendant from that time on was, in fact, not free to leave, even though he was not aware of the officer's decision. Defendant was, in fact, deprived of his freedom of action in a significant way, and that should be the end of the inquiry.[6] *1122 At that point, the failure to warn him of his Miranda rights obviated the necessity of determining whether his answer to the ensuing question was "voluntary," for in Miranda the Court decided that determination was no longer to be necessary but was to be replaced by a per se rule, a so-called "bright line." There is nothing in Miranda that says that the defendant must be aware that he is in custody or otherwise deprived of his freedom of action in a significant way. The point at which the defendant is in custody or otherwise deprived of his freedom of action in any significant way marks a crucial point in the process. At that point, ruled the Miranda court, the defendant should be advised of the constitutional guarantees that he shall not be "convicted out of his own mouth" in ignorance of those guarantees. Since it pegged its decision to the officer's uncommunicated decision to arrest, the Court of Appeals did not need to reach the full text of defendant's objection in the trial court: Of course, the record discloses circumstances in this case that would lead any reasonable man in the position of the defendant to realize that he was not free to leave. He had been signalled to stop his vehicle by the officer's emergency light, and if he had not obeyed that signal, he would have been guilty of the crime of fleeing or attempting to elude a police officer.[7] He was performing a variety of tests *1123 at the behest of the officer. It defies common sense to suggest that in those circumstances a reasonable person would believe anything other than that he was not free to leave. I need not decide whether Miranda warnings were required prior to the time when the officer asked the question with which this case is concerned.[8] Immediately prior to the time the question was asked, a reasonable person in the same circumstances would have believed he was not free to leave, and this defendant was, in fact, not free to leave by reason of the officer's decision to prevent defendant's leaving. I would hold that the question was, therefore, custodial interrogation, and the defendant's objection should have been sustained.[9] It is important to realize that this does not mean that the officer could not have conducted such further investigation as was lawful to gather further evidence to substantiate the charge. He could not, however, seek to convict the defendant by questioning him to obtain admissions or a confession unless he observed the Miranda safeguards. PETERSON, J., joins in this dissenting opinion. LINDE, Justice, dissenting. The great virtue of a rule requiring police warnings to suspects whom an officer detains for questioning is, or should be, that the rule tells the officer what to do and when to do it. As Justice Lent's dissent states, the federal or "Miranda" rule[1] is addressed to the police officer, not to the detained person. The test of an opinion that purports to elucidate the rule is how clearly it tells the police under what circumstances to warn such a person before questioning. Police officers deserve and efficient law enforcement requires rules that are clear at the time of the investigatory act; a formula designed only for retrospective judgment on a motion to suppress evidence confuses the rule with its consequence. I regret that the Court's opinion in this case fails the test. "Miranda warnings" must precede questioning not only when a person detained by the police is "arrested" or "in custody" but whenever the person is "otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, supra, 384 U.S. at 444, 86 S. Ct. at 1612. As these important words stand in the way of the majority's conclusion, the bulk of its opinion is devoted to forcing them back under the cover of "custody." Exactly therein lies its failure to serve the essential need for clarity. A police officer's decision to give or not to give "Miranda warnings" before questioning a suspect must be made in a factual *1124 setting, not upon a legal analysis. "Custody" is a legal characterization, not a fact. For other purposes, Oregon statutes sometime define "custody" as the restraint that follows an arrest, and "arrest" as taking a person into custody. ORS 133.005(1), ORS 162.135(3). Confronted with this "circularity," the Court of Appeals has held that when a person in the position of the present defendant took off across the fields after the sobriety tests, he was not guilty of escape from "custody" for purposes of that crime. State v. Swanson, 34 Or. App. 59, 578 P.2d 411 (1978). Patently such statutory terms do not control the reach of Miranda requirements. By adding "otherwise deprived of his freedom of action," Miranda stated a factual test divorced from the legal ambiguity of "custody;" it also made clear that physical "custody" in the sense of imprisonment or similar confinement is not required. Seen from the perspective of an officer who must decide whether to warn before questioning, a person will clearly be deprived of his freedom of action under two circumstances. An officer who knows that he would not let a detained person leave at will also knows that the person has lost his freedom of action, whatever the person's own perception may be. Second, apart from intent, an officer can determine whether the objective circumstances under which he detains a person in fact lead the person reasonably to believe that he or she is not free to leave until the officer is satisfied. Both of these are manageable, common sense, factual determinations. If an officer does not mean to deprive the addressee of his questions of freedom to leave at will, he can easily tell the person so. There is a great deal of difference between a simple inquiry by a police officer on the street, in commercial or other quarters open to the public, or on a doorstep, and questioning of a motorist stopped by a pursuing police car. No officer needs to be in doubt whether such a motorist has been "deprived of his freedom of action in [a] significant way," if that test is to be given a common sense meaning. A driver is obliged to obey a police officer's signal to stop at the risk of criminal punishment. ORS 487.555.[2] He may still be guilty of "fleeing" if he attempts to drive away without permission after being stopped.[3] At least he has reason to assume as much. If he has surrendered his operator's license to the officer, he is likely to assume that he can leave only by abandoning his car, unless a passenger can drive it.[4] In short, the typical stop of a vehicle for a citation or further investigation is not analogous to a pedestrian's street encounter with an officer who seeks answers to a few questions; both the legal and the factual constraints on leaving the scene of the vehicle stop are *1125 greater, or appear so to a motorist. There is a chance that a pedestrian will know that he need not perform a "field sobriety test" or answer questions in order to be free to go on his way. The chance that a motorist believes this seems slight indeed. Of course, if the state can show in a given case that the halted motorist did consider himself free to leave or that the officer so informed him, his answers to the officer's questions may be admissible.[5] None of this means that an officer must give "Miranda warnings" every time he makes a traffic stop and demands to see an operator's license, or even before examining a driver's appearance and behavior for signs of intoxication. Warnings must be given only in advance of questioning the driver when the officer's investigation concerns a suspected criminal offense. They are not required in all traffic stops, but only when the object of the officer's questions extends beyond citation for a noncriminal infraction to the investigation of a suspected crime, whether this is a traffic crime, a burglary, or theft of the automobile itself. Prosecution for driving under the influence of intoxicants is as much a criminal prosecution as if it were for any crime unrelated to driving. Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977). "Miranda warnings" are part of the procedural costs of using the criminal process to deal with the drinking driver just as were the jury trials and statutory rights to counsel involved in that case. After much study and debate, the Legislative Assembly recently rejected a recommendation to try a different approach and decided to retain and to reenforce the punishments and attendant procedures of the criminal law. Or. Laws 1981 ch. 803.[6] There can be no question that "Miranda warnings" apply in investigations of suspected crime on wheels as well as on foot, horseback, or water. The majority opinion, however, fails in the crucial task of explaining when Miranda warnings must be given to a suspect who is questioned by officers after being stopped in his car. The mere paraphrase "actual custody or significant deprival of liberty," at 1113, does nothing to advance clarity. Nor does the phrase "greater than that involved in on-the-scene investigation" if it implies, erroneously, that "significant deprival of liberty" depends on the distance between the place of questioning and the "scene" of the suspected offense. Given the uses of precedent, this case likely will be cited for the proposition that a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons, although of course the opinion does not so hold. Alternatively, it may be thought to stand for the proposition that the crime of driving under the influence of intoxicants somehow is sui generis as far as Miranda warnings before questioning are concerned. The principle at issue here deserves a clearer and more usable statement from this court. I would affirm the Court of Appeals. *1126 *1127 *1128 *1129 [*] TONGUE, J., retired Feb. 7, 1982; ROBERTS, J., on reargument. [1] Defendant relied upon State v. Brown, 44 Or. App. 597, 606 P.2d 678 (1980); State v. Campbell, 43 Or. App. 979, 607 P.2d 745 (1979); State v. Ferrell, 41 Or. App. 51, 596 P.2d 1011 (1979); and State v. Paz, 31 Or. App. 851, 572 P.2d 1036 (1977), rev. den. 282 Or. 189 (1978). [2] See, e.g., Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941); Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958); Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963); Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). [3] Although Miranda is somewhat successful in establishing a "bright line" test of custody as a triggering point for its procedures, it is not as successful in other respects. For example, we now have totality-of-circumstances waiver cases. See, e.g., Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). [4] The dissent of Lent, J., regards the references to the time of Orozco's arrest as ambiguous and concludes that it occurred after the interrogation. From that conclusion, he infers that the United States Supreme Court in Orozco held that pre-arrest interrogation was nevertheless custodial. As he puts it: "My reading of Orozco causes me to conclude that the United States Supreme Court believed that from the time defendant gave his name to the officers he was not free to leave and that the officers considered him to be under arrest although they had not advised the defendant that he was under arrest. In the case at bar, as in Orozco, the defendant had not been `arrested,' although the officer had decided to arrest him and would not have let him depart." (Footnote omitted.) At 1119. The dissent misreads Orozco. The case is not parallel to this. Orozco was under arrest from the beginning. Any ambiguity found in the United States Supreme Court opinion may be resolved by reference to the previous opinion in the Court of Criminal Appeals of Texas, Orozco v. State, 428 S.W.2d 666 (1967). That majority opinion states that Orozco was arrested at the beginning of the interrogation as soon as they learned his identity at the beginning of the incident. 428 S.W.2d at 672. The Texas dissent emphasized this fact by setting out the transcript: "`Q. I see, when you ascertained his name, was he free to leave? A. No. Q. So, all right, so during the time that you had this conversation with him pertaining to the gun, he was under arrest, is that correct? A. Yes. After I found out his name.'" Orozco v. State, 428 S.W.2d at 674. Orozco was in custody by virtue of having been arrested. In this case, by contrast, the officer had decided to arrest the defendant in the future, but had not yet done so. We point out this factual error only to demonstrate that the dissent's reasoning from its misreading of Orozco is erroneous. Perhaps if Orozco had not been formally arrested initially, the interrogation would nevertheless have been deemed custodial, but for a different reason. The police conduct in entering Orozco's room, uninvited and four strong, and then questioning him would cause Orozco to reasonably believe he was deprived of liberty and the pressures inherent in custody would equally inhere in Orozco's situation. See both opinions in State v. Paz, 31 Or. App. 851, 572 P.2d 1036 (1977), rev. den. 282 Or. 189 (1978). [5] This is a correct statement of the facts of Taylor as verified by reference to the transcript excerpts in the briefs. The statement by Lent, J., in dissent, that "[o]ur decision in Taylor proceeded upon an implicit assumption that * * * the officer asked no questions after he concluded that defendant should be arrested" is unsupportable. (at 1118.) The statement of facts at the beginning of the Taylor opinion is: "Subsequent to the interview above set out, the officer advised the defendant he was arresting him for driving while under the influence of intoxicating liquor and notified him of his right to remain silent and his right to counsel. The officer also testified that had the defendant attempted to leave he would not have permitted him to do so until he had completed his investigation." 249 Or. at 270, 437 P.2d 853. The sequence would have been clearer had the two sentences of the paragraph been stated in reverse order. In fact, the timing occurred as stated above: the officer would not have let defendant leave, but did not arrest him until questioning was completed. This reading of the facts is verified by reference to transcript excerpts set out in the defendant's brief in Taylor. Were the dissent to take issue with Taylor, we would have something to discuss. It appears, however, that the dissent simply reads into Taylor a fact that is not there. [6] Also, the reliance by the dissent upon State v. Kinn, 288 Minn. 31, 178 N.W.2d 888 (1970), is misplaced. That opinion is also inconsistent with the holding of Miranda. The holding of the Minnesota court that "* * * When an investigation reaches a point where a police officer has reasonable grounds to believe both that a crime has been committed and that the interviewee is the culprit, and it becomes his duty to take such person into custody, or, in other words, when the point is reached where the adversary system begins to operate, he is required to give the Miranda warning." 288 Minn. at 31, 178 N.W.2d 888. is directly contradicted by the express language of Miranda, particularly in footnote 4, quoted above, that the "focal suspect" phrase of Escobedo has been superceded by the "custody" requirement of Miranda. The "adversary system" phrase has its origin in the "investigatory/accusatory" Sixth Amendment language of Escobedo. In the Fifth Amendment context, since Miranda, that notion is incorporated in the concept of custody. Justice Lent notes this logical inconsistency of Kinn with Miranda, but nevertheless relies upon Kinn as authority. The Arizona case relied upon by the dissent demonstrates only that another court has similarly erred. [1] See, substantially similar definitions quoted by the majority at two other places in Miranda v. Arizona, 384 U.S. 436, 477, 478, 86 S. Ct. 1602, 1629, 1630, 16 L. Ed. 2d 694, 725, 726 (1966). [2] Inherent in using "arrest" as the trigger point for the necessity of Miranda warnings is that the federal constitutional right would be made dependent on various state definitions of "arrest," a word not used in the Fifth Amendment or, for that matter, in the Fourth and Sixth Amendments. [3] In part II-A of his opinion "of the court," Mr. Justice Stewart does discuss a description of what amounts to a "seizure" for Fourth Amendment purposes, and uses some language similar to that used by the Miranda court in describing custodial interrogation, but seven members of the court did not join in that part. [4] The incident apparently took place prior to the Miranda decision, but the trial was held after the effective date of that decision. [5] Later cases indicate continued confusion as to whether members of the Orozco court believed Orozco had or had not been "arrested." Only two years later, Justice Douglas referred to the case in a concurring opinion in United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), describing the fact situation in Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969), as follows: "We applied the Miranda rule even though there was no `arrest,' but only an examination of the suspect while he was in his bed at his boarding house, the presence of the officers making him `in custody.'" 404 U.S. at 333, 92 S. Ct. at 470, 30 L. Ed. 2d at 486. On the other hand, statements in opinions in Michigan v. Tucker, 417 U.S. 433, 460, 94 S. Ct. 2357, 2372, 41 L. Ed. 2d 182, 202 (1974) (White, J., concurring), and in Oregon v. Mathiason, 429 U.S. 492, 494-95, 97 S. Ct. 711, 713-14, 50 L. Ed. 2d 714, 719 (1977), proceed upon an understanding that Orozco had been indeed arrested. [6] I believe Miranda fixes the time when defendant is, in fact, deprived of his freedom of action as a time when the interrogation becomes custodial. We came close to recognizing in State v. Taylor, supra, that it was the fact that there was enough evidence to arrest that triggered the obligation to warn. As we there said: "In the case at bar the officer asked more questions than the minimum necessary to establish probable cause, but as soon as he concluded that an arrest should be made he stopped the questioning and advised the defendant of his rights. No questions were asked after the defendant was arrested. Under these circumstances, we hold that the officer's investigation did not produce inadmissible evidence under the Miranda rule." (Emphasis added) 249 Or. at 272, 437 P.2d at 855. There, as here, it is quite obvious that the defendant would not have been free to leave; he was in custody even prior to being told he was under arrest. We didn't there say anything that would make Miranda's applicability dependent upon the defendant's awareness of the loss of his freedom. I would agree with the Minnesota and Arizona decisions: "It is not necessary that a Miranda warning be given by police officers, upon arrival upon the scene of an investigation of a possible criminal offense, to everyone from whom they elicit information in the course of their investigative work. When an investigation reaches a point where a police officer has reasonable grounds to believe both that a crime has been committed and that the interviewee is the culprit, and it becomes his duty to take such person into custody, or, in other words, when the point is reached where the adversary system begins to operate, he is required to give the Miranda warning." State v. Kinn, 288 Minn. 31, 178 N.W.2d 888, 889 (1970). See also Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971), where the court addressed the same question, saying: "It is the opinion of this court that Miranda is not applicable to the routine traffic offense where the driver is detained no longer than is necessary to make out the citation and have it signed pursuant to A.R.S. § 28-1054. However, Miranda warnings must be given when the officer determines that the provisions of A.R.S. § 28-1053 come into play or an arrest for a misdemeanor or felony is to be made. At this time the person is being `deprived of his freedom of action in [a] significant way.' Miranda v. State of Arizona, 384 U.S. 436, 477, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694 (1966); Orozco v. Texas, 394 U.S. 324, 327, 89 S. Ct. 1095, 1097, 22 L. Ed. 2d 311 (1969). The reporter's transcript reflects the appropriate Miranda warnings were given by the officer prior to any questioning regarding the state of intoxication of the defendant." 106 Ariz. at 552, 479 P.2d at 695 (footnote omitted). Of course, for most purposes Miranda has superseded the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), but it is interesting to note the language of the Escobedo court: "We hold only that when the process shifts from investigatory to accusatory when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer." (Emphasis added) 378 U.S. at 492, 84 S. Ct. at 1766, 12 L. Ed. 2d at 987. It is true that the decision in Escobedo was written in terms of Sixth/Fourteenth Amendment analysis, but in Miranda the court stated flatly that its definition of custodial interrogation, quoted in the majority opinion at 293 Or. 66, 644 P.2d 1109, is "what we meant in Escobedo when we spoke of an investigation which had focused on an accused." Fn. 4, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. In the case at bar, at least as early as the time the officer decided to arrest the defendant, the focus of the process was on the defendant, and the officer's purpose was to elicit an admission. The majority treats the famous footnote 4 of Miranda as superseding Escobedo. Actually, footnote 4 says the two concepts mean the same thing. [7] ORS 487.555 provides: "(1) A driver of a motor vehicle commits the crime of fleeing or attempting to elude a police officer if, when given visual or audible signal to bring the vehicle to a stop, he knowingly flees or attempts to elude a pursuing police officer. "(2) The signal given by the police officer may be by hand, voice, emergency light or siren. "(3) As used in this section, `police officer' means a sheriff, municipal policeman or member of the Oregon State Police in uniform, prominently displaying his badge of office or who is operating a vehicle appropriately marked showing it to be an official police vehicle. "(4) Fleeing or attempting to elude a police officer is a Class A misdemeanor." [8] Justice Linde would hold that Miranda warnings must be given before any questions are put to the driver concerning his consumption of intoxicants and the effect thereof on the driver. It is not necessary to go that far to decide this case. [9] A Washington court has held that where an officer has stopped a vehicle being improperly driven, smelled a strong odor of alcohol in the vehicle, observed other signs that the driver had been drinking, and the officer desires to confirm his suspicions that the driver is under the influence of intoxicants by conducting field sobriety tests, the Miranda warnings must be given. "Once the trooper's reasoning brought him to request these tests, Miranda applied, not to the tests about to be performed, but to any statements defendant might make during the giving of such tests. Once the Miranda warning was given, defendant would know he could refrain from making any statements while performing the tests." State v. Darnell, 8 Wash. App. 627, 508 P.2d 613, 615 (1973). [1] From Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At least the Court's opinion is limited to its interpretation of federal constitutional law, the defense characteristically having made no effort at an independent analysis under Oregon law. [2] ORS 487.555: "(1) A driver of a motor vehicle commits the crime of fleeing or attempting to elude a police officer if, when given visual or audible signal to bring the vehicle to a stop, he knowingly flees or attempts to elude a pursuing police officer. "(2) The signal given by the police officer may be by hand, voice, emergency light or siren. "(3) As used in this section, `police officer' means a sheriff, municipal policeman or member of the Oregon State Police in uniform, prominently displaying his badge of office or who is operating a vehicle appropriately marked showing it to be an official police vehicle. "(4) Fleeing or attempting to elude a police officer is a Class A misdemeanor." [3] State v. Swanson, supra, assumed without discussion that the section did not apply to flight on foot. 34 Or. App. at 60, n. 1, 578 P.2d 411. [4] ORS 482.040(2)(b): "The licensee shall have such license in his immediate possession at all times when driving a motor vehicle, and shall display it upon the demand of a justice of the peace, a peace officer, or a field deputy or inspector of the division. It is a defense to any charge under this subsection that the person so charged produce in court an operator's or chauffeur's license that had been issued to him and was valid at the time of his arrest." [5] The state has the burden to show that a defendant's admissions to a police officer are admissible as evidence against him. State v. Brewton, 238 Or. 590, 603, 395 P.2d 874 (1964), cf. State v. Robinson, 3 Or. App. 200, 204-205, 473 P.2d 152 (1970), Dorsciak v. Gladden, 246 Or. 233, 425 P.2d 177 (1967), State v. Cohn, 43 Or. App. 913, 915, 607 P.2d 729 (1979), State v. Thomas, 13 Or. App. 164, 168, 509 P.2d 446 (1973), State v. Johnson, 11 Or. App. 12, 17, 500 P.2d 478 (1972). [6] The recommendation to move the emphasis to license suspension and strict enforcement of the licensing laws came from the Oregon Commission on the Judicial Branch. See 1980 Report of the Oregon Commission on the Judicial Branch 52-62. See also, HB 2697, 61st Or. Leg. Assemb., Reg. Sess. (1981). The recommendation to retain the criminal process and punishments came from the Special Courts Committee of the Judicial Conference. See HB 2010, 61st Or. Leg. Assemb., Reg. Sess. (1981).

1b913b2dc6fa002975d7b33b462f020f4b13a5dbf7ffb5793a83ed61865cb76e

1982-05-04T00:00:00Z

dd804dc9-0350-4ee4-b6fa-50bff411d49e

Class v. Carter

645 P.2d 536

oregon

Oregon Supreme Court

645 P.2d 536 (1982) Daniel D. CLASS and Randi Class, Husband and Wife, and Milton Zusman, Respondents/Cross-Petitioners On Review, v. R.C. CARTER, Frita Halbrook, Richard Hollriegal, John A. Bridwell, and Wally Jorgensen, Petitioners/Cross-Respondents On Review, D.R. Perry and George Dixon, Defendants. No. 200 126; CA 18302; SC 27724, 27726. Supreme Court of Oregon. Argued and Submitted July 1, 1981. Decided May 25, 1982. *537 Elizabeth K. Reeve, Portland, argued the cause for petitioners/cross-respondents on review. With her on the petition were Ridgway K. Foley, Jr., and Schwabe, Williamson, *538 Wyatt, Moore & Roberts, Portland, and Ray D. Sherwood, Martin J. Howard, and Gilley & Busey, Portland. On the brief were Ray D. Sherwood, and Gilley & Busey, Portland. Frank V. Langfitt, III, Portland, argued the cause for respondents/cross-petitioners on review. With him on the petition and brief was Lindsay, Hart, Neil & Weigler, Portland. Before DENECKE, C.J., and LENT, LINDE, PETERSON, and CAMPBELL, JJ. PETERSON, Justice. This case began as an FED action in district court. We draw upon the Court of Appeals opinion, 51 Or. App. 3, 624 P.2d 626, for the facts and procedural history: The Court of Appeals held that the circuit court should not have remanded the cause to the district court and that the district court therefore lacked jurisdiction to try the case. The court reversed and remanded with instructions to vacate the judgment of restitution, reinstate the counterclaims and to transfer the case to circuit court. We first examine the defendants' contention that the circuit court erred in granting the plaintiffs' motion to strike their counterclaims. The order striking the counterclaims contains no explanation for the action taken, and the reason is not apparent *539 from the record.[1] The plaintiffs, in moving to strike the defendants' counterclaims, asserted that no counterclaims were permissible in this commercial FED action.[2] The form of action of forcible entry and detainer (FED) has been a part of Oregon statutory law since 1864. General Laws of Oregon, 743-745, October 21, 1864. FED proceedings are designed to be quick and summary, to obtain peaceful resolutions of possessory disputes. Only one issue is involved: the right to possession. The complaint requires but four allegations: (1) a description of the premises with convenient certainty; (2) that the defendant has possession; (3) that the defendant entered upon the premises with force or unlawfully holds the premises with force; and (4) that the plaintiff is entitled to possession of the premises. ORS 105.125. Service of the summons must be made not less than three nor more than 10 days before the court appearance date. ORS 105.135. Postponements of more than two days require an undertaking. ORS 105.140. The jury renders a verdict of "guilty" if they "find the complaint true"; "not guilty" if they find the complaint "not true." ORS 105.150. The judgment is for restitution of the premises, and nothing more.[3] There is no provision in ORS chapter 105 for the assertion of counterclaims. This court has never considered whether, in a commercial FED, the defendant may assert a counterclaim. In almost every jurisdiction considering the question, the court has held that counterclaims may not be asserted in FED actions because the object the legislature had in view summary determination of possessory disputes would be frustrated. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904), is illustrative. There, a tenant counterclaimed for damages allegedly arising from the landlord's violation of covenants in the lease. The court held: Cases to the same effect include Carmack v. Drum, 27 Wash. 382, 67 P. 808, 809 (1902); Peterson v. Kreuger, 67 Minn. 449, 450-451, 70 N.W. 567 (1897); Moroney v. Hellings, 110 Cal. 219, 42 P. 560 (1895); Ralph v. Lomer, 3 Wash. 401, 28 P. 760, 763 (1891). Relevant cases are collected in 2 Tiffany, Landlord and Tenant 1766-1767, § 274 (1910). Since 1975, ORS 46.060 has provided: The defendants contend that counterclaims are permitted in FED actions because ORS 46.070 provides: ORS 46.075 sets forth the procedure for transferring the case to the circuit court: ORS 46.070 and 46.075 were first enacted (albeit in a slightly different form) in 1935. Or. Laws 1935, ch. 401, § 3. Although no legislative history of ORS 46.070 and ORS *541 46.075 is available, we have no doubt that their purpose is procedural, to avoid recurrent jurisdictional disputes between the circuit court and the district court. The statutes are designed to achieve jurisdictional certainty when counterclaims in excess of the district court jurisdictional limits are filed. We do not believe that the legislature, in enacting ORS 46.070, meant to change the summary nature of FED procedures or to limit the common law powers of courts to restrict counterclaims in FED cases. The FED statutes in ORS chapter 105 themselves suggest that counterclaims are not permitted in FED cases in the absence of express statutory authorization, for there is no provision for any determination other than the summary determination referred to above. This conclusion is bolstered by the fact that when the legislature intended that counterclaims be assertable in FED actions, it specifically provided for them. ORS 91.810 permits counterclaims under the Residential Landlord and Tenant Act, but limited to "the amount that he may recover under the rental agreement." ORS 646.638(6) permits counterclaims "arising out of a violation of ORS 646.605 to 646.652 [Unlawful Trade Practices]" in "any action brought by a seller or lessor against a purchaser or lessee of real property." The fact that specific provision was made for FED counterclaims suggests that the legislature understood that counterclaims were not otherwise permitted in FED actions. ORS 46.070 was not intended to alter the summary nature of FED actions. We hold that ORS 46.070 and 46.075 are general procedural statutes designed to achieve efficient immediate resolution of jurisdictional problems arising from the assertion of counterclaims in excess of the jurisdiction of the district court and that ORS section 105.105 et seq. prohibits the assertion of counterclaims not otherwise authorized by statute in commercial FED actions. The circuit court was correct in striking Carter's counterclaims. Even so, we must consider whether it was proper for the circuit court to remand the case to the district court. There is no question that the case had to be filed in the district court, for the district court has "exclusive jurisdiction * * * to hear and determine actions of forcible entry and detainer." ORS 46.060(1)(e); Wilson v. Matthews, 291 Or. 33, 37, 628 P.2d 393 (1981). Our holding in part I above makes it necessary for us to consider what action was appropriate for the circuit court after the counterclaims were stricken. Until now, this court has not considered this issue.[5] We start with an analysis of the statutes, ORS 46.070 and 46.075. ORS 46.075 requires the district court to "order the transfer to the circuit court" whenever a defendant has complied with ORS 46.070. The district court is enjoined to "proceed no further with the cause" because "the circuit court * * * shall then have jurisdiction to try and determine the cause." Literally, the statute would seem to mean that an FED defendant, merely by filing a counterclaim containing a prayer for over $3,000 in damages, can oust the district court of jurisdiction. The statute does not expressly state that the counterclaim be valid, legally sufficient, or even that it be filed in good faith. The statute requires only that it be pleaded, and that an appropriate motion for transfer be filed. ORS 46.075 makes no provision for remand to the district court. In a sense, competing forces are involved in the case at bar. One force is the need for jurisdictional certainty. One construction of the statutes would be that the district court could not examine the propriety, form or sufficiency of the counterclaim, *542 with the result that, after the case is transferred to the circuit court, jurisdiction remains in the circuit court, even after a counterclaim is stricken. The vice of this rule is that a defendant can forum shop by merely filing a document entitled "counterclaim" which includes a prayer in excess of $3,000.[6] The counterview, consistent with the assumption that the legislature was not encouraging forum shopping, is that the district court, prior to transferring the cause, can look beyond the ad damnum clause of a counterclaim to determine whether the counterclaim is, in truth and in fact, "in excess of the jurisdiction of the court." We believe that the statutes can be followed and that the legislative intent can be achieved without sacrificing jurisdictional certainty or permitting unwarranted forum shopping. In Part I we held that counterclaims cannot be asserted in commercial FED actions, absent statutory authorization. Although Carter's counterclaims in the case at bar, judged by their ad damnum clauses, appear to "be in excess of the jurisdiction of the court," the counterclaims are, in fact, impermissible and subject to being stricken on motion. The "right to plead a counterclaim in excess of the jurisdiction of the court" to which reference is made in ORS 46.070, contemplates the right to plead a counterclaim otherwise assertable in the case. If a defendant has no right, absent a specific statute, to plead any counterclaim in a commercial FED action, upon appropriate motion the district court should strike it and deny the motion to transfer the cause to the circuit court. This conclusion is consistent with the statute and the legislative intent upon which the statute is based. Nothing in the statute suggests that the legislature intended that the exclusive jurisdiction of the district court in commercial FED actions could be avoided by filing impermissible counterclaims. We hold that, in a commercial FED action brought in the district court, a counterclaim not authorized by statute, whatever its amount, may be stricken by the district court upon motion of the plaintiff, even if the defendant files a motion to transfer under ORS 46.070. If the counterclaim is stricken, the case should not be transferred to the circuit court under ORS 46.075. However, this case was transferred to the circuit court. ORS 46.075 provides that, once transferred, the circuit court alone has "jurisdiction to try and determine the cause." Should the district court, because of error or doubt as to the merits of striking the counterclaim, transfer the case to the circuit court, the cause remains in the circuit court after transfer and should not be remanded to the district court, even if the circuit court determines that the counterclaim should be stricken. In FED cases, the circuit court does not sit as an appellate court over the district court. Once transferred, the circuit court alone has jurisdiction of the cause.[7] We hold: 1. In an FED action to recover commercial premises, the defendant cannot assert a counterclaim against the plaintiff unless the counterclaim is authorized by statute. 2. If an unauthorized counterclaim is filed in a commercial FED action, upon motion the district court should strike the counterclaim. 3. ORS 46.070 and ORS 46.075 are procedural statutes, the purpose of which is to avoid jurisdictional disputes between the district court and other courts, in this case, the circuit court. 4. If an unauthorized counterclaim in excess of the jurisdiction of the district court is filed in a commercial FED action, and appropriate motion is made under ORS 46.070, the district court has the power to strike the counterclaim and retain jurisdiction of the case. If the district court transfers the case to the circuit court, thereafter *543 the circuit court alone has jurisdiction to try and determine the cause. If it should later be established that the counterclaim should be stricken, is not proved, or should not have been filed, jurisdiction nonetheless remains in the circuit court, once the transfer is made. The circuit court erred in remanding to the district court. The district court had no jurisdiction to decide this case. Therefore, the case must be remanded to vacate the order and judgment of restitution entered on June 16, 1980, and to transfer the cause to the circuit court for further proceedings.[8] Affirmed as modified. Remanded to district court for transfer to circuit court. [1] One possible explanation is that the defendants were claiming that their claims were under the Residential Landlord and Tenant Act, which permits the filing of counterclaims "for any amount, not in excess of the jurisdictional limits of the court in which the action is brought." The trial court may have believed that if the defendants' contentions were correct, the case had to be remanded in accordance with Ingersoll v. Mattson, 47 Or. App. 463, 470, 614 P.2d 1197 (1980). [2] At oral argument, the defendants conceded that, so far as Carter is concerned, this case is not governed by the Residential Landlord and Tenant Act, ORS 91.700 et seq. [3] Judge Buttler, in Grove v. The Hindquarter Corporation, 45 Or. App. 781, 786, 609 P.2d 840, (1980), summarized the procedure as follows: "It is apparent that the statutory procedure is designed to provide a quick determination of one question, and one question only: the right to possession. Although defenses, including equitable defenses, may be interposed, Fry v. D.H. Overmyer Co., Inc., 269 Or. 281, 525 P.2d 140 (1974), the issues so raised may relate only to the right to possession and the summary nature of the proceeding is not changed. While an action for rent may be joined with an FED, ORS 16.221(2), the action ceases to be a summary proceeding if that is done; the defendant has the same time to appear as he has in any action at law for the recovery of rental due. * * *" [4] Compare Wilson v. Matthews, 291 Or. 33, 37, 628 P.2d 393 (1981), which held "that the later 1975 grant of exclusive jurisdiction in FED actions to the district court under ORS 46.060(1)(e) modifies by implication the earlier grant of concurrent jurisdiction [to the circuit court, district court and justice court] contained in ORS 105.110. * * * [C]ircuit courts no longer have jurisdiction over FED actions in those counties in which a district court has been established, but retain such jurisdiction in such counties without a district court." [5] The Court of Appeals has considered related issues in Ingersoll v. Mattson, 47 Or. App. 463, 614 P.2d 1197 (1980); L.F.C., Inc. v. Burtchaell, 47 Or. App. 471, 614 P.2d 1201 (1980); and Brood v. Davis, 42 Or. App. 587, 601 P.2d 487 (1979). [6] Compare Ingersoll v. Mattson, 47 Or. App. 463, 614 P.2d 1197 (1980). [7] Compare Ingersoll v. Mattson, 47 Or. App. 463, 614 P.2d 1197 (1980) and Brood v. Davis, 42 Or. App. 587, 601 P.2d 487 (1979). [8] We wish to make it clear that this holding is limited to commercial FED cases. We are not suggesting that, in other cases, the district court can refuse to transfer to the circuit court under ORS 46.070-47.075 if it believes the counterclaim is not legally sufficient. Compare Ingersoll v. Mattson, 47 Or. App. 463, 614 P.2d 1197 (1980), with L.F.C., Inc. v. Burtchaell, 47 Or. App. 471, 614 P.2d 1201 (1980). See also Brood v. Davis, supra n. 5, opinion withdrawn, 44 Or. App. 261, 605 P.2d 749 (1980). In this case we are not concerned with a tenancy to which the Residential Landlord and Tenant Act, ORS 91.700 et seq, applies and we do not reach any issue, the resolution of which is dependent thereon. We note that Hollriegal pleaded a counterclaim, asserting that his counterclaims were proper under the Residential Landlord and Tenant Act. It is not necessary for us to decide whether, as between the plaintiffs and Hollriegal, the Residential Landlord and Tenant Law has any application. Our remand is without prejudice to his right to reassert those counterclaims.

7b3f4c4b2b34d217855450f5fdfba459917baaeb452427e28eb9ba75e4d89a0d

1982-05-25T00:00:00Z

20814803-8a02-4198-a01f-024d0155e72e

State v. Blake

292 Or. 486, 640 P.2d 605

oregon

Oregon Supreme Court

640 P.2d 605 (1982) 292 Or. 486 STATE of Oregon, Respondent On Review, v. Michael Edward BLAKE, Petitioner On Review. No. 79-7-322; CA 17577; SC 28134. Supreme Court of Oregon, In Banc. Argued and Submitted December 7, 1981. Decided February 10, 1982. *606 J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition for review and brief was Gary Babcock, Public Defender, Salem. Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the brief were James H. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen. and William F. Gary, Deputy Sol. Gen., Salem. DENECKE, Chief Justice. We granted defendant's petition for review to determine whether a portion of Oregon's Rape Shield Law (ORS 163.475) violated Section 10, Art. I, of the Oregon Constitution, which provides: "No court shall be secret, but justice shall be administered, openly * * *," and Section 11 which provides that the accused has the right to a public trial. ORS 163.475, as it existed at the time of the trial of this case, provided that in a rape prosecution, if the defendant desired to introduce evidence of the alleged victim's previous sexual conduct, the defendant must request a pretrial hearing at which the court would decide what, if any, of such evidence would be admitted at the trial. The statute provided that such hearing would be held "out of the presence of the jury and the public." A majority of the Court of Appeals held the statute valid. 53 Or. App. 906, 633 P.2d 831 (1981). The defendant, who was charged with rape, requested a pretrial hearing to determine what evidence of the alleged victim's previous sexual conduct would be admissible at trial. Pursuant to the statute, and over the objection of the defendant, the trial court excluded everyone from the hearing except court officers, witnesses, including the alleged victim, the attorneys and the defendant. The defendant was subsequently convicted; he appealed and assigned as error the exclusion of the public from the pretrial hearing. Subsequent to the trial of this case, the Oregon Legislature, in enacting a code of evidence, changed the Rape Shield Law. We were not aware of this amendment when the petition for review was granted or oral argument was heard. Rule 412 of the Oregon Evidence Code now provides that the pretrial hearing at which the trial court determines what, if any, evidence of the alleged victim's previous sexual conduct will be admissible at the trial, shall be held "in chambers"; no mention is made of excluding the public. "In chambers" is not a phrase that has a precise legal meaning as regards what persons are entitled to be present. We know from experience, however, a hearing "in chambers" is not always in practice one at which everyone except the judge, court officers, the parties, the attorneys, and perhaps *607 the witness is necessarily excluded. When we are required to apply the phrase "in chambers" it will be necessary to judicially construe the phrase. When faced with a constitutional challenge to a statute, we "choose between alternative constructions of an uncertain text the one that avoids serious constitutional difficulty." Tharalson v. State Dept. of Revenue, 281 Or. 9, 13, 573 P.2d 298 (1978). We cannot now say that the phrase "in chambers" is not open to a construction that avoids the "serious constitutional difficulty" which was the subject of State ex rel. Oregonian Publishing Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980), in which we outlined the access necessary in judicial proceedings in order to comply with Art. I, § 10 of the Oregon Constitution. Construction of "in chambers" is not the issue in this case, and the challenge to an application of Rule 412 would not necessarily be the identical attack that is made on the statute applicable in this case. Under these circumstances, usually we do not grant a petition for review or we dismiss the proceeding after review was granted when we become aware of the new statute. We did so recently in Housing Council v. City of Lake Oswego, 291 Or. 878, 635 P.2d 647 (1981). For an example of the procedure of the United States Supreme Court in a somewhat similar situation, see Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200, 24 L. Ed. 2d 214 (1969). Despite the change in the statute, if it appeared likely that the defendant had been prejudiced by the application of a statute which was arguably unconstitutional, we might, nevertheless, grant review or retain the case although the statute had been changed. Defendant does not contend any additional or different evidence would have been introduced if the hearing had been public or that the trial court at trial erred in excluding any evidence concerning the victim's previous sexual conduct. For these reasons the proceeding is dismissed. LENT, Justice, dissenting. I dissent from the action of the court in dismissing this case. I express no opinion on the merits. The majority dismisses this proceeding because it finds that the shield law has been changed and there is therefore no need for this court, as a review court, to consider whether the former statute is unconstitutional. The majority takes the position that the change is so great that a decision by this court on the language of the former statute would not control with respect to the new language. I simply disagree. The old language required that the hearing be held "out of the presence of the jury and the public." The new language requires the hearing to be held "in chambers" and that language is found in Rule 412 of the new Oregon Evidence Code. The new code is accompanied by an "official" commentary prepared for and approved by the House Judiciary Committee and the Senate Justice Committee of the 1981 Legislative Assembly. There is nothing in that commentary to indicate that the legislative body thought it was changing the law with respect to excluding the public from the hearing. The commentary explicitly advises us that the hearing in chambers means a hearing "in camera." West Publishing Company's Revised Fourth Edition of Black's Law Dictionary says that "in camera" means: It is seen that neither by the language of the rule nor by the official explanation is there any indication that the legislature meant to change the law so as to rid it of any possible conflict with Or.Const., Art. I, §§ 10 and 11. The new language presents neither more nor less possible conflict with the constitutional prohibition against secret courts and constitutional requirements that justice be administered openly and that an accused be afforded a public trial. *608 I believe we should not terminate consideration of the important issues raised on this review, issues upon which the Court of Appeals divided, but should resolve those issues now in the case at hand. I would add one final thought. The majority finds that the change in language makes this an inappropriate case for our consideration of the constitutional challenge to the kind of hearing specified by the law. Nevertheless, the majority then touches upon the merits by stating that it does not appear likely that this defendant has been prejudiced by reason of exclusion of the public and the holding of a secret court and further states that the defendant is not able to point to any evidence that would have been introduced had the hearing been public. Of course, the defendant contended that one of the purposes of making a trial open to the public and prohibiting secrecy is to allow for the fact that persons who may have knowledge of relevant evidence will learn of the controversy and come forward. In any given case that might benefit either the prosecution or the defense. Certainly, a party to litigation cannot demonstrate that such evidence exists if it is undiscovered because the potential witness who possessed it had no reason to learn of its need. I do not think it fitting for the majority to publish its last paragraph concerning what appears to be matter going to the merits while at the same time refusing to consider the constitutional challenge. If the matters which the majority discusses in its last paragraph are sufficient to dispose of this case, the conviction should be affirmed on that basis and not by dismissing the proceeding. TANZER and CAMPBELL, JJ., join in this opinion.

51baec21067e282c489ad9252e727051f93f48d50eda205943e7c94fc18467fc

1982-02-10T00:00:00Z

ed4ab662-b59b-4d9c-aa3f-e3ce8535d27d

State v. Carlile

290 Or. 161, 619 P.2d 1280

oregon

Oregon Supreme Court

619 P.2d 1280 (1980) 290 Or. 161 STATE of Oregon, Respondent, v. Judith Ann CARLILE, Petitioner. State of Oregon, Respondent, v. ROBERT MORGAN REITER, Petitioner. STATE of Oregon, Respondent, v. DAVID SHAW, Petitioner. CA 12378; SC 26792, CA 12377; SC 26803 and CA 12379; SC 26804. Supreme Court of Oregon. Argued and Submitted June 2, 1980. Decided November 28, 1980. *1281 Laurie K. Smith of Frye, Smith & Franz, P.C., Eugene, argued the cause and filed briefs for petitioner, Carlile. Robert J. McCrea, Eugene, argued the cause for petitioner, Reiter. With him on the briefs were Paul R. Frisch and Morrow, McCrea & Divita, P.C., Eugene. Donald D. Diment, Jr., argued the cause for petitioner, Shaw. With him on the briefs were Lauren S. Holland and Diment, Jagger & Billings, Eugene. Frederick A. Hugi, Asst. Dist. Atty., Eugene, argued the cause for respondent. With him on the briefs was J. Pat Horton, Dist. Atty., Eugene. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. HOWELL, Justice. In these three consolidated cases, the defendants challenge the legal sufficiency of the affidavits upon which a Lane County district judge relied in finding probable cause to issue search warrants to conduct searches of defendants' homes. Defendants contend that the affidavits did not establish the veracity of the police informants, as required by our decisions and those of the United States Supreme Court. The trial court agreed and granted defendants' motions to suppress. The state appealed, ORS 168.030(3), and the Court of Appeals reversed in per curiam opinions. State v. Carlile, 43 Or. App. 692, 603 P.2d 783 (1979); State v. Reiter, 41 Or. App. 389, 598 P.2d 699 (1979); State v. Shaw, 41 Or. App. 632, 598 P.2d 1305 (1979). We allowed review to consider whether the results below are consistent with the requirements of ORS 133.545; article I, section 9 of the Oregon Constitution; and the fourth amendment to the United States Constitution.[1] In State v. Montigue, 288 Or. 359, 605 P.2d 656 (1980), we applied the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), for analyzing the trustworthiness of hearsay information offered to show probable cause to obtain a search warrant. We held that the test for determining the sufficiency of an affidavit based on facts supplied by informants is (1) whether the affidavit sets forth the informant's "basis of knowledge" and (2) whether the affidavit sets forth facts showing the informant's "veracity" by indicating either that the informant is credible or that his information is reliable. State v. Montigue, supra 288 Or. at 362, 605 P.2d 654. See also Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974). Montigue involved an affidavit based on hearsay information provided by a named "citizen-informer." The present cases involve *1282 an issue not presented in Montigue, that is, the sufficiency of affidavits that are based on hearsay information supplied, not by "citizen-informers," but by named informers who are criminally involved. Challenges to the sufficiency of two search warrants are involved. The first warrant covered the Carlile residence; the second warrant covered the home shared by Reiter and Shaw. In support of their application for the Carlile warrant, police filed an affidavit by Officer Dennis Williams of the Eugene Police Department. The affidavit stated, in relevant part: Carlile challenges the sufficiency of this affidavit on grounds that it gave the judge no basis to believe Sundstrom's allegations. She argues that the affidavit fails to show that Sundstrom was either a credible source or, on this occasion, a reliable informant. Carlile contends that Sundstrom's admission of criminal involvement places Sundstrom's credibility under suspicion. The State contends that Sundstrom's reliability and credibility was established in the affidavit by the following: Sundstrom's name and address; and statements that police surveillance indicated that Sundstrom had been to the Carlile residence, that Sundstrom admitted obtaining cocaine from Carlile (which is an admission against penal interest), and that police confirmed that Sundstrom possessed cocaine. We held in Montigue that the informant there was entitled to a presumption of veracity because the magistrate issuing the search warrant could infer from the affidavit that the informant, who was named, was a citizen-informer who had voluntarily initiated the report of a crime. The naming of the informant was not sufficient to establish the informant's veracity. But the fact that the named citizen-informer had voluntarily initiated the report of criminal activity supported issuance of the search warrant. We noted in Montigue that the naming of an informant is one factor which may be weighed in determining the sufficiency of an affidavit. 288 Or. at 365, 605 P.2d 654, quoting 1 LaFave, Search and Seizure 599, § 3.4 (1978). We explained that by revealing her name, and thus exposing her identity, an informant may be liable for damages in a civil action for malicious prosecution or may be called later as a witness so as to be exposed to the penalties of perjury if her testimony is contrary to the facts stated in the affidavit. 288 Or. at 367, 605 P.2d 654. In the present case, therefore, the naming of the informant was one factor that would lead a judge to infer that the informant was telling the truth. With respect to Sundstrom's admission of criminal involvement, we refer to the decision of the United States Supreme Court in United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971). In that case a search warrant was issued on the basis of an affidavit by a federal tax investigator which recited that the investigator *1283 received information from an unnamed informant. The informant had stated that he had purchased illicit whiskey from within the residence described in the warrant. The investigator also stated in his affidavit that he had personal knowledge of the illegal activity. The Harris court upheld the sufficiency of the affidavit, stating: Professor LaFave writes that the above analysis in Harris is one means of satisfying the requirement in Aguilar of showing that the informant's information is reliable on this particular occasion. See 1 LaFave, supra at 502, § 3.3. Carlile argues, however, that Sundstrom's admission of criminal involvement places Sundstrom's honesty and integrity under suspicion. We agree that an admission of criminal activity does not go far in establishing the informant as a generally credible source. Police informers, who often are paid or protected informers drawn from the criminal milieu, are "almost universally viewed with a jaundiced eye," especially when they hide behind the cloak of anonymity. State v. Montigue, supra 288 Or. at 364, 605 P.2d 654, quoting Moylan, supra 769. However, circumstances of a particular case may indicate to a magistrate that the informer admitting her criminal involvement is providing reliable information on this occasion. We believe that Sundstrom's admission that she had obtained cocaine from the Carlile residence was an admission against penal interest that on this particular occasion is an additional factor that would lead a judge to issue a warrant to search the Carlile residence for cocaine. Finally, with respect to the affiant's statements that police saw Sundstrom enter the Carlile residence, we find another factor that supports the sufficiency of the affidavit. Police corroboration of Sundstrom entering the Carlile residence, as well as police corroboration that Sundstrom possessed cocaine, would support a judge's belief that the informer was truthful in her statement that she had purchased cocaine at the Carlile residence. See Spinelli v. United States, supra 393 U.S. at 415-16, 89 S. Ct. at 588-589. Therefore, considering that the police informant was identified, the police informant had admitted criminal involvement that related to the object of the search warrant, and the police partially corroborated the informant's information, we hold that the affidavit filed with respect to the Carlile residence was sufficient for the finding *1284 of probable cause to issue a search warrant. Applying the same analysis to Reiter and Shaw yields a different result. The information that led the police to their home came from Judy Carlile. The affidavits filed by Officer Williams in support of his request for a warrant to search the Reiter-Shaw residence stated, in relevant part: Had the police supplied the judge with grounds to believe Carlile's allegations, the affidavit would have provided ample cause to issue a warrant. However, the affidavit provided no assurance either that the informant was inherently credible or that her information was reliable. The fact that she was named and that she had made an admission against her penal interest is an insufficient guarantee of reliability where no partial police corroboration of the information was made. The state argues that Carlile corroborated her statements by supplying officers with a typewritten list of addresses which she had in her bedroom. Upon this list she circled the name and address of defendant Reiter. The police found a house at the listed address. But the list had nothing to do with drug transactions. It was a City of Eugene directory of persons available to do home repairs on a reduced fee basis. The police would have found a house or shop at any address named on the list. The fact that Carlile possessed such a list hardly corroborates the allegation that cocaine would be found at the Reiter/Shaw residence. The trial court should not have sustained the motion to suppress evidence in State v. Carlile, but it properly sustained the motion in State v. Reiter and State v. Shaw. Therefore, the Court of Appeals is affirmed in Carlile and reversed in Reiter and Shaw. [1] ORS 133.545(3) states as follows: "The application [for a search warrant] shall consist of a proposed warrant in conformance with ORS 133.565, and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that such things are in the places, or in the possession of individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant's reliability and shall disclose, as far as possible, the means by which the information was obtained." (Emphasis added.) Or.Const., Art. 1, § 9 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." The Fourth Amendment to the U.S. Constitution states: "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 Warrant 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."

647aa97feeb6fd54f61ba36455475c2c021e3bea33d9c69a2854abde71fc0dd2

1980-11-28T00:00:00Z

6010c518-2043-45b6-b64c-c8834db42730

In Re Geurts

290 Or. 241, 620 P.2d 1373

oregon

Oregon Supreme Court

620 P.2d 1373 (1980) 290 Or. 241 In re Complaint As to the Conduct of Glenn A. GEURTS, Accused. OSB 79-10; SC 27175. Supreme Court of Oregon. Argued and Submitted November 3, 1980. Decided December 16, 1980. Howard R. Lonergan, Portland, argued the cause and filed briefs for the accused. William M. Beers, Portland, argued the cause for the Oregon State Bar. With him on the brief was Pamela J. Beery, of Acker, Underwood, Beers & Smith, Portland. Before TONGUE, P.J., and HOWELL,[*] LENT, LINDE, PETERSON, and TANZER, JJ. PER CURIAM. The Oregon State Bar brought two disciplinary charges against the accused, Glenn A. Geurts. One cause of complaint was that the accused neglected a legal matter entrusted to him by a client.[1] The second charge was that the accused failed to respond to the Bar's inquiry concerning the *1374 complaint that gave rise to the first charge. A trial board found the accused guilty of the first charge and not guilty of the second charge. It recommended that the accused be reprimanded and suspended from the practice of law for 60 days. The Disciplinary Review Board found the accused guilty of both charges and concurred in the recommended penalties. Before reaching the substance of the charges, we face an objection by the accused to the appointment of the trial board. The board was selected by the Bar's general counsel by direction of the Board of Governors. The accused contends that this function cannot be delegated. ORS 9.550, a section of the statute establishing the Oregon State Bar and defining its role in professional discipline, provides: The statute elsewhere authorizes the Board of Governors to "appoint such committees, officers and employes as it deems necessary or proper," ORS 9.080(3) but it does not expressly state all functions that may or may not be delegated to committees, officers, or employees. An exhibit in the present case shows that at the meeting at which the Board of Governors voted to institute this disciplinary proceeding, the board directed that a trial board be appointed by the general counsel. The record does not show whether this is the general practice. No general delegation of this function appears in the board's bylaws or rules of procedure.[2] The rules do state a standard for the composition of trial committees which is designed to exclude from a trial committee anyone directly or indirectly associated with the Board of Governors during the investigatory as well as the hearing stage of a disciplinary case.[3] The principle of this very proper concern may also contradict the appointment of trial board members by an officer who participates in reviewing and formulating the complaint,[4] but that is not the accused's objection. He contends that the selection of each trial board must be made by the Board of Governors itself and cannot be delegated to anyone, for instance a committee or the Bar's executive director. We believe the argument goes further than the statute requires. It is enough *1375 if the Board of Governors takes responsibility for the composition of a trial board in fact and not only in law, that is to say, if the proposed membership is reported to the Board of Governors and the board has sufficient opportunity to approve or disapprove the appointments in advance of the proceeding. The rules of procedure safeguard the accused's opportunity to object to a proposed appointee to a trial board.[5] The record does not show that Mr. Geurts exhausted this opportunity to challenge an appointee for cause or peremptorily or to demand that the Board of Governors appoint a different trial board, beyond his brief, formal objection to the fact that its members had been selected by the general counsel. Under the circumstances, it is difficult to see how he could claim to have been prejudiced by that fact. Accordingly, we do not accept this objection to the proceedings. The facts giving rise to the first charge, that of neglecting a legal matter entrusted to the accused, were summarized by the Disciplinary Review Board as follows: After these two years of inaction, the claim was taken over by a different attorney who communicated with the client and the insurance adjuster and in due course arranged a settlement of the claim. Upon review of the record we concur in the conclusion of the trial board and the Disciplinary Review Board that the accused neglected his client's claim in violation of DR 6-101(A)(3), above. This court has had recent occasion to emphasize that neglect and procrastination are violations of professional responsibility as much as the other forms of professional misconduct. See, e.g., In re Holm, 285 Or. 189, 590 P.2d 233 (1979), and Justice Holman's concurring opinion at 194, pointing out the potentially disastrous consequences of procrastination or inattention for the parties concerned. See also In re English, 290 Or. 113, 618 P.2d 1275 (1980); In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980). In this case we conclude that a 30-day suspension is appropriate on this charge, but this should not be misunderstood to mean that substantially stronger *1376 disciplinary measures may not be applied to future violations of DR 6-101(A)(3).[6] Concerning the second cause of complaint, that the accused failed to respond to the Bar's inquiries, the Disciplinary Review Board found as follows: The accused asserts as a defense the constitutional privilege not to be a witness against himself in a criminal case.[7] If an accused plausibly claimed that his response to a question posed in a noncriminal proceeding could be used against him in a criminal prosecution, he could not be compelled to answer the question, but Mr. Geurts made no such assertion. Professional disciplinary proceedings themselves are not criminal prosecutions. However, the Bar does not show what legal or disciplinary rule the accused violated by failing to respond to the Bar's inquiries. The Bar's complaint asserted only that the conduct alleged in the two counts, "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" and constituted conduct "rendering the accused unfit to practice law in this state" and precluding his admission to practice if he were now seeking it. The Disciplinary Review Board, disagreeing with the trial board as to this charge, gave this explanation: "We are of the strong belief that the Bar has a very strong right to require timely responses to inquiries made to members of the Bar. This right to timely response is essential to the proper functioning of the Bar. It is a basic disciplinary tool." These statements by the Bar and the Disciplinary Review Board do not suffice to show a disciplinary violation. We do not imply approval of noncooperation with the process of investigation into complaints about a lawyer's professional conduct. Readiness to accept the obligation to account for one's performance is an important element of professionalism, as the board states. However, if noncooperation itself is to be made a ground for imposing a disciplinary penalty, the rules of professional discipline ought to give fair notice of the terms and limits of that obligation.[8] They do not do so now. Accordingly, we conclude that no penalty should be imposed on the second cause of complaint. *1377 The accused is suspended for 30 days. The Oregon State Bar is awarded judgment against accused for its costs and disbursements. [*] Retired November 30, 1980. [1] "DR 6-101 Failing to Act Competently. (A) A lawyer shall not: ..... (3) Neglect a legal matter entrusted to him." [2] Under article 9 of the bylaws the general delegation of a function, if it is delegated at all and not specifically delegated to another officer, runs to the Bar's executive director rather than to other members of the staff: "9.1 DUTIES OF THE EXECUTIVE DIRECTOR: The Executive Director, appointed by and acting under the supervision of the Board, shall be the principal administrative officer of the Bar and shall supervise its administrative affairs and personnel; shall attend all meetings of the Board and the Bar and shall keep a record of the proceedings of all such meetings. The Executive Director shall perform such other duties as are or may be imposed upon the Executive Director by the Bar Act, Bylaws and policies of the Board and as may be otherwise directed by the Board." [3] Section 38 of the Rules of Procedure provides: "Any resident active member may represent an accused (applicant) or may serve as a member of a trial or review board in a disciplinary, reinstatement or admission proceeding, except a governor or his partner, employer, employee or associate and except: "(a) In a disciplinary proceeding, a former governor or his partner, employer, employee or associate, if the professional misconduct with which the accused (applicant) is charged in the proceeding to be tried was under investigation, or if the proceeding to be tried was instituted, during the term of office of such former governor. ...." [4] See K. Davis, 2 Administrative Law Treatise §§ 13.01, 13.06, 13.07 (1958) and K. Davis, Administrative Law of the Seventies § 13.02 (1976). [5] "Section 40. Challenge and Disqualification. (Effective September 21, 1976) When the trial board is constituted, the executive director or general counsel shall notify the accused (applicant) and counsel for the bar of the names of its members. Within 10 days after the giving of such notice, the accused (applicant) and counsel for the bar shall file in writing with the executive director any challenge or challenges against a member or members of the trial board. The accused (applicant) and counsel for the bar shall be entitled to one peremptory challenge and to an unlimited number of challenges for cause. The president or the board shall pass upon any challenge for cause and shall fill any vacancy resulting from the allowance of any challenge. The accused (applicant) and counsel for the bar shall be served with notice of the name of any substitute member of the trial board; and the accused (applicant) and counsel for the bar may challenge for cause such substitute member, within the time and in the manner hereinabove provided for cause, or peremptorily if his peremptory challenge has not previously been exercised." [6] The accused offers as a defense that the client's claim lacked merit so that to pursue it would contravene DR 2-109(A)(2). If so, this cannot excuse a failure promptly to consult with the client and discuss this conclusion with him. [7] Or.Const. Art. I, § 12: "No person shall ... be compelled in any criminal prosecution to testify against himself." U.S.Const., Amend. V: "No person shall ... be compelled in any criminal case to be a witness against himself, ..." [8] Cf. Megdal v. Oregon State Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980).

89e4f25e1045adc0dd5982314c9a345c0df331d89b9a53327fef25f8fabd1e39

1980-12-16T00:00:00Z

69e9706a-303f-4b95-98dc-3cd269659099

State v. Stringer

292 Or. 388, 639 P.2d 1264

oregon

Oregon Supreme Court

639 P.2d 1264 (1982) 292 Or. 388 STATE of Oregon, Respondent On Review, v. Ranford Owen STRINGER, Petitioner On Review. No. 79-6-323; CA 16904; SC 27482. Supreme Court of Oregon. January 25, 1982. *1265 Ronald D. Thom, Oregon City, for petition. No appearance contra. Before DENECKE, C.J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ. DENECKE, Chief Justice. In our initial opinion in this case we held the trial court did not err in refusing to permit an expert called by the defendant to testify to his opinion where the victim was located when she was struck by the defendant. 291 Or. 527, 633 P.2d 770 (1981). We so held because a diagram relied upon by the expert in reaching his opinion was not in evidence and, therefore, was not considered by the jury. The defendant filed a petition for rehearing contending that the diagram was in evidence. The state filed no response to the petition. In considering the petition, we reexamined the record. The transcript prepared by the court reporter indicates the diagram was not offered or received and the court reporter so stated in the list of exhibits prepared as part of the transcript. Remarks by counsel for both parties in the transcript indicate the diagram may have been delivered to the jury. The clerk's record states the diagram was received. In this ambiguous state of the record we conclude we should assume the diagram was available for examination by the jury. Therefore, we must consider the other contention of the parties on the issue of whether the trial court should have admitted the testimony of the expert on the location of the victim. The state objected to the testimony and the Court of Appeals, 49 Or. App. 51, 618 P.2d 1309, affirmed the trial court's refusal to receive the testimony on the basis of a line of cases of this court refusing to allow the admission of testimony of one who did not witness the accident as to the point of impact or other matters in issue. We cited those cases in our initial opinion in 291 Or. at 531, 633 P.2d 770. We stated in our initial opinion: The question arises whether our past decisions are consistent with the principle that the admissibility of accident reconstruction evidence should be judged by the same rules that govern the admissibility of the opinion evidence of experts on other issues. In Thomas v. Dad's Root Beer, Etc., 225 Or. 166, 168-169, 356 P.2d 418, 357 P.2d 418 (1960), we held inadmissible the testimony of a police officer, not a witness to the accident, on the point of impact of two vehicles. We based our decision on the ground "that a jury is as well able to draw its own inferences and reach its own conclusions from the facts presented as is a witness who was not present at the time of the accident." 225 Or. at 168, 356 P.2d 418, 357 P.2d 418. In Thomas, we cited in support of the above statement Bailey v. Rhodes, Adm., 202 Or. 511, 519-525, 276 P.2d 713 (1954). In Bailey, a police officer testified to the physical scene of the accident, including the marks made by the vehicle indicating its course, the curve in the highway, a pole knocked down by the car, the position and condition of the car after the accident. On the basis of this evidence, he was allowed to testify that in his opinion the car was going 70-90 miles per hour. This court held that was error. We so held partly because such testimony was "pure speculation and conjecture" on the officer's part. We also so held because "opinion evidence is never admissible if all the pertinent facts can be *1266 sufficiently described and detailed to the jury so as to enable it to draw its own inferences and conclusions therefrom." 202 Or. at 524-525, 276 P.2d 713. (The two bases for our decision may be contradictory; however, we need not pursue that possibility.)[1] That quotation is not a completely accurate statement of Oregon law. The test is not whether a jury is capable of drawing its own inferences from the evidence presented. Rather, the test is whether the expert's testimony, if believed, will be of help or assistance to the jury. The statement of the rule as enacted by the legislature in the new Evidence Code, effective January 1, 1982, is that expert evidence is admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue * * *." Rule 702. If a qualified expert offers to give testimony on the point of impact and such testimony is otherwise admissible and if believed would assist the jury in deciding the location of the point of impact, it should not be excluded. In Marshall v. Martinson, 268 Or. 46, 53-57, 518 P.2d 1312 (1974), we again held the trial court did not err in refusing to receive testimony by an expert who did not witness the accident. The collision occurred when the defendant's automobile was overtaking and passing the plaintiff's vehicle. Plaintiff called an expert and posed a hypothetical question. The expert was asked to assume, among other facts, the plaintiff's vehicle was in the right-hand lane, traveling at 35 miles per hour, veered into the path of defendant's car which was traveling 70-75 miles per hour and moving straight ahead in the left lane within 12 to 18 inches of the center guard rail; and also to assume the right front corner of the defendant's car made contact with the left wheel well of plaintiff's vehicle and that after the impact defendant's car came to rest backward on the right-hand guard rail while plaintiff's vehicle went over the guard rail and broke a sign. Based upon these assumptions the expert was asked "whether the faster vehicle after the collision would make contact with the center guard rail on the left?" On the offer of proof the expert stated that the accident could not have been caused by the plaintiff veering into the defendant because that would have caused the defendant to go out of control and rotate and there was not "enough room" between the center lane line and the center guard rail for defendant to proceed without hitting the center guard rail. We stated: From other parts of the opinion it appears that by use of the phrase "varying factors" we meant that there was no "reliable foundation in fact for expert opinion testimony." For example, there was no evidence of the angle at which the plaintiff's car allegedly "veered" into defendant's car or the kind of "rotation" the defendant's car would have made. A variation in these two elements could change the expert's opinion. Urbanski v. Johnson, 283 Or. 169, 581 P.2d 948 (1978), relied upon Marshall v. Martinson, supra, 268 Or. 46, 518 P.2d 1312. In Urbanski, we were of the opinion "that *1267 the evidence offered was without sufficient foundation and therefore too speculative." In this case the admissible testimony of an expert on the issue of where the victim was when she was struck would be helpful to the jury. The jury did have the testimony of Jacqueline (the victim's companion) on that issue, but the defendant has a right to have any admissible testimony received to support his version of the facts. In the present case the expert's opinion purports to be based upon a sufficient foundation the location of the victim's body, the location of the victim's shoes, the defendant's speed, etc. The state introduced evidence that in some instances differed from that relied upon by the expert; however, that does not result in "varying factors" as that phrase was used in Martinson. When the evidence upon which an expert bases his opinion is contradicted by the other evidence, the jury determines which evidence is to be accepted as correct and judges the credibility of the expert's testimony accordingly. On this general subject see Maguire and Epstein, Preliminary Questions of Fact in Determining the Admissibility of Evidence, 40 Harv.L.Rev. 392 (1927); Morgan, Functions of Judge and Jury in the Determination of Preliminary Questions of Fact, 43 Harv.L.Rev. 165 (1929). We asked the Oregon Association of Defense Counsel (OADC) as well as the Oregon Trial Lawyers Association to submit briefs on the issue. OADC suggested we restrict the receipt of accident reconstruction expert testimony to instances in which eye witness testimony is not available. Illinois has such a rule. McGrath v. Rohde, 53 Ill. 2d 56, 61, 289 N.E.2d 619, 622-623 (1972). In admitting testimony by a qualified aircraft accident reconstruction expert we stated that one reason why such testimony should be admitted is that frequently all witnesses to the accident are killed in an aircraft crash and, therefore, reconstruction expert testimony is particularly appropriate. Myers v. Cessna Aircraft, 275 Or. 501, 510, 553 P.2d 355 (1976). While this observation about the usual absence of eye witnesses is undoubtedly correct, we are of the opinion that to restrict the use of experts who did not witness the accident to instances in which no eye witnesses are available is a distinction which unnecessarily clutters the law of evidence. If such expert testimony has probative value it should be admitted. The trial court does have "a certain latitude of discretion" in deciding whether to admit opinion testimony of a qualified expert. Yundt v. D & D Bowl, Inc., 259 Or. 247, 259, 486 P.2d 553 (1971). See a full discussion of this problem in the majority and dissenting opinions in Yundt v. D & D Bowl, Inc., supra, 259 Or. 247, 486 P.2d 553. As we earlier stated in this opinion, one of the criteria by which the admissibility of opinion evidence is determined is will such evidence "assist" or "help" the jury in performing its function. If the answer to that question is doubtful or reasonably could be decided either way, we hold the trial court has latitude in admitting the evidence and affirm whether the trial court admits the evidence or refuses to admit the evidence. Cooney v. McGee, 268 Or. 521, 521 P.2d 1051 (1974). In this case, however, the answer is not doubtful. The location of the victim when she was struck was a key issue. As we earlier stated, the defendant was entitled to have his evidence of where she was located presented, if otherwise admissible, to rebut the testimony of Jacqueline offered by the state. By reason of his expertise, based upon the evidence, the witness purported to be able to form and express an opinion on the location of the victim at the time of impact. Ordinarily, a jury would not have the expertise which would give the jurors the capacity to make the calculations upon which the expert's opinion rested. For this reason the proffered testimony would have assisted or helped the jury and should have been admitted. The cause is reversed and remanded to the trial court for a new trial. TONGUE, Justice, dissenting. This is the first case in which this court has squarely faced the important question whether "accident reconstruction" by opinion *1268 testimony of expert witnesses should be admissible in Oregon and, if so, the conditions under which such testimony should be admitted. In recognition of the importance of this case, both the Oregon Trial Lawyers Association (OTLA) and the Oregon Association of Defense Counsel (OADC) were requested by this court to submit briefs as amicus curiae. I do not disagree with the holding by the majority that the exclusion of such opinion testimony is not necessarily required whenever there are eye witnesses to an automobile accident or because the expert witness was not present at that time.[1] Neither do I disagree with the holding, as a general proposition, that "accident reconstruction" by opinion testimony "should be judged by the same rules that govern the admissibility of opinion evidence of experts on other issues." In my view, however, it is important to restate these rules for application in such cases. My principal disagreements with the majority are: (1) its statement of rules for the admission of opinion testimony by expert witnesses which are contrary to previous decisions by this court and which change the law of Oregon on this subject, and (2) the misapplication of these rules to "accident reconstruction" cases, including this case, by first stating that the trial court has some discretion in deciding whether to admit expert opinion testimony and by then holding, in effect, that the facts of this case were such that to exclude the opinion testimony by the expert witness was such an abuse of discretion by the trial judge as to require a reversal of his ruling excluding such testimony and a remand of this case for a new trial. The majority states (p. 1266) that the general rule to be applied is "whether the experts' testimony, if believed, will be of help or assistance to the jury." The more correct statement of this general rule, however, is as stated in 7 Wigmore, Evidence § 1923, at 29 (Chadbourn rev. 1978) as follows: This court has approved this statement of the rule. See Simpson v. Sisters of Charity of Providence, 284 Or. 547, 568-69, 588 P.2d 4 (1978), and Yundt v. D & D Bowl, Inc., 259 Or. 247, 258, 486 P.2d 553 (1971). Rule 702 of the new Oregon Evidence Code (effective January 1, 1982), that expert evidence is admissible if it "* * * will assist the trier of fact to understand the evidence or to determine a fact in issue * * *" is consistent with the rule as stated by Wigmore, as previously approved by this court. Rule 702 was not intended to change that rule.[2] The majority states, somewhat grudgingly (p. 1267), that trial courts have "a certain latitude of discretion" in deciding whether to admit expert opinion testimony, but concedes that "if the answer to that question [whether such testimony will help the jury] is doubtful or reasonably could be decided either way," the trial court has discretion to either admit or exclude such evidence. As previously noted, however (and as discussed below with reference to the facts of this case), the majority then holds that "[i]n this case, however, the answer is not doubtful" and that the trial judge abused his discretion in excluding the expert opinion testimony in this case. *1269 According to 3 Louisell and Mueller, Federal Evidence § 382, at 644-45 (1979): The rule of "broad discretion" is also stated by McCormick, Evidence § 13, at 30, n. 67 (2d ed. 1972). As stated by the appellate court in the application of this rule in United States v. Lopez, 543 F.2d 1156, 1158 (5th Cir.1976), reh. den. (1977), cert. den. 429 U.S. 1111, 97 S. Ct. 1150, 51 L. Ed. 2d 566 (1977): Again, it is important to bear in mind that in the exercise of this "broad discretion" to admit or exclude opinion testimony, the function of the trial judge is not confined to a determination whether some opinion by some expert may be of some help to a jury, but extends to a determination of the question whether the opinion testimony offered by "this person" "will" be of "appreciable help" on "this subject." In accordance with this rule of "broad discretion," this court has always previously affirmed the exclusion of expert opinion testimony by trial courts and has never previously reversed a trial court for excluding such evidence in accident cases. See, e.g., Urbanski v. Johnson, 283 Or. 169, 581 P.2d 948 (1978), Cooney v. McGee, 268 Or. 521, 521 P.2d 1051 (1974); Marshall v. Martinson, 268 Or. 46, 518 P.2d 1312 (1974); Carter v. Moberly, 263 Or. 193, 501 P.2d 1276 (1972); and Yundt v. D & D Bowl, Inc., supra. As stated by McCormick, Evidence § 170, at 363-64 (1954), and quoted with approval by this court in State v. Krause, 251 Or. 318, 321, 445 P.2d 500 (1968): This is an application of the familiar rule that even evidence of probative value may be excluded if its probative value is outweighed by such considerations as danger of prejudice or confusion of the jury, particularly when the probative value of the offered testimony is slight and the danger of prejudice or confusion of the jury is great. Thus, in State v. Krause, supra, at 321, 445 P.2d 500, this court, in referring to opinion testimony by expert witnesses, quoted with approval the statement by McCormick, Evidence § 170, at 363-64 (1954) that: It follows that this is also a factor to be considered by the trial court in the exercise of its discretion in deciding whether to admit or exclude opinion testimony by expert witnesses. See Note, Expert Testimony in Illinois, 10 Loy.Chi.L.J. 503, 516 (1979). This is consistent with the recognition by this court that opinion testimony by expert witnesses should not only be "weighed with caution" by the trier of the facts, but should also be "received with caution." See State v. Clark, 286 Or. 33, 593 P.2d 123 (1979). See also W.R. Chamberlin & Co. v. Northwestern Agencies, Inc., 289 Or. 201, 611 P.2d 652 (1980), in which this court stated (at 207, 611 P.2d 652) that: *1270 and went on to quote with approval from 1 Taylor, Evidence § 58 (8th ed 1885), which was, in turn, quoted with approval in Baber v. Caples, 71 Or. 212, 221, 138 P. 472 (1914) as follows: Louisell and Mueller, supra, at 643, also refers to the dangers of undue prejudice resulting from the admission of opinion testimony by an expert witness because of its "aura of special reliability and trustworthiness," as stated in United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973), in affirming the exclusion by the trial court of opinion testimony by an expert witness. This court held in Ritter v. Beals et al., 225 Or. 504, 525, 358 P.2d 1080 (1961), in affirming the exercise of discretion by the trial judge in admitting opinion testimony by an expert witness under the facts of that case, that the decision by a trial judge to admit or exclude such testimony is to be made "following the preliminary screening by the trial judge." As stated in McCormick, Evidence § 13, at 31 (2d ed 1972): As also stated in 2 Jones, Evidence § 14:19, at 633-34 (6th ed 1972): See also Voorhis, Expert Opinion Evidence, 13 New York L.F. 651, 657-58 (1967), citing cases holding that it is the function of the trial court to examine the foundation for expert opinion testimony and to exclude such testimony where the foundation is so insufficient as to render the opinion of the expert so speculative as to have no probative value. To the same effect, as stated by the Court of Appeals for the Fourth Circuit in Kale v. Douthitt, 274 F.2d 476, 482 (4th Cir.1960): More specifically, as stated in 3 Louisell and Mueller, supra, at 642: To the same effect, in previous cases this court has considered the quality of the facts and assumptions upon which offered opinion testimony was based to be a significant factor in determining whether the trial court erred in excluding or admitting the opinion testimony. See, e.g., Urbanski v. Johnson, supra, 283 Or. at 172, 581 P.2d 948; Galego v. Knudsen, 281 Or. 43, 47-48, 573 P.2d 313, modified 282 Or. 155, 578 P.2d 769 (1978); and State Highway Comm. v. Compton, 265 Or. 339, 344-45, 507 P.2d 13 (1973). See also Tuite v. Union Pacific Stages et al, 204 Or. 565, 583-84, 284 P.2d 333 (1955). It is clear, as recognized by the majority, that if facts necessary to support the opinion of an expert witness are not in evidence, *1271 such an opinion must be rejected for lack of a proper foundation. The requirement of a proper foundation for opinion testimony by an expert witness is not so limited, however. Thus, it follows from these authorities and cases that even though an opinion by an expert witness is stated by him to be based upon facts which are in evidence, a trial judge, in the exercise of his "broad discretion" in such cases, may nevertheless, upon his "preliminary screening" of an offer of such opinion testimony and in the exercise of the "broad discretion" conferred upon him in such matters, exclude such testimony upon the ground that such an opinion "cannot be reasonably grounded on such facts," or that an opinion based on such facts would be either "speculative" or without sufficient probative value to be of "appreciable help" to the jury on "this subject." These same rules are applicable in the exercise by the trial judge of the "broad discretion" conferred upon him as a matter of "preliminary screening" in deciding whether opinion testimony by "this person" (i.e., "this expert witness") will be of "appreciable help" on the "particular subject" of "accident reconstruction." Again, as stated in Note: Opinion and Demonstrative Evidence: Automobile Accident Reconstruction, 14 Washburn L.J. 264, 269 (1975): As also stated by that same authority (at 271) in discussing opinion testimony by an expert witness in "accident reconstruction": See also Annot., 66 A.L.R.2d 1048, 1053 and 1062 (1959). To the same effect, as stated by Baker, Limitations on Accident Reconstruction, 8 Defense L.J. 3, 6 (1960): See also Schoone and Schapiro, Reconstruction of Automobile Accidents Through Lay and Scientific Testimony, 47 Marquette L.Rev. 491, 502-03 (1964). As also stated in Note: Accident Reconstruction by Expert Testimony, 10 S.Dak.L. Rev. 161, 167 (1965): In Marshall v. Martinson, supra, 268 Or. at 56, 518 P.2d 1312, this court, in accordance with these authorities, affirmed the exclusion by a trial judge of opinion testimony by an expert in "accident reconstruction" for the reason that: The court also added a footnote on pages 56 and 57, 518 P.2d 1312 citing Kale v. Douthitt, 274 F.2d 476, 483 (4th Cir.1960) in which an expert opinion had also been excluded upon the ground that there were "too many varying factors." The majority would distinguish Marshall v. Martinson on the ground that: It would appear, however, that the principal basis for the decision by this court in that case was not that there was no evidence on some elements relied upon by the expert witness as a foundation for his testimony, but that there were too many "varying factors" to provide a "reliable foundation" for the expert opinion testimony. In any event, as recognized by the majority, there must be a "reliable foundation in fact for expert opinion testimony." It would also follow that in the absence of a "reliable foundation," the opinion of an expert witness would be "speculative" and of insufficient probative value to be of "appreciable help" to the jury. Many cases and authorities discuss the admissibility of opinion testimony by experts in "accident reconstruction" in attempts to establish the speed of one of the vehicles involved in an accident. See, e.g., Schoone and Schapiro, supra, at 492; Baker, supra; Phillips and Jacobs, Scientific Reconstruction of an Automobile Accident, 25 Ins. Counsel J. 438, 440 (1958); Annot., 29 A.L.R.3d 248 (1970), and Annot., 93 A.L.R.2d 287 (1964). The principal issue in this case, however, was not the speed of the defendant's vehicle, but whether he was on the right or wrong side of the road when his vehicle struck and killed the decedent, i.e., the "point of impact." Again, as stated in Annot., 66 A.L.R.2d 1048, 1053 (1959): and, at 1062: In many cases involving as an issue the point of impact in a collision between two vehicles, the opinion testimony by the expert witness is based upon physical facts such as the location of debris on the road, the location and length of skid marks on the road, the position of the motor vehicles after the collision and the nature of the damage to each of the vehicles. See, e.g., Phillips and Jacobs, supra, at 442-43. An additional fact considered to be of importance in such cases, at least under some circumstances, in order to provide a proper basis for opinion testimony of an expert witness as to the point of impact, is the weight of the vehicles involved, although in some circumstances the weight of the vehicles may not be of great importance. See also Baker, supra, at 23 and 30-34. In cases involving collisions between motor vehicles and pedestrians, bicycles or motorcycles hit, "thrown" or "tossed" by the *1273 motor vehicle for any considerable distance in which the point of impact is in issue, it is obvious that the weight of the motor vehicle is a factor of importance in order to provide a reliable basis for the opinion testimony by an expert witness on that issue. Additional factors of importance in providing a reliable foundation for an opinion upon the point of impact in such cases include, among other things, not only the speed of the motor vehicle and the horizontal angle at which the pedestrian, bicycle, motorcycle or its riders were "thrown" or "tossed" by the motor vehicle, but also the vertical angle and height of that trajectory. See Baker, supra, at 20 and 23. To analogize, the same swing (speed) of the same bat (weight) at the same horizontal "level" against the same ball may result either in a "pop fly" or in a "line drive," in which event the ball would travel further than the "pop fly." Courts in other jurisdictions have held that the admission of such testimony is prejudicial error, or that exclusion is not error, when the opinion of the expert is based upon assumptions critical to calculations used in determining "point of impact," but which are not shown to be connected to the conditions existing at the time and place of the collision, or where data necessary for the accurate calculation of "point of impact" are unknown or not considered. Thus, in Beardall v. Murray, 27 Utah 2d 340, 341, 496 P.2d 260 (1972), the court held that it was not error for the trial court to exclude an expert's opinion as to point of impact, reasoning that the expert had reached his conclusion using: Similarly, in Solis v. Southern California Rapid Transit District, 105 Cal. App. 3d 382, 164 Cal. Rptr. 343 (1980), involving a pedestrian injured when struck by a bus, the trial court, over the objections of plaintiff, permitted an accident reconstruction expert to testify on behalf of defendant that in his opinion plaintiff was west of the crosswalk when struck by the bus. On appeal, plaintiff assigned as error the admission of the expert's opinion, and the court agreed, holding (164 Cal. Rptr. at 344) that there was "no adequate foundation" for the expert's opinion on the "point of impact." The court considered the following points, among others, to be significant in reaching its decision: (1) that the reconstructionist did not know the coefficient of friction of the street at the time of the accident, which is necessary to determine stopping distance; (2) that he did not know the condition of the bus tires at the time of the accident; (3) that there was no physical evidence how far the bus may have moved after impact or in what direction plaintiff "spun off"; and (4) that the expert's assumption as to the speed of the bus, which was crucial to the conclusion that the point of impact was outside the crosswalk, was based on an experiment which lacked adequate foundation and was not conducted under conditions substantially similar to those on the date of the accident. Such factors are important because, as the court explained (164 Cal. Rptr. at 347-48): To the same effect, in Parker v. Hohman, 250 A.2d 698 (Me. 1969), the court held that although generally it is proper to admit a qualified expert's opinion as to point of impact so long as the opinion results from that application of scientific principles and physical laws to "adequate facts" which are in evidence, it was prejudicial error in that case to permit an expert to testify as to the position of defendant's automobile just prior to impact. The procedure of the expert was to begin with the rest positions of the two cars and, working backwards, determine their points of disengagement, of total engagement and of initial contact. These determinations required a series of deductions in which the calculation of "kinetic energy" and the "combined mass" of the two cars played necessary parts. The court concluded that the calculations were based on assumptions which rendered the ultimate determination "unreliable and objectionable," pointing out the eight-degree uncertainty of angle at impact, the lack of testimony as to each car's speed (essential to determining "kinetic energy"), uncertainty as to degree of friction between tires and road surface after initial impact, and the uncertainty as to the loaded weight of the cars (which is important in determining the "center of balance" and, therefore, the area and course of rotation of the cars after impact). The decisions by this court in automobile accident cases involving an issue of "point of impact" are consistent with these cases and also with the authorities previously cited. Thus, in Urbanski v. Johnson, supra, this court also affirmed the rejection by the trial court of an offer of opinion testimony by an expert witness based upon photographs showing skid marks, a police report, and other facts, holding (283 Or. at 172, 581 P.2d 948) that "[w]e agree with defendant that the evidence offered was without sufficient foundation and therefore too speculative." In this case the defendant was indicted for manslaughter in the second degree. The state offered evidence that defendant, after several drinks, hit the deceased with his pickup truck as she was walking along the left edge of the road. On appeal, defendant contended that the trial court erred in excluding opinion testimony of an expert witness to the effect that the "point of impact" was "about nine inches" to the right of the center line of the road. Before expressing that opinion, defendant's witness, Mr. Talbott, testified that he considered not only: but that he also made additional measurements and observations relating to other facts, which he presumably also considered as facts which were necessary in arriving at an opinion as to the point of impact and which included the following: "Using this information," the witness testified that he first determined (1) the "path" decedent's body followed after it was struck and then, after considering the center of gravity of decedent's body with respect to the height of the "components of the vehicle" that struck her, he projected (2) the reasonable range of angles at which the body would have been propelled horizontally, which he computed to be an angle of 46.976 degrees. Then, "knowing the companion * * * was struck on the right arm," which "gives a clue as to the height of the trajectory," he projected (3) "the trajectory of the body." He then (4) "work(ed) backwards to find out where the vehicle had to be on the roadway in order to cause that flight path of the body." Defendant made an offer of proof to the effect that, based upon these facts and these projections, the point of impact where defendant's pickup truck struck decedent was "about nine inches to the right of the center line of the road." He did not, however, attempt to locate that point of impact with reference to its distance from decedent's body or otherwise with reference to its distance from any other physical point of reference. In considering whether the facts relied upon by Mr. Talbott were sufficient to provide a foundation which would be "reliable," as necessary in order for the trial judge, in making the required "preliminary screening" of this opinion testimony offered by the defendant, to make the required finding that such testimony by "this person" will be of "appreciable help" on the "particular subject" of the point of impact between defendant's truck and decedent's body, the following facts are significant: (1) There was no competent evidence of the location of the body, the most important fact necessary to provide a sufficient foundation for the opinion by Mr. Talbott. He testified that he relied upon the location of the body as shown by a diagram prepared by a deputy sheriff, who did not arrive at the scene of the accident until after the body had been taken to a hospital, but relied upon what he was told by other unnamed persons in showing the location of *1276 the body by an "X" on that diagram. Thus, the location of the body relied upon by Mr. Talbott was based upon evidence that was not only hearsay, but was from unidentified sources.[6] The exact location of the body is of crucial importance in this case because this expert witness professed to be able to fix the "point of impact" within a matter of inches ("about nine inches" to the right of the center line). Thus, a variation of more than nine inches could place the point of impact on the left of the center line, so as to have defendant driving his truck over the center line when it hit the deceased. (2) As the basis for his opinion, Mr. Talbott assumed that the speed of the truck was between 40 and 45 miles per hour, as testified by defendant. Thus, there was a possible variable of over 10% in the assumed speed of the truck. The speed of the motor vehicle is also a vital and crucial factor in making a reliable determination of the point of impact in cases involving pedestrians hit and "thrown" by motor vehicles. This is particularly true in this case because (a) Mr. Talbott undertook to make such a precise determination of the point of impact in this case ("approximately nine inches" to the right of the center line); (b) if the point of impact had been more than nine inches to the left, defendant would have been at fault for hitting decedent while driving his truck "over" the center line, and (c) Mr. Talbott admitted that the lower the speed of the truck, the further to the left the point of impact would be. It follows that a variation of 10% in the speed of defendant's truck would make impossible a reliable opinion that the point of impact was "about nine inches" to the right of the center line of the road. As stated in Solis v. Southern California Rapid Transit District, supra, at 164 Cal. Rptr. 347, in holding expert opinion "point of impact" testimony to be inadmissible under the facts of that case, "[S]uch small differences in speed [between 6 and 7 miles per hour in that case] made big differences in the conclusion sought to be reached [i.e., the point of impact]." (3) Although Mr. Talbott measured the dimensions of defendant's truck, he did not determine the weight of the truck, which would depend not solely on its length and width, but whether it was loaded and the weight of any such load. As previously noted, in a case involving a collision between a motor vehicle and a pedestrian hit and "thrown" by it, the weight of the motor vehicle is an important and sometimes necessary factor, together with the distance that the pedestrian was "thrown" and the vertical angle of that "trajectory," in determining the "point of impact." (4) Although Mr. Talbott testified that he was able to determine the horizontal angle at which decedent's body was "thrown" after being hit by the truck (which he determined to be 46.976 degrees), he did not purport to have been able to determine the vertical angle of the trajectory of decedent's body, an equally important factor in determining the "point of impact," for reasons previously stated. Instead, he testified only that the fact that decedent's companion was hit on her right arm by decedent's body after it was hit by the truck gave a "clue" as to the height of the trajectory. In order to provide a reliable "clue" for that purpose, however, it would be necessary to know the distance between decedent and the companion when her arm was hit by decedent's body. Mr. Talbott did not know that fact, but assumed that the companion was "from five and a half feet to approximately ten and a half feet" in front of decedent when the decedent was hit by the truck. The only direct evidence on this point was the testimony of the companion that the decedent was "beside her" when hit by the truck. Thus, there was no reliable evidence from which Mr. Talbott could determine the vertical angle of the trajectory of decedent's body, and he apparently did not undertake to do so. *1277 Even the majority, in its attempt to distinguish the decision by this court in Marshall v. Martinson, refers to the need for a "reliable foundation in fact for expert testimony" and notes that in that case there was "no evidence" of the angle at which plaintiff's car allegedly "veered" into defendant's car and that a "variation" of that "element" would "change the expert's opinion." Similarly, in this case there was no evidence of the vertical angle of the trajectory of the body of the deceased. (5) The nature of the impact between the truck and decedent's body, although perhaps not controlling in itself, was also such as to cast further doubt upon the reliability of the foundation for the opinion by Mr. Talbott. Thus, in addition to damage in the area of the left front headlight of the truck, there was a dent in the left side of the back of the hood and damage to the left rear-view mirror. This would indicate that decedent's body, after being hit by the left front corner of the truck, was not immediately "thrown" either forward or at any particular vertical or horizontal angle, but that her body first went up over the hood of the truck, hitting both the back of the hood and the left rear-view mirror. Thus, the "vertical angle" may well have been that of a "pop fly," rather than that of a "line drive." Again, because Mr. Talbott's opinion as to the point of impact was so precise and because a variation of as few as twelve inches in the location of the point of impact in this case was so important, these facts raise substantial doubts as to the reliability of the foundation for that opinion. (6) The failure by Mr. Talbott to examine the "camber," "castor" and steering mechanism of defendant's truck raises further doubt upon the reliability of the foundation for his opinion in view of his testimony relating to the "crown" of the roadway and its effect upon the steering of a motor vehicle, depending upon whether its "castor," "camber" and wheel alignment are "ideal" or not.[7] As previously stated, the majority holds that under the facts and testimony in this case, it was not within the discretion of the trial judge to exclude the opinion testimony by Mr. Talbott that the "point of impact" between defendant's truck and the body of the decedent was "approximately nine inches" to the right of the center line of the road and that it was error as a matter of law to exclude that opinion testimony. With all due respect to the majority, I am of the opinion that because the location of the body of the deceased was not established by any competent evidence; because of an admitted variation of over 10% in the assumed speed of defendant's truck, and because of the failure of Mr. Talbott to determine the weight of the truck, aside from his apparent inability or failure to compute the vertical angle of the trajectory of decedent's body, it follows that the foundation for the opinion by Mr. Talbott was so fatally deficient as to have made it error for the trial judge to admit that opinion in evidence. In any event, under the facts of this case and considering (1) the weakness, if not total inadequacy, of the foundation as a "reliable foundation" for that opinion with respect to the location of the body, the speed of the truck, the weight of the truck, the vertical angle of the trajectory of decedent's body, and the facts relating to the nature of the impact between her body and the truck, together with (2) the large number of variable factors considered by Mr. Talbott as the basis for his opinion (as in Marshall v. Martinson); (3) the possible prejudicial effect upon a jury of opinion testimony by a purported "expert" in "accident reconstruction," and (4) the "broad discretion" accorded to the trial judge in determining whether the opinion testimony of "this" expert witness "will" be of "appreciable help" to a jury on "this subject," I am of the firm opinion that the exclusion of the opinion by Mr. Talbott was not an abuse of discretion and that the judgment of the trial court, as affirmed by the Court of Appeals, should also be affirmed by this court. *1278 The effect of the opinion by the majority is to narrow the "broad discretion" previously accorded to trial judges in deciding whether to admit expert opinion testimony in all cases to the question whether such an opinion would be of "help" to the jury in the sense in which that term was discussed by this court in Yundt v. D & D Bowl, Inc., supra. In that case the majority of this court, in an opinion by Bryson, J., held (259 Or. at 259, 486 P.2d 553) that the question to be decided is whether the subject matter of the question to be decided by a jury is of such a nature that the jury is "equally qualified" to decide that question "without help from opinion testimony", or whether the subject matter of the question is of such a nature that the jury is "not equally qualified" to decide that question and "needs help to find the truth." As stated by McCormick, Evidence § 13, at 27-30 (2d ed 1972) some courts emphasize "this aspect of the rule." As also stated by McCormick, supra, at 31, however, expert opinion will not be admitted "if the court believes that an opinion based upon the facts in evidence cannot be reasonably grounded upon those facts." In Yundt it was not necessary for this court to consider that area of discretion by the trial court because it affirmed the exclusion of the opinion evidence upon the ground that the subject matter of the question to be decided by the jury in that case was of such a nature as to make it proper for a trial judge to exclude the opinion evidence in that case. When the question to be decided by the jury is the "point of impact" in an automobile accident case, particularly one without eye witnesses, an opinion by a properly qualified expert witness based upon a proper foundation may well be of "help" to a jury in that sense of the word. According to the majority, however, once it appears that the opinion testimony by an expert witness would be of such "help" to a jury in that sense, the discretion of the trial judge ends and the opinion testimony must be received, regardless of the sufficiency of the foundation for the opinion by the expert witness, which would then go only to the "weight" to be given by the jury to such an opinion, rather than to the question of the admissibility of the opinion, and also regardless of such additional factors as the presence of numerous eye witnesses. With all due respect to the majority, this holding by it is contrary to views of writers on this subject and decisions by courts of other jurisdictions which hold, as stated by McCormick, supra, that expert opinions will not be received "if the court believes that an opinion based upon the facts in evidence cannot be reasonably grounded upon those facts." In other words, an expert opinion based upon an inadequate foundation does not have sufficient probative value to be of "appreciable help" to the jury. The majority opinion also overrules the recent and unanimous decision by this court in Marshall v. Martinson, supra, in which this court affirmed the exclusion by a trial court of expert testimony not upon the ground that the issue to be decided by the jury was of such a nature that the jury was "equally qualified" to decide that issue, but upon the ground that the foundation for the expert opinion involved "so many varying factors" as to render his opinion "speculative." In addition, the majority opinion overrules, sub silentio, other decisions by this court in which the exclusion of expert opinion testimony by trial judges has been held to be proper for lack of a proper foundation (see, e.g., Urbanski v. Johnson, supra, 283 Or. at 172, 581 P.2d 948, and State Highway Comm. v. Compton, supra, 265 Or. at 344-45, 507 P.2d 13).[8] *1279 Thus, the majority opinion represents an important change in the law of Oregon on the admissibility of expert opinion testimony by its limitation of the "broad discretion" previously accorded to trial judges to exclude such testimony when based upon an "unreliable" foundation and by thus requiring that expert opinion testimony be admitted when based upon foundations no more "reliable" than the foundation for the expert opinion in this case. This change in the law will have profound effects, not only in civil cases involving automobile accidents, medical malpractice, and property valuations (as in condemnation and tax cases), but also in criminal cases. Indeed, in criminal cases it will not only be the state which will be adversely affected, as in this case. Defendants in criminal cases, against whom expert testimony may be offered by the state, will also be adversely affected. For all of these reasons, I dissent from the opinion by the majority. [1] In neither Thomas v. Dad's Root Beer, Etc., supra, nor Bailey v. Rhodes, Adm., supra, 202 Or. 511, 276 P.2d 713, was there any evidence that the police officer had any special education or training in a relevant scientific method. Apparently, the party calling him assumed he was qualified to express an opinion merely because he was a police officer who had investigated other accidents. [1] Both the Oregon Trial Lawyers Association (OTLA) and the Oregon Association of Defense Counsel (OADC), by briefs submitted as amicus curiae at the request of this court, agree, however, that the "availability of eyewitness testimony" is a "factor" which the trial judge may properly consider in ruling on the admissibility of expert opinion testimony in such cases. [2] See Legislative Commentary to the Oregon Evidence Code, Rule 702 (1981). [3] On this point it is also significant that both the Oregon Trial Lawyers Association and the Oregon Association of Defense Counsel, by briefs submitted as amicus curiae, agreed that the trial judge should have "broad discretion" whether to admit or exclude opinion testimony by expert witnesses. [4] Also of significance upon the question whether a trial court, in the exercise of its "broad discretion," may exclude the opinion testimony of an expert witness in such a case despite the fact that it may have some probative value is the fact that both the Oregon Trial Lawyers Association and the Oregon Association of Defense Counsel take the position in the amicus curiae briefs submitted by them that although the presence of eye witnesses does not of itself require the exclusion of expert opinion testimony, it is a "factor" to be considered in the decision whether to admit such testimony. In other words, if there are ten church bishops present at the scene of an accident, the trial court may, in its discretion, exclude opinion testimony by an expert witness who was not present at that time, particularly when, as in this case, there is a serious question whether there was a "reliable foundation" for such an opinion. [5] Mr. Talbott testified that the "castor mechanism" is "the point about which the front wheels are hinged * * * a little further forward than the actual center line of the wheel," so that "when you take your hands off the wheel," it tends to "make the steering wheel spin back to straight ahead position." He also testified that: "The castor, camber and toe-in all work together, and the toe-in and the camber are set to compensate for a little crown. As I said earlier, something on the order of maybe a quarter of an inch per foot side slope. When the slope gets more than that, then the tendency of the camber, castor and toe-in is to cause the vehicle to drift downhill. In other words, away from the crown, either toward the right or left, and therefore, when we get into a road situation where the castor, camber and toe-in, the wheel alignment isn't the ideal, then you must steer the vehicle in order to have it track straight and that's characteristic of all vehicles of American manufacture." (Emphasis added) "* * * "* * * as you ride nearer the center of the road and perhaps straddle it, then the tendency of the vehicle to drift to the right is compensated and it will track straight." Mr. Talbott did not, however, examine defendant's Ford pickup truck to determine whether its castor, camber, toe-in and wheel alignment were "ideal" or not. [6] It is of interest to note that although the list of exhibits shows that this diagram (Defendant's Ex. K) was "offered and received," that exhibit is not marked as "Received," as are other exhibits, and there is nothing in the transcript of the proceedings to show that this exhibit was either offered or received in evidence, much less that it was received without or over objection by the state. [7] See note 5, supra. [8] The decision by the majority is also contrary to the position taken by both the Oregon Trial Lawyers Association and the Oregon Association of Defense Counsel in briefs submitted as amicus curiae at the request of the court to the effect that trial judges should have "broad discretion" to admit or exclude expert opinion testimony, and that in considering whether to admit such testimony the trial judge may properly consider such "factors" as the presence of eye witnesses.

dcb065ec8f0615bfdadb3adb2691935199fd7a2f930a9a1df7b9580c303e9dbe

1982-01-25T00:00:00Z

4f9dada1-ade2-4a42-a456-7b6a33ace759

Emerald Steel Fabricators, Inc. v. BOLI

S056265

oregon

Oregon Supreme Court

FILED: April 14, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON EMERALD STEEL FABRICATORS, INC., Petitioner on Review, v. BUREAU OF LABOR AND INDUSTRIES, Respondent on Review. (BOLI 3004; CA A130422; SC S056265) En Banc On review from the Court of Appeals.* Argued and submitted March 6, 2009, at University of Oregon School of Law, Eugene, Oregon. Terence J. Hammons, of Hammons & Mills, Eugene, argued the cause and filed the brief for petitioner on review. Janet A. Metcalf, 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 Erika L. Hadlock, Acting Solicitor General. Paula A. Barran, of Barran Liebman LLP, Portland, filed the brief for amicus curiae Associated Oregon Industries. James N. Westwood, of Stoel Rives LLP, Portland, filed the brief for amici curiae Pacific Legal Foundation and National Federation of Independent Business.  With him on the brief was Deborah J. La Fetra. KISTLER, J. The decision of the Court of Appeals and the revised order on reconsideration of the Commissioner of the Bureau of Labor and Industries are reversed. Walters, J., dissented and filed an opinion, in which Durham, J., joined. *Appeal from Revised Order on Reconsideration dated July 13, 2006, of the Bureau of Labor and Industries.  220 Or App 423, 186 P3d 300 (2008). KISTLER, J. The Oregon Medical Marijuana Act authorizes persons holding a registry identification card to use marijuana for medical purposes.  ORS 475.306(1).  It also exempts those persons from state criminal liability for manufacturing, delivering, and possessing marijuana, provided that certain conditions are met.  ORS 475.309(1).  The Federal Controlled Substances Act, 21 USC § 801 et seq., prohibits the manufacture, distribution, dispensation, and possession of marijuana even when state law authorizes its use to treat medical conditions.  Gonzales v. Raich, 545 US 1, 29, 125 S Ct 2195, 162 L Ed 2d 1 (2005); see United States v. Oakland Cannabis Buyers' Cooperative, 532 US 483, 486, 121 S Ct 1711, 149 L Ed 2d 722 (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana). The question that this case poses is how those state and federal laws intersect in the context of an employment discrimination claim; specifically, employer argues that, because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee's use of marijuana to treat a disabling medical condition.  The Court of Appeals declined to reach that question, reasoning that employer had not preserved it.  Emerald Steel Fabricators, Inc. v. BOLI, 220 Or App 423, 186 P3d 300 (2008).  We allowed employer's petition for review and hold initially that employer preserved the question that it sought to raise in the Court of Appeals.  We also hold that, under Oregon's employment discrimination laws, employer was not required to accommodate employee's use of medical marijuana.  Accordingly, we reverse the Court of Appeals decision. Since 1992, employee has experienced anxiety, panic attacks, nausea, vomiting, and severe stomach cramps, all of which have substantially limited his ability to eat.  Between January 1996 and November 2001, employee used a variety of prescription drugs in an attempt to alleviate that condition.  None of those drugs proved effective for an extended period of time, and some had negative effects.  In 1996, employee began using marijuana to self-medicate his condition. In April 2002, employee consulted with a physician for the purpose of obtaining a registry identification card under the Oregon Medical Marijuana Act.  The physician signed a statement that employee has a "debilitating medical condition" and that "[m]arijuana may mitigate the symptoms or effects of this patient's condition."  The statement added, however, "This is not a prescription for the use of medical marijuana."  The statement that employee's physician signed tracks the terms of the Oregon Medical Marijuana Act.  That act directs the state to issue registry identification cards to persons when a physician states that "the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects" of that condition.  ORS 475.309(2).(1)  No prescription is required as a prerequisite for obtaining a registry identification card.  See id. Based on the physician's statement, employee obtained a registry identification card in June 2002, which he renewed in 2003.(2)  That card authorized employee to "engage in * * * the medical use of marijuana" subject to certain restrictions.  ORS 475.306(1).  Possession of the card also exempted him from state criminal prosecution for the possession, distribution, and manufacture of marijuana, provided that he met certain conditions.  ORS 475.309(1). Employer manufactures steel products.  In January 2003, employer hired employee on a temporary basis as a drill press operator.  While working for employer, employee used medical marijuana one to three times per day, although not at work.  Employee's work was satisfactory, and employer was considering hiring him on a permanent basis.  Knowing that he would have to pass a drug test as a condition of permanent employment, employee told his supervisor that he had a registry identification card and that he used marijuana for a medical problem; he also showed his supervisor documentation from his physician.  In response to a question from his supervisor, employee said that he had tried other medications but that marijuana was the most effective way to treat his condition.  Neither employee's supervisor nor anyone else in management engaged in any other discussion with employee regarding alternative treatments for his condition.  One week later, the supervisor discharged employee. Two months later, employee filed a complaint with the Bureau of Labor and Industries (BOLI), alleging that employer had discriminated against him in violation of ORS 659 A. 112.  That statute prohibits discrimination against an otherwise qualified person because of a disability and requires, among other things, that employers "make reasonable accommodation" for a person's disability unless doing so would impose an undue hardship on the employer.  ORS 659A.112(2)(e).  Having investigated employee's complaint, BOLI filed formal charges against employer, alleging that employer had discharged employee because of his disability in violation of ORS 659A.112(2)(c) and (g) and that employer had failed to reasonably accommodate employee's disability in violation of ORS 659A.112(2)(e) and (f).  Employer filed an answer and raised seven affirmative defenses. After hearing the parties' evidence, an administrative law judge (ALJ) issued a proposed order in which he found that employee was a disabled person within the meaning of ORS chapter 659A but that employer had not discharged employee because of his disability.  The ALJ found instead that employer had discharged employee because he used marijuana and ruled that discharging employee for that reason did not violate ORS 659A.112(2)(c) or (g).  The ALJ went on to rule, however, that employer had violated ORS 659A.112(2)(e) and (f), which prohibit an employer from failing to reasonably accommodate the "known physical or mental limitations of an otherwise qualified disabled person," and from denying employment opportunities to an otherwise qualified disabled person when the denial is based on the failure "to make reasonable accommodation to the physical or mental impairments of the employee." Among other things, the ALJ ruled that employer's failure to engage in a "meaningful interactive process" with employee, standing alone, violated the obligation set out in ORS 659A.112(2)(e) and (f) to reasonably accommodate employee's disability.  The ALJ also found that employee had suffered damages as a result of those violations, and the commissioner of BOLI issued a final order that adopted the ALJ's findings in that regard. Employer sought review of the commissioner's order in the Court of Appeals.  As we understand employer's argument in the Court of Appeals, it ran as follows:  Oregon law requires that ORS 659 A. 112 be interpreted consistently with the federal Americans with Disabilities Act (ADA), 42 USC § 12111 et seq.   Section 12114(a) of the ADA provides that the protections of the ADA do not apply to persons who are currently engaged in the illegal use of drugs, and the federal Controlled Substances Act prohibits the possession of marijuana without regard to whether it is used for medicinal purposes.  It follows, employer reasoned, that the ADA does not apply to persons who are currently engaged in the use of medical marijuana.  Like the ADA, ORS 659 A. 124 provides that the protections of ORS 659 A. 112 do not apply to persons who are currently engaged in the illegal use of drugs.  Employer reasoned that, if ORS 659 A. 112 is interpreted consistently with the ADA, then ORS 659 A. 112 also does not apply to persons who are currently engaged in medical marijuana use.  Employer added that, in any event, the United States Supreme Court's opinion in Raich and the Supremacy Clause required that interpretation. The Court of Appeals did not reach the merits of employer's argument.  It concluded that employer had not presented that argument to the agency and thus had not preserved it.  Accordingly, we begin with the question whether employer preserved the issues before BOLI that it sought to raise in the Court of Appeals. Employer raised seven affirmative defenses in response to BOLI's complaint.  The fifth affirmative defense alleged: "Oregon law prescribes that ORS 659 A. 112 be construed to the extent possible in a manner that is consistent with any similar provisions of the Federal Americans with Disabilities Act of 1990, as amended.  That Act does not permit the use of marijuana because marijuana is an illegal drug under Federal Law." That affirmative defense is broad enough to encompass the argument that employer made in the Court of Appeals.  To be sure, employer's fifth affirmative defense does not refer specifically to ORS 659 A. 124.  However, it alleges that the ADA does not apply to persons who use marijuana, a proposition that necessarily depends on both 42 USC § 12114(a), the federal counterpart to ORS 659 A. 124, and the Controlled Substances Act.  And the fifth affirmative defense also states that ORS 659 A. 112 should be construed in the same manner as the ADA.  Although employer could have been more specific, its fifth affirmative defense is sufficient to raise the statutory issue that it sought to argue in the Court of Appeals.(3) Ordinarily, we would expect that employer would have developed the legal arguments in support of its fifth affirmative defense more fully at the agency hearing.  However, the Court of Appeals issued its decision in Washburn v. Columbia Forest Products, Inc., 197 Or App 104, 104 P3d 609 (2005), two weeks before the hearing in this case, and employer concluded that the reasoning in Washburn foreclosed its fifth affirmative defense.  The Court of Appeals held in Washburn that an employer's failure to accommodate an employee's use of medical marijuana violated ORS 659 A. 112.  In reaching that holding, the Court of Appeals decided two propositions that bore on the validity of employer's fifth affirmative defense.  First, it reasoned that the requirement in ORS 659 A. 139 to interpret ORS 659 A. 112 consistently with the ADA does not require absolute symmetry between state and federal law.  Id. at 109-10.  Second, it held that, as a matter of state law, the employee's medical use of marijuana was "not unlawful" for the purposes of a federal statute that prohibits the use of illegal drugs in the workplace.  Id. at 114-15.  The court noted that the question "[w]hether medical use of marijuana is unlawful under federal law is an open question" and that the United States Supreme Court had granted the government's petition for certiorari in Raich to decide that question.  Id. at 115 n 8. At the hearing in this case, employer told the ALJ that five of its affirmative defenses (including the fifth affirmative defense) were "foreclosed by the Washburn decision" but that it was "not withdrawing them."  Employer did not explain the basis for that position.  We note, however, that the Court of Appeals' conclusion in Washburn that ORS 659 A. 139 does not require absolute symmetry between the state and federal antidiscrimination statutes and its conclusion that medical marijuana use is "not unlawful" under state law effectively foreclosed reliance on ORS 659 A. 139 and ORS 659 A. 124 as a basis for employer's fifth affirmative defense.  There would be little point in arguing before the ALJ that employee was currently engaged in the illegal use of drugs if, as the Court of Appeals had just stated in Washburn, the use of medical marijuana is not illegal.(4)  The ALJ issued a proposed order in which it ruled that the Court of Appeals decision in Washburn controlled, among other things, employer's fifth affirmative defense.  After the ALJ filed his proposed order, the United States Supreme Court issued its decision in Raich and held that Congress had acted within its authority under the Commerce Clause in prohibiting the possession, manufacture, and distribution of marijuana even when state law authorizes its use for medical purposes.  545 US at 33.  Raich addressed the question that the Court of Appeals had described in Washburn as open -- whether using marijuana, even for medical purposes, is unlawful under federal law.  Employer filed a supplemental exception based on Raich and alternatively a request to reopen the record to consider Raich.  Employer argued that, as a result of Raich, "states may not authorize the use of marijuana for medicinal purposes" and that "[t]he impact of this decision is that [employer] should prevail on its Fourth and Fifth Affirmative Defenses." BOLI responded that the ALJ should not reopen the record.  It reasoned that Raich did not invalidate Oregon's medical marijuana law and that, in any event, employer could have raised a preemption argument before the Court issued its decision in Raich.  Employer replied that, as it read Raich, the "Supreme Court has ruled that legalization of marijuana is preempted by federal law.  This obviously invalidates the Oregon Medical Marijuana Act."  Employer also explained that it had raised this issue in its fourth and fifth affirmative defenses, which "recite[d] that marijuana is an illegal drug under federal law, and that state law deferred to federal law."  After considering the parties' arguments, the ALJ allowed employer's motion to reopen the record, stating that "[t]he forum will consider the Supreme Court's ruling in Raich to the extent that it is relevant to [employer's] case."  Later, the Commissioner ruled that the Controlled Substances Act, which was at issue in Raich, did not preempt the Oregon Medical Marijuana Act. As we read the record, employer took the position before the agency that, like the protections of the federal ADA, the protections of ORS 659 A. 112 do not apply to a person engaged in the use of illegal drugs, a phrase that, as a result of controlling federal law, includes the use of medical marijuana.   We conclude that employer's arguments were sufficient to preserve the issue that it sought to raise on judicial review in the Court of Appeals.  To be sure, employer's fifth affirmative defense, as pleaded, turned solely on a question of statutory interpretation.  Employer did not raise the preemption issue or argue that federal law required a particular reading of Oregon's statutes until employer asked the ALJ to reopen the record to consider Raich.  Perhaps the ALJ could have declined to reopen the record.  However, once the ALJ chose to reopen the record and the Commissioner chose to address employer's preemption arguments based on Raich, then employer's federal preemption arguments were also properly before the agency.(5) As noted, the Court of Appeals reached a different conclusion regarding preservation, and we address its reasoning briefly.  The Court of Appeals reasoned that, in telling the ALJ that Washburn foreclosed its affirmative defenses, employer adopted the specific defenses that the employer in Washburn had asserted and that employer was now limited to those defenses.  220 Or App at 437.  The difficulty, the Court of Appeals explained, was that the statutory issues that employer had raised in its affirmative defenses and sought to raise on judicial review differed from the issues that the employer had raised in Washburn.  Id. In our view, the Court of Appeals misperceived the import of what employer told the ALJ.  Employer reasonably acknowledged that the reasoning in Washburn controlled the related but separate defenses that it was raising in this case.  Employer did not say that it was advancing the same issues that the employer had asserted in Washburn, and the Court of Appeals erred in holding otherwise. The Court of Appeals also concluded that employer had not preserved its argument regarding the preemptive effect of the Controlled Substances Act, as interpreted in Raich.  Washburn, 220 Or App at 437-38.  It noted that, on judicial review, employer argued that federal law required its interpretation of Oregon's antidiscrimination statutes while it had argued before the agency that federal law preempted the Oregon Medical Marijuana Act.  Id.  We read the record differently.  As explained above, employer made both arguments before the agency.(6) Having concluded that employer preserved the issues it sought to raise on judicial review, we turn to the merits of those issues.(7)  Employer's statutory argument begins with ORS 659A.124(1), which provides that "the protections of ORS 659 A. 112 do not apply to any * * * employee who is currently engaging in the illegal use of drugs if the employer takes action based on that conduct."(8)  It follows, employer reasons, that it had no obligation under ORS 659A.112(2)(e) and (f) to reasonably accommodate employee's medical marijuana use.  In responding to that argument on the merits, BOLI does not dispute that employee was currently engaged in the use of medical marijuana, nor does it dispute that employer discharged employee for that reason.  Rather, BOLI advances two arguments why ORS 659 A. 124 does not support employer's position. As we understand BOLI's first argument, it contends that, because the commissioner found that employer had violated ORS 659A.112(2)(e) and (f) by failing to engage in a "meaningful interactive process," ORS 659 A. 124 is inapposite.  We reach precisely the opposite conclusion.  The commissioner explained that engaging in a "meaningful interactive process" is the "mandatory first step in the process of reasonable accommodation" that ORS 659A.112(2)(e) and (f) require.  However, ORS 659 A. 124 provides that "the protections of ORS 659 A. 112 do not apply" to an employee who is currently engaged in the illegal use of drugs, if the employer takes an adverse action based on that use.  Under the plain terms of ORS 659 A. 124, if medical marijuana use is an illegal use of drugs within the meaning of ORS 659 A. 124, then ORS 659 A. 124 excused employer from whatever obligation it would have had under ORS 659 A. 112 to engage in a "meaningful interactive process" or otherwise accommodate employee's use of medical marijuana. BOLI advances a second, alternative argument.  It argues that "employee's use of medical marijuana was entirely legal under state law" and thus not an "illegal use of  drugs" within the meaning of ORS 659 A. 124.  BOLI recognizes, as it must, that the federal Controlled Substances Act prohibits possession of marijuana even when used for medical purposes.  BOLI's argument rests on the assumption that the phrase "illegal use of drugs" in ORS 659 A. 124 does not include uses that are legal under state law even though those same uses are illegal as a matter of federal law.  BOLI never identifies the basis for that assumption; however, a state statute defines the phrase "illegal use of drugs," as used in ORS 659 A. 124, and we turn to that statute for guidance in resolving BOLI's second argument. ORS 659 A. 122 provides, in part: "As used in this section and ORS 659 A. 124, 659 A. 127 and 659A.130: "* * * * * "(2) 'Illegal use of drugs' means any use of drugs, the possession or distribution of which is unlawful under state law or under the federal Controlled Substances Act, 21 U.S.C.A. 812, as amended, but does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized under the Controlled Substances Act or under other provisions of state or federal law."(9) The definition of "illegal use of drugs" divides into two parts.  The first part defines the drugs that are included within the definition -- all drugs whose use or possession is unlawful under state or federal law.  Marijuana clearly falls within the first part of the definition.  The second part of the definition excludes certain uses of what would otherwise be an illegal use of a drug.  Two exclusions are potentially applicable here:  (1) the exclusion for "uses authorized under * * * other provisions of state * * * law" and (2) the exclusion for "the use of a drug taken under supervision of a licensed health care professional."  We consider each exclusion in turn. We begin with the question whether employee's use of medical marijuana is a "us[e] authorized under * * * other provisions of state * * * law."  We conclude that, as a matter of statutory interpretation, it is an authorized use.  The Oregon Medical Marijuana Act affirmatively authorizes the use of medical marijuana, in addition to exempting its use from state criminal liability.  Specifically, ORS 475.306(1) provides that "[a] person who possesses a registry identification card * * * may engage in * * * the medical use of marijuana" subject to certain restrictions.  ORS 475.302(10), in turn, defines a registry identification card as "a document * * * that identifies a person authorized to engage in the medical use of marijuana."  Reading those two subsections together, we conclude that ORS 475.306(1) affirmatively authorizes the use of marijuana for medical purposes(10) and, as a statutory matter, brings the use of medical marijuana within one of the exclusions from the "illegal use of drugs" in ORS 659A.122(2).(11) Employer argues, however, that the Supremacy Clause of the United States Constitution requires that we interpret Oregon's statutes consistently with the federal Controlled Substances Act.  We understand employer's point to be that, to the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection and that, without any effective state law authorizing the use of medical marijuana, employee's use of that drug was an "illegal use of drugs" within the meaning of ORS 659 A. 124.(12)  We turn to that question and begin by setting out the general principles that govern preemption.  We then discuss the federal Controlled Substances Act and finally turn to whether the Controlled Substances Act preempts the Oregon Medical Marijuana Act to the extent that state law affirmatively authorizes the use of medical marijuana. The United States Supreme Court recently summarized the general principles governing preemption: "Our inquiry into the scope of a statute's pre-emptive effect is guided by the rule that '"[t]he purpose of Congress is the ultimate touchstone" in every pre-emption case.'  Medtronic, Inc. v. Lohr, 518 US 470, 485, 116 S Ct 2240, 135 L Ed 2d 700 (1996) (quoting Retail Clerks v. Schermerhorn, 375 US 96, 103, 84 S Ct 219, 11 L Ed 2d 179 (1963)).  Congress may indicate a pre-emptive intent through a statute's express language or through its structure and purpose.  See Jones v. Rath Packing Co., 430 US 519, 525, 97 S Ct 1305, 51 L Ed 2d 604 (1977). * * * Pre-emptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law.  Freightliner Corp. v. Myrick, 514 US 280, 287, 115 S Ct 1483, 131 L Ed 2d 385 (1995). "When addressing questions of express or implied pre-emption, we begin our analysis 'with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'  Rice v. Santa Fe Elevator Corp., 331 US 218, 230, 67 S Ct 1146, 91 L Ed 1447 (1947)." Altria Group, Inc. v. Good, ___ US ___, ___, 129 S Ct 538, 543, 172 L Ed 2d 398 (2008). With those principles in mind, we turn to the Controlled Substances Act.  The central objectives of that act "were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.  Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels."  Raich, 545 US at 12-13 (footnotes omitted).  To accomplish those objectives, Congress created a comprehensive, closed regulatory regime that criminalizes the unauthorized manufacture, distribution, dispensation, and possession of controlled substances classified in five schedules.  Id. at 13. The Court has explained that:  "Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.  [21 USC] § 812(b)(1).  These three factors, in varying gradations, are also used to categorize drugs in the other four schedules.  For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use.  [21 USC] § 812(b)." Id. at 14.  Consistent with Congress's determination that the controlled substances listed in Schedule II through V have currently accepted medical uses, the Controlled Substances Act authorizes physicians to prescribe those substances for medical use, provided that they do so within the bounds of professional practice.  See United States v. Moore, 423 US 122, 142-43, 96 S Ct 335, 46 L Ed 2d 333 (1975).(13)  By contrast, because Schedule I controlled substances lack any accepted medical use, federal law prohibits all use of those drugs "with the sole exception being use of [Schedule I] drug[s] as part of a Food and Drug Administration preapproved research project."  Raich, 545 US at 14; see 21 USC § 823(f) (recognizing that exception for the use of Schedule I drugs). Congress has classified marijuana as a Schedule I drug, 21 USC § 812(c), and federal law prohibits its manufacture, distribution, and possession, 21 USC § 841(a)(1).  Categorizing marijuana as a Schedule I drug reflects Congress's conclusion that marijuana "lack[s] any accepted medical use, and [that there is an] absence of any accepted safety for use in medically supervised treatment."  Raich, 545 US at 14 (citing 21 USC § 812(b)(1)).  Consistently with that classification, the Court has concluded that the Controlled Substances Act does not contain a "medical necessity" exception that permits the manufacture, distribution, or possession of marijuana for medical treatment.  Oakland Cannabis Buyers' Cooperative, 532 US at 494 and n 7.(14)  Despite efforts to reclassify marijuana, it has remained a Schedule I drug since the enactment of the Controlled Substances Act.  See Raich, 545 US at 14-15 and n 23 (summarizing "considerable efforts," ultimately unsuccessful, to reschedule marijuana). Section 903 of the Controlled Substances Act addresses the relationship between that act and state law.  It provides: "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together." 21 USC § 903.  Under the terms of section 903, states are free to pass laws "on the same subject matter" as the Controlled Substances Act unless there is a "positive conflict" between state and federal law "so that the two cannot consistently stand together." When faced with a comparable preemption provision, the Court recently engaged in an implied preemption analysis to determine whether a federal statute preempted state law.  Wyeth v. Levine, ___ US ___, ___, 129 S Ct 1187, 1196-1200, 173 L Ed 2d 51 (2009).(15)  That is, the Court asked whether there is an "actual conflict" between state and federal law.  An actual conflict will exist either when it is physically impossible to comply with both state and federal law or when state law "'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"  Freightliner Corp., 514 US at 287 (quoting Hines v. Davidowitz, 312 US 52, 67, 61 S Ct 399, 85 L Ed 2d 581 (1941)). The Court has applied the physical impossibility prong narrowly.  Wyeth, 129 S Ct at 1199 (so stating); id. at 1209 (Thomas, J., concurring in the judgment).(16)  For example, in Barnett Bank v. Nelson, 517 US 25, 116 S Ct 1103, 134 L Ed 2d 237 (1996), the question was whether "a federal statute that permits national banks to sell insurance in small towns pre-empts a state statute that forbids them to do so."  Id. at 27.  Although the two statutes were logically inconsistent, the Court held that it was not physically impossible to comply with both.  Id. at 31.  A national bank could simply refrain from selling insurance.  See Wyeth, 129 S Ct at 1209 (Thomas, J., concurring in the judgment) (explaining physical impossibility test). Under that reasoning, it is not physically impossible to comply with both the Oregon Medical Marijuana Act and the federal Controlled Substances Act.  To be sure, the two laws are logically inconsistent; state law authorizes what federal law prohibits.  However, a person can comply with both laws by refraining from any use of marijuana, in much the same way that a national bank could comply with state and federal law in Barnett Bank by simply refraining from selling insurance. Because the "physical impossibility" prong of implied preemption is "vanishingly narrow," Caleb Nelson, Preemption, 86 Va L Rev 225, 228 (2000), the Court's decisions typically have turned on the second prong of implied preemption analysis -- whether state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  See Hines, 312 US at 67 (stating test).  In Barnett Bank, for example, the Court stated, as a self-evident proposition, that a state law that prohibited national banks from selling insurance when federal law permitted them to do so would stand as an obstacle to the full accomplishment of Congress's purpose, but it then added  "unless, of course, that federal purpose is to grant [national] bank[s] only a very limited permission, that is, permission to sell insurance to the extent that state law also grants permission to do so."  Barnett Bank, 517 US at 31 (emphasis in original).  Having considered the text and history of the federal statute and finding no basis for implying such a limited permission, the Court held that the state statute was preempted.  Id. at 35-37. The Court has reached the same conclusion when, as in this case, state law permits what federal law prohibits.  Michigan Canners & Freezers v. Agricultural Bd., 467 US 461, 104 S Ct 2518, 81 L Ed 2d 399 (1984).  In Michigan Canners, federal law prohibited food producers' associations from interfering with an individual food producer's decision whether to bring that individual's products to the market on his or her own or to sell them through the association.  Id. at 464-65.  Michigan law on this issue generally tracked federal law; however, Michigan law permitted food producers' associations to apply to a state board for authority to act as the exclusive bargaining agent for all producers of a particular commodity.  Id. at 466.  When the state board gave a producer's association that authority, all producers of a commodity had to adhere to the terms of the contracts that the association negotiated with food processors, even when the producer had declined to join the association.  Id. at 467-68. In considering whether federal law preempted the Michigan law, the Court held initially that it was physically possible to comply with both state and federal law.  The Court reasoned that, because the "Michigan Act is cast in permissive rather than mandatory terms -- an association may, but need not, act as exclusive bargaining representative -- this is not a case in which it is [physically] impossible for an individual to comply with both state and federal law."  Id. at 478 n 21 (emphasis in original).  The Court went on to conclude, however, that "because the Michigan Act authorizes producers' associations to engage in conduct that the federal Act forbids, it 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"  Id. at 478 (quoting Hines, 312 US at 67). The preemption issue in this case is similar to the issue in Michigan Canners and Barnett Bank.  In this case, ORS 475.306(1) affirmatively authorizes the use of medical marijuana.  The Controlled Substances Act, however, prohibits the use of marijuana without regard to whether it is used for medicinal purposes.  As the Supreme Court has recognized, by classifying marijuana as a Schedule I drug, Congress has expressed its judgment that marijuana has no recognized medical use.  See Raich, 545 US at 14.  Congress did not intend to enact a limited prohibition on the use of marijuana -- i.e., to prohibit the use of marijuana unless states chose to authorize its use for medical purposes.  Cf. Barnett Bank, 517 US at 31-35 (reaching a similar conclusion regarding the scope of the national bank act).  Rather, Congress imposed a blanket federal prohibition on the use of marijuana without regard to state permission to use marijuana for medical purposes.  Oakland Cannabis Buyers' Cooperative, 532 US at 494 & n 7. Affirmatively authorizing a use that federal law prohibits stands as an obstacle to the implementation and execution of the full purposes and objectives of the Controlled Substances Act.  Michigan Canners, 467 US at 478.  To be sure, state law does not prevent the federal government from enforcing its marijuana laws against medical marijuana users in Oregon if the federal government chooses to do so.  But the state law at issue in Michigan Canners did not prevent the federal government from seeking injunctive and other relief to enforce the federal prohibition in that case.  Rather, state law stood as an obstacle to the enforcement of federal law in Michigan Canners because state law affirmatively authorized the very conduct that federal law prohibited, as it does in this case. To the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it "without effect."  See Cipollone v. Liggett Group, Inc., 505 US 504, 516, 112 S Ct 2608, 120 L Ed 2d 407 (1992) ("[S]ince our decision in McCulloch v. Maryland, 4 Wheat. 316, 427 (1819), it has been settled that state law that conflicts with federal law is 'without effect.'")  Because ORS 475.306(1) was not enforceable when employer discharged employee, no enforceable state law either authorized employee's use of marijuana or excluded its use from the "illegal use of drugs," as that phrase is defined in ORS 659A.122(2) and used in ORS 659 A. 124.  It follows that BOLI could not rely on the exclusion in ORS 659A.122(2) for "uses authorized * * * under other provisions of state * * * law" to conclude that medical marijuana use was not an illegal use of drugs within the meaning of ORS 659 A. 124. The commissioner reached a different conclusion regarding preemption, as would the dissenting opinion.  We address the commissioner's reasoning before turning to the dissent.  The commissioner, for his part, adopted the reasoning from an informal Attorney General opinion, dated June 17, 2005, which concluded that the Controlled Substances Act does not invalidate the Oregon Medical Marijuana Act.  Letter of Advice dated June 17, 2005, to Susan M. Allan, Public Health Direction, Department of Human Services.  In reaching that conclusion, the Attorney General focused on those parts of the Oregon Medical Marijuana Act that either exempt medical marijuana users from state criminal liability or provide an affirmative defense to criminal charges.  Id. at 2.(17)  In concluding that those exemptions from state criminal liability were valid, the Attorney General relied on a line of federal cases holding that "Congress cannot compel the States to enact or enforce a federal regulatory program."  See Printz v. United States, 521 US 898, 935, 117 S Ct 2365, 138 L Ed 2d 914 (1997) (so stating); New York v. United States, 505 US 144, 162, 112 S Ct 2408, 120 L Ed 2d 120 (1992) (stating that "the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress's instructions").  The Attorney General concluded that Oregon was free, as a matter of state law, to exempt medical marijuana use from criminal liability because Congress lacks the authority to require Oregon to prohibit that use. The Attorney General's opinion has no bearing on the issue presented in this case for two reasons.  First, as noted, one subsection of the Oregon Medical Marijuana Act affirmatively authorizes the use of medical marijuana.  ORS 475.306(1).  Other provisions exempt its use from state criminal liability.  See, e.g., ORS 475.309(1); ORS 475.319.  In this case, only the validity of the authorization matters.  ORS 659A.122(2) excludes medical marijuana use from the definition of "illegal use of drugs" for the purposes of the state employment discrimination laws if state law authorizes that use.  The Attorney General's opinion, however, addresses only the validity of the exemptions; it does not address the validity of the authorization found in ORS 475.306(1).  It thus does not address the issue that is central to the resolution of this case. Second, and more importantly, the validity of the exemptions and the validity of the authorization turn on different constitutional principles.  The Attorney General reasoned that the exemptions from criminal liability are valid because "Congress cannot compel the States to enact or enforce a federal regulatory program" -- a restriction that derives from Congress's limited authority under the federal constitution.  See Printz, 521 US at 935 (stating limited authority); New York, 505 US at 161-66 (describing the sources of that limitation).  Under the Attorney General's reasoning and the United States Supreme Court decisions on which his opinion relies, Congress lacks authority to require states to criminalize conduct that the states choose to leave unregulated, no matter how explicitly Congress directs the states to do so. By contrast, there is no dispute that Congress has the authority under the Supremacy Clause to preempt state laws that affirmatively authorize the use of medical marijuana.  Whether Congress has exercised that authority turns on congressional intent: that is, did Congress intend to preempt the state law?  See Cipollone, 505 US at 516 (describing preemption doctrine).  More specifically, the constitutional question in this case is whether, under the doctrine of implied preemption, a state law authorizing the use of medical marijuana "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  See Hines, 312 US at 67 (stating that test).  Nothing in the Attorney General's opinion addresses that question, and the commissioner erred in finding an answer in the Attorney General's opinion to a question that the Attorney General never addressed. The dissent addresses the issue that the Attorney General's opinion did not and would hold for alternative reasons that ORS 475.306(1) does not stand as an obstacle to the full accomplishment of Congress's purposes in enacting the Controlled Substances Act.  The dissent reasons that, because ORS 475.306(1) does not "giv[e] permission to violate the Controlled Substances Act or affec[t] its enforcement, [that subsection] does not pose an obstacle to the federal act necessitating a finding of implied preemption."  ___ Or at ___ (Walters, J., dissenting) (slip op at 9).(18)  In the dissent's view, the fact that a state law affirmatively authorizes conduct that federal law explicitly forbids is not sufficient to find that the state law poses an obstacle to the full accomplishment of the purposes of the federal law and is thus preempted.  The dissent also advances what appears to be an alternative basis for its position.  It reasons that the Oregon Medical Marijuana Act, as a whole, exempts medical marijuana use from state criminal liability and that ORS 475.306(1) is merely one part of that larger exemption.  It appears to draw two different legal conclusions from that alternative proposition.  It suggests that, to the extent ORS 475.306(1) merely exempts medical marijuana use from criminal liability, then Congress lacks power to require states to criminalize that conduct under the line of cases that the Attorney General cited.  Alternatively, it suggests that, because authorization is merely the other side of the coin from exemption, authorizing medical marijuana use poses no more of an obstacle to the accomplishment of the purposes of the Controlled Substances Act than exempting that use from state criminal liability and thus that use is not preempted.  We begin with the test that the dissent would employ in obstacle preemption cases. As noted, the dissent would hold that a state law stands as an obstacle to the execution and accomplishment of the full purposes of a federal law (and is thus preempted) if the state law purports to override federal law either by giving permission to violate the federal law or by preventing the federal government from enforcing its laws.  We do not disagree that such a law would be an obstacle.  But it does not follow that anything less is not an obstacle.  Specifically, we disagree with the dissent's view that a state law that specifically authorizes conduct that a federal law expressly forbids does not pose an obstacle to the full accomplishment of the purposes of the federal law and is not preempted. If Congress chose to prohibit anyone under the age of 21 from driving, states could not authorize anyone over the age of 16 to drive and give them a license to do so.  The state law would stand as an obstacle to the accomplishment of the full purposes and objectives of Congress (keeping everyone under the age of 21 off the road) and would be preempted.  Or, to use a different example, if federal law prohibited all sale and possession of alcohol, a state law licensing the sale of alcohol and authorizing its use would stand as an obstacle to the full accomplishment of Congress's purposes.  ORS 475.306(1) is no different.  To the extent that ORS 475.306(1) authorizes persons holding medical marijuana licenses to engage in conduct that the Controlled Substances Act explicitly prohibits, it poses the same obstacle to the full accomplishment of Congress's purposes (preventing all use of marijuana, including medical uses). The dissent, however, reasons that one state case and four federal cases support its view of obstacle preemption.  It reads State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), as providing direct support for its view.  See ___ Or at ____ (Walters, J., dissenting) (slip op at 9).  In Rodriguez, federal Immigration and Naturalization Service (INS) agents obtained evidence pursuant to a federal administrative warrant that was valid under federal law but not under the Oregon Constitution, and the question was whether suppressing evidence obtained pursuant to that warrant in a state criminal proceeding was an obstacle to the accomplishment of the full purposes and objectives of the federal immigration laws.  This court held that it was not.  Suppressing evidence in the state criminal proceeding was completely unrelated to the INS's ability to carry out its separate mission of enforcing the federal immigration laws in a federal administrative proceeding.  This court did not hold in Rodriguez, as the dissent appears to conclude, that state law will be an obstacle to the full accomplishment of the purposes of the federal law only if state law interferes with the federal government's ability to enforce its laws. The dissent also relies on four United States Supreme Court cases "for the proposition that states may impose standards of conduct different from those imposed by federal law without creating an obstacle to the federal law."  ___ Or at ___ (Walters, J., dissenting) (slip op at 12).  It follows, the dissent reasons, that the mere fact that state law authorizes conduct that federal law forbids does not mean that state law is an obstacle to the accomplishment of the purposes of the federal law.  The four cases on which the dissent relies stand for a narrower proposition than the dissent draws from them.  In interpreting the applicable federal statute in each of those cases, the Court concluded that Congress intended to leave states free to impose complementary or supplemental regulations on a person's conduct.  None of those cases holds that states can authorize their citizens to engage in conduct that Congress explicitly has forbidden, as ORS 475.306(1) does. In Wyeth, one of the cases on which the dissent relies, the defendant argued that permitting state tort remedies based on a drug manufacturer's failure to warn would "interfere with 'Congress's purpose to entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives.'"  129 S Ct at 1199 (quoting the defendant's argument).  After considering the history of the federal statute, the Court concluded that "Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness."  Id. at 1200.  The Court concluded instead that Congress intended to allow complementary state tort remedies.  Id.  Given that interpretation of the federal law, the Court determined that the state tort remedy was consistent with, and not an obstacle to, Congress's purpose in requiring warnings in the first place.  Put differently, the state law was not an obstacle to Congress's purpose because Congress intended to permit states to continue enforcing complementary tort remedies. The Court's opinion in Florida Lime & Avocado Growers, Inc. v. Paul, 373 US 132, 83 S Ct 1210, 10 L Ed 2d 248 (1963), on which the dissent also relies, is to the same effect.  In that case, the Court determined that a federal marketing order setting minimum standards for picking, processing, and transporting avocados did not reflect a congressional intent to prevent states from enacting laws governing "the distribution and retail sale of those commodities."  373 US at 145.  As the Court explained, "[c]ongressional regulation at one end of the stream of commerce does not, ipso facto, oust all state regulation at the other end."  Id.  The Court accordingly concluded that there was "no irreconcilable conflict with the federal regulation [that] require[d] a conclusion that [the state law] was displaced."  Id. at 146.(19)  The Court's reasoning implies that, when, as in this case, there is an irreconcilable conflict between state and federal law, that conflict "requires a conclusion that [the state law] [i]s displaced."  See id. In both Florida Lime & Avocado and Wyeth and the other two cases the dissent cites, the Court interpreted the applicable federal statute to permit complementary or supplementary state law.(20)  None of those cases considered state laws that authorized conduct that the federal law specifically prohibited, as is present in this case, and none of those cases stands for the proposition that such a law would not be an obstacle to the accomplishment of the full purposes of Congress.  Rather, the Court's opinion in Florida Lime & Avocado points in precisely the opposite direction; it teaches that when, as in this case, the state and federal laws are in "irreconcilable conflict," federal law will displace state law.  See 373 US at 146. As noted, the dissent also advances what appears to be an alternative ground for its position.  The dissent reasons that ORS 475.306(1) does not affirmatively authorize the use of medical marijuana; it views that subsection instead as part of a larger exemption of medical marijuana use from state criminal laws.  The dissent's reasoning is difficult to square with the text of ORS 475.306(1).  That subsection provides that a person holding a registry identification card "may engage" in the limited use of medical marijuana.  Those are words of authorization, not exemption.  Beyond that, if ORS 475.306(1) were merely part of a larger exemption, then no provision of state law would authorize the use of medical marijuana.  If that were true, medical marijuana use would not come within one of the exclusions from the "illegal use of drugs," as that phrase is defined in ORS 659 A. 122, and the protections of ORS 659 A. 112 would not apply to employee.  See ORS 659 A. 124 (so providing).(21) Another thread runs through the dissent.  It reasons that, as a practical matter, authorizing medical marijuana use is no different from exempting that use from criminal liability.  It concludes that, if exempting medical marijuana use from criminal liability is not an obstacle to the accomplishment of the purposes of the Controlled Substances Act and is thus not preempted, then neither is a state law authorizing medical marijuana use.  The difficulty with the dissent's reasoning is its premise.  It presumes that a law exempting medical marijuana use from liability is valid because it is not preempted.  As the Attorney General's opinion explained, however, Congress lacks the authority to compel a state to criminalize conduct, no matter how explicitly it directs a state to do so.  When, however, a state affirmatively authorizes conduct, Congress has the authority to preempt that law and did so here.  The dissent's reasoning fails to distinguish those two analytically separate constitutional principles. In sum, whatever the wisdom of Congress's policy choice to categorize marijuana as a Schedule I drug, the Supremacy Clause requires that we respect that choice when, as in this case, state law stands as an obstacle to the accomplishment of the full purposes of the federal law.  Doing so means that ORS 475.306(1) is not enforceable.  Without an enforceable state law authorizing employee's use of medical marijuana, that basis for excluding medical marijuana use from the phrase "illegal use of drugs" in ORS 659A.122(2) is not available. As noted, a second possible exclusion from the definition of "illegal use of drugs" exists, which we also address.  The definition of "illegal use of drugs" also excludes from that phrase "the use of a drug taken under supervision of a licensed health care professional."(22)  ORS 659A.122(2).  On that issue, as noted above, employee's physician signed a statement that employee had been diagnosed with a debilitating condition, that marijuana may mitigate the symptoms or effects of that condition, but that the physician's statement was not a prescription to use marijuana.  That statement was sufficient under the Oregon Medical Marijuana Act to permit employee to obtain a registry identification card, which then permitted him to use marijuana to treat his condition.  Employee's physician recommended that employee use marijuana five to seven times daily by inhalation.  However, without a prescription, employee's physician had no ability to control either the amount of marijuana that employee used or the frequency with which he used it, if employee chose to disregard his physician's recommendation. The question thus posed is whether employee used marijuana "under supervision of a licensed health care professional."  The answer to that question turns initially on what a person must show to come within that exclusion.  As explained below, we conclude that two criteria must be met to come within the exclusion.  As an initial matter, the phrase "taken under supervision" of a licensed health care professional implies that the health care professional is monitoring or overseeing the patient's use of what would otherwise be an illegal drug.  See Webster's Third New Int'l Dictionary 2296 (unabridged ed 2002) (defining supervise as "coordinate, direct, and inspect continuously and at first hand the accomplishment of" a task); cf. Moore, 423 US at 143 (holding that a physician who prescribed methadone, a Schedule II controlled substance, without regulating his patients' dosage and with no precautions against his patients' misuse of methadone violated section 841 of the Controlled Substances Act). Beyond supervision, when a health care professional administers a controlled substance, the exclusion requires that the Controlled Substances Act authorize him or her to do so.  That follows from the text and context of the definition of illegal use of drugs set out in ORS 659A.122(2).  After providing that the illegal use of drugs does not include "the use of a drug taken under supervision of a licensed health care professional," the legislature added "or other uses authorized under the Controlled Substances Act."  The phrase "or other uses authorized by the Controlled Substances Act" is telling.  The words "other uses" imply that the preceding use (the use of drugs taken under supervision of a licensed health care professional) also refers to a use authorized by the Controlled Substances Act.  See Webster's at 1598 (defining "other" as "being the one (as of two or more) left"). Not only does the text of ORS 659A.122(2) imply that the use of controlled substances taken under supervision of a licensed health care professional refers to uses that the Controlled Substances Act authorizes, but the context leads to the same conclusion.  See Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (explaining that context 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)).  As noted, the Controlled Substances Act both authorizes physicians and other health care professionals to administer controlled substances for medical and research purposes and defines the scope of their authority to do so.  See Moore, 423 US at 138-40 (so holding).  We infer that, in excluding "the use of a drug taken under supervision of licensed health care professionals" from the phrase "illegal use of drugs," the legislature intended to refer to those medical and research uses that, under the Controlled Substances Act, physicians and other health care professionals lawfully can put controlled substances. Another contextual clue points in the same direction.  The exclusion in ORS 659A.122(2) for the use of a drug taken under supervision of a licensed health care professional is virtually identical to an exclusion in the definition of illegal use of drugs found in the ADA.  See 42 USC § 12111(6)(A) (excluding "the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act").  The federal exclusion contemplates medical and research uses that the Controlled Substances Act authorizes, and there is no reason to think that, in adopting the same exclusion, the Oregon legislature had any different intent in mind.  Cf. Stevens, 336 Or at 402-03 (looking to the federal counterpart to ORCP 36 to determine Oregon legislature's intent).   Given the text and context of ORS 659A.122(2), we conclude that, when a health care professional administers a controlled substance, the exclusion for the "use of a drug taken under supervision of a licensed health care professional" refers to those medical and research uses that the Controlled Substances Act authorizes. In sum, two criteria are necessary to come within the exclusion for the use of a controlled substance taken under supervision of a licensed health care professional:  (1) the Controlled Substances Act must authorize a licensed health care professional to prescribe or administer the controlled substance and (2) the health care professional must monitor or supervise the patient's use of the controlled substance.  In this case, we need not decide whether the evidence was sufficient to prove the second criterion -- i.e., whether employee's physician monitored or oversaw employee's use of marijuana.  Even if it were, the Controlled Substances Act did not authorize employee's physician to administer (or authorize employee to use) marijuana for medical purposes.  As noted, under the Controlled Substances Act, physicians may not prescribe Schedule I controlled substances for medical purposes.  At most, a physician may administer those substances only as part of a Food and Drug Administration preapproved research project.(23)  Because there is no claim in this case that employee and his physician were participating in such a project, employee's use of marijuana was not taken under supervision of a licensed health care professional, as that phrase is used in ORS 659A.122(2). Because employee did not take marijuana under supervision of a licensed health care professional and because the authorization to use marijuana found in ORS 475.306(1) is unenforceable, it follows that employee was currently engaged in the illegal use of drugs and, as the commissioner found, employer discharged employee for that reason.  Under the terms of ORS 659 A. 124, "the protections of ORS 659 A. 112 do not apply" to employee.  The commissioner's final order on reconsideration rests, however, on the premise that the protections of ORS 659 A. 112 -- specifically, the requirement for employer to engage in a "meaningful interactive process" as an aspect of reasonable accommodation -- do apply to employee.  Under ORS 659 A. 124, that premise is mistaken, and the commissioner's revised order on reconsideration cannot stand.  Both the commissioner's order and the Court of Appeals decision affirming that order on procedural grounds must be reversed. Given the number of the issues discussed in this opinion, we summarize the grounds for our decision briefly.  First, employer preserved its challenge that, as a result of the Controlled Substances Act, the use of medical marijuana is an illegal use of drugs within the meaning of ORS 659 A. 124.  Second, two potentially applicable exclusions from the phrase "illegal use of drugs" -- the use of drugs authorized by state law and the use of drugs taken under the supervision of a licensed health care professional -- do not apply here.  Third, regarding the first potentially applicable exclusion, to the extent that ORS 475.306(1) authorizes the use of medical marijuana, the Controlled Substances Act preempts that subsection.  We note that our holding in this regard is limited to ORS 475.306(1); we do not hold that the Controlled Substances Act preempts provisions of the Oregon Medical Marijuana Act that exempt the possession, manufacture, or distribution of medical marijuana from state criminal liability.  Fourth, because employee was currently engaged in the illegal use of drugs and employer discharged him for that reason, the protections of ORS 659 A. 112, including the obligation to engage in a meaningful interactive discussion, do not apply.  ORS 659 A. 124.  It follows that BOLI erred in ruling that employer violated ORS 659 A. 112. The decision of the Court of Appeals and the revised order on reconsideration of the Commissioner of the Bureau of Labor and Industries are reversed. WALTERS, J., dissenting. Neither the Oregon Medical Marijuana Act nor any provision thereof permits or requires the violation of the Controlled Substances Act or affects or precludes its enforcement.  Therefore, neither the Oregon act nor any provision thereof stands as an obstacle to the federal act.  Because the majority wrongly holds otherwise, and because, in doing so, it wrongly limits this state's power to make its own laws, I respectfully dissent. The United States Constitution establishes a system of dual sovereignty in which state and federal governments exercise concurrent authority over the people.  Printz v. United States, 521 US 898, 920, 117 S Ct 2365, 138 L Ed 2d 914 (1997).   Each government is supreme within its own sphere.  Id. at 920-21.  In enacting the federal Controlled Substances Act, which prohibits all use of marijuana, Congress acted pursuant to its authority under the Commerce Clause.  Gonzales v. Raich, 545 US 1, 5, 125 S Ct 2195, 162 L Ed 2d 1 (2005).  In enacting the Oregon Medical Marijuana Act, which permits the circumscribed use of medical marijuana, Oregon acted pursuant to its historic power to define state criminal law and to protect the health, safety, and welfare of its citizens.  Whalen v. Roe, 429 US 589, 603, 603 n 30, 97 S Ct 869, 51 L Ed 2d 64 (1977); Robinson v. California, 370 US 660, 664, 82 S Ct 1417, 8 L Ed 2d 758 (1962). In enacting the Controlled Substances Act, Congress did not have the power to require Oregon to adopt, as state criminal law, the policy choices represented in that federal act.  Congress does not have the power to commandeer a state's legislative processes by compelling it to enact or enforce federal laws.  New York v. United States, 505 US 144, 149, 112 S Ct 2408, 120 L Ed 2d 120 (1992).  "[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts."  Id. at 166. Because it had authority to enact the Controlled Substances Act, Congress did, however, have the power to expressly preempt state laws that conflict with the Controlled Substances Act.  A cornerstone of the Supreme Court's Supremacy Clause analysis is that "[i]n all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied," the Court "start[s] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."  Wyeth v. Levine, ___ US ___, ___, 129 S Ct 1187, 1194-95, 173 L Ed 2d 51 (2009) (internal ellipsis and quotation marks omitted).  The Court relies on that presumption out of "respect for the States as independent sovereigns in our federal system."  Id. at 1195 n 3 (internal quotation marks omitted). As the majority recognizes, the Controlled Substances Act does not include an express preemption provision.  ___Or at ___ (slip op at 17-18).  It contains, instead, "a saving clause" intended to "preserve state law."  See Wyeth, 129 S Ct at 1196 (so construing nearly identical provision in Federal Food, Drug, and Cosmetic Act).  Thus, the majority should begin its analysis "with the assumption that the historic police powers [exercised by the State of Oregon] were not to be superseded by the Federal Act * * *." Id. at 1194-95. The majority does not do so.  It instead implies, from the federal policy choice that the Controlled Substances Act represents, a Congressional intent to preempt provisions of Oregon law that makes a different policy choice.  ___ Or at ___ (slip op at 30).  To understand the majority's error in applying the "obstacle" prong of the United States Supreme Court's implied preemption analysis, it is important to understand the purposes and effects of the federal and state laws that are at issue in this case. Congress enacted the federal Controlled Substances Act, as the majority explains, to "conquer drug abuse" and "control" traffic in controlled substances.  ___Or at ___ (slip op at 15-16).  In listing marijuana as a Schedule I drug, Congress decided that marijuana has no recognized medical use.  Therefore, "Congress imposed a blanket federal prohibition" on the use of marijuana.  ___ Or at ___  (slip op at 21).  As noted, Congress did not expressly indicate, however, that states could not enact their own criminal drug laws or make different decisions about the appropriate use of marijuana. Oregon did in fact enact its own criminal drug laws, including the state Uniform Controlled Substances Act (ORS 475.005 to 475.285 and ORS 475.840 to 475.980).  That act controls and punishes, as state criminal law, the use of all substances that the federal government classifies as Schedule I drugs, including marijuana.  ORS 475.840; ORS 475.856 - 475.864.  Oregon also enacted the Oregon Medical Marijuana Act.  That act exempts certain medical marijuana users from the state criminal drug laws, including from the state Uniform Controlled Substances Act.  The Oregon Medical Marijuana Act does not permit Oregonians to violate the federal Controlled Substances Act or bar the federal government from continuing to enforce the federal Controlled Substances Act against Oregonians.  The Oregon Attorney General described the purpose and reach of the Oregon Medical Marijuana Act in a letter ruling: "The Act protects medical marijuana users who comply with its requirements from state criminal prosecution for production, possession, or delivery of a controlled substance.  See, e.g., ORS 475.306(2), 475.309(9) and 475.319.  However, the Act neither protects marijuana plants from seizure nor individuals from prosecution if the federal government chooses to take action against patients or caregivers under the federal [Controlled Substances Act]. The Act is explicit in its scope: 'Except as provided in ORS 475.316 and 475.342, a person engaged in or assisting in the medical use of marijuana [in compliance with the terms of the Act] is excepted from the criminal laws of the state for possession, delivery or production of marijuana, aiding and abetting another in the possession, delivery or production of marijuana or any other criminal offense in which possession, delivery or production of marijuana is an element * * *.'  ORS 475.309(1)." Letter of Advice dated June 17, 2005, to Susan M. Allen, Public Health Director, Department of Human Services, 2 (first emphasis in original; later emphases added).(1)  The Oregon Attorney General also concluded in that letter ruling that the decision of the Supreme Court in Raich -- that Congress had authority to enact the blanket prohibitions in the Controlled Substances Act -- had no effect on the validity of Oregon's statute: "Raich does not hold that state laws regulating medical marijuana are invalid nor does it require states to repeal existing medical marijuana laws.  Additionally, the case does not oblige states to enforce federal laws.  * * * The practical effect of Raich in Oregon is to affirm what we have understood to be the law since the adoption of the Act."(2) Id. (emphasis in original). The majority seems to accept that the Oregon Medical Marijuana Act does not bar the federal government from enforcing the Controlled Substances Act.  The majority acknowledges that "state law does not prevent the federal government from enforcing its marijuana laws against medical marijuana users in Oregon if the federal government chooses to do so."   ___ Or at ___ (slip op at 21-22).   The majority also seems to accept, as a result, that provisions of the Oregon Medical Marijuana Act that exempt persons from state criminal liability do not pose an obstacle to the Controlled Substances Act.(3)  However, in the majority's view, one subsection of the Oregon Medical Marijuana Act, ORS 475.306(1), presents an obstacle to the Controlled Substances Act and does so solely because it includes words of authorization.  Id. at __ (slip op at 23). As I will explain in more detail, I believe that the majority is incorrect in reaching that conclusion.  First, the words of authorization used in ORS 475.306(1) and other subsections of the Oregon Medical Marijuana Act serve only to make operable the exceptions to and exemptions from state prosecution provided in the remainder of the act.  The words of authorization used in those subsections do not grant authorization to act that is not already inherent in the exceptions or exemptions, nor do they permit the violation of federal law.  Second, in instances in which state law imposes standards of conduct that are different than the standards of conduct imposed by federal law, but both laws can be enforced, the Supreme Court has not held the state laws to be obstacles to the federal laws, nor discerned an implied Congressional intent to preempt the state laws from the different policy choices made by the federal government.  Thus, the majority is incorrect in finding that the standard of conduct and policy choice represented by the Controlled Substances Act prohibits a different state standard of conduct and policy choice.  Both the Oregon Medical Marijuana Act and the Controlled Substances Act can be enforced, and this state court should not interpret the federal act to impliedly preempt the state act. The Oregon Medical Marijuana Act contains a number of subsections that use words of authorization.  Those subsections are interwoven with the subsections of the act that except and exempt medical marijuana users from criminal liability.  For instance, ORS 475.309, which the majority cites as a provision that excepts persons who use medical marijuana from state criminal liability, ___ Or at ___ (slip op at 24), provides that a person engaged in or assisting in the medical use of marijuana "is excepted from the criminal laws of the state" if certain conditions, including holding a "registry identification card," are satisfied.  (Emphases added.)  ORS 475.302(10) defines "registry identification card" as follows:  "a document issued by the department that identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any."  (Emphasis added.) Consider also ORS 475.306(1), the section of the act that the majority finds offending.  That subsection references both ORS 475.309, the exception section, and the registry identification card necessary to that exception.  ORS 475.306(1) provides:  "A person who possesses a registry identification card issued pursuant to ORS 475.309 may engage in, and a designated primary caregiver of such person may assist in, the medical use of marijuana only as justified to mitigate the symptoms or effects of the person's debilitating medical condition."(4) (Emphasis added.)  Reading those three provisions together, it is clear that ORS 475.306(1) serves as a limitation on the use of medical marijuana that the registry identification card and ORS 475.309 together permit.  Under ORS 475.306(1), a person who possesses a registry identification card issued pursuant to ORS 475.309 may engage in the use the card permits "only as justified to mitigate the symptoms or effects of the person's debilitating medical condition."  (Emphasis added.) ORS 475.319, another section of the act that the majority cites as creating an exemption from criminal liability, also depends on words of permission for its operation.  ___ Or at ___ (slip op at 24).  ORS 475.319 creates an affirmative defense to a criminal charge of possession of marijuana, but only for persons who possess marijuana "in amounts permitted under ORS 475.320."  (Emphasis added.)  ORS 475.320(1)(a) provides:  "A registry identification cardholder * * * may possess up to six mature marijuana plants and 24 ounces of usable marijuana."  (Emphasis added.)   The words of authorization used in ORS 475.306(1) are no different from the words of authorization that are used in other sections of the act and that are necessary to effectuate ORS 475.309 and ORS 475.319 and the exceptions to and exemptions from criminal liability that they create.  Those words of authorization do not grant permission that would not exist if those words were eliminated or replaced with words of exception or exclusion.  Even if it did not use words of permission, the Oregon Medical Marijuana Act would permit, for purposes of Oregon law, the conduct that it does not punish.  Furthermore, the statutory sections that provide that citizens may, for state law purposes, engage in the conduct that the state will not punish have no effect on the Controlled Substances Act that is greater than the effect of the sections that declare that the state will not punish that conduct. Because neither the Oregon Medical Marijuana Act nor any subsection thereof gives permission to violate the Controlled Substances Act or affects its enforcement, the Oregon act does not pose an obstacle to the federal act necessitating a finding of implied preemption.  In State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), this court recognized that state and federal laws can prescribe different standards, each acting within its own authority, without affecting the other's authority, and without offending the Supremacy Clause.  In that case, the defendant had been arrested by federal immigration agents on a warrant that the state conceded did not satisfy the oath or affirmation requirement of Article I, section 9, of the Oregon Constitution.  The state argued, however, that, because the warrant was valid under federal law, "the Supremacy Clause render[ed] Article I, section 9, inapplicable to the arrest * * *."  Id. at 34.  The court rejected that argument and concluded that preemption was not at issue because the application of the state constitutional requirements for an arrest warrant did not "affect the ability of the federal government to administer or enforce its * * * laws."  Id. at 36.  Because the court interpreted the state constitution not to impose requirements on arrests by federal officers, the state and the federal law did not conflict: "Because this court's interpretation of Article I, section 9, in this context, cannot and will not interfere with the federal government in immigration matters, the Supremacy Clause has no bearing on this case and this court is not 'preempted' from applying Article I, section 9, to defendant's arrest." Id.  Similarly, the Oregon Medical Marijuana Act "cannot and will not interfere with" the federal government's enforcement of the Controlled Substances Act and does not offend the Supremacy Clause. Instead of following Rodriguez, the majority relies on two United States Supreme Court cases for the proposition that state law that permits what federal law prohibits is impliedly preempted.  ___ Or at ___ (slip op at 21).  The majority then concludes that, "[t]o the extent that ORS 475.306(1) affirmatively authorizes the use of medical marijuana, federal law preempts that subsection, leaving it 'without effect.'"  ___ Or at ___ (slip op at 22).  I disagree with the majority's analysis for two reasons.  First, the cases that the majority cites stand only for the proposition that when federal law bestows an unlimited power or right, state law cannot preclude the exercise of that power or right.  The Controlled Substances Act does not create a right; it prohibits certain conduct.  Second, other Supreme Court cases hold that when a federal law does not create powers or rights but, instead, sets standards for conduct, state law may set different standards for the same conduct without offending the Supremacy Clause, as long as both sets of laws may be enforced.  By deciding not to punish the medical use of marijuana, the Oregon Medical Marijuana Act authorizes, for state law purposes, conduct that the Controlled Substances Act prohibits.  The Oregon Medical Marijuana Act does not, however, offend the Supremacy Clause because it does not affect enforcement of the Controlled Substances Act.  In the first of the two cases on which the majority relies, Barnett Bank v. Nelson, 517 US 25, 116 S Ct 1103, 134 L Ed 2d 237 (1996), a federal statute explicitly granted national banks the unlimited power to sell insurance in small towns.  A state statute forbade and impaired the exercise of that power, and the court held that it was preempted. Michigan Canners & Freezers v. Agricultural Bd., 467 US 461, 104 S Ct 2518, 81 L Ed 2d 399 (1984), the second case on which the majority relies, concerned a conflict between the federal Agricultural Fair Practices Act, which protects the rights of producers of agricultural goods to remain independent and to bring their products to market on their own without being required to sell those products through an association, and a Michigan statute.  Id. at 473.  As the court explained in Massachusetts Medical Soc. v. Dukakis, 815 F2d 790, 796 (1st Cir), cert den, 484 US 896 (1987), the Agricultural Fair Practice Act creates a "right to refrain from joining an association of producers[.]"  (Ellipses omitted.)  The Michigan statute at issue prevented the exercise of the right conferred by the act by precluding an agricultural producer "from marketing his goods himself" and "impos[ed] on the producer the same incidents of association membership with which Congress was concerned * * *."  Michigan Canners, 467 US at 478.  The Court held that under those circumstances, the state statute was preempted. Neither Barnett nor Michigan Canners stands for the proposition that a state statute that permits conduct that the federal government punishes is preempted.  In those cases, the federal statutes did not punish conduct; they created powers or rights.  The Court therefore struck down state statutes that forbade, impaired or prevented exercise of those powers or rights.  Because the Controlled Substances Act does not create a federal power or right and the Oregon Medical Marijuana Act does not forbid, impair, or prevent the exercise of a federal power or right, Barnett and Michigan Canners are inapposite.  The more relevant Supreme Court cases are those that consider the circumstance that exists when federal and state laws impose different standards of conduct.  Those cases stand for the proposition that states may impose standards of conduct different from those imposed by a federal law without creating an obstacle to the federal law.  In California v. ARC America Corp., 490 US 93, 109 S Ct 1661, 104 L Ed 2d 86 (1989), the Court considered, under the "obstacle prong" of its "actual conflict" implied preemption analysis, the conflict between Section 4 of the federal Clayton Act, which authorizes only direct purchasers to recover monopoly overcharges, and a state statute, which expressly permits recovery by indirect purchasers.  The Supreme Court held that, even if the state statute directly conflicted with the goals of the federal law, as the Ninth Circuit had held, the state statute was not preempted.  The Supreme Court reasoned that states are not required to pursue federal goals when enacting their own laws: "It is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law." Id. at 103. Other Supreme Court cases also illustrate the Court's refusal to imply preemption, under the "obstacle" prong of its implied preemption analysis, where state and federal statutes set contrary standards or pursue contrary objectives.  In Silkwood v. Kerr-McGee Corp., 464 US 238, 246, 104 S Ct 615, 78 L Ed 2d 443 (1984), a case that the court in ARC America cited as authority, the jury had awarded the plaintiff a judgment of $10 million in punitive damages against the defendant, a nuclear power company.  The defendant asserted that a conflict existed between the state law that permitted the judgment and a federal law regulating nuclear power plants, with which the defendant had complied.  Despite an earlier ruling that the Nuclear Regulatory Commission had exclusive authority to regulate the safety of nuclear power plants,(5) and even though the Court accepted that "there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability," id. at 256, the Court refused to invalidate the state law.  In Florida Lime and Avocado Growers, Inc. v. Paul, 373 US 132, 83 S Ct 1210, 10 L Ed 2d 248 (1963), a federal statute authorized the marketing of Florida avocados on the basis of weight, size, and picking date; California, however, regulated the marketing of avocados sold in the state on the basis of oil content.  As a result of the differing standards, about six percent of Florida avocados that were deemed mature under federal standards were rejected from California markets.  The plaintiffs argued that the federal standard for regulating Florida avocados preempted California's conflicting regulation.  As the dissent argued: "The conflict between federal and state law is unmistakable here. The Secretary asserts certain Florida avocados are mature. The state law rejects them as immature. And the conflict is over a matter of central importance to the federal scheme. The elaborate regulatory scheme of the marketing order is focused upon the problem of moving mature avocados into interstate commerce. The maturity regulations are not peripheral aspects of the federal scheme." 373 US at 173 (White, J., dissenting).  The majority, however, concluded that the test of whether an actual conflict existed was not whether the laws adopted contrary standards, but whether both laws could be enforced:  "The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives." Id. at 142 (emphasis added). The Court's most recent case on the issue, Wyeth v. Levine, ___US___, 129 S Ct 1187, 174 L Ed 2d 51 (2009), is in accord.  In that case, the court was presented with a conflict between state and federal law that the dissent characterized as follows:  "The FDA told Wyeth that Phenergan's label renders its use 'safe.'  But the State of Vermont, through its tort law said:  'Not so.'"(6)  Id., 129 S Ct at 1231 (Alito, J. dissenting).  Nevertheless, the majority upheld the state law.  Although the two laws imposed contradictory standards, the state law was not preempted.  The cases that I have reviewed demonstrate that the Supreme Court requires more as a basis for implying a congressional intent to preempt a state law than a Congressional purpose that is at odds with the policy that a state selects.  The Court has permitted state laws that impose standards of conduct different than those set by federal laws to stand unless the state laws preclude the enforcement of the federal laws or have some other demonstrated effect on their operation.  The Court has found state laws that forbid, impair or prevent the exercise of federally granted powers or rights to be preempted. The majority does not contend, in accordance with those cases, that ORS 475.306(1) or the Oregon Medical Marijuana Act as a whole precludes enforcement of the Controlled Substances Act or has any other demonstrated effect on its "accomplishment and execution."  The only obstacles to the federal act that the majority identifies are Oregon's differing policy choice and the lack of respect that it signifies.  ___ Or at ___ (slip op at 31).   As an example of the way it believes the Supremacy Clause to operate, the majority posits that, if Congress were to pass a law prohibiting persons under the age of 21 from driving, a state law authorizing persons over the age of 16 to drive and giving them a license to do so would be preempted.(7)  ___ Or at ___ (slip op at 26).  The majority would be correct if Congress had authority to make such a law and if Congress expressly preempted state laws allowing persons under the age of 21 to drive or indicated an intent to occupy the field.  However, without such statement of Congressional intent, implied preemption does not necessarily follow.  As a sovereign state, Oregon has authority to license its drivers and to choose its own age requirements.  If Oregon set at 16 years the minimum age for its drivers then, the Oregon driver licenses it issued would give 16-year-olds only state permission to drive.  The Oregon law would not be preempted, but neither would it protect 16-year-olds from federal prosecution and liability.  As a result, an Oregon legislature considering whether to enact such a law could decide, as a practical matter, that it would not be in the interest of its citizens to grant licenses that could result in federal prosecution.  Suppose, however, that Congress had passed the federal law that the majority posits, but that federal officers were not enforcing it.  Or suppose further that the federal government had announced a federal policy decision not to enforce the federal law against "individuals whose actions are in clear and unambiguous compliance with existing state laws" permitting minors to drive.  Could Oregon not serve as a laboratory allowing minors to drive on its roads under carefully circumscribed conditions to permit them to acquire driving skills and giving Congress important information that might assist it in determining whether its policy should be changed?  Is not one of federalism's chief virtues that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country"?  See New State Ice Co. v. Liebmann, 285 US 262, 311, 52 S Ct 371, 76 L Ed 747 (1932) (Brandeis, J., dissenting) (so contending).  In the case of medical marijuana, the federal government in fact has announced that it will not enforce the Controlled Substances Act against "individuals whose actions are in clear and unambiguous compliance with existing state laws permitting the medical use of marijuana."(8)  Oregon is not the only state that permits the use of medical marijuana, and at least one state is considering rules to "identify requirements for the licensure of producers and cannabis production facilities."  New Mexico's "Lynn and Erin Compassionate Use Act," 2007 New Mexico Laws ch 210, § 7 (SB 523).(9) As I explained at the outset, the federal government has no power to require that the Oregon legislature pass state laws to implement or give effect to federal policy choices.  One sovereign may make a policy choice to prohibit and punish conduct; the other sovereign may make a different policy choice not to do so and instead to permit, for purposes of state law only, other circumscribed conduct.  Absent express preemption, a particular policy choice by the federal government does not alone establish an implied intent to preempt contrary state law.  A different choice by a state is just that -- different.  A state's contrary choice does not indicate a lack of respect; it indicates federalism at work. The consequence of the majority's decision that the Controlled Substance Act invalidates ORS 475.306(1) is that petitioner is disqualified from the benefits of ORS 659 A. 124, which imposes a requirement of reasonable accommodation.  The majority states that it does not decide "whether the legislature, if it chose to do so and worded Oregon's disability law differently, could require employers to reasonably accommodate otherwise qualified disabled employees who use medical marijuana to treat their disabilities."  ___ Or at ___ n 12 (slip op at 14-15 n 12).  Indeed, different words could be used for that purpose.  For instance, the legislature could state expressly in ORS chapter 659A that disabled persons who would be entitled to the affirmative defense set forth in ORS 475.319 (a provision the majority does not find preempted) are not disqualified from the protections of the Oregon Disability Act, including the requirement of reasonable accommodation.  Or, to be even more careful, the legislature could state, in chapter 659A, the conditions that a medical marijuana user must meet to be entitled to the protections of the Oregon Disability Act without any reference to the Oregon Medical Marijuana Act.  If the legislature took either of those actions, reasonable accommodation would not be tied to the provision of the Oregon Medical Marijuana Act that the majority finds to be of "no effect."  Although such changes could secure the right of reasonable accommodation for disabled persons who use medical marijuana in compliance with Oregon law, the changes would not eliminate the questions that the majority's analysis raises about the validity of other provisions of the Oregon Medical Marijuana Act that use words of authorization or about the reach of Oregon's legislative authority.  If the majority decision simply represents a formalistic view of the Supremacy Clause that permits Oregon to make its own choices about what conduct to punish (and thereby to permit) as long as it phrases its choices carefully, perhaps my concern is overstated.  But as I cannot imagine that Congress would be concerned with the phrasing, rather than the effect, of state law, I not only think that the majority is wrong, I fear that it wrongly limits the legislative authority of this state.  If it does, it not only limits the state's authority to make its own medical marijuana laws, it limits the state's authority to enact other laws that set standards of conduct different than the standards set by the federal government.  Consider just one statute currently on the books -- Oregon's Death with Dignity Act. Oregon's Death with Dignity Act affirmatively authorizes physicians to use controlled substances to assist suicide.(10)  In Gonzales v. Oregon, 546 US 243, 126 S Ct 904, 163 L Ed 2d 748 (2006), the Supreme Court considered the validity of a federal Interpretive Rule that provided that "using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the [Controlled Substances Act]."  Id. at 249.  The Supreme Court decided that the Interpretive Rule was invalid and did not decide whether the federal rule preempted the Oregon act.  But if the federal government were to adopt a statute or a valid rule to the same effect, would this court hold that, because the Oregon Death with Dignity Act grants physicians permission to take actions that federal law prohibits, the state statute is preempted and of no effect?  If so, the court would invalidate a state law using an analysis that at least three members of the Supreme Court have recognized to be faulty:   "[T]he [Interpretive Rule] does not purport to pre-empt state law in any way, not even by conflict pre-emption  -- unless the Court is under the misimpression that some States require assisted suicide." Gonzales, 546 US at 290 (Scalia, J., joined by Roberts, C.J. and Thomas,J., dissenting) (emphasis in original). I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon's motto provides, "with her own wings."  ORS 186.040.  Therefore, I cannot join in a decision by which we, as state court judges, enjoin the policies of our own state and preclude our legislature from making its own independent decisions about what conduct to criminalize.  With respect, I dissent. Durham, J., joins in this opinion. 1. The 2001 version of the applicable statutes was in effect at the time of the events that gave rise to this proceeding.  Since 2001, the legislature has amended those statutes but not in ways that affect our decision, and we have cited to the 2009 version of the statutes. 2. ORS 475.309(7)(a)(C) requires a person possessing a registry identification card to submit annually "[u]pdated written documentation from the cardholder's attending physician of the person's debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects" of that condition.  If the person fails to do so, the card "shall be deemed expired."  ORS 475.309(7)(b). 3. BOLI points to nothing in its rules that suggests that more specificity was required.  Cf. OAR 839-050-0130 (providing only that affirmative defenses must be raised or waived). 4. To be sure, the Court of Appeals reserved the question in Washburn whether the use of medical marijuana is unlawful under federal law, but that did not detain it from holding that the employer in that case had an obligation under ORS 659 A. 112 to accommodate the employee's use of medical marijuana.  Given Washburn's holding, employer reasonably conceded its controlling effect until, as noted below, the Supreme Court issued its decision in Raich. 5. After the Commissioner issued his final order in this case, this court reversed the Court of Appeals decision in Washburn.  Washburn v. Columbia Forest Products, Inc., 340 Or 469, 480, 134 P3d 161 (2006).  This court held that the employee in Washburn was not a disabled person within the meaning of ORS chapter 659A.  Id. at 479.  Given that holding, this court did not reach the other issues that the Court of Appeals had addressed in Washburn.  After this court's decision in Washburn, the commissioner withdrew the final order and issued a revised order on reconsideration, adhering to his earlier resolution of employer's affirmative defenses in this case. 6. As noted, employer moved to reopen the record on the ground that, as a result of Raich, "states may not authorize the use of marijuana for medicinal purposes" and that "[t]he impact of this decision is that [employer] should prevail on its Fourth and Fifth Affirmative Defenses."  Employer thus told the agency that the Controlled Substances Act, as interpreted in Raich, compelled its interpretation of Oregon's antidiscrimination statutes.  Additionally, in response to BOLI's arguments, employer contended that the Controlled Substances Act preempted the Oregon Medical Marijuana Act. 7. We note that both California and Washington have considered whether their state medical marijuana laws give medical marijuana users either a claim under California's fair employment law or an implied right of action under Washington law against an employer that discharges or refuses to hire a person for off-work medical marijuana use.  See Roe v. Teletech Customer Care Management, 152 Wash App 388, 216 P3d 1055 (2009); Ross v. Ragingwire Telecommunications, Inc., 42 Cal 4th 920, 174 P3d 200 (2008).  Both the California and Washington courts have held that, in enacting their states' medical marijuana laws, the voters did not intend to affect an employer's ability to take adverse employment actions based on the use of medical marijuana.  Roe, 216 P3d at 1058-61; Ross, 174 P3d at 204.  Accordingly, in both Washington and California, employers do not have to accommodate their employees' off-site medical marijuana use.  We reach the same conclusion, although our analysis differs because Oregon has chosen to write its laws differently. 8. ORS 659 A. 124 lists exceptions to that rule, none of which applies here.  See ORS 659A.124(2) (recognizing exceptions for persons who either are participating in or have successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs). 9. Before 2009, former ORS 659A.100(4) (2001) defined the phrase "illegal use of drugs."  In 2009, the legislature renumbered that definition as ORS 659A.122(2). 10. The ballot title for the Oregon Medical Marijuana Act confirms that interpretation of the act.  See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (looking to legislative history to confirm text).  The caption, "yes" vote result statement, and summary of the ballot title focused on the fact that the measure, if enacted, would allow permit-holders to use medical marijuana and referred to the exemption from criminal laws only at the end of the summary.  Official Voters' Pamphlet, Nov 3, 1998, 148.  The caption stated that the measure "[a]llows medical use of marijuana within limits; establishes permit system."  The "yes" vote result statement was to the same effect, and the summary stated that current law prohibits the possession and manufacture of marijuana but that the measure "allows engaging in, assisting in, medical use of marijuana."  Id.  Only at the end of the summary did the ballot title add that the measure "excepts permit holder or applicant from marijuana criminal statutes."  Id.  11. The Oregon Medical Marijuana Act also exempts medical marijuana use from state criminal liability.  See ORS 475.309(1) (excepting persons holding registry identification cards from certain state criminal prohibitions); ORS 475.319 (creating an affirmative defense to certain criminal prohibitions for persons who do not hold registry identification cards but who have complied with the conditions necessary to obtain one).  Because ORS 659A.122(2) excludes from the definition of illegal use of drugs only those uses authorized by state law, the provisions of the Oregon Medical Marijuana Act that are relevant here are those provisions that affirmatively authorize the use of medical marijuana, as opposed to those provisions that exempt its use from criminal liability. 12. The only issue that employer's preemption argument raises is whether federal law preempts ORS 475.306(1) to the extent that it authorizes the use of medical marijuana.  In holding that federal law does preempt that subsection, we do not hold that federal law preempts the other sections of the Oregon Medical Marijuana Act that exempt medical marijuana use from criminal liability. We also express no opinion on the question whether the legislature, if it chose to do so and worded Oregon's disability law differently, could require employers to reasonably accommodate disabled employees who use medical marijuana to treat their disability.  Rather, our opinion arises from and is limited to the laws that the Oregon legislature has enacted. 13. Two subsections of the Controlled Substances Act accomplish that result.  Section 823(f) directs the Attorney General to register physicians and other practitioners to dispense controlled substances listed in Schedule II through V.  21 USC § 823(f).  Section 822(b) authorizes persons registered with the Attorney General to dispense controlled substances "to the extent authorized by their registration and in conformity with the other provisions of this subchapter."  21 USC § 822(b). 14. The specific question in Oakland Cannabis Buyers' Cooperative was whether there was a medical necessity exception for manufacturing and distributing marijuana.  The Court explained, however, that, "[l]est there be any confusion, we clarify that nothing in our analysis, or the statute, suggests that a distinction should be drawn between the prohibitions on manufacturing and distributing and the other prohibitions in the Controlled Substances Act."  532 US at 494 n 7. 15. The provision at issue in Wyeth provided that the federal statute did not preempt state law unless there was a "direct and positive" conflict between state and federal law.  Wyeth, 129 S Ct at 1196.  At first blush, one might think that the Court would have looked to the standard that Congress had expressly provided -- whether there is a "direct and positive conflict" between the state and federal laws -- to determine the extent to which federal law preempts state law.  See Cipollone v. Liggett Group, Inc., 505 US 504, 517, 112 S Ct 2608, 120 L Ed 2d 407 (1992) (holding that the preemptive effect of a federal act is "governed entirely" by an express preemption provision).  Implied preemption, however, addresses a similar issue, and the Court used an implied preemption analysis in Wyeth without any discussion.  129 S Ct at 1196-1200.  Given Wyeth, we follow a similar course here. 16. Justice Thomas noted that the Court had used different formulations to explain when it would be physically impossible to comply with both state and federal laws and questioned whether the Court had applied that standard too strictly.  Wyeth, 129 S Ct at 1208-09 (opinion concurring in the judgment).  In his view, the physical impossibility test is too narrow, and asking whether state law stands as an obstacle to the purposes of the federal law too amorphous.  He would have asked whether the state and federal law are in direct conflict.  Id.; see Caleb Nelson, Preemption, 86 Va L Rev 225, 260-61 (2000) (reasoning that historically and practically preemption reduces to a "logical contradiction" test). 17. The Attorney General's opinion stated that the Oregon Medical Marijuana Act "protects users who comply with its requirements from state criminal prosecution for production, possession, or delivery of a controlled substance."  Letter Opinion at 2.  In support of that statement, the opinion cited former ORS 475.306(2) (2003), which provided an affirmative defense for persons who possessed excess amounts of marijuana if possession of that amount of marijuana were medically necessary.  See Or Laws 2005, ch 822, §2 (repealing that provision).  The opinion also cited ORS 475.319 and ORS 475.309(9), which provides an affirmative defense to criminal liability for persons who have applied for but not yet received a registry identification card. 18. The dissent phrases the test it would apply in various ways throughout its opinion.  For instance, it begins its opinion by stating that the Oregon Medical Marijuana Act neither "permits [n]or requires the violation of the Controlled Substances Act."  ___ Or at ___ (Walters, J., dissenting) (slip op at 1).  Because the Oregon Medical Marijuana Act permits (and indeed authorizes) conduct that violates the Controlled Substances Act, we understand the dissent to use the word "permits" to mean expressly purports to "giv[e] permission," as it later rephrases its test.  We also note that, if the Oregon Medical Marijuana Act "required" a violation of federal law, then the physical impossibility prong of implied preemption would apply. 19. The dissenting opinion quotes the dissent in Florida Lime & Avocado for the proposition that the conflict between state and federal law in that case was unmistakable.  See ___ Or at ___ (Walters, J., dissenting) (slip op at 13-14) (quoting Florida Lime & Avocado, 373 US at 173 (White, J., dissenting)).  The majority, however, disagreed on that point, 373 US at 145-46, and its conclusion that federal law left room for complementary state law was pivotal to its conclusion that the federal marketing order did not preempt California law.   20. The other two United States Supreme Court cases on which the dissent relies are to the same effect.  Neither case involved a federal statute that, as the Court interpreted it, prohibited what the state law authorized.  See California v. ARC America Corp., 490 US 93, 103, 109 S Ct 1661, 104 L Ed 2d 86 (1989) (explaining that nothing in an earlier decision that only direct purchasers may bring an action under section 4 of the Clayton Act "suggests that it would be contrary to congressional purposes for States to allow indirect purchasers to recover under their own antitrust laws"); Silkwood v. Kerr-McGee Corp., 464 US 238, 256, 104 S Ct 615, 78 L Ed 2d 443 (1984) (holding that, even though Congress "was well aware of the NRC's exclusive authority to regulate safety matters," Congress also had "assumed that state law remedies, in whatever form they might take, were available to those injured in nuclear incidents"). 21. There is a suggestion in the dissent that ORS 475.306(1) is integral to the goal of exempting medical marijuana use from state criminal liability and cannot be severed from the remainder of the Oregon Medical Marijuana Act.  That act, however, contains an express severability clause, and it is not apparent why the provisions exempting medical marijuana use from state criminal liability cannot "be given full effect without [the authorization to use medical marijuana found in ORS 475.306(1)]."  See Or Laws 1999, ch 4, § 18 (providing the terms for severing any part of the act held invalid). 22. The commissioner did not consider whether this exclusion applied, in part because the Court of Appeals had stated in Washburn that the use of marijuana for medical purposes was "not unlawful," which the parties and the commissioner concluded was sufficient to answer employer's reliance on ORS 659 A. 124.  Although we could remand this case to the commissioner to permit him to address whether this exclusion applies, its application in this case turns solely on an issue of statutory interpretation, an issue on which we owe the commissioner no deference.  In these circumstances, we see no need to remand and unnecessarily prolong the resolution of this case. 23. Gonzales v. Oregon, 546 US 243, 126 S Ct 904, 163 L Ed 2d 748 (2006), addressed a different issue from the one presented here.  The Controlled Substances Act provides that Schedule II controlled substances have accepted medical uses, and the issue in Gonzales was whether the Attorney General had exceeded his statutory authority in defining which uses of Schedule II controlled substances were legitimate medical uses.  In this case, by contrast, the Controlled Substances Act provides that Schedule I controlled substances, such as marijuana, have no accepted medical use.  That congressional policy choice both addresses and conclusively resolves the issue that the Attorney General lacked statutory authority to address in Gonzales. 1. Consistent with the Attorney General's letter opinion, ORS 475.300(4) provides that ORS 475.300 to 475.346 -- the entirety of the Oregon Medical Marijuana Act -- is "intended to make only those changes to existing Oregon laws that are necessary to protect patients and their doctors from criminal and civil penalties[.]"  (Emphasis added.) 2. The question that the Oregon Attorney General answered in the letter opinion was "Does Gonzales v. Raich, 545 US [1] (2005), * * * invalidate the Oregon statutes authorizing the operation of the Oregon Medical Marijuana Program?"  The Attorney General said, "No."  The Attorney General explained that "[t]he Act protects medical marijuana users who comply with its requirements from state criminal prosecution for production, possession, or delivery of a controlled substance," and cited ORS 475.309, ORS 475.319, and ORS 475.306(2).  At the time of the Attorney General opinion, ORS 475.306(2) (2003) provided:  "If the individuals described in subsection (1) of this section possess, deliver or produce marijuana in excess of the amounts allowed in subsection (1) of this section, such individuals are not excepted from the criminal laws of the state but may establish an affirmative defense to such charges, by a preponderance of the evidence that the greater amount is medically necessary to mitigate the symptoms or effects of the person's debilitating medical condition." ORS 475.306(2) (2003), amended by Or Laws 2005, ch 822, § 2 (emphasis added).  Thus, one of the subsections of the Oregon Medical Marijuana Act that the Attorney General cited used words of authorization very similar to those used in ORS 475.306(1). Throughout the opinion, the Attorney General discussed the continued validity of the Oregon Medical Marijuana Act as a whole and did not in any way differentiate between provisions of the act that authorize medical marijuana use and those that create an exemption from state prosecution.  In fact, the Attorney General specifically opined that the state is entitled to continue to issue registry identification cards -- cards that, by definition, are documents that identify persons "authorized to engage in the medical use of marijuana."  ORS 475.302(10) (emphasis added). 3. The majority expressly leaves that question open, however.  ___ Or at ___ n 12 (slip op at 14-15 n 12). 4. The majority recognizes that it is essential to read ORS 475.306(1) and ORS 475.302(10) together to find an affirmative authorization to use marijuana for medicinal purposes.  ___Or at ___ (slip op at 13).  However, the majority does not explain why it finds ORS 475.306(1) and not ORS 475.302(10) preempted. 5. Pacific Gas & Elec. v. Energy Resources Comm'n, 461 US 190, 211-13, 103 S Ct 1713, 75 L Ed 2d 752 (1983). 6. The FDA had also adopted a regulation declaring that "certain state law actions, such as those involving failure-to-warn claims, 'threaten FDA's statutorily prescribed role as the expert Federal agency responsible for evaluating and regulating drugs.'"  Id. at 1200. 7. As I read the majority opinion, a state law providing that Oregon would not punish drivers between the ages of 16 and 21, as opposed to permitting those persons to drive, would withstand a Supremacy Clause challenge. 8. Memorandum from David W. Ogden, Deputy Attorney General for Selected United States Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct 19, 2009) (available at http://blogs.usdoj.gov/blog/archives/192) (accessed Apr 6, 2010) (emphasis in original). 9. New Mexico's "Lynn and Erin Compassionate Use Act," 2007 New Mexico Laws ch 210, § 7 (SB 523), requires relevant state agencies to develop rules that "identify requirements for the licensure of producers and cannabis production facilities and set forth procedures to obtain licenses," as well as "develop a distribution system for medical cannabis" that comports with certain requirements.  The New Jersey "Compassionate Use Medical Marijuana Act," S119, Approved PL 2009, c 307, § 7, provides for the creation of "alternate treatment centers, each of which "shall be authorized to acquire a reasonable initial and ongoing inventory, as determined by the department, of marijuana seeds or seedlings and paraphernalia, possess, cultivate, plant, grow, harvest, process, display, manufacture, deliver, transfer, transport, distribute, supply, sell, or dispense marijuana, or related supplies to qualifying patients or their primary caregivers who are registered with the department pursuant to section 4 of [PL , c (C)(pending before the Legislature as this bill)] this act." The Maine Medical Marijuana Act provides for the creation of "nonprofit dispensaries" which are authorized to dispense up to two and one-half ounces of marijuana to qualified patients.  Me Rev Stat title 22, § 2428-7.  In Rhode Island, "The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act," provides for the creation of "compassion centers," which "may acquire, possess, cultivate, manufacture, deliver, transfer, transport, supply or dispense marijuana * * * to registered qualifying patients and their registered primary caregivers." RI Gen Laws § 21-28.6-12. 10. ORS 127.815(1)(L)(A) authorizes physicians to dispense medications for the purpose of ending a patient's life in a humane and dignified manner when that patient has a terminal illness and has satisfied the written request requirements that the Act provides.  ORS 127.905(1) authorizes a terminally ill patient to "make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with [the Act]."

e839cd1ccec645979f3dad63b17ffc79108f28327ffcbd30ddb957b83956c664

2010-04-15T00:00:00Z

a5513ec6-7e6c-48a3-86d1-1472e7bbe1a1

In Re Conduct of Shannon

292 Or. 339, 638 P.2d 482

oregon

Oregon Supreme Court

638 P.2d 482 (1982) 292 Or. 339 In re Complaint As to the CONDUCT OF David S. SHANNON and Rees C. Johnson, Accused. OSB No. 80-7; SC27866. Supreme Court of Oregon, In Banc. Argued and Submitted November 2, 1981. Decided January 5, 1982. Andrew P. Kerr, Portland, argued the cause and filed the briefs for the Oregon State Bar. David S. Shannon and Rees C. Johnson, Portland, pro se, for the accused. *483 PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar, charging that the operation by the Accused of a law office under the names "Shannon and Johnson's Hollywood Law Center" and "Hollywood Law Center, a Branch of Shannon and Johnson," was unethical and in violation of DR 2-102(B) of the Code of Professional Responsibility of the Oregon State Bar. DR 2-102(B) provides, in part, as follows: Based upon stipulated facts, including the fact that the Accused did use those names in their advertising, the Trial Board found that the Accused were guilty as charged. The Disciplinary Review Board found that the Accused operated two law offices in Portland, Oregon, one on Sandy Boulevard and the other in the Hollywood District, and that "[t]he basic advertising of the Hollywood office is listed as `Shannon and Johnson's Hollywood Law Center,'" although some materials used the name "HOLLYWOOD LAW CENTER," with the further statement, "A branch of Shannon & Johnson." The Board concluded, however, that: In its brief on review of the findings and recommendations by the Disciplinary Review Board, the Oregon State Bar contends that: In response, it is contended by the Accused, among other things, that: In our opinion, the meaning of the term "trade name," as used in DR 2-102(B), is not the same as the meaning of that term as used in ORS 647.005(1)(f). That statutory definition is a part of a statute which has as its purpose the protection of registered trade marks and trade names and the protection of those who register and use them. (ORS 647.005 to 647.107). The purpose of DR 2-102(B) is quite different. According to Ethical Consideration 2-11: Thus, it appears that the purpose of DR 2-102(B) in its reference to "trade names" is not to protect the lawyers who use such names, but to protect the public by prohibiting the use of names by lawyers which "would mislead laymen concerning the identity, responsibility, and status" of those who use such names. A "trade name," as that phrase is used in DR 2-102(B), is a word or phrase other than lawyers' names which tends to mislead the public as to the identity or services of a law firm. We find that the name "Shannon and Johnson's Hollywood Law Center," which was the "basic advertising" used by the Accused, has no such tendency.[1] We find the Accused to be not guilty of the charges against them by the Oregon State Bar and award costs to the Accused.[2] [1] It is of interest to note that Rule 7.5(a) of the Proposed Final Draft of Model Rules of Professional Conduct, prepared by the American Bar Association Commission on Evaluation of Professional Standards, provides as follows: "A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise false or misleading." with the following "Comment": "A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm's identity or by a trade name such as the "ABC Legal Clinic." Although the Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. * * *" [2] Because of the basis for our decision in this case, it is not necessary to consider the further contentions by the parties.

be60fb9359ab580388892306b7761ad2c7d7ad37ed6486ba2620af208d39277c

1982-01-05T00:00:00Z

a2c5bc41-b227-46ab-acb7-cf052b87abe0

In Re Holmes

290 Or. 173, 619 P.2d 1284

oregon

Oregon Supreme Court

619 P.2d 1284 (1980) 290 Or. 173 In re: Complaint As to the Conduct of Kenneth A. HOLMES, Accused. No. 79-39; SC 27094. Supreme Court of Oregon. Argued and Submitted November 4, 1980. Decided December 2, 1980. *1285 Asa L. Lewelling, Salem, argued the cause and filed the brief for the Accused. Kenneth H. Colley, Corvallis, argued the cause for the Oregon State Bar. With him on the brief was Gretchen R. Morris, Corvallis. Before TONGUE, P.J., and HOWELL, LENT, LINDE, PETERSON and TANZER,[*] JJ. PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar charging the Accused, a Salem lawyer, with having an improper conflict of interest in that (1) he represented one Barbara Brown when she was engaged in a dispute with Valley Credit, Inc., a corporation for which the Accused was attorney and was also a 25% owner, and (2) that he also represented Barbara Brown when she was an adverse party in a legal proceeding brought against her by the Accused on behalf of Valley Credit, Inc. The Trial Board, one member dissenting, found the Accused not guilty of both charges. The Disciplinary Review Board disagreed. It found the Accused guilty of both charges and recommended that he be reprimanded. Based upon our examination of the record, we agree with that finding and recommendation.[1] The Accused was attorney for Valley Credit, Inc., and also owned 25% of its stock. During 1975 and 1976 he also represented Barbara Brown in various matters. In "going over" and signing some complaints as attorney for Valley Credit he recognized her name as the name of one of his clients and as a debtor who owed $501 plus interest to a telephone company. He then wrote to her asking that she "let (him) know what the problem is," saying that "if it can't be resolved I will have to sign the complaint. I suppose it's better to have a friendly adversary than an enemy." The Accused then undertook to negotiate a settlement of the telephone bill, which she denied owing in full. He testified that he agreed with her upon a settlement of $300. He also testified that he also negotiated with her regarding other assigned accounts against her and that in doing so he told her that he was attorney for and part owner of Valley Credit. In addition, he testified that in such negotiations he was representing both her and Valley Credit and that she agreed that he do so. Barbara Brown testified that she knew that the Accused was attorney for Valley Credit, but did not know that he was a part owner of it and that he never explained to her that in undertaking to represent both her and Valley Credit in such negotiations there was a potential conflict of interest. She admitted, however, that in another matter in which the Accused represented both her and the other party, he had asked that client to go to another attorney. When the Accused was asked whether he explained the conflict of interest to Barbara Brown, he testified that "maybe not in express detail" and that he could not recall any particular conversation, but she knew "what my problems were with Valley Credit" and that he "discussed what I thought her problems were in that regard." The Accused did not testify or contend, however, that he told Barbara Brown that because of the conflict of interest she should perhaps seek the advice of independent counsel. He had no notes or memoranda relating to any conversations with her or advice to her. These negotiations extended over a period of several months and also included other debts owed by Barbara Brown and assigned to Valley Credit for collection, including claims by Harrah's Club for N.S.F. checks signed by her. Barbara Brown testified that she admitted owing Harrah's Club for the checks but that she told the Accused that she would not pay $526 to the telephone company and that she never agreed to pay $300 in settlement of that bill as suggested by the Accused. She also testified that she hoped to provide funds for payment of the undisputed items from funds received upon closing the sale of some property in which she was represented by the Accused. On September 17, 1976, the Accused wrote another letter to Barbara Brown about the various debts owed by her and assigned to Valley Credit, including a claim by Harrah's and the telephone bill, and said that unless they were paid by her he would have to withdraw as her attorney. On October 27, 1976, the sale of the property was closed under an escrow with Key Escrow Company (also owned by the Accused). At that time Barbara Brown was asked to sign written instructions prepared by the Accused for payment of various debts owed by her, totaling $1,429 from the proceeds of the sale. These included, among other items, payment of $526 to the telephone company and $421 to Harrah's Club. She then refused to pay that amount to the telephone company, crossed out the figures "$526" and wrote in the figure "$256" as the amount to be paid to the telephone company, resulting in a total of $1,160 to be paid on debts owed by her, including $421 to Harrah's Club, from the proceeds of the sale. She then signed that document. Coincidentally, the last representation by the Accused of Barbara Brown was on October 27, 1976, apparently for services in closing that property transaction. *1287 The sum of $1,160 was then paid by Key Escrow to Valley Credit and the Accused was so informed. Apparently, however, Valley Credit was not informed that Barbara Brown had amended the amount of the payment to be made to the telephone company. Valley Credit then paid the telephone bill in full by payment of $526 instead of $256, as instructed by Barbara Brown, and did not pay the Harrah's Club claim in full. Barbara Brown testified that in November 1976 she learned that the Harrah checks had not been paid in full and asked the Accused why they had not been paid. Subsequently, in March 1977, the Accused, as attorney for Valley Credit, filed in District Court a complaint against Barbara Brown, demanding payment of $1,022 for various debts owed by her and assigned to Valley Credit, including three N.S.F. checks signed by her in September 1975 and payable to Harrah's Club. The Accused testified that at the trial of that case in February 1978 he learned that Valley Credit had not paid the Harrah's Club checks in full, but had paid the telephone bill in full. He testified, however, that he did not know at that time that there had been an error. In May 1978 judgment was entered against Barbara Brown, including $248 for the checks to Harrah's Club. Barbara Brown then complained to the Oregon State Bar. Those checks were then paid by Valley Credit and in October 1978 the Accused filed a partial satisfaction of that judgment. The first charge against the Accused is that he represented Barbara Brown when she was engaged in a dispute with Valley Credit, Inc. DR 5-105 provides: An attorney who undertakes to represent both the creditor and the debtor in a dispute over the payment of a debt clearly represents clients who have a conflict of interest. It is contended by the Accused, however, that it was nevertheless proper for him to represent both Valley Credit, the creditor, and Barbara Brown, the debtor in the dispute over debts owed by her, including the $526 bill of the telephone company, because both clients consented that he undertake to work out a settlement of those debts, with the result that his conduct came within the exception provided by DR 5-105(C). That exception, by its terms, is applicable to the representation by a lawyer of "multiple clients." Thus, a lawyer who undertakes to represent in a business transaction two or more parties with differing interests or a lawyer who undertakes to represent several defendants in a lawsuit who have both common and differing interests is subject to the requirements of DR 5-105(C). (See Ethical Consideration 5-17.) On the other hand, it is not clear that the term "multiple clients" as used in DR 5-105(C) was intended to apply to situations in which there are two opposing parties in the sense that one is making a claim against the other, who denies the validity of that claim, as in this case. That question was not raised by either the Accused or the Oregon State Bar, and we find nothing in the nature of "legislative history" of DR *1288 5-105 of assistance in resolving the question. The argument in this case has proceeded, however, upon the assumption that DR 5-105(C) is applicable to the facts of this case in the sense that the question to be decided is whether the conduct of the Accused comes within the requirement of the exception provided by that rule. For these reasons, we shall not now undertake to decide whether the conduct of the Accused in this case involved the representation of "multiple clients" within the meaning of DR 5-105(C). Instead, we will proceed to consider the question of whether, assuming the Accused represented "multiple clients," his conduct comes within the exception provided by DR 5-105(C). The two following requirements must be satisfied in order for conduct by a lawyer who represents "multiple clients" to come within the exception promised by that rule: The requirement of "full disclosure" has been stated by this court in In re Porter, 283 Or. 517, 525, 584 P.2d 744 (1978), as follows, quoting with approval from In re Boivin, 271 Or. 419, 424, 533 P.2d 171 (1975): In In re Boivin, supra, this court also quoted with approval (at 426, 533 P.2d 171) from In re Kamp, 40 N.J. 588, 194 A.2d 236, 240 (1963), involving a lawyer who undertook to represent both the buyer and the seller in a real estate transaction: As in In re Boivin, supra, at 427, 533 P.2d 171, it does not appear from the record in this case that there was any explanation by the Accused to either Barbara Brown or to Valley Credit of the nature of his potential, if not actual, conflict of interest in undertaking to represent both of them at the same time in a transaction involving a debt owed by the one to the other or of the *1289 reasons why it might be desirable for each of them to have independent counsel, so as to satisfy the "full disclosure" requirement of DR 5-105(C). The fact that Barbara Brown knew that the Accused was attorney and part owner of Valley Credit and the fact that Barbara Brown knew that in another transaction the Accused had sent another client to another attorney do not satisfy that requirement, in our judgment. The second requirement of DR 5-105(C) has also been previously considered by this court in In re Hershberger, 288 Or. 559, 566, 606 P.2d 623 (1980), in which the court quoted with approval from Ethical Consideration 5-15 of the Code of Professional Responsibility as follows: This court then held in In re Hershberger, supra (at 567, 606 P.2d 623) that "a lawyer should undertake no representation in which there would be either an actual conflict of interest or a potential conflict of interest," citing In re Porter, 283 Or. 517, 523, 584 P.2d 744 (1978), and In re Banks, 283 Or. 459, 476-77, 584 P.2d 284 (1978), in which this court quoted with approval from Wise, Legal Ethics 273 (2d ed. 1970) as follows: Upon application of these tests to the facts of this case, we are of the opinion that even if both Barbara Brown and Valley Credit had consented, after "full disclosure," that the Accused represent both of them as their attorney in undertaking to settle the dispute between them involving the $521 telephone bill, these two clients had such an actual and potential conflict of interest that he could not "adequately represent the interest of each" within the meaning of DR 5-105(C), as previously construed by this court. Indeed, the tangle of events which followed the attempt by the Accused to represent both Barbara Brown and Valley Credit at the same time illustrates the difficulties that may follow from such an endeavor by an attorney, even in complete good faith, as well as the practical reasons for adherence by attorneys to such a rule. It is contended by the Accused that he did no more than act as a "mediator" or "arbitrator" in an attempt to be of assistance to both Mrs. Brown and Valley Credit in working out a settlement of the dispute between them. Ethical Consideration 5-20 of the Code of Professional Responsibility provides: *1290 In this case, however, the Accused did not testify that he undertook to act as an impartial mediator or arbitrator but testified he was undertaking to "represent" both parties. "Representation" ordinarily means acting as a party's attorney, as defined in ORS 9.310.[3] In any event, the Accused later undertook to represent Valley Credit in an action against Mrs. Brown which included items which were at least indirectly, if not directly, involved in the previous dispute between the parties, contrary to the provisions of EC 5-20. For these reasons, we agree with the finding by the Disciplinary Review Board that the Accused was guilty of the first charge. The second charge against the Accused is that at a time when he represented Barbara Brown he brought a legal action against her on behalf of Valley Credit. It is clear from the record that the Accused no longer represented Mrs. Brown when he filed the suit against her. Nevertheless, the question remains whether he could properly file that suit against her as a former client. DR 5-105, as previously quoted, was construed by this court in In re Banks, 283 Or. 459, 477-78, 584 P.2d 284 (1978): To the same effect, see In re Mumford, 285 Or. 559, 562, 591 P.2d 1377 (1979). See also In re Hershberger, supra, at 567, 606 P.2d 623. The action filed by the Accused against Barbara Brown in March 1977 sought judgment against her for debts allegedly owing by her and assigned to Valley Credit, including three N.S.F. checks to Harrah's Club. As previously stated, those checks should have been paid from the proceeds of the sale of property in October 1976. The Accused does not contend that the second charge must be dismissed because Mrs. Brown was no longer a client when the suit against her was filed. It is contended by the Accused, however, that "the complaint in that action was primarily on matters unrelated to the subject matter of the earlier representation of Barbara Brown by the Accused," although it did include three of her N.S.F. checks to Harrah's Club; that he did not "actually represent Mrs. Brown in the conventional sense in connection with the Harrah's checks," and that his "position with regard to all of the accounts with Barbara Brown held by Valley Credit for collection was adverse to Barbara Brown in the sense that if a compromise was not reached, she would be sued," and that "there is nothing about the later law action involving Harrah's checks which affected Mrs. Brown more injuriously because of the Accused's earlier involvement." Finally, it is contended that if DR 5-105 is applicable, "the Accused here most certainly comes within the exception (C)." We disagree. The claim of Harrah's Club which should have been paid on October 17, 1976, from the proceeds of the sale of property accrued by Mrs. Brown was for $421. The three Harrah's checks which were the subject of the subsequent action, filed by the Accused in March 1977, each for $100, were dated September 20, 1975, and were thus presumably included among the items which were the subject of attempts by the Accused in 1976 to work out a settlement of claims against Mrs. Brown by Valley Credit on items referred to it for collection. As such, these three checks were at least "related" to the subject matter of that earlier representation of Barbara Brown by the Accused. Whether or not such representation was "in the conventional sense," the Accused did undertake to represent her *1291 in such negotiations with Valley Credit. The fact that he told her that she would be sued if a compromise was not reached is wholly immaterial, in our judgment, as is the contention that she was not "more injuriously" affected by his subsequent lawsuit against her because of his "earlier involvement." We also do not agree with the contention that this case comes within the exception provided by DR 5-105(C) because, for one thing, its provisions relating to informed consent have no application to an action filed by an attorney against a former client without the consent of that client. The Accused had represented Mrs. Brown in her dispute with Valley Credit. It follows, in our opinion, that it was improper for him to subsequently represent Valley Credit in its lawsuit against her for a claim involved in that dispute. For these reasons, we agree with the finding by the Disciplinary Review Board that the Accused was guilty of the second charge. We also agree with the recommendations by the Disciplinary Review Board that the Accused be reprimanded for his conduct, as described in this opinion, under the first and second charges of the complaint by the Oregon State Bar.[4] This opinion shall serve as such a reprimand. The Oregon State Bar is also awarded judgment against the Accused for its costs and disbursements. [*] Tanzer, J., did not participate in this decision. [1] The complaint also charges that the Accused used his solely owned Key Escrow Company to secure payment from his client, Barbara Brown, on behalf of another client without disclosure of the Accused's various financial interests. Both the Trial Board and the Disciplinary Review Board found the Accused not guilty of that charge. We agree, based upon our examination of the record. [2] See DR 5-105(C). [3] ORS 9.130 provides: "An attorney is a person authorized to represent a party in the written proceedings in any action, suit or proceeding, in any stage thereof. * * *." [4] Cf. In re Boivin, 271 Or. 419, 429, 533 P.2d 171 (1975); In re Banks, 283 Or. 459, 482, 584 P.2d 284 (1978); In re Porter, 283 Or. 517, 529, 584 P.2d 744 (1978); In re Mumford, 285 Or. 559, 562, 591 P.2d 1377 (1979), and In re Hershberger, 288 Or. 559, 568, 606 P.2d 623 (1980).

054045a8ba44d6feee531eee7ccfad0157c520741a46f84ec2ca5c055f37489f

1980-12-02T00:00:00Z

defbefa2-e8bf-4083-ae60-730f7a1b3cbe

State Ex Rel. Hydraulic Servocontrols v. Dale

294 Or. 381, 657 P.2d 211

oregon

Oregon Supreme Court

657 P.2d 211 (1982) 294 Or. 381 STATE of Oregon, ex rel. Hydraulic Servocontrols Corporation, a New York Corporation, Plaintiff-Realtor, v. William M. DALE, Defendant. No. A8101-00243; SC 28669. Supreme Court of Oregon. Argued and Submitted September 7, 1982. Decided December 30, 1982. *212 Mildred J. Carmack, Portland, argued the cause for plaintiff-realtor. With her on the brief was Schwabe, Williamson, Wyatt, Moore & Roberts, Portland. Keith Bauer, Salem, and Willard L. Cushing, McMinnville, argued the cause for defendant. Also on the briefs were Parks & Bauer, Salem, and Cushing, Johnstone & Peterson, P.C., McMinnville. Before LENT, C.J. and LINDE, PETERSON, CAMPBELL, ROBERTS and CARSON, Justices. CARSON, Justice. This is a mandamus proceeding brought by Hydraulic Servocontrols Corporation (Hydraulic), a New York corporation, to compel the defendant circuit judge to dismiss (as to it) a complaint in products liability filed in the Circuit Court for Multnomah County by Cascade Steel Rolling Mills, Inc. (Cascade), an Oregon corporation, against Cessna Aircraft Company (Cessna), a Kansas corporation, Western Skyways, Inc. (Western Skyways), a Delaware corporation, The Garrett Corporation (Garrett), a California corporation and Hydraulic. We issued the alternative writ here and in the case of State ex rel. Michelin v. Wells, 294 Or. 296, 657 P.2d 207 (1982), to consider, for the first time, the extent of Oregon's long-arm jurisdiction under ORCP 4, in light of the United States Supreme Court's decision in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). In December, 1979, Cascade purchased a 1978 Cessna aircraft in Oregon from Cessna and Western Skyways. Garrett manufactured the engine which incorporated a device called a servo actuator manufactured by Hydraulic. Less than two weeks after Cascade purchased the aircraft, it crashed in California. The second amended complaint alleges that Hydraulic is liable in strict liability and negligence for defects in the design and manufacture of the servo actuator. Hydraulic moved to dismiss, contending that Oregon lacked personal jurisdiction over it because the aircraft crashed in California and because Hydraulic does no business in Oregon and has no local presence or status. The affidavit accompanying the motion indicates that Hydraulic's only place of business is in New York, that it has no offices in Oregon, and that it does no business with anyone in Oregon. The affidavit also indicates that Hydraulic delivered the servo actuator to AiResearch Manufacturing Company, a division of Garrett, with the knowledge that Garrett would incorporate it into the engine of a Cessna aircraft. The defendant circuit judge denied Hydraulic's motion to dismiss. The issue is whether, by placing its product into the stream of American commerce so that it reaches consumers in Oregon by means of the commercial distribution activity of others, Hydraulic has sufficient contact with Oregon that exercise of jurisdiction is lawful when an Oregon resident is damaged by defects in that product. We hold that it is. We previously have held that in applying jurisdictional statutes to nonresidents "two questions are presented: (1) Does the case fall within the terms of [a jurisdictional statute]? If so, (2) Does due process permit an Oregon court, as a matter of constitutional law, to obtain and exercise personal jurisdiction over the defendant in such a case?" State ex rel. Academy Press v. Beckett, 282 Or. 701, 708, 581 P.2d 496 (1978). In this case, the questions merge because the only relevant provision of ORCP 4 is ORCP 4 L., a catchall provision extending Oregon jurisdiction to the outer limits of due process under the Fourteenth Amendment of the United States Constitution.[1] ORCP 4 L. provides for jurisdiction: Subsections B. through K. of Rule 4 may appear to be redundant in view of the subsection L. catchall provision, but they are not superfluous. Based as they are on facts which the United States Supreme Court has held to be adequate bases for jurisdiction, these more specific provisions serve to narrow the inquiry so that if a case falls within one of them, there is no need to litigate more involved issues of due process.[3] Once a plaintiff alleges facts bringing his or her case within a specific provision, that ordinarily will be the end of the matter. On the other hand, if resort to ORCP 4 L. is necessary, then the limits of due process must be explored. This is such a case. The Due Process Clause of the Fourteenth Amendment has been held to require that personal jurisdiction over a nonresident defendant be based on "minimum contacts" between the defendant and the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). Those contacts must be such that maintenance of the suit does not offend "`traditional notions of fair play and substantial justice.'" Id. 326 U.S. at 316, 66 S. Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 342, 85 L. Ed. 278 (1940). In the years since International Shoe announced the minimum-contacts test for exercise of personal jurisdiction by state courts, the United States Supreme Court has elaborated on that test in only a handful of cases. In Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S. Ct. 413, 96 L. Ed. 485 (1952), it found jurisdiction in Ohio for a cause of action which arose elsewhere, because defendant maintained what appeared to be a managerial headquarters in Ohio. In McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), it found California jurisdiction over a Texas life insurance company that had solicited customers by mail, in part because California had authorized its insurance commissioner to accept service of summons in behalf of insurers doing business in the state. The Supreme Court's cases since McGee tell us what minimum contacts are not rather than what they are, for no decision since McGee has sustained the exercise of in personam jurisdiction. Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), held that Florida could not exercise jurisdiction over the trustee of a Delaware trust simply because the settlor had moved to Florida after creating the trust and died there. In Kulko v. California Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978), the Supreme Court held that, in a mother's action against her divorced husband for custody and child support modifications, California did not obtain in personam jurisdiction over the nonresident, nondomiciled father, even though the father and mother had married in California, the father briefly had been in the state, and he had acquiesced in the desire of one child to live in California. *214 None of the cases following International Shoe have considered whether a manufacturer is subject to an action on a products liability theory in a state where it has no direct contacts. The closest case factually is World-Wide Volkswagen Corp. v. Woodson, supra, in which plaintiffs sought to bring a products liability action in an Oklahoma State Court against the German manufacturer, the Northeast regional distributor, and the New York local retailer of an Audi automobile plaintiffs had purchased in New York. A defect in the automobile had allegedly caused injury to plaintiffs as they drove through the State of Oklahoma. Although the manufacturer did not object to jurisdiction, both the regional distributor, World-Wide Volkswagen, and the retailer, Seaway Volkswagen, Inc., challenged the jurisdiction of the State of Oklahoma, each claiming that it lacked sufficient contacts with that state. As the Supreme Court saw it, the issue was whether an Oklahoma court could exercise in personam jurisdiction consistent with the Due Process Clause, "when the defendant's only connection with Oklahoma [was] the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma." 444 U.S. at 287, 100 S. Ct. at 562. Denying jurisdiction, the court repeated its holding in International Shoe, that "a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist `minimum contacts' between the defendant and the forum state." 444 U.S. at 291, 100 S. Ct. at 564. The requirement of minimum contacts, the court said, performs two related but distinct functions. "It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts 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 first of these functions, typically described in terms of "reasonableness" or "fairness," is less critical than it once was. The Supreme Court noted that the barriers to inconvenient litigation have been relaxed over the years because of fundamental changes in the American economy; modern transportation and communication make it "`much less burdensome for a party sued to defend himself in a State where he engages in economic activity.'" 444 U.S. at 293, 100 S. Ct. at 565, quoting McGee, 355 U.S. at 222-23, 78 S. Ct. at 200-01. Perhaps because of the decrease in importance of the first function, the World-Wide Volkswagen court focused primarily on the federalism concerns. The "reasonableness" of asserting jurisdiction over the defendant must be assessed "`in the context of our federal system of government.'" 444 U.S. at 293-94, 100 S. Ct. at 565, citing International Shoe, 326 U.S. at 317, 66 S. Ct. at 158. Inherent in a federal system is the idea that the sovereignty of each state implies "a limitation on the sovereignty of all its sister states a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment." 444 U.S. at 293, 100 S. Ct. at 565. The concept of territorial sovereignty is so important that It is the defendant's contacts with the forum state which make it reasonable for that state to extend the territorial limits of its power and exercise jurisdiction. One way to judge that reasonableness is by the foreseeability of suit in the forum state. By "foreseeability" the Supreme Court does not refer to the mobility of the chattel and thus the expectation of its use in the forum *215 state. What is relevant for due process is the foreseeability of being haled into the forum state's courts, and it is "the defendant's conduct and connection with the forum state," 444 U.S. at 297, 100 S. Ct. at 567, that provides that expectation rather than any "unilateral activity" of a plaintiff. 444 U.S. at 298, 100 S. Ct. at 567. The advantage of the foreseeability requirement is that it "allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." 444 U.S. at 297, 100 S. Ct. at 567. The Court concluded that Having established what it described as "principles," the Supreme Court went on to list all the things World-Wide and Seaway did not do in Oklahoma. Neither sold cars at wholesale or retail directly to Oklahoma residents nor sought indirectly to serve the Oklahoma market. Nor did they "avail themselves * * * of the privileges and benefits of Oklahoma law." 444 U.S. at 295, 100 S. Ct. at 566. Thus there was a "* * * total absence of the affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction." 444 U.S. at 295, 100 S. Ct. at 566. We turn now to the facts in this case. Our inquiry is whether Hydraulic engaged in some conduct by which it sought to serve the Oregon market or purposely avail itself of the privilege of doing business in Oregon.[4] Hydraulic, operating solely in New York, sells servo actuators it has manufactured in New York to businesses for use as component parts of other products. The finished products, in this case a Cessna aircraft, are to be sold in turn in a nationwide market. By undertaking economic activity of this kind with the expectation that its products ultimately will come to rest in every state, Hydraulic has effectively "deliver[ed] its products into the stream of commerce with the expectation that they will be purchased by consumers in [Oregon]." World-Wide Volkswagen, supra, 444 U.S. at 298, 100 S. Ct. at 567. Even though Hydraulic did not conduct any sales activities in Oregon itself, its business has been directly affected by sales transactions occurring here. To that extent, it has benefited from the protection which our laws have given to the marketing of Cessna aircraft containing its servo actuators. Gray v. American Radiator & Standard Sanitary Corp., 222 Ill. 2d 432, 176 N.E.2d 761 (1961). Hydraulic, having sold a product with the intention of deriving economic benefit from a national market, including Oregon, can expect to be hauled into court in Oregon when a product containing its allegedly defective servo actuator is purchased here and causes injury to a resident. The alleged *216 purchase in Oregon of the device which allegedly caused the injury is a substantively relevant forum-related fact, the absence of which caused a contrary result in State ex rel. Michelin v. Wells, 294 Or. 296, 657 P.2d 207 (1982). Exercise of personal jurisdiction in this circumstance does not offend due process and is therefore allowed by Rule 4. Finally, Hydraulic objects to Oregon's exercise of jurisdiction because the accident did not occur in Oregon. It may be that no court has yet exercised jurisdiction in this circumstance, but the issue is whether the contacts which do exist are sufficient, not whether some other type of contact is missing. Accordingly, where jurisdiction is based on purchase of products containing Hydraulic components in Oregon and injury therefrom to an Oregon resident, the site of the accident does not affect the otherwise constitutional sufficiency of the existing economic contacts.[5] The alternative writ is dismissed. [1] Although ORCP 4 L. also requires consistency with the Oregon Constitution, there is no contention that exercise of jurisdiction would violate the Oregon Constitution in this case. [2] Rule 4 L. is a codification of our earlier holding that Oregon's jurisdictional statute, former ORS 14.035, was intended to reach the outer limits of due process. State ex rel Academy Press v. Beckett, 282 Or. 701, 708, 581 P.2d 496 (1978). [3] The Council on Court Procedures, established by the legislature in 1977, modeled the present jurisdiction rules after the Wisconsin statute. F. Merrill, Jurisdiction over Parties; Service of Summons, in Oregon Law Institute, 1980 Oregon Civil Procedure Rules 230 (1979). See Wis. Stat. Ann. § 801.05 Revision Notes 1959 (West 1977). Apparently the drafters of the rule had two reasons in mind for including the more specific provisions. First, specifics would provide guidance for judges and attorneys. Second, in Kulko v. California Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978), the United States Supreme Court found it significant that California had not expressed a particularized state interest in the subject by enacting a jurisdictional statute. Id. 436 U.S. at 98, 98 S. Ct. at 1700. Thus, the drafters attempted to cover as many specific bases as possible so that in a close case Oregon could be said to have expressed a "particularized interest." See, F. Merrill, supra at 230-31. [4] Although World-Wide Volkswagen involved commercial distribution, manufacturers of components are clearly within the jurisdictional principles enunciated there. See, Gray v. American Radiator & Standard Sanitary Corp., 222 Ill. 2d 432, 176 N.E.2d 761, 766 (1961), where the Illinois Supreme Court stated that "if a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products." (Emphasis added.) This statement was adopted by the Supreme Court in World-Wide Volkswagen Corp., 444 U.S. at 298, 100 S. Ct. at 567. [5] Hydraulic's objection may pose a forum non conveniens problem when the accident occurred elsewhere, see State ex rel Academy Press v. Beckett, 282 Or. at 700, 581 P.2d 496, Linde, J., concurring, but it is not dispositive of the personal jurisdiction issue in this case. See Leflar, American Conflicts Law, p. 60 (3rd Ed. 1977).

e20a8e68ec64e84ad926bd4bc16312d07564d526b50e9a6270591e57730c06fb

1982-12-30T00:00:00Z

8c17d14e-a51f-4ac8-976c-ddc73f156830

Ellis v. Ellis

292 Or. 502, 640 P.2d 1024

oregon

Oregon Supreme Court

640 P.2d 1024 (1982) 292 Or. 502 Maynard K. ELLIS, Respondent on Review, v. Caroline Ann ELLIS, Petitioner on Review. CA 18634; SC 27942. Supreme Court of Oregon, In Banc. Argued and Submitted November 3, 1981. Decided February 10, 1982. *1025 Richard C. Houghton, Eugene, argued the cause and filed the petition and brief for petitioner. Robert L. Ackerman, Eugene, argued the cause for respondent. With him on the brief was Ackerman & DeWenter, Eugene. TANZER, Justice. This is an appeal from a denial of a father's motion to modify a 1967 decree of dissolution by declaring his oldest daughter emancipated and by granting him credit for support payments which came due since her emancipation.[1] Custody had been awarded to the mother and the father was ordered to pay $60 per child per month, "for support and maintenance of said children until each child shall be twenty-one (21) years of age, self-supporting, or otherwise emancipated from the home."[2] The trial court found that the daughter had become emancipated and it terminated *1026 the father's support obligation as to her effective on the date of filing of this motion. The father appealed, contending that his support obligation should have been terminated as of the date of the daughter's emancipation. The Court of Appeals held that regardless of when his support obligation terminated, the mother had "waived" her rights to support payments accruing subsequent to the date of the daughter's emancipation and modified the trial court order as requested by the father. We affirm the Court of Appeals, 629 P.2d 417, 52 Or. App. 671, but on different grounds. The parties' oldest child graduated from high school in June of 1978 and soon thereafter moved into her own apartment, became self-supporting, and established her own credit. The trial court found her to have become emancipated and the Court of Appeals found the time of emancipation to be November, 1978. After the child had moved out and become self-supporting, the mother notified both the father and the Department of Human Resources. The father, thinking his support obligation regarding the child was terminated, ceased paying child support for her. The mother advised the department that this was alright with her and, as a result, the department stopped billing the father for support for the child. The father commenced this proceeding in February of 1980 seeking a declaration that his support obligation for the child had terminated in November of 1978. Although the trial court found her to have been emancipated as of November, 1978, it ruled that it could terminate the father's support obligations only back to the date this proceeding was commenced because it viewed the relief as modification of the decree. The court concluded that, despite the literal terms of the initial support decree and the mother's acquiescence in the father's cessation of payments, the support obligations for the child had continued to accrue into final judgments outside of its powers under ORS 107.135(2) to grant relief. ORS 107.135(2), relating to the enforcement of support decrees, provides: The enactment in 1921 of what is now ORS 107.135, by giving unpaid support payments the status of final judgments as they accrue, removed from Oregon courts the power to retroactively modify them. Poe v. Poe, 246 Or. 458, 459-460, 425 P.2d 767 (1967); Shelley v. Shelley, 204 Or. 436, 283 P.2d 663 (1955); Forbes v. Jennings, 124 Or. 497, 503, 264 P. 856 (1928). ORS 107.135(2) is not applicable here because this case does not involve setting aside, alteration or modification of a decree. Despite the wording of the father's motion, it sought only for the court to declare the extent of the father's obligation under the decree as issued, not to modify the decree or the obligation. The authority of a court to order child support is governed by ORS 107.105(1)(b). The statute refers only to the "minor children" of the parties, a minor child being one under 18 years of age, ORS 109.510, not married, ORS 109.520, and not emancipated, see ORS 109.555.[3] The court *1027 may also order support for a "child attending school," defined as A child support order has no force past the child's period of minority, Mack v. Mack, 91 Or. 514, 517, 179 P. 557 (1919), and it has been held that a support obligation under the decree terminates when the child reaches either majority or an age set by the decree. See Jensen v. Jensen, 249 Or. 423, 438 P.2d 1013 (1968); Mallory and Mallory, 30 Or. App. 533, 535, 567 P.2d 1051 (1977); Cupp and Cupp, 28 Or. App. 593, 596, 560 P.2d 291 (1977); Clark, Law of Domestic Relations 513-514, § 15.3 (1968). A support order cannot lawfully require more than the underlying statutes require or authorize. The statutory limitations of a child support obligation inhere in the decree whether stated in the decree or not because those limitations circumscribe the court's authority to make such an order. Here, some statutory limitations are stated in the decree and some are not, but they all have effect. Because the trial court found that the child was "otherwise emancipated" as of November of 1978, then, under the terms of the initial decree, the father's support obligation for the child terminated at that time and any support instalments on her behalf ceased accruing. In sum, the decree only requires payment for the support of a minor child. There is no obligation under the decree to pay child support after the child is no longer minor. A judicial declaration that circumstances exist under which an obligation ceased to exist at a certain time does not "set aside, alter or modify" the decree in any respect; it merely describes the application of the decree in the circumstances. The dissent, relying on dicta in Forbes v. Jennings, suggests that the amount of a judgment based on accrued unpaid support should be capable of ministerial computation by reference to the face of the decree and the judgment docket, thus rendering extrinsic facts immaterial. The measurement of a decreed obligation cannot always be that simple. Fact-finding is sometimes necessary to determine the extent of any judgment which is based upon accrued periodic payments ordered by a decree. Numerous examples exist which affect the extent of a ripened judgment which do not appear on the face of the decree but which may be proved by one who seeks the benefit of establishing a nonapparent duration of a decree. For perhaps most obvious example, this court has held that a support obligation terminates upon the death of the obligor, Streight v. Streight, 226 Or. 386, 360 P.2d 304 (1961). That fact affects the number of accrued payments which comprise a judgment, but it requires proof outside the decree for there to be judicial cognizance of it. Similarly, if the decree were silent as to the birthdate of a child, then the terminal date for accrual of child support payments would be subject to proof. If a child were to die before reaching majority, no judgment would accrue thereafter and the obligor would be entitled to prove the fact of death to determine the extent of the judgment. That would also be true if a child reached majority by marriage or moved in or out of student status between the ages of 18 and 21 years. These examples demonstrate that *1028 a court may look to proof of facts extrinsic to the decree to determine the actual extent of a judgment based upon amounts accrued under a decree. To do so is to apply the decree to specific situations, not to diminish it. There is nothing inconsistent with this idea in Forbes v. Jennings, Poe v. Poe, or any other authority cited by the dissent.[4] Although the mother concedes that death of a child or, perhaps, its reaching of a certain age would automatically terminate an accruing obligation, she argues that a different rule should be applied when the obligor sets up an "emancipation" defense because such a defense will generally entail more difficult fact-finding. This distinction is unpersuasive. Emancipation may not be as clear-cut a fact as death or marriage, but that is not a reason for a different rule. Finally, much of the argument presented by the parties centered around equitable notions of estoppel and waiver, as was the Court of Appeals opinion. Given our determination that there were no such accruing instalments, we need not reach the father's equitable arguments. Affirmed. Costs to respondent on review. CAMPBELL, Justice, dissenting. I agree that a support order in a decree is only effective during the period of time that the child is a minor. However, I disagree that emancipation automatically changes the status of a child from a minor to an adult. I agree with the trial court that under ORS 107.135(2) it had no power to set aside the child support payments which had accrued as a final judgment prior to the time that the father filed his motion to modify the decree. I would therefore affirm the trial court. The majority in effect says the decree only requires payment for the support of minor children and there was no obligation by the father to pay the mother child support for the oldest child after November, 1978, because the trial court found the child to be emancipated and therefore no longer a minor.[1] Also to be considered is the rule that emancipation does not remove the disabilities of infancy or operate to make the child sui juris. 59 Am.Jur.2d Parent and Child § 93 at 193 (1971). I have been unable to find an Oregon case that defines "emancipation," but the language of ORS 109.550 to 109.565, passed by the 1977 legislature supports the proposition that emancipation does not automatically change the status of a minor child to an adult. ORS 109.550 reads: I do not contend that ORS 109.550 to ORS 109.565 controls this case. It is a statutory scheme wherein a juvenile court on written application of a minor may grant a decree of emancipation after notice to the parents. I claim only that the statutory language shows that a child who is emancipated does not lose its status as a minor and is therefore consistent with the general law on the subject. It seems clear in Oregon that when a court in a dissolution case declares a minor child to be emancipated because the child is self-supporting the child does not lose its status as a minor. Such a child would not acquire the right to vote. Or.Const. Art. II, sec. 2. It would still be a minor for the determination of conditions of employment. ORS 653.010. The consent of a parent or guardian would be required to obtain a marriage license. ORS 106.060. A person under 21 years of age can not purchase intoxicating liquor. ORS 471.105. A person under eighteen years of age is subject to the jurisdiction of the juvenile court and can only be tried in an adult court after a remand hearing. ORS 419.476, 419.533. All of these provisions of the law are based on age and not "emancipation." The best that can be said is that such a child is "emancipated" from receiving "support payments." In the 1967 divorce decree the father was ordered to pay to the mother a specific sum per month "for the support and maintenance of said children until each child shall be twenty-one (21) years of age, self-supporting, or otherwise emancipated from the home." In March, 1980, the father in a pleading entitled "MOTION FOR ORDER MODIFYING DECREE" moved the trial court for an order requiring the mother to appear and show cause why "the decree on file herein should not be modified in the following respects: * * * granting (father) credit for any unpaid child support obligations with respect to the minor child of the parties, Lissa Ellis, from the date of her emancipation * * *." The trial court found that the oldest daughter, Lissa, was emancipated and modified the decree by terminating the provision for her support as of March 31, 1980. The trial court held that under ORS 107.135(2) it did not have the power to give the father credit for support payments which were due prior to the filing of the motion to modify. In the words of the trial judge: "So any amounts that would be due, having gone to judgment, remain as a judgment." ORS 107.135(2), relating to the enforcement of support decrees, provides: The majority skates around the above statute by saying: Calling a horse a cow does not make it a cow. Likewise, by calling a motion for modification a motion for declaratory relief does not make it so. One of my disagreements with the majority over the application of ORS 107.135(2) centers on the meaning of the word "accrued." The majority claims that once the child in this case was in fact emancipated, the child support payments ceased accruing. The term "accrued" is used twice in the statute. Any installment or payment of money which has "accrued" prior to the motion to modify is a final judgment and the court does not have the power to modify the decree as to any support payment which has "accrued" prior to filing the motion. The dictionary definition of "accrued" is: "due and payable," "vested," and "matured." Black's Law Dictionary 37 (4th Edition 1951). The statute which became ORS 107.135(2) was enacted by the Oregon legislature in 1921. Prior to that time this court had held that an order to pay support was merely personal and created only an obligation in the nature of a debt and in the absence of an express order was not a lien upon the land of the obligor. Mansfield v. Hill, 56 Or. 400, 107 P. 471, 108 P. 1007 (1910). In the case of Forbes v. Jennings, 124 Or. 497, 503, 264 P. 856 (1928) Justice McBride explains why what is now ORS 107.135(2) was enacted: The law as to judgments was the same then as it is now. The judgment is docketed with the clerk, ORS 18.320, and is a lien upon any real property owned by the judgment debtor. ORS 18.350. The case of Forbes v. Jennings, supra, 124 Or. at page 504, explains further: It would seem clear that once the payment date for an installment of support money has passed and the amount has been docketed as a final judgment upon which execution could issue then the installment "is due and payable" and has "vested," "matured," and "accrued" within the meaning of ORS 107.135(2). This type of case is controlled by our previous ruling in Poe v. Poe, 246 Or. 458, *1031 459, 425 P.2d 767 (1967) wherein we referred to ORS 107.135(2): A judgment entered by a court that has jurisdiction of the parties and the subject matter is a final judgment. Lytle v. Payette-Oregon Irr. Dist., 175 Or. 276, 152 P.2d 934 (1944). If the mother in this case had elected to have an execution issued on the unpaid installments of child support that had been docketed as a judgment, how could the father defend? In 1971 the Oregon legislature enacted ORS 107.415, which provides: I agree with Judge Warren's dissent in Eagen and Eagen, 52 Or. App. 299, 628 P.2d 428 (1981) (modified on other grounds) 292 Or. 492, 640 P.2d 1019 (1981) that the apparent purpose of the above statute was to reinstate the power of the trial court to modify accrued support judgments in specific circumstances. I also agree with the Court of Appeals in Sullivan v. Sullivan, 21 Or. App. 382, 384, 534 P.2d 1178 (1975), wherein it said that the obvious reason for ORS 107.415 is to give the contributing parent an opportunity to move for a reduction of child support if that parent so desires. The 1971 legislature by enacting ORS 107.415, giving the trial courts the power to modify accrued child support judgments in certain specific circumstances, reaffirmed that the courts do not have the authority to modify those judgments under any other circumstances. In this case the mother gave the father notice in 1978 that the oldest daughter Lissa was self-supporting. This notice complied with ORS 107.415. The father elected not to file a motion to modify the decree based on a change of circumstances under ORS 107.135(1) until March, 1980, when he asked that the divorce decree be modified to give him credit for the unpaid child support payments for November, 1978 through March, 1980. Those accrued payments have been docketed as final judgments and cannot be deleted or modified. ORS 107.135(2). To support its theory in this case the majority has to be claiming that the judgment is conditional and self-executing. That is, the judgment is conditioned upon the fact that the child needs support and that when the child is emancipated the support payments automatically terminate. I disagree with the proposition that the judgment is self-executing. These are questions of fact which should be decided by the court. The mother provided the father with the notice required under ORS 107.415. Then the father should have the burden of going forward by way of a motion to modify the decree to determine the facts. It is the father who stands to gain by the modification of the decree. Under ORS 107.135(2) the court cannot modify the decree as to any support payments that have accrued prior to filing the motion. It is important in the day to day functions of the trial courts, clerks of the court, district attorneys, the Department of Human Resources and the Support Division of the Department of Justice that the judgment records in child support cases reflect the correct amounts and are not subject to "after the fact" modifications by some court-made rule. *1032 The majority in this case is straining to correct what it thinks is an inequitable decision by the trial court. The apparent inequity results from the fact that the mother told the Department of Human Resources that it was all right for the father to quit making child support payments. A court of equity cannot disregard the clear meaning of ORS 107.435 and ORS 107.415 to correct an apparent injustice. Scoggins v. State Construction, 259 Or. 371, 375, 485 P.2d 391 (1971). Whether or not the mother has a right to collect the accrued child support payments in this particular case should be determined by the law of waiver or estoppel. That is the basis upon which the Court of Appeals determined the case. 52 Or. App. 671, 629 P.2d 417 (1981). I do not mean to infer that I necessarily agree with the result reached by the Court of Appeals. [1] The father moved for similar relief regarding the parties' younger daughter which was denied upon a finding that she was not emancipated. We have no reason to review that finding and on review we reach no issue regarding this obligation. The mother has made no contention under Cooper v. Matheny, 220 Or. 390, 392, 349 P.2d 812 (1960), perhaps because the decree orders support for each child rather than for both. Our references to a child are to the older child only. [2] In 1973, the legislature changed the age of majority from 21 to 18. Or. Laws 1973, ch. 827, § 14. The uncodified § 84 of that Act exempted certain things from its operation. Pertinent here are subsections (2)(a) and (b): "(a) Nothing in this Act affects * * * an order, decree or judgment entered, a right accruing, accrued or acquired, or a liability, duty or obligation incurred, before the effective date of this Act, under the law then in effect. "(b) A reference to majority, minority, age of majority or words of similar intent in an order, judgment or decree entered before the effective date of this Act shall be considered to be to the age of majority in effect when the order, judgment or decree was entered." Therefore, for purposes of adjudicating the scope of this decree, we take 21 as the age of majority. [3] Courts generally exercise their authority to recognize the fact of emancipation, see Annot., Minor Implied Emancipation, 165 ALR 723 (1946). This court has done so in the context of determining whether a son's assets are available for the obligations of a parent. In Flynn v. Baisley, 35 Or. 268, 273, 57 P. 908, 45 A.L.R. 645 (1899), we held that emancipation could be found from circumstantial evidence: "A writing is unnecessary to evidence the emancipation of an infant, it having been held that his liberation may be established by direct evidence or implied from circumstances: [citations omitted] Nor is it necessary that the infant should abandon his home, or turn his parent out of doors, to afford proof of the latter's relinquishment of his earnings. * * *" The legislature has provided a procedure whereby a minor can petition for a declaration of emancipation. The statutes specify that an effect of such a declaration of emancipation is to terminate the parent-child support obligation. ORS 109.555(1)(b) and 109.010. Here, too, a judicial finding of the fact of emancipation implies that the support-dependency relationship of father and child has ended. It is true, as the dissent states, that neither the emancipation statute nor this proceeding affect minimum voting or drinking ages. Statutory requirements for those acts have no legal relevance to emancipation and parental obligations in the context of judicial enforcement of a support order. [4] The dissent also relies upon inferences drawn from ORS 107.415 which requires a custodial parent to notify a noncustodial supporting parent if a child earns income, marries or enters military service, and provides judicial authority to require "restitution" for "money paid" after a failure to provide such information. By its terms, the statute provides a means for the "restitution" by way of judgment or satisfaction of "money paid" in ignorance of those facts. Although some of the wording of subsection (2) may be ambiguous as to underlying legal assumptions, ORS 107.415 does not purport to govern whether a judgment continues to accrue when the obligation ceases to exist. [1] The Court of Appeals in its opinion found the oldest girl, Lissa, to be emancipated as of November, 1978. 52 Or. App. 671, 674, 629 P.2d 417 (1981). In footnote 2 the Court of Appeals said: "This is the date (November, 1978) Lissa moved into her apartment. Because of the disposition it made of the case, the trial court was not required to set the date of Lissa's emancipation."

8d102bd15c41f587f6e8fdbc4028feb5848ce639713d154ee5548eb2656464c8

1982-02-10T00:00:00Z

5439522f-15ff-432b-b7e3-0fa7e7d55373

Johnson v. Department of Revenue

292 Or. 373, 639 P.2d 128

oregon

Oregon Supreme Court

639 P.2d 128 (1982) 292 Or. 373 Arthur JOHNSON, Clatsop County Assessor, Plaintiff-Respondent, v. DEPARTMENT OF REVENUE, Defendant, John M. Foster, Intervenor-Appellant. Tax Court No. 1334; SC 27708. Supreme Court of Oregon. Argued and Submitted November 2, 1981. Decided January 19, 1982. *129 Jeanyse R. Snow, Astoria, argued the cause and filed the briefs for intervenor-appellant. With her on the briefs was Robert C. McDonald, Astoria. William T. Park, Warrenton, argued the cause and filed the brief for plaintiff-respondent. Mary J. Deits, Asst. Atty. Gen., Salem, filed an amicus curiae brief for the Division of State Lands. With her on the brief were Dave Frohnmayer, Atty. Gen. and Ted E. Barbera, Asst. Atty. Gen., Salem. Before DENECKE, C.J., and TONGUE, LENT, LINDE, TANZER and CAMPBELL, JJ. *130 CAMPBELL, Judge. This is an appeal from a Tax Court decision finding certain submerged[1] and submersible[2] lands owned by the State of Oregon and leased to intervenor-appellant John M. Foster subject to ad valorem property taxation by Clatsop County. Intervenor-appellant John M. Foster attacks plaintiff Clatsop County assessor's assessment on the ground that it is contrary to the legislative intent in enacting ORS 307.110, providing for taxation of state-owned lands leased to taxable individuals, and on the ground that it violates the Oregon Constitution Article VIII, section 5. The Clatsop County Board of Equalization affirmed the assessor's action.[3] The Department of Revenue allowed intervenor's petition for review and issued an order requiring removal of the subject lands from the tax rolls. The Tax Court set aside the Department of Revenue's order.[4] `Our review of the Tax Court's decision is pursuant to ORS 305.445. The subject property is part of a parcel totalling approximately 78,408 square feet located in Astoria, Clatsop County, Oregon. The parcel is made up of approximately 5,490 square feet of dry land and 72,918 square feet of submerged or submersible land. Intervenor is the owner in fee simple of the dry land. The submerged or submersible land is owned by the State of Oregon. The Division of State Lands, as agent for the State Land Board, leased 36,155 square feet of the state's submerged or submersible land to intervenor for a 20 year term beginning August 1, 1976. Intervenor is obligated under the lease to pay any taxes due on the land. The county assessor assessed and taxed the entire parcel in intervenor's name for the year 1977-78. The statute at issue in this case is ORS 307.110, which provides: Intervenor challenges the application of ORS 307.110 to his lease of state-owned submerged or submersible lands on two grounds. First, intervenor argues that principles of statutory construction must be applied to ORS 307.110 to effectuate the policy underlying the statutory scheme, namely, maximization of the common school fund. Second, intervenor challenges the validity of ORS 307.110 under the Oregon Constitution Article VIII, section 5, requiring that common school funds be managed with "the object of obtaining the greatest benefit for the people of Oregon." The general rule of ORS chapter 307 is that all real and tangible personal property in Oregon is subject to assessment and taxation in equal and ratable proportions. ORS 307.030. This rule is subject to exceptions where otherwise provided by law. Other provisions exempt property of the United States, mining claims, property of the state, counties and other municipal corporations, property of nonprofit corporations held for certain public purposes, property owned by municipalities, dock commissions or ports, property of forest protection agencies, and certain other property when used for specified purposes. See ORS 307.040 .090; 307.115 .705. If property is leased by an exempt institution, organization or public body to another exempt institution, organization or public body, the latter is also exempt. ORS 307.166. Several exceptions are provided to these exemptions, among them ORS 307.110, providing that public property leased to a taxable private owner is subject to tax. Other exceptions are provided in ORS 307.095, regarding state-owned property leased to private individuals for parking, and ORS 307.100, regarding public property sold to private individuals under contract. The policy underlying exemptions from taxation is made clear by a close reading of these sections. When property is used for a public purpose, it is exempt from taxation. Where, however, public property is put to some private use, whether by lease or sale, the policy underlying exemption from taxation no longer applies. Because the legislative intent is clear regarding taxation of state-owned, leased property, we do not see the need for invoking any rules of construction to shed light on the legislative intent. School District No. 1, Multnomah County v. Bingham, 204 Or. 601, 283 P.2d 670, 284 P.2d 779 (1955). The only rule of construction applicable to this case is the one which requires exemptions from taxation to be express. Allen v. Multnomah County, 179 Or. 548, 173 P.2d 475 (1946); State Land Board v. Campbell, 140 Or. 196, 13 P.2d 346 (1932). There is no exemption provided in the Oregon statutes for intervenor's leased land. On the contrary, ORS 307.110 expressly subjects his leased land to taxation. Intervenor's land is therefore subject to taxation in accordance with the plenary power of the legislature in the area of taxation, except insofar as that power is limited by the Oregon Constitution or the United States Constitution. State ex rel. Overhulse v. Appling, 226 Or. 575, 585, 361 P.2d 86 (1961). The federal constitutional issue is not before us in this case. Intervenor alleges that ORS 307.110 violates the Oregon Constitution Article VIII, section 5, which provides: We review the history of this section to aid in our interpretation of it. Prior to the 1968 constitutional amendments, the sections of Article VIII pertinent to this discussion provided as follows: These sections dedicated certain lands to the common school fund and narrowly restricted the use of proceeds and interest derived from such lands. The words "exclusive" and "irreducible" mandated that all funds from the constitutionally dedicated lands be used only for the maintenance of schools. Any other use would clearly be unconstitutional. Taxation of such lands was not allowed. Eagle Point Irrigation District v. Cowden, 137 Or. 121, 1 P.2d 605 (1931). See State ex rel. Sprague v. Straub, 240 Or. 272, 279, 400 P.2d 229, 401 P.2d 29 (1965); 23 Op.Atty. Gen. 400 (1948). It is notable that the submerged and submersible lands at issue in this case are not "constitutionally dedicated lands" under the pre-1968 version of section 2. Submerged and submersible lands are not within any of the listed categories in that section, since they were not "granted" to this state, but rather vested in the state of Oregon on her admission to the Union as a result of the equal footing doctrine and are statutorily dedicated to the common school fund by ORS 273.105(3).[5] The equal footing doctrine provides that, since the original thirteen states were vested with title to such lands from the English crown upon formation of the Union by virtue of their sovereignty, all states subsequently joining the Union were to be similarly vested. United States v. Texas, 339 *133 U.S. 707, 716, 70 S. Ct. 918, 922, 94 L. Ed. 1221 (1949); Pollard's Lessee v. Hagan, 3 How. 212, 11 L. Ed. 565 (1845). See also ORS 274.025;[6]State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S. Ct. 582, 50 L. Ed. 2d 550 (1977), on remand, 283 Or. 147, 582 P.2d 1352 (1978). Thus, even before the constitutional amendments in 1968, sections 2 and 5 would not necessarily restrict the use of funds deriving from state lands other than those listed in section 2. The 1968 amendments to the Oregon Constitution, however, radically changed the operation of sections 2 and 5. Sections 2 and 5, as amended, provide: The purpose of the 1968 constitutional amendment to Article VIII was to authorize the State Land Board to expend moneys in the common school fund to carry out its land management activities. The preamble to HJR 7 stated: For example, the minutes of the Ways and Means Committee, May 12, 1967, show that HJR 7 was intended to allow the State Land Board to improve ranges in eastern Oregon, and to give it authority to set up leases and receive rental moneys such as the Bureau of Land Management was at that time doing. In the House State and Federal Affairs Committee hearings on HJR 7, February 6, 1967, there was testimony to the following effect: Clearly, then, after amendment of Article VIII, there was no longer a requirement that proceeds of common school lands be used "exclusively" for educational purposes. This change rendered all previous cases, including advisory opinions such as the attorney general opinion cited, supra, inapplicable. Section 5, as amended, calls for the formation of the State Land Board to dispose of and manage lands described in section 2, and also lands owned by the state placed under the State Land Board's jurisdiction by law. The powers and duties of the Land Board were and are to be prescribed by law. Section 5(2) contains the requirement that such lands be managed with the object of obtaining the greatest benefit for the people of Oregon. Reading this provision according to its most plain and practical meaning, and consistently with the legislative history, the determination of the proper use of common school funds is a legislative one, subject to the overall requirement that the use have as its goal the greater public benefit. All investments have inherent transaction costs, for example, the costs necessary to leasing include attorney's fees for drafting of lease agreements. The goal imposed by section 5(2), amended to take into account such costs, requires the State Land Board, and the legislature as supervisor, to use lands dedicated to the common school fund in such a way as to derive the greatest net profit for the people of this state. This requirement does not imply that persons supplying services to state-owned land merit no compensation. Just as a lawyer merits his fee for drafting a lease, so a county merits tax revenues for general services it provides to privately leased state lands. Intervenor argues that ORS 307.110 violates the constitutional objective articulated in Article VIII, section 5 in that it imposes the burden of taxation on the land, including the state's reversionary interest, rather than on the lessee. Intervenor argues that a comparison of ORS 307.110 with ORS 307.060, allowing taxation of federally owned land under lease to private parties, illustrates the distinction rendering ORS 307.110 unconstitutional. We do not agree. ORS 307.060 provides that federally owned land held under lease by any person shall be taxed according to its full true cash value subject to deduction for restricted use, and that any lien for tax attaches only to the leasehold interest. ORS 307.110(4) applies general lien law to "all real property subject to the provisions of this section." Both provisions, however, impose a tax on publicly owned, leased land to the extent of its true cash value. ORS 307.060 in fact uses the term "full true cash value," whereas ORS 307.110 uses only "true cash value." Taxation based upon property's true cash value does not invalidate these statutes. Sproul v. Gilbert, 226 Or. 392, 359 P.2d 543 (1961). Because ORS 307.110 provides for taxation of "all real property of this state ... held under lease," and because ORS 307.110(4) makes general lien law applicable, we conclude that the tax is assessed upon the full property value, but the lien resulting from tax is enforceable only against the leasehold interest. *135 The same result is obtained in ORS 307.060 by using the word "full" and by making the extent of the lien express. The Oregon lien laws, naturally enough, do not provide for liens against the state, since state-owned lands are not taxable. There are, however, provisions addressing leased land under ORS 307.110. See ORS 311.405; 311.410. In sum, there is no possibility that a lien could be imposed on the common school fund in the event that a lessee failed to pay taxes due. In Sproul v. Gilbert, supra, this court cited United States v. Detroit, 355 U.S. 466, 78 S. Ct. 474, 2 L. Ed. 2d 424 (1958) for the proposition that the prohibition on direct taxation of the federal government "does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government." We agree. We hold that ORS 307.110 does not violate the Oregon Constitution Article VIII, section 5. Affirmed. TONGUE, Judge, dissenting. I dissent for the reasons stated in the Opinion and Order of the Department of Revenue dated March 27, 1979. [1] ORS 274.005(7) defines submerged lands as follows: "(7) `Submerged lands,' except as provided in ORS 274.705, means lands lying below the line of ordinary low water of all navigable waters within the boundaries of this state as heretofore or hereafter established, whether such waters are tidal or nontidal." [2] ORS 274.005(8) defines submersible lands as follows: "(8) `Submersible lands,' except as provided in ORS 274.705 means lands lying between the line of ordinary high water and the line of ordinary low water of all navigable waters and all islands, shore lands or other such lands held by or granted to this state by virtue of her sovereignty, wherever applicable, within the boundaries of this state as heretofore or hereafter established, whether such waters or lands are tidal or nontidal." [3] A county board of equalization is not empowered to rule on property exemption questions. University v. Multnomah County, 31 Or. 498, 50 P. 532 (1897). [4] The Tax Court did not expressly find that the state-owned, unleased land was tax exempt. Pursuant to ORS 307.090, such land is expressly exempted from local taxation. Therefore the Clatsop County Assessor had no authority to assess the state-owned unleased land. [5] ORS 273.105(3) provides: "All other moneys received by the Division shall be credited to the Common School Fund." [6] ORS 274.025 provides: "(1) The title to the submersible and submerged lands of all navigable streams and lakes in this state now existing or which may have been in existence in 1859 when the state was admitted to the Union, or at any time since admission, and which has not become vested in any person, is vested in the State of Oregon. The State of Oregon is the owner of the submersible and submerged lands of such streams and lakes, and may use and dispose of the same as provided by law. "(2) No person shall acquire any right, title or interest in or to the submersible and submerged lands of any such navigable lakes, or any part thereof, by reliction or otherwise, or by reason of the lowering or drainage of the waters of such lakes, except as provided by statute. [Formerly 274.420]."

eac9b8c7bab7812479bf25ac2e0ff8bf3c8106f096e430cd42cffabd5dc2e7a8

1982-01-19T00:00:00Z

bd5aedf6-33ec-4c4b-aa9f-99913b34bc39

Christie v. Paulus

292 Or. 344, 638 P.2d 478

oregon

Oregon Supreme Court

638 P.2d 478 (1982) 292 Or. 344 John CHRISTIE and George H. Schroeder, Petitioners, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent. SC 28309. Supreme Court of Oregon, In Banc. Submitted on Petition and Memorandum December 21, 1981. Decided January 5, 1982. David A. Rhoten, Salem, filed petition to review ballot title for petitioners. With him on the petition was Rhoten, Rhoten & Speerstra, Salem. Dave Frohnmayer, Atty. Gen., Salem, filed answering memorandum to petition for respondent. With him on the memorandum were Stanton F. Long, Deputy Atty. Gen., William F. Gary, Sol. Gen., John A. Reuling, Jr., Chief Counsel, Opinion Section, Salem, and Max Rae, Law Clerk. PER CURIAM. Petitioners challenge a ballot title prepared for respondent Secretary of State by the Attorney General. Upon a petition stating that a proposed ballot title is "insufficient or unfair," ORS 250.085, this court must review the title and certify to the Secretary of State a title "which meets the requirements of ORS 250.035." That section provides: The ballot title at issue concerns a proposed initiative measure to amend the statutes governing the State Forestry Department. The amendments would change existing law in several respects. The State Forester, who presently is appointed by and serving at the pleasure of the State Board of Forestry, would be appointed by the Governor *479 subject to confirmation by the Senate. Or.Const. art. III, § 4. The composition of the Board of Forestry would be changed from 18 members drawn from the forest products industry in different regions of the state or "recommended by" certain interest groups to nine members, three from industry and six "chosen to represent the general public."[1] Instead of its present authority to "supervise all matters of forest policy and management," ORS 526.016, the board would "establish policy, to be implemented by the State Forester, for the propagation, protection and enhancement of the forests of this state," but expressly excluding "the sale of forest products." Also, the proposed measure would add a statutory formula for the sale of forest products from each of four specified "forest management regions" annually "on a sustained yield basis with the primary goal of producing economic stability in each region." The Attorney General certified the following ballot title and caption for the proposed measure: Petitioners propose the following alternative ballot title and caption: Petitioners main criticism of the draft certified by the Attorney General is that it "distorts the provisions and text of the proposed measure" by overstating some provisions, particularly by placing undue emphasis on the "sustained yield provision."[2] They argue that this provision is overemphasized because the present State Forestry Board has existing, somewhat different, policies concerning "sustained yield" on most of the state's forest lands, although these are not imposed by a statute. It is plainly impossible to set out both the changed timber sale policy and the changes in the administrative structure fully in the *480 ballot title. Petitioners' challenge calls upon us to make two judgments: (1) whether some of the changes represent a greater departure from existing law than others, and (2) which changes are more important than others. These are judgments, not of accuracy or clarity, but of the relative weight and importance of different policy changes. They involve questions about the future effect of the measure, such as whether the board would retain or change its timber sale policies, whether the result would be different from the proposed statutory policy, and whether the State Forester would follow different policies made by the restructured board from those he follows under the supervision of the board as presently constituted. These questions are not well suited for resolution under the assignment given this court by ORS 250.085. They are the responsibility of the Attorney General in the first instance. Where reasonable minds can differ about the relative importance of reorganizing the Department of Forestry on the one hand and placing a specified timber sale policy into law on the other hand, there is no reason to disturb his judgment on those issues. A sentence-by-sentence comparison of the Attorney General's draft and the alternative proposed by petitioners shows that the main, though not the only, difference is in the sequence of propositions. For the reason stated, we will not substitute our judgment for that of the Attorney General about the relative importance of these propositions. One other difference is that the Attorney General's ballot title states that the measure "requires sustained yield management of state timber," and petitioners' alternative would state that the measure "changes sustained yield policy." The Attorney General's version is a correct statement. The alternative may also be a correct statement when the proposed measure is compared with the present board's current policy, as the explanation of the measure would state; however, the proposed alternative title could be read to imply that the measure changes a statutory policy, which it does not. We see no reason to substitute the alternative for the Attorney General's title. Accordingly, we certify to the Secretary of State the ballot title and caption prepared by the Attorney General. [1] Cf. Megdal v. Board of Dental Examiners, 288 Or. 293, 307, 605 P.2d 273 (1980). [2] Petitioners also cite ORS 250.055, which provides: "For state measures, the Secretary of State by rule shall designate a test of readability and adopt a standard of minimum readability for a ballot title. The ballot title shall comply with the standard to the fullest extent practicable consistent with the requirements of impartiality, conciseness and accuracy." ORS 250.085 does not make compliance with the Secretary of State's rule a ground for this court's changing a ballot title unless the challenged draft is "insufficient or unfair."

f8e7c30d8d353377b2776bfac98623a0b4c7316912ebd05b15ab67ecd7ef323e

1982-01-05T00:00:00Z

baf98e0c-9270-49e1-9684-94892345cfb7

Sandford v. Chevrolet Div. of General Motors

642 P.2d 624

oregon

Oregon Supreme Court

642 P.2d 624 (1982) 56 Or.App. 590 Mildred SANDFORD, Petitioner On Review, v. CHEVROLET DIVISION OF GENERAL MOTORS AND FRIENDLY CHEVROLET COMPANY, a Corporation, Uniroyal, Inc., a Corporation and the Tire Factory, an Oregon Corporation, Respondents On Review. TC A7707-10270; CA 15458; SC 27927 & 27905. Supreme Court of Oregon. Argued and Submitted November 4, 1981. Decided March 16, 1982. Rehearing Denied May 4, 1982. Raymond J. Conboy, Portland, argued the cause for petitioner on review. With him on the petition for review was Dan O'Leary, Portland, John S. Stone, and Pozzi, Wilson, Atchison, Kahn & O'Leary. I. Franklin Hunsaker, Portland, argued the cause for respondent on review. With him on the respondents' brief were Darrel L. Johnson and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland, for respondent The Tire Factory, Howard F. Harrison, Newport Beach, Cal., for respondent *625 Uniroyal, Inc. and Frank Bosch, Joss & Bosch, Portland, for respondent Uniroyal, Inc. Before DENECKE, C.J., and TONGUE[*], LINDE, PETERSON, TANZER and CAMPBELL, JJ. LINDE, Justice. Plaintiff suffered extensive burns when a pickup truck that she was driving overturned and caught fire. She brought an action for damages against a number of defendants in which she alleged, among other things, that the accident was caused by a defective tire manufactured by defendant Uniroyal, Inc., and mounted on the truck by The Tire Factory. The defendants filed answers alleging that plaintiff's own negligence caused her injuries. Over plaintiff's objections, the trial court submitted these allegations to the jury with instructions to reduce or deny plaintiff's damage claim if plaintiff's injuries resulted in part or predominantly from her own fault. The jury found defendants Uniroyal, Inc. and The Tire Factory at fault to the extent of 55 percent and plaintiff to the extent of 45 percent and awarded plaintiff a corresponding fraction of her total damages. The Court of Appeals reversed. It held that a recovery of damages for injuries caused by a defective product is not barred or reduced by plaintiff's ordinary contributory negligence under Oregon's proportionate fault statute, ORS 18.470. The court also remanded the case for a new trial because the trial court denied a defense motion to poll the jury. 52 Or. App. 579, 629 P.2d 407 (1981). We allowed review in this case and in Wilson v. B.F. Goodrich, 52 Or. App. 139, 627 P.2d 1280 (1981), also decided today, primarily to decide whether and how the proportionate fault law applies when a dangerously defective product and a plaintiff's negligence together resulted in the plaintiff's injuries. Because it appeared that the question how negligence could be matched against products liability would bear on whether it was meant to be so matched in fixing damages, the Court addressed specific questions on that subject to the parties.[1] Legal developments before the enactment of the present ORS 18.470 in 1975 can be briefly summarized. This court recognized a tort action for injuries caused by a dangerously defective product in a series of cases beginning with Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967). In 1971, the Legislative Assembly enacted the first version of ORS 18.470 as a comparative negligence statute.[2] In 1973, the court *626 held that recovery on a products liability theory was not barred by a plaintiff's negligence in failing to discover the defect or to take precautions against its possible existence, as distinct from unreasonably using a product known to be defective. Findlay v. Copeland Lumber Co., 265 Or. 300, 509 P.2d 28 (1973) (citing Restatement of Torts 2d, § 402 A, comment n). The question in Findlay was whether contributory negligence, either of the ordinary kind or of the type sometimes characterized as implied assumption of the risk, was a complete defense to a strict products liability claim. There was no occasion to consider ORS 18.470, which by its terms applied only to negligence actions. A later decision enumerated the elements of assumption of the risk that would make out such a complete defense. Johnson v. Clark Equipment Co., 274 Or. 403, 547 P.2d 132 (1976).[3] After the decision in Findlay, the 1975 legislature made two significant changes in the relevant law. ORS 18.470 was amended to read: The same chapter of the 1975 laws also enacted ORS 18.475, which abolished the "doctrines" of "last clear chance" and "implied assumption of the risk."[4] Or. Laws 1975, ch. 599. We reviewed the foregoing developments and the legislative history of the 1975 amendment in Baccelleri v. Hyster Co., 287 Or. 3, 597 P.2d 351 (1979), in which a forklift truck which lacked an automatic warning signal had backed over the legs of a kneeling worker. A verdict for defendant was reversed because the trial court erroneously submitted a defense of assumption of the risk to the jury. This court went on to state that on a possible retrial, the conduct of the injured worker that was charged as an implied assumption of the risk might instead be a form of contributory negligence to be pleaded and compared as "fault" for purposes of the amended proportionate fault statute, ORS 18.470. Uncertainty about the comparison of "fault" in products liability cases was not wholly laid to rest by Baccelleri v. Hyster Co., supra. Some doubts about the reach of ORS 18.475 remained because Baccelleri dealt with alleged contributory negligence of a kind that defendant had characterized as "implied assumption of the risk." The decision therefore held only that "conduct which was sometimes labeled assumption of the risk but which is a subspecies of contributory negligence can be compared in the apportionment of damages," 287 Or. at 10, 597 P.2d 351, and that "comparative fault is applicable to strict liability in tort;" but it did not reach the question whether defendant had shown "that kind of contributory negligence which can qualify as comparative fault in a strict liability case." 287 Or. at 12, 597 P.2d 351. The Court of Appeals, faced with this limited guidance, read Baccelleri as extending proportionate fault in products liability cases only to the kind of conduct by plaintiff that previously had been raised as a defense in Findlay v. Copeland and Johnson *627 v. Clark Equip. Co., supra, under the rubric "assumption of the risk," Holdsclaw v. Warren & Brewster, 45 Or. App. 153, 607 P.2d 1208 (1980), and it followed that holding in the present case. Upon careful consideration of the 1975 legislation, however, we conclude that the legislation did not so confine the "fault" on the part of plaintiff to be compared with defendant's "fault," when each was a cause of the injury. A comparison of ORS 18.470 before and after the 1975 amendment, quoted above, shows the following changes. First, the 1971 version stated that "[c]ontributory negligence, including assumption of the risk," was not to bar recovery in a negligence action if it "was not as great as the negligence of the person against whom recovery is sought," but plaintiff's damages should be "diminished in the proportion to the amount of such negligence." The 1975 amendment removed the words "including assumption of the risk" from the reference to the "contributory negligence" that was no longer to be a bar. Standing alone, the change might suggest that implied assumption of the risk was once again to bar recovery, although contributory negligence would not. The context and the legislative history, however, show the contrary. More plausibly, the reference to "assumption of the risk" was deleted from ORS 18.470 because the 1975 act abolished the "doctrine of implied assumption of the risk" altogether. ORS 18.475, supra. Far from reintroducing a distinction between the terms "assumption of the risk" and "contributory negligence," the explanations accompanying the bill stated that "contributory negligence" in the statute should be "broadly construed" to include assumption of the risk in the form of unreasonably proceeding to encounter a known danger, which henceforth should be treated like any other contributory negligence. See the sources quoted in Baccelleri v. Hyster Co., 287 Or. at 10, 597 P.2d 351. Second, the 1975 amendment replaced the reference to an action for "damages for negligence resulting in death or injury to person or property" with one to recover "damages for death or injury to person or property" without limitation to negligence actions. Third, it substituted a comparison of the parties' relative "fault" for their relative "negligence," and also substituted the combined fault of several defendants for the previous reference to a single defendant. Fourth, it cut off the defense of contributory negligence when the injured claimant's fault was "not greater than" that of the defendants' fault rather than when it was "not as great." Fifth, it specified that the "proportion" of the claimant's fault be stated as a "percentage of fault." It left unexplained, however, of what total entity the claimant's fault is to be stated as a percentage. Nor did it provide that this percentage was to be compared with a percentage of fault attributable to defendants. Indeed, the words "compare" or "comparison" do not appear in the statute, which speaks only of diminishing a plaintiff's recovery "in the proportion" of plaintiff's fault. Finally, the amendment added the closing sentence that ORS 18.470 "is not intended to create or abolish any defense." Removal of the prior reference to negligence actions and substitution of relative "fault" for "negligence" in the allocation of damages extended the principle of proportional fault on both sides to fault other than negligence. As we held in Baccelleri, this included products liability, where the defendants' "fault" lies in putting a dangerously defective product on the market.[5]See Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (1974). Nonetheless, the legislative drafters of ORS 18.470 left some textual puzzles.[6] One of these is the *628 effect of the final assertion that ORS 18.470 "is not intended to create or abolish any defense." As previously stated, prior to the 1975 amendments the Findlay and Johnson opinions, supra, recognized a defense to products liability when the injured party had unreasonably proceeded to encounter a known danger from the defect, a form of conduct which implicitly assumed the risk of injury posed by the known defect. Was ORS 18.470 "not intended to ... abolish" this existing defense? A contrary conclusion emerges from the 1975 amendments as a whole and the apparent thrust of the somewhat self-contradictory explanations that accompanied its enactment. As far as the statutory text is concerned, implied assumption of the risk was in fact abolished as a defense, not by the 1975 amendment of ORS 18.470, but by section 4 of the same act, which became ORS 18.475, supra note 3. After that enactment, implied assumption of the risk had no further place in Oregon law as a separate "doctrine" for use in pleadings, motions, jury instructions, or findings. See Hornbeck v. Western States Fire Apparatus, 280 Or. 647, 572 P.2d 620 (1977), Thompson v. Weaver, 277 Or. 299, 560 P.2d 620 (1977). But this did not foreclose a claim that, quite apart from that doctrine, the conduct of an injured party who previously might be said to have assumed the risk also was negligent under conventional negligence principles. This is how we understand the statement of Representative Frohnmayer, quoted in Baccelleri v. Hyster Co., 287 Or. at 9, 597 P.2d 351, that "the form of assumption of the risk in which plaintiff voluntarily and unreasonably encounters a known risk ... is unaffected by Section 5 and should be pled as contributory negligence."[7] It is, however, impossible to square this analysis with the conclusion that only such contributory negligence as previously constituted implied assumption of the risk should be considered "fault" in a products liability case, as the Court of Appeals held. That would have the same statute which abolished implied assumption of the risk in one section revive it as a test of proportional fault in another section. We conclude, therefore, that an injured person's conduct which in fact was a cause of her injury and which constitutes a "fault," including negligence, is to be considered in a products liability action, unless the user's alleged negligence consists in the kind of unobservant, inattentive, ignorant, or awkward failure to discover or to guard against the defect that goes toward making the product dangerously defective in the first place. A second problem posed by the statute is the question exactly what is to be assessed in determining the "percentage of fault attributable to the person" seeking recovery, and whether that person's fault was "greater than the combined fault of the person or persons against whom recovery is sought." The question has puzzled commentators as well as courts. At least three views are possible. A. Quantifying "fault." The first is that the formula calls upon the factfinder to assess the relative magnitude of the parties' respective "fault." As stated by a leading textbook on these laws: The process is not allocation of physical causation, which could be scientifically apportioned, but rather of allocating fault, which cannot be scientifically measured." Schwartz, Comparative Negligence 276 (1974). It has been recognized that fault is an evaluation that does not lend itself to quantification, so that a comparison of fault magnifies the subjective elements already intrinsic to the *629 ordinary judgment of negligence.[8] This is true even in assigning proportions to two or more distinct types of negligence, but critics have found a greater theoretical obstacle when the responsibility of one party is grounded in fault other than negligence, or in no fault at all.[9] The obstacle is greater where strict products liability is explained as a device for spreading losses from economic activity regardless of fault, but this court early disavowed that explanation, at least in the absence of legislation. See Phillips v. Kimwood Machine Co., supra, 269 Or. 485, 503, 525 P.2d 1033, Markle v. Mulholland's, Inc., 265 Or. 259, 264-265, 509 P.2d 529 (1973), Wights v. Staff Jennings, 241 Or. 301, 309-310, 405 P.2d 624 (1965). We have said that the "premise of responsibility has settled on strict liability for marketing the dangerously defective product, a premise stricter than negligence but less than absolute liability." Russell v. Ford Motor Co., 281 Or. 587, 594, 575 P.2d 1383 (1978). Whether the "fault" in products liability inheres in the defective product or in the act of placing it on the market, however, difficulties of comparison with the injured party's fault undeniably remain.[10] B. "Comparative causation." Some courts, applying comparative negligence law to products liability under statutes different from ours or under no statute, have tried to escape the difficulty by stating that the allocation of damages is to reflect relative causation, that is to say, an assessment of the proportion in which the plaintiff's injuries were caused by the product defect on the one hand and by plaintiff's own negligence on the other. See, e.g., Murray v. Fairbanks Morse, 610 F.2d 149 (3rd Cir.1979) (applying Virgin Islands comparative negligence statute) and cases cited at 159-160; Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co., 565 F.2d 1129 (9th Cir. *630 1977) (admiralty law). They have done so in the belief that this is conceptually more logical or pragmatically easier than to compare the defect of a product with the negligence of one whom it has injured. In Murray v. Fairbanks Morse, for instance, Judge Rosenn wrote for the Third Circuit: 610 F.2d at 159.[11] With due respect to these courts, however, we are not persuaded that the concept of "comparative causation" is more cogent or meaningful than comparative fault, if by "causation" is meant some relation of cause and effect in the physical world rather than the very attribution of responsibility for which "causation" is to serve as the premise. Both the defect and the plaintiff's fault must in fact be causes of one injury before a question of apportionment of fault arises. Although defendants in this case had completed all acts necessary for liability when they manufactured and mounted a dangerously defective tire that might blow out and overturn the Sandford pickup, they obviously would not be liable if the pickup overturned for some unrelated reason. Similarly, it would not matter that a driver operated his car unlawfully or recklessly if he was injured by an explosion due to an electrical defect that would have occurred with the same harmful consequences if the car had been standing still. In less obvious situations where the physical course of events is in doubt, if either party convinces the factfinder that its misconduct in fact was not a cause of the injury, there is no occasion for allocating partial damages. The concept of apportioning causation must be tested on the assumption that both causes had to join to produce the injury for which damages are to be allocated. There are cases in which it may be possible to segregate the harm done by one cause from different or incremental harm done by a second cause, so as to apply proportional allocation to the additional harm only. This might be possible when a quantitative increase in a source of harm causes a corresponding increase in the injury, such as side effects from a negligent overdose of a dangerously defective drug, or if, for instance, Mrs. Sandford had broken a leg in an accident caused by the defective tire and thereafter had been burned by material negligently stored in her vehicle. Alternative solutions of such problems are discussed in Twerski, The Use and Abuse of Comparative Negligence in Products Liability, 10 Ind.L.Rev. 796, 810-823 (1977); as the litigants in today's cases present no such issues, we do not pursue them here. For the *631 same reason, we do not discuss situations in which either the defect or the injured party's negligence alone would cause the entire injury, as in a claimant's neglect properly to use faulty safety equipment which would not have functioned if used, when the parties might debate whether the negligence or the preexisting defect doomed the claimant to suffer his injuries. Once it is assumed, however, that two or more distinct causes had to occur to produce an indivisible injury, we doubt that the purpose of the proportional fault concept is to subject the combined causation to some kind of vector analysis, even in the rare case of simultaneous, physically commensurable forces.[12] In most cases, it would be a vain exercise to search for a common physical measure for the causative effect of a product defect and of the injured party's negligent conduct. C. Mixing "fault" with "proximate" causation. A third view considers it futile to attempt to explain what is to be compared, because it is equally illogical to compare strict liability with negligence and to quantify the relative causative effect of either when it would have caused no harm in the absence of the other. Thus Dean Twerski, in the cited article, describes the technical problems of making the comparison as a "red herring": "The short answer to the dilemma of how one can compare strict liability and negligence is that one must simply close one's eyes and accomplish the task." 10 Ind.L.Rev. 796, 806-808.[13] The opinion in Pan-Alaska, supra, similarly questions the significance of theoretical distinctions when it states: 565 F.2d at 1139. In part this second view rests on the assumption that rational analysis in tort cases dissolves in the collegial judgment of juries.[14] That is probably an unwarranted generalization; ability and effort to decide in accordance with law can be expected to differ from one jury to the next with such variables as the makeup of the particular jury, with the quality of evidence and advocacy, and not least with the rationality of the legal formulations in which the court explains the jury's task to it. *632 In any event, the assumption does not let us escape the need to state coherent rules of liability. Some tort cases are tried to the court without a jury, as Pan-Alaska, supra, illustrates. Trial judges must know on what findings an apportionment of damages depends, whether these are to be made by the judge or by a jury. Our system of appeal as well as trial predicates that jurors will conscientiously attempt to apply the law if it is explained in comprehensible terms. Sedillo v. City of Portland, 234 Or. 28, 33, 380 P.2d 115 (1963); Stage v. St. Pierre, 224 Or. 395, 401, 356 P.2d 432 (1960); Williams v. Portland Gen. Elec., 195 Or. 597, 610, 247 P.2d 494 (1952). A juror who wants to know how to treat cause and how to treat fault is entitled to an answer, whatever comes of it in a collective decision. Counsel need to know whether to address the relative gravity of the parties' fault or to seek expert testimony on the relative impact of their respective fault in causing the asserted harm. We cannot dismiss the question as a distinction without a difference. The National Conference of Commissioners on Uniform State Laws attempted to overcome the distinction, or perhaps split the difference, in a proposed Uniform Comparative Fault Act, by calling on the factfinder, in determining the percentages of fault, to "consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed." See Wade, Products Liability and Plaintiff's Fault The Uniform Comparative Fault Act, 29 Mercer L.Rev. 373 (1978). This might add the difficulties of comparing causation to those of comparing fault if causation in fact were meant, especially since the act also calls for special findings. But the comments indicate that "the extent of the causal relation" does not mean causation in fact but what has traditionally been labeled "proximate cause."[15] In Murray v. Fairbanks Morse, supra, also, "proximate" causation rather than factual causation turns out to be what the court means by "comparative causation."[16] This court has declined to phrase as issues of causation what actually are issues of legal responsibility at least since Justice *633 O'Connell's concurring opinion in Dewey v. A.F. Klaveness & Co., 233 Or. 515, 519-45, 379 P.2d 560 (1963). See Vetri, Tort Markings: Chief Justice O'Connell's Contributions to Tort Law, 56 Or.L.Rev. 235, 238-242 (1977). Causation in Oregon law refers to causation in fact, that is to say, whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence. "`Causation in fact' is unrelated to `proximate' or `legal' cause, concepts which have been discarded by this court." McEwen v. Ortho Pharmaceutical, 270 Or. 375, 385 n. 7, 528 P.2d 522 (1974); see also Babler Bros. Inc. v. Pacific Intermountain Express Co., 244 Or. 459, 415 P.2d 735 (1966). What can be a cause in fact is a person's behavior, which is a fact, not its faulty or faultless character, which is a legal characterization. In many cases, therefore, there will be no question of causation for a factfinder to decide. Once the test of legal responsibility thus is no longer phrased as a quantum of causation, it would mark a departure if such a phrasing were reintroduced by the proportionate fault statute. An examination of the statute shows that it was not. D. Proportionate fault under ORS 18.470. ORS 18.470, supra, by its terms applies whenever "the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought." If there was such fault, "any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the person recovering." There is no reference to causation, or to any question how much the fault of each contributed to the injury. Indeed, the reference to negligence "contributing to the injury" in former ORS 18.470 was removed in the 1975 amendment. We do not mean that the allegedly faulty conduct or condition need not have affected the event for which recovery is sought; as we have said, it must have been a cause in fact. But the statute does not call for apportioning damages by quantifying the contribution of several causes that had to coincide to produce the injury. Rather, ORS 18.470 falls within the first of the different approaches that we have reviewed. It calls upon the factfinder to assess and quantify fault. If the plaintiff's conduct is not faultless, the assessment has two purposes: to determine whether her fault is "not greater than" that of defendants, and if it is not, then to reduce the plaintiff's recovery of damages "in the proportion to the percentage of fault attributable to" the plaintiff. The question remains against what standard this "percentage of fault" introduced by the 1975 amendment is to be measured. The answer is implicit in the two steps found in the statute, one in the amended ORS 18.470 and the second in section 2 of the act, codified in ORS 18.480. First, if the plaintiff's behavior which was one cause of the injury is alleged to have been negligent or otherwise "fault," it is to be measured against behavior that would have been faultless under the circumstances. The factfinder is to determine the degree to which the plaintiff's behavior fell short of that norm and express this deficit as a numerical percentage, which then is applied to diminish the recoverable damages. There necessarily must be some comparable assessment of the fault attributable to defendants as a departure from the norm invoked against them (which, in products liability, will involve the magnitude of the defect rather than negligence or moral "blameworthiness") in order to determine which is greater.[17] In this comparison, the *634 benchmark for assessing a defendant's fault for marketing a product which is dangerously defective in design, manufacture, or warning is what the product should have been without the defect. The benchmark for the injured claimant's fault is conduct which would not be unlawful or careless in any relevant respect. This corresponds to views expressed by the Supreme Judicial Court of Maine: Wing v. Morse, 300 A.2d 491, 500 (Me. 1973). Quoting this excerpt, one writer suggests: Pearson, Apportionment of Losses Under Comparative Fault Laws An Analysis of the Alternatives, 40 La.L.Rev. 346, 348-9 (1980). Although Professor Pearson acknowledges that this "fault line" method cannot be as precise as it sounds, he suggests that "it does provide a means of visualizing the fact finder's task, which perhaps could be put into a useful form." Id. If the claimant's fault in this sense is greater than the fault of defendants, recovery is barred. Thereafter, ORS 18.470 standing alone does not seem to assign any further role to the magnitude of defendants' fault in calculating the percentage of plaintiff's damages that she may recover.[18]*635 Section 2 of the 1975 act, however, added directions for the second step. ORS 18.480 provides: Accordingly, after determining whether and how far each party's conduct was at fault, measured against the norm governing that party's conduct, these respective degrees of fault are to be converted into a percentage which will be applied to the plaintiff's total damages to determine his actual recovery.[19] To summarize: When an injured claimant's misconduct is a cause in fact of the injury, it can defeat a products liability claim if the claimant's fault is "greater than" the defendants' combined fault involved in marketing the defective product. If it is not greater, plaintiff's fault proportionately reduces her recoverable damages. "Fault" includes contributory negligence except for such unobservant, inattentive, ignorant, or awkward failure of the injured party to discover the defect or to guard against it as is taken into account in finding the particular product dangerously defective. Accordingly, we reject plaintiff's assertion that ordinary negligence on her part would not be an offset or possible defense against her products liability claim. In view of the foregoing discussion, applicable also to Wilson v. B.F. Goodrich, 292 Or. 626, 642 P.2d 644 (1982), the trial court in principle did not err in submitting plaintiff's alleged negligence to the jury for consideration in denying or reducing plaintiff's damages. The parties dispute, however, whether there was evidence to support the specifications of negligence alleged by defendants. The trial court submitted to the jury allegations that plaintiff was negligent in operating the pickup and camper fully loaded when she was not familiar with doing so, in failing to keep proper control, and in operating at an excessive rate of speed under the conditions. The court struck another allegation by defendants that plaintiff was negligent in operating the vehicle with three full gas tanks and six additional five-gallon cans of gas inside the camper. Plaintiff asserted on appeal that there was insufficient evidence on which to submit to the jury those allegations which were submitted, but on review in this court plaintiff waived that objection if this court found evidence sufficient to support any one of the allegations. Plaintiff's major reliance was on the legal argument already discussed that plaintiff's alleged negligence was not the kind that would reduce or deny her damages in a products liability case. *636 We find sufficient evidence in the record to submit to the jury the issue of plaintiff's familiarity with the operating characteristics of the loaded pickup and camper at the time of the accident. Shortly before that day a power steering unit had been installed in the pickup. Plaintiff had driven the truck with power steering only once before that day, when it had not been loaded with equipment for the camping trip. At the time of the accident, the vehicle began swaying and weaving on the highway before it eventually rolled over and slid on the pavement. It is not impossible that plaintiff's attempts to control the heavily loaded vehicle when the tire failed were adversely affected by her unfamiliarity with the behavior of the power steering system. A jury might so conclude under one of the first two specifications mentioned above. Defendants contend that the court should have submitted their allegation that plaintiff caused or contributed to her own injuries by operating the vehicle with its numerous extra containers of gasoline. The parties argued this point, in the light of the position earlier taken by the Court of Appeals in Holdsclaw v. Warren & Brewster, supra, largely on the legal issue whether this allegation stated the kind of voluntary assumption of an obvious hazard that would count against the plaintiff's recovery in a products liability claim. Carrying extra gasoline cans is not, of course, a hazard of an unexpectedly defective tire as distinct from anything else that might cause some of the gasoline to escape and ignite, and the trial court did not regard it as an appropriate invocation of the defense left open by Holdsclaw. Although we hold that ordinary negligence can suffice as an offset or defense in a products liability case, it was not error to reject the allegation on the basis on which it was pleaded and argued to the trial court.[20] These rulings are not grounds for a new trial. The Court of Appeals reversed the judgment entered on the jury verdict because it found that the manner in which the jury was polled did not adequately assure that three-fourths of the jury had concurred in all parts of the verdict. ORS 17.355.[21] The jury had been given a verdict form which called upon it to answer four separate questions. After seven and one-half hours of deliberation, the jury reported a deadlock of eight votes to four. The court instructed it to continue trying. After several more hours, the jury sent word that it had a question, which it was told to put in writing. Instead of the question, however, the jury reported that it had reached a verdict and accordingly was recalled to the courtroom. After the clerk read the four questions and the answers on the verdict form, the following occurred: When the clerk polled the jury, all twelve of the jurors answered "yes." The court announced that it would receive the verdict and discharge the jury. Counsel for defendants requested that the jury first be polled again as to each of the questions posed in the verdict form, expressing concern that the difference between the poll and the previously reported vote showed confusion on the part of the jurors. This request was denied. This court has held, and the parties do not dispute, that the same jurors must constitute the three-fourths majority that finds every separate element required for the verdict. Munger v. S.I.A.C., 243 Or. 419, 414 P.2d 328 (1966); Schultz v. Monterey, 232 Or. 421, 375 P.2d 829 (1962); Clark v. Strain, 212 Or. 357, 319 P.2d 940 (1958). It is proper so to instruct the jury. See Aronson v. Fagan, 278 Or. 135, 562 P.2d 974 (1977). In that case, the trial court had done so, and when polling the jury after a nonunanimous verdict, the court again reminded the jurors: "Of course, those of you that say `yes' have to agree with each of the answers in the several questions." Under those circumstances, this court held that there was no prejudice in failing also to poll each juror on each separate question. 278 Or. at 138. When a trial court failed to give the instruction, on the other hand, the error was said to have been waived because the appellant had not taken advantage of an opportunity to have the jury polled on each separate issue. Whelchel v. Strangways, 275 Or. 297, 550 P.2d 1228 (1976). The Court of Appeals concluded that the statutory right to have the jury polled is designed to demonstrate that the announced result represents a valid verdict and therefore includes the right to have the jurors polled whether they concur in each part of the verdict.[22] We agree. It remains to decide whether this requires reversal of the present judgment, as the Court of Appeals held. Plaintiff relies on prior decisions of this court that have imposed high evidentiary demands on a party seeking to impeach a jury verdict. See, e.g., Blanton v. Union Pacific Railroad Co., 289 Or. 617, 628, 616 P.2d 477 (1980) (post-trial letter from juror that verdict was an improper quotient verdict). Blanton cited Carson v. Brauer, 234 Or. 333, 382 P.2d 79 (1963) (post-trial affidavits concerning comments among jurors), State v. Gardner, 230 Or. 569, 371 P.2d 558 (1962) (juror's comments based on acquaintance with defendant), and Schmitz v. Yant, 242 Or. 308, 409 P.2d 346 (1965) (prospective juror's comments to other jurors). These decisions are distinguishable insofar as each involved the use of post-trial affidavits or other evidence to show that a verdict was tainted by misconduct. In the present case, we are concerned with the effect of omitting a procedure which is designed to test the numerical validity of a verdict at the time it is rendered. As the Court of Appeals noted, the jurors earlier had been divided eight to four after more than seven hours of deliberation, and reported that they still had a question just before they returned a verdict. It is not inconceivable that the difficulty lay in finding nine jurors to agree to each of the four answers, and that it may have been met by finding a different ninth vote for one or more of the answers, which would not be a valid verdict. Under the circumstances, the court held that it was impossible to say that the failure correctly to poll the divided jury was harmless error. We cannot disagree *638 with that conclusion. The decision of the Court of Appeals is affirmed. PETERSON, Justice, concurring. I concur with the opinion of the court in all respects except one. I disassociate myself from part III of the opinion, not because I necessarily disagree with what is stated therein, but because that part of the opinion is totally unnecessary to the decision of this case, involves questions not raised or considered in either the trial court or the Court of Appeals and not argued or discussed by the parties, and adopts significant rules of law on important controversial questions without the issues being presented, contended for, briefed, or argued. It is clear that the parties, from the beginning of the case, disputed whether the contributory negligence of plaintiff would bar or reduce a recovery when the plaintiff's claim is based on a strict liability theory. But there was no issue in the trial court relating to the quantification of fault, the comparison or apportionment of fault, or the manner by which the plaintiff's comparative fault would be calculated to bar or reduce recovery. Although the plaintiff's attorney took exception to the giving of any comparative negligence instructions, no other exceptions to the court's comparative fault instructions were taken.[1] On appeal, the plaintiff claimed that the court erred in instructing the jury that the plaintiff's comparative negligence could bar or reduce her recovery. This was one of the issues tendered to the Court of Appeals for decision, and this issue was decided by the Court of Appeals in the plaintiff's favor. There were no other claims of error addressing liability. The defendants, in their petition for review, claimed only (1) that the Court of Appeals erred in failing to hold that all forms of contributory negligence "can be considered for comparative purposes in a strict liability action" and (2) that the Court of Appeals erred in "* * * ruling that the jury could not consider the fault of the plaintiff in voluntarily encountering an obvious risk or hazard * * *." The court's opinion decides all of the questions presented in the petitions for review. In addition, in part III of the opinion the court adopts rules relating to (1) what conduct determines fault; (2) against what standard the conduct is compared to determine the amount of a party's fault; and (3) the manner by which the "* * * respective degrees of fault are to be converted into a percentage which will be applied to the plaintiff's total damages to determine his actual recovery." The question whether the determination of fault is to be made (1) by the extent to which fault caused the injury, (2) by comparing "fault," or (3) by making both comparisons, is a significant, provocative, controversial, important question.[2] I don't *639 suggest that we back away from provocative and controversial questions. But we should not adopt such significant rules of law when no facts are before us for decision, where the issue has not been presented for decision, when the issue has not been raised by any party, and when a ruling on the issue is not necessary to the disposition of the case.[3] I am sensitive to the fact that these are important questions. But I would rather make all decisions when the issue is properly before us, rather than in the abstract, without argument from anyone, and without facts to look to in making the decision. All questions, especially important questions, are best decided when the parties raise them, brief them, and argue them. There may be significant reasons not revealed by our own research and consideration which point toward a different conclusion. Even though we are a court of review, (Rule of Appellate Procedure 10.05), nonetheless our function is to decide cases that come before us, not to muse about "what the rule of law should be if." The advent of strict liability and comparative negligence has created difficult, provocative, challenging and important questions. In the past generation, we have decided a host of cases involving such questions. But to the best of my knowledge, since the enactment of ORS 18.470 in 1971,[4] no party has ever claimed error by reason of the instructions of the court relating to the manner in which "fault" is to be determined or apportioned, or the manner in which the plaintiff's damages are to be diminished by reason of such fault. Obviously, the development of new rules of law is necessary if courts are to be responsive to societal needs. But rules of law are best forged on the anvil of actual controversy rather than by taking a massive bite out of the carcass of a field of law and spitting out a rule of law which, in the abstract, tastes good. We have repeatedly refused to give advisory opinions, even though the parties have asked for them. We should not gratuitously render advisory or academic opinions which are not sought. See Oregon Medical Association v. Rawls, 281 Or. 293, 296-300, 574 P.2d 1103 (1978); Oregon Medical Assn. v. Rawls, 276 Or. 1101, 1108, 557 P.2d 664 (1977); Smith v. Smith, 209 Or. 96, 98, 304 P.2d 421 (1956). I have no quarrel with concurring opinions which point up problems in a given area. Such concurring opinions perform a beneficial function and often lead to beneficial results. See, for example, the concurring opinion of Justice Linde in State v. Stroup, 290 Or. 185, 620 P.2d 1359 (1980), which flagged an issue which is even now being considered by this court in State v. Buttrey, 54 Or. App. 40, 642 P.2d 704, rev. allowed 292 Or. 108 (1981); the concurring opinion of Chief Justice Denecke in State v. *640 Wolfe, 273 Or. 518, 528, 542 P.2d 482 (1975), which pointed up a problem which was recently considered by this court in State v. Douglas, 292 Or. 516, 641 P.2d 561 (1982); and the opinion of Justice Lent in Hendrix v. McKee, 281 Or. 123, 125, 575 P.2d 134 (1978), which led to our decision in Falk v. Amsberry, 290 Or. 839, 626 P.2d 362 (1981). A study of the articles and cases cited in the majority opinion and in this opinion compels the conclusion that the issues with which part III is concerned are difficult, complex, controversial questions which are far from being settled with any substantial uniformity. On the question of allocation of fault under Connecticut's then new comparative negligence law, Professor Fleming James wrote: On the question of how fault is to be determined the answer is anything but clear, as is seen by these commentators. On cause-in-fact apportionment, Professor Twerski writes: The Uniform Comparative Fault Act recognizes the difficulty in determining fault. Section 2(b) of the Uniform Comparative Fault Act (12 ULA 37, 1982 Pocket) provides: Although I may agree with the holding of part III of the opinion if and when the questions are presented, I have serious reservations as to the practical implications of the court's holding. To implement the holding of part III of the court's opinion lawyers must formulate requested instructions and trial judges must give instructions to the jury concerning how fault is to be determined, how fault is to be apportioned and how plaintiff's damages are to be diminished by reason of the plaintiff's fault. I have no doubt that this will be done, for now it must be done, but I have reservations whether the desired end product a verdict based upon objectivity and fairness and in accordance with the law is more likely to be achieved than is now the case under current Oregon practice. See Oregon Uniform Jury Instructions 11.50-11.60. To accommodate the rules set forth in Part III of the court's opinion among the instructions that a trial judge will have to give upon proper request are these: 1. What fault is. *642 2. The standard against which a party's fault is to be compared in determining the party's percentage of fault. 3. That although "[b]oth the defect and the plaintiff's fault must in fact be causes of one injury before a question of apportionment of fault arises" (at 630), once the jury finds causation in fact to exist they are not to consider the causal relationship between the fault and the injury in apportioning the party's fault. Rather, their apportionment of fault must be made by comparing the party's fault against "* * * behavior that would have been faultless under the circumstances * * *." 4. How the jury is to calculate the degree of each party's fault against the norm. Comment: The majority would require that the initial determination of fault be made against a standard of behavior "that would have been faultless under the circumstances" or by comparing the product to "what the product should have been without the defect." The result could be expressed numerically, by a percentage, or otherwise. The number is to reflect the degree by which or to which the behavior falls short of the norm, and must then be expressed in terms of a "* * * deficit as a numerical percentage, which then is applied to diminish the recoverable damages." Opinion at 633. 5. How the jury should convert the party's percentage of fault into "* * * a percentage of the total fault attributable to all parties represented in the action," as required by ORS 18.480. Comment: Keep in mind that ORS 18.480 requires that, upon request, the jury "* * * shall answer special questions indicating: * * * (b) The degree of each party's fault expressed as a percentage of the total fault attributable to all parties represented in the action" (Emphasis added). The jury will have to convert the percentage by which the party's conduct "fell short of [the] norm" into "a percentage of the total fault attributable to all parties represented in the action," as required by ORS 18.480(1)(b). If the jury decided that a plaintiff's fault, when tested against the norm of faultless conduct, were 20 percent, and that a defendant's fault, when compared against the appropriate norm, were 25 percent, the jury must then convert those percentages into percentages "of the total fault," as required by ORS 18.480(1)(b). The result: Plaintiff's percentage of fault would be 44.44 percent (20/45); the defendant's percentage of fault would be 55.56 percent (25/45), and the plaintiff's recovery would be reduced not 20 percent, but 44.44 percent. If there were three parties, and the respective percentages of fault were plaintiff, 20 percent; defendant No. 1, 25 percent; defendant No. 2, 30 percent, the conversion into percentages "of the total fault attributable to all parties represented in the action" would be: Plaintiff, 26.67 percent (20/75); defendant No. 1, 33.33 percent (25/75); and defendant No. 2, 40 percent (30/75), and the plaintiff's recovery would be reduced by 26.67 percent. 6. Finally, the jury is required to "* * * be informed of the legal effect of its answer to the questions * * *." ORS 18.480(2). The majority opinion itself reflects the potential for confusion which may arise in applying the rules set forth in the opinion. Footnote 18 states: I gather that the quoted statement applies to the theory discussed in 43 Mo.L.Rev. 431, 449-450, for the statement cannot be correct as applied to ORS 18.470 and ORS 18.480. If plaintiff's misconduct were 80 percent, before there could be any recovery, the fault of the defendant(s) must equal or exceed that of the plaintiff. Thus, if there were but one defendant, whose fault was also 80 percent, the plaintiff's recoverable damages would be 50 percent of the total damages, not 20 percent. If the fault of *643 the defendant were 90 percent, plaintiff's recoverable damages would be reduced by 47.06 percent (80/170). The mathematics can be difficult. Regarding the mathematical calculations, David L. Nixon wrote: The practices which have been followed in Oregon trial courts (which generally utilize the Uniform Jury Instructions) appear to me to have been generally satisfactory. Whether or not I am correct, there is no reason for this court to unilaterally impose far-reaching rules of procedure and substantive law on the citizenry without input from anyone. As a young lawyer, it took me months to understand and apply the "Lamb-Weston rule," as set forth in Lamb-Weston et al v. Ore. Auto. Ins. Co., 219 Or. 110, 137-138, 341 P.2d 110, 346 P.2d 643, 76 A.L.R.2d 485 (1959), which states the principle that when there are two or more policies of valid and collectible insurance which are applicable to a loss, the total loss will be apportioned among the insurers in the ratio which the limits of each policy bear to the total available coverage. I fear that many juries will find it difficult if not impossible to understand and apply the similar rules set forth in part III of the opinion. The doctrine of comparative negligence intends to avoid the harsh result of the common law contributory negligence rule that any negligence by the plaintiff, however small, barred recovery. Comparative fault statutes were designed to temper that rule by either granting plaintiff recovery against a negligent defendant whatever the degree of the plaintiff's fault (pure comparative fault) or by permitting the plaintiff to recover from negligent defendants if the plaintiff's fault was "not greater than" or was less than the defendant's or the combined fault of multiple defendants. The superimposed declaration under statutes similar to Oregon's comparative fault statute, is that the plaintiff's right to recover turns on whether the plaintiff's fault was not greater than or less than the fault of the person against whom claim is made. Inherent in the doctrine is the comparison of fault the plaintiff's fault is compared to the defendant's. That premise leads me to conclude that it is likely that the framers of comparative fault legislation contemplated that the fault of a party be determined by directly comparing his or her fault against the fault of other party or parties against whom claims were made, rather than by the injection of an intermediate step whereby fault is determined by comparing conduct against a separate standard and then comparing the numerical results to determine who wins or loses and by how much. I am not convinced that the drafters of ORS 18.470 intended this type of comparison. *644 The advent of strict liability has made it more difficult to compare fault based on negligence against fault based on strict liability. But jurors have been equal to that task, possibly without benefit of rational definition or standard, and until the issue arises, I would do nothing and say nothing. Part III of the opinion of this court is unnecessary to the decision, does not involve the correction of any error, does not involve a question likely to arise on remand (except for our gratuitous reference to the matter), and involves issues which have concerned the bench and bar of this state, until now, very little or not at all. On a comparative fault basis, our fault is a 99 for publishing part III of the opinion. DENECKE, C.J., joins in this opinion. [*] Tongue, J., retired February 7, 1982. [1] The questions were: "(1) What considerations determine whether contributory negligence may be used for comparison in apportioning damages when plaintiff is proceeding on the theory of strict liability in tort? "(2) What type of contributory negligence qualifies as comparative fault as a defense or partial defense to a plaintiff's strict liability claim, both generally and in this case? Why? Cf. Baccelleri v. Hyster Company, 287 Or. 3, 12-13, 597 P.2d 351 (1979). "(3) If the court were to hold that ORS 18.470 calls for a comparison in a products liability case between the `fault' of marketing the defective product and the `fault' of plaintiff's negligence, what is the jury or trial court called on to compare? It is the relative `magnitude' of each fault, i.e., the degree to which the allegedly defective product departed from the norm and the degree to which plaintiff's conduct departed from that of a reasonable person under the circumstances? Or is it the degree to which the defect and the plaintiff's negligence, respectively, contributed to the probability that the injuries would occur? We particularly draw attention to the third question because the concurring opinion states that there was no opportunity to argue the question of the method of apportionment. [2] ORS 18.470 (1971): "Section 1. Contributory negligence, including assumption of the risk, shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if such negligence contributing to the injury was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of such negligence attributable to the person recovering." [3] defendant must show, first, that the plaintiff himself actually knew and appreciated the particular risk or danger created by the defect; second, that plaintiff voluntarily encountered the risk while realizing the danger; and, third, that plaintiff's decision to voluntarily encounter the known risk was unreasonable...." 274 Or. at 403, 547 P.2d 132. [4] ORS 18.475: "(1) The doctrine of last clear chance is abolished. "(2) The doctrine of implied assumption of the risk is abolished." [5] We need not now speculate on the legislative policy when a plaintiff who is not without fault in her own injury sues a defendant on a theory of absolute liability without fault. [6] For instance, ORS 18.470 now literally states that when the plaintiff's fault (of whatever kind) is no greater than the defendants' fault (of whatever kind), then the plaintiff's contributory negligence shall not bar her recovery. While one may infer that recovery remains barred when a plaintiff's contributory negligence exceeds defendants' fault, the words of the statute do not expressly negate proportional reduction of damages when a plaintiff's fault other than negligence exceeds the defendants' fault, or when a plaintiff is both negligent and otherwise at fault, as in unlawfully acquiring the product or unlawfully placing himself in the position to be injured. [7] Representative Frohnmayer apparently meant a proposed amendment that was reported by the House Committee on Judiciary as section 4 of A Engrossed Senate Bill 797 and became section 4 of chapter 599. [8] Aiken, Proportioning Comparative Negligence Problem of Theory and Special Verdict Formulation, 53 Marq.L.Rev. 293, 295 (1970): "In law [unlike science] ... we find objective evidentiary support only for our findings of what has happened, or of what was done or not done. But the superimposed declaration, that the conduct so found is blameworthy or blameless, is capable of accurate comparative evaluation only in the sense that it can be declared, somewhat analogously, to be more or less blameworthy than other blameworthy conduct (actual or hypothetical), which may be adopted as an ad hoc standard for comparison. Qualitative thought, in short, is not inherently susceptible of supportable comparison except, at most, in terms of good-better-best or bad-worse-worst. To assert a judgment that one instance of wrongdoing represents a precise degree of mathematical `worseness,' even as compared to another, requires the presence of a calibrated scale of `badness,' which simply does not exist in reality or in our conceptual framework." [9] See, e.g., Fischer, Products Liability Applicability of Comparative Negligence, 43 Mo.L. Rev. 431 (1978); Levine, Strict Products Liability and Comparative Negligence: The Collision of Fault and No-Fault, 14 San Diego L.Rev. 337 (1978). [10] Compare these views: "Even those who would sacrifice functional to purely doctrinal considerations and argue that `oil and water can't mix,' might be persuaded in this instance by the thought that products liability as has often been, half apologetically, emphasized is not absolute but is based on the social fault of marketing defective products. A matrix for apportionment is thus available." Fleming, The Supreme Court of California 1974-1975 Foreword: Comparative Negligence at Last By Judicial Choice, 64 Calif.L.Rev. 239, 270 (1976). "Because of the desirability of applying comparative negligence to strict liability, a number of judges and writers have urged that strict liability does not involve `fault' that can be compared with the plaintiff's contributory negligence. This is either the `social fault' involved in marketing defective products or the `legal fault' arising from a breach of duty to market defect-free products. "This approach does not solve the underlying problem of the lack of a workable basis of comparison. The word `fault' can be redefined to include innocent conduct as well as culpable conduct, but this merely begs the question. `Social fault' in marketing defective products still has nothing in common with the type of specific personal culpability required for contributory negligence. The concepts cannot be compared rationally." Fischer, supra, 43 Mo.L.Rev. 431, 442. Professor Fischer's criticism continues with the illustration of a defendant wholesaler who distributes the defective product in a closed container and whose "fault" is hard to place on any "spectrum of blameworthiness." [11] See Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843, 850 (1978): "[T]he trial court ... should instruct the jury that it is to compare the causal effect of the defect in the product or design with the affirmative defense of the misconduct of the plaintiff ... and reduce the amount of damages by the percentage that the plaintiff's misconduct contributed to cause his loss or injury as long as it is not greater than fifty percent." See also Busch v. Busch Const., Inc., 262 N.W.2d 377, 394 (Minn. 1977), General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex. 1977). [12] Professor Schwartz, supra, offers the hypothetical illustration of a collision between a motorcyclist and a large truck, in which it can be scientifically determined from the weight, speed, and angle of impact that the momentum of the truck contributed 95 percent of the force that injured the motorcyclist. Assuming the motorcyclist was intoxicated and speeding, should he nevertheless recover 95 percent of his damages under a comparative fault statute? If the truckdriver, as the injured party, was far less culpable, would he be precluded from recovery by a 50-percent "comparative causation" bar? See also Carestia, The Interaction of Comparative Negligence and Strict Products Liability Where Are We? 47 Ins. Counsel J. 53, 67 (1980). The same criticism can be made in a case of strict product liability instead of negligence. [13] He also offers the suggestion that "comparative causation" might really be a way to compare the relative probabilities that the injury was in fact caused by the fault charged against each party: "The normal standard of proof on causation is that plaintiff must establish the causal connection by the balance of probabilities ... If, however, juries are presented with a mechanism to allow them to take into account the likelihood, at a percentage basis, that the defendant's fault caused the harm, then causation could be easily compromised and the issue removed from its all-or-nothing shibboleth. Comparative fault presents to juries the mechanism for compromising difficult cause-in-fact questions." (Footnotes omitted.) 10 Ind.L.Rev. at 828. [14] See, e.g., Twerski, The Many Facts of Misuse: An Inquiry Into the Emerging Doctrine of Comparative Causation, 29 Mercer L.Rev. 403, 414 (1978); compare Aiken, supra note 8, 53 Marq.L.Rev. 293, 316. Apparently legislators sometimes prefer to abandon the effort to articulate a method of allocating responsibility for injuries in favor of "the rough and basic justice of jury deliberation" and "the fundamental fairness and good sense of the average juror," see Nixon, The Actual "Legislative Intent" Behind New Hampshire's Comparative Negligence Statute, 12 NHBJ 17, 30 (1969), in effect making no law to govern the decision of an individual factfinder, whether juror or judge. [15] The Act and accompanying comments is printed in 29 Mercer L.Rev. at 392-401. Section 2 would provide in part: "(a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under Section 6, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating: "(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and "(2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under Section 6. For this purpose the court may determine that two or more persons are to be treated as a single party. "(b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed." 29 Mercer L.Rev. at 394. The comment to section 2 states: "In determining the relative fault of the parties, the factfinder will also give consideration to the relative closeness of the causal relationship of the negligent conduct of the defendants and the harm to the plaintiff. Degrees of fault and proximity of causation are inextricably mixed, as a study of last clear chance indicates, and that common law doctrine has been absorbed in this Act. This position has been followed under statutes making no specific provision for it." 29 Mercer L.Rev. at 395. [16] relevant causation inquiry in a strict products liability suit should be whether the product defect `caused-in-fact' some or all of the injury and whether the plaintiff's faulty conduct `caused-in-fact' all or some of the injury. If the answer to both these questions is affirmative, the issue of proximate cause becomes relevant ... Under a comparative causation approach, once the jury has determined that the product defect caused the injury, the defendant is strictly liable for the harm caused by his defective product. The jury, however, would be instructed to reduce the award of damages `in proportion to the plaintiff's contribution to his own loss or injury.' Pan-Alaska Fisheries, supra, 565 F.2d at 1139." Murray v. Fairbanks Morse, 610 F.2d at 160. [17] Professor Fischer, supra note 10, collects from a number of sources these factors that a factfinder might consider in assessing the relative fault of the parties: "1. The magnitude of the harm threatened by the conduct; the more dangerous the conduct, the more culpable the party is likely to be. "2. The extent to which the harm was foreseeable. In this regard inadvertent conduct is less culpable than the deliberate creation of a risk of harm. The diminished capacity of the party or the presence of an emergency are also factors which lessen culpability. "3. Balanced against the foregoing factors is the value of the interest the party was protecting by his conduct. Less culpability is involved in taking an unreasonable risk to achieve a worthy objective than to achieve an unworthy one. However, this factor must be considered in light of the alternative means available to the party to protect his interests." (footnotes omitted). 43 Mo.L.Rev. at 438. Writing of the proposed Uniform Comparative Fault Act, Dean Wade has commented: "In comparing the fault of strict liability with plaintiff's negligence, the trier of fact may find it helpful to have information on matters such as the seriousness of the injury likely to be incurred if the product is dangerously defective and the number of people likely to be affected, the feasibility of possible safety devices that might have prevented the injury, the effectiveness of possible warnings or instructions, and the nature of the inspection system. On the matter of inspecting the products as they come off the assembly line, for example, even though a system of spot-checking may be regarded as sufficiently thorough to keep the manufacturing process from being characterized as negligent, if the particular product was dangerously defective, the nature of the spot-checking would still be relevant in determining the respective percentages of fault." 29 Mercer L.Rev. at 378. Other measures of culpability enter when the "fault" is intentional misconduct or a statutory violation. [18] Compare Fischer, supra n. 9, 43 Mo.L.Rev. 431, 449-450: "The method of apportioning damages in accordance with the plaintiff's fault is to compare the plaintiff's conduct with how he should have conducted himself (the objective standard of the reasonable man) and reduce his recovery according to the extent of fault ... A plaintiff who is guilty of mere inadvertence is only moderately at fault and should have his damages reduced to a moderate extent. A plaintiff who knowingly encounters a serious risk for no good reason is greatly at fault and should have his damages reduced to a very great extent...." This approach would not necessarily deny all damages even to a plaintiff guilty of extreme misconduct (say "80 percent" below the "fault line") if the extent that defendant fell short of the norm is even greater; it would simply reduce plaintiffs recovery to 20 percent of her damages. [19] For example, if on Professor Pearson's scale of fault from 0 to 10 (zero being faultless conduct) a product defect were rated at 3 and an injured claimant's negligence at 2, ORS 18.480 would require this to be converted to percentages of 60 and 40 percent. The same result is ordained if the defectiveness of the product rises to a level of "6" and plaintiff's fault to "4". The problem is not changed if the degree to which the fault of each departs from the norm is first stated as a percentage, e.g., a 60 percent product defect and a 20 percent shortfall of due care; ORS 18.480 requires this to be converted into 75 percent and 25 percent respectively. Even when a jury is instructed that the fractions ultimately must add to 100 percent, as it was in this case, the important point is that the "fault" of each party must be measured against what would be faultless conduct (or a defect-free product) for that party; a user's negligence cannot be "measured" directly against the defectiveness of a product. [20] The attempt to plead the defense within the terms of Holdsclaw is understandable but did not prevent pressing an argument based on ordinary negligence. "One necessary consequence [of this Court's discretionary review] is that counsel will sometimes have to impose on the patience of trial courts to renew a contention that has previously been rejected by the Court of Appeals, even though this court denied review in the earlier case or cases, so that the contention is not waived and the issue foreclosed from review. An issue that may appear to be settled by one or more opinions of the Court of Appeals may in fact not be settled when a later petition presenting the issue demonstrates that it deserves review in this court." 1000 Friends of Oregon v. Bd. of Co. Comm., 284 Or. 41, 46-7, 584 P.2d 1371 (1978). [21] Former ORS 17.355: "(1) In civil cases three-fourths of the jury may render a verdict. "(2) When a verdict is given, and before it is filed, the jury may be polled on the request of either party, for which purpose each shall be asked whether it is his verdict; if a less number of jurors answer in the affirmative than the number required to render a verdict, the jury shall be sent out for further deliberation. If the verdict is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. "(3) The jury in a criminal action may, in the discretion of the court, be polled in writing. If the jury is polled in writing the written results shall be sealed and placed in the court record." The statute has been replaced by ORCP 59G. [22] This need not involve reading each separate question to each juror. If each juror is asked whether he or she agrees with each part of the verdict as stated by the foreman or read by the clerk, only a juror who indicates otherwise needs to be asked with what part he or she disagrees. [1] The plaintiff's exceptions to the comparative negligence instructions were: "With respect to the comparative fault situation, I, of course, previously moved to strike all the allegations of comparative fault and I set forth, I think, my reasons pretty fully at that time. And I would just adopt those at this point, if that is satisfactory with the Court. "* * * "* * * that the only defense that would be applicable in this type of a case that remains in Oregon to a strict liability claim is the defense of misuse of the product or abnormal usage of the product; that lack of control, excessive speed, driving a loaded vehicle without experience, are not the types of conduct which the Supreme Court says should be a defense to a strict liability case. The instruction should not have been given, in any event." [2] On this question, there are three lines of authority, which are succinctly summarized in Woods, Comparative Fault 108-109, § 5.5 (1978), as follows: "Is apportionment to be made by comparing fault, or by comparing the extent to which fault contributed to the injury, or by making both comparisons? Most statutory language would seem to suggest that only faults are to be compared. For instance, the Colorado statute says that `any damages allowed shall be diminished in proportion to the amount of negligence.' [Colo. Rev. Stat. Ann. 41-2-14] Most statutes contain similar language. Some authorities, notably Prosser, take the position that `... once causation is found, the apportionment must be made on the basis of comparative fault rather than comparative contribution.' [Prosser, Comparative Negligence, 51 Mich.L.Rev. 465, 481 (1953)] "Professors James [P. James, Connecticut's Comparative Negligence Statute, 6 Conn.L.Rev. 201, 216] and Fleming [Fleming, Law of Torts 241-42 (3rd ed. 1965)] do not agree. Their view is that both fault and causal contribution should be compared. It is supported by most of the cases. In Kohler v. Dumke [Kohler v. Dumke, 13 Wis.2d 211, 108 N.W.2d 581], defendant argued that if plaintiff were found negligent, `then in resolving the comparative negligence issue only the element of causation should be considered.' This is completely at odds with the Prosser view. The court accepted the approach of Professors James and Fleming. `We deem it clear that the word "negligence" in the comparative negligence statute ... means causal negligence ... Therefore, in comparing the negligence of two or more persons, the jury is to consider both the elements of negligence and causation'" (Emphasis in original.) [3] Footnote 1 of the opinion sets forth some questions which we asked the parties. In answer to the third question, the plaintiffs attorney stated: "The Court's third question appears to look beyond the disposition of this appeal. Unfortunately there may be no common rationale for comparing fault applicable to all strict products liability actions, and hence no sure basis for instructing the jury in other than the most general terms." [4] In fact, comparative negligence has been a part of Oregon law since the passage of the Employers Liability Law in 1911. 1911 Or. Laws, ch. 3, § 6, now ORS 654.335. See Filkins v. Portland Lumber Co., 71 Or. 249, 256-258, 142 P. 578 (1914). [5] F. James, Jr., Connecticut's Comparative Negligence Statute: An Analysis of Some Problems, 6 Conn.L.Rev. 207, 216-217 (1973-1974). [6] Ray J. Aiken, Proportioning Comparative Negligence Problems of Theory and Special Verdict Formulation, 53 Marq.L.Rev. 293, 294-295 (1970). [7] Aaron D. Twerski, The Many Faces of Misuse: An Inquiry Into the Emerging Doctrine of Comparative Causation, 29 Mercer L.Rev. 403, 413-414 (1978). [8] David L. Nixon, The Actual "Legislative Intent" Behind New Hampshire's Comparative Negligence Statute, 12 N.H. Bar J. 17, 30 (1969).

a52d6760d9c531cd15c664e46e2a97242103fff82d06e060244fd2e0b1043a95

1982-03-16T00:00:00Z

1d8741c6-80cd-46d8-bc15-5585c993de80

In Re English

290 Or. 113, 618 P.2d 1275

oregon

Oregon Supreme Court

618 P.2d 1275 (1980) 290 Or. 113 In re Complaint As to the Conduct of Harry A. ENGLISH. OSB 1360; SC 27186. Supreme Court of Oregon, In Banc.[*] Submitted on Record October 14, 1980. Decided November 4, 1980. Harry A. English, Bend, pro se. Richard E. Forcum and M. Max Merrill, Bend, for the Oregon State Bar. PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar charging the Accused with (1) Failure to deposit $380 in funds belonging to a client in a client trust account; (2) Commingling in his personal account another $40 in funds belonging to a client; (3) Failing to pay a bill of $319 for services by a doctor as an expert witness, who then sued his client to collect the bill; (4) Neglecting a legal matter entrusted to him by unreasonable delay in the closing of an estate.[1] The Trial Board found the Accused guilty of all four charges and recommended that the Accused "be suspended from the practice of law for a limited period of time" and "until he is able to demonstrate satisfactorily that he is capable of conducting his practice in such a manner as to avoid problems as demonstrated by this disciplinary proceeding." The Disciplinary Review Board concurred in the findings of guilt by the Trial Board and recommended that the Accused be suspended from the practice of law for "a minimum period of sixty days and thereafter until he meets the standards for reinstatement established by Section 18 of the Rules of Procedure of the Oregon State Bar.[2] By agreement between the Accused *1276 and counsel for the Oregon State Bar, this case was then submitted to this court for decision without briefs or oral argument. The facts relating to this charge, as found by the Trial Board, are as follows: We have examined the record and agree with these findings. The facts relating to this charge, as found by the Trial Board, are as follows: We also agree with these findings. The facts relating to this charge, as found by the Trial Board, are as follows: We have also examined the record on this charge and agree with these findings. The facts relating to this charge, as found by the Trial Board, are as follows: Again, we have examined the record and agree with these findings. We believe, however, that the facts relating to the delay in the closing of this estate should be set forth in some further detail, including the facts relating to the letters from the court to the Accused and his lack of response to those letters. On July 31, 1974 the Accused filed a petition for probate of the will of Etta M. Buckingham, naming the Accused as executor. On July 31, 1974, letters testamentary were issued naming the Accused as executor of the estate. By letters dated October 14, 1974, December 23, 1974 and February 14, 1975, the court requested that the Accused file an inventory. No inventory was filed by the Accused until February 28, 1975, showing real and personal property with a total value of $13,611, including 15 shares of Pacific Power and Light common stock. By letters dated April 7, 1975, June 9, 1975, July 3, 1975, August 5, 1975, and September 5, 1975, the Court requested that the Accused file income and inheritance tax "clearances" and a final accounting. Nothing in the court file indicates that the Accused responded to any of these letters. The next document filed by the Accused was an amended inventory on October 30, 1975, reassessing the value of the estate at $16,029. By further letter dated January 16, 1976, the court requested the Accused to advise it when he expected to close the estate and the reasons for delay. Again, the Accused did not respond to either that letter or to a similar letter dated August 30, 1976, until October 4, 1976, when he informed the court that he was "waiting for stock transfers from New York," apparently involving the PP&L stock, and that the estate could then be closed quickly. On March 21, 1977, the court again wrote to the Accused, asking to be advised whether the stock transfer had been received and whether the estate could be closed. Having received no response, the court on May 3, 1977, wrote a further letter to the Accused stating that unless he complied with that request within 10 days an order would be entered requiring the Accused to appear and show cause why he should not be removed as personal representative. On May 12, 1977, the Accused responded to that letter by a letter to the court, stating that he had "finally" received the stock certificates that he had been trying to get for over a year and would then "take care of the distribution" and "finally close this long running estate." Again, more months went by. On October 31, 1977, the court wrote again to the Accused, requesting him to either "close this estate within the next 30 days or advise *1279 in writing as to what is left before the estate can be closed." The Accused did not respond to that letter. In December 1977 the court wrote a further letter to the Accused, saying that "unless I hear from you within ten days * * * I intend to initiate a formal court order in this matter requiring your appearance." The Accused responded by letter dated December 14, 1977, saying that he was "working on the Buckingham Estate" and would have it ready to close "in the next day or so." On December 21, 1977, the Accused filed a "Statement in Lieu of Final Account-Short Form-Distributors Consenting," on a printed form, together with receipts from some of the beneficiaries of the will, an inheritance tax receipt and an income tax release from the Department of Revenue. On the same date a "Decree of Final Distribution" was entered by the court. On January 2, 1979, the Accused filed a "Final Report Showing Complete Distribution," with a further receipt. The Accused did not, however, submit a proposed order closing the estate. On March 12, 1979, the court wrote to the Accused, saying that: Apparently the previous tax release had by then expired. On June 7, 1979, having received no response from the Accused, the court wrote to him again referring to its previous letter, asking if he had made application for the certificate of release and offering assistance in "getting them to issue a release." On August 6, 1979, the court wrote a similar letter to the Accused, again offering assistance and asking to be advised within thirty days "in writing, as to the status of this estate." Apparently the Accused again did not respond to that letter, at least "in writing," as requested. As of October 29, 1979, when the deposition of the Accused was taken in this proceeding, the estate had not yet been closed-over five years after it had been opened-despite not only the letters from the court to the Accused, but the service upon the Accused on or about December 15, 1978, of a complaint against him by the Oregon State Bar alleging, among other things, that his conduct in the handling of the Buckingham Estate "constituted unreasonable delay and neglect of a legal matter entrusted to him in violation of Disciplinary Rule No. DR 6-101"-an allegation which the Accused had denied by his answer, filed on January 15, 1979. Indeed, the estate was not closed until November 9, 1979, ten days before the hearing of this proceeding before the Trial Board. At that hearing the Accused testified that "there was quite a bit of activity in [the] Buckingham Estate right through the year '77"; that the estate "couldn't have been closed until the stock certificates were finally received" from the National City Bank in New York and then sent "to the power company for ultimate transfer" and that and that: With reference to the letters sent to him by the court, the Accused testified that he was not sure that he had received all of them; that those letters that he received from the court in 1979 "didn't register in my mind, at least when they came in," and that they may have been "just put aside because of the pressure." In a "Statement in Opposition to Memorandum Opinion, Findings of Fact, Conclusions of Trial Board," filed with the Oregon State Bar prior to the opinion of the Disciplinary Review Board, the Accused states that: and that: Of the three charges relating to the Wisbeck case, the first two do not involve substantial amounts of money. They do, however, involve important rules of legal ethics. The maintenance by lawyers of trust accounts into which all monies belonging to clients shall be deposited, as required by DR 9-102(A), is a rule of the utmost importance for the protection of the public and one which must be strictly observed by all lawyers.[5] In this case the Accused failed to deposit $380 of his client's funds in a trust account, which he then did not have. In addition, by "rounding out" his contingent fee at $2,900, as compared with the proper 40% contingent fee in the sum of $2,828 on a judgment in the sum of $7,071, he also put in his personal account monies which belonged to his client. If these were the only instances of misconduct by the Accused, a reprimand might be appropriate. In this case, however, the Accused was also guilty of two charges of even more serious misconduct, both involving violation of DR 6-101(A)(3), which requires that "[a] lawyer shall not neglect a legal matter entrusted to him." The failure of the Accused for more than two years to pay the bill of the doctor for testimony in the Wisbeck case-a bill which he acknowledged to be his own and for the payment of which he had withheld money received by him upon payment of the judgment in that case-resulted in his client being sued by the doctor for payment of that bill. Such misconduct by an attorney is so serious as to require more than a reprimand. The misconduct of the Accused in his handling of the Buckingham estate was even more serious, in our opinion. The Accused was clearly guilty of unconscionable delay in his handling of that estate and his failure to close a routine estate for more than five years. His misconduct was made even more flagrant by his failure, if not refusal, to respond to repeated requests by *1281 the court for an explanation of the reasons for the delay in closing the estate. Indeed, the conduct of the Accused might well have justified contempt proceedings against him. For many years it has been recognized that delays in litigation have been one of the two primary causes for public dissatisfaction with the administration of justice in America-the other primary cause of dissatisfaction being the cost of litigation. Not only judges, but also lawyers, have the responsibility to eliminate all unnecessary delays in litigation and to expedite the handling of all litigation so far as is reasonably possible. In In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980), this court held (at 666, 616 P.2d 1173) that neglect by an attorney in the handling of matters entrusted to him by his client may be grounds for suspension of the attorney from the practice of law, citing some of the previous decisions by this court to the same effect. See also In re Holm, 285 Or. 189, 193-94, 590 P.2d 233 (1979), and In re Hedges, 280 Or. 155, 570 P.2d 73 (1977), involving neglect by inexcusable delay. As pointed out by Holman, J., concurring in In re Holm, supra, 285 Or. at 194, 590 P.2d 233, the effect upon the client of procrastination and delay by an attorney may be as disastrous as if dishonesty were involved. We are told by the Accused that he has "suffered enough in these matters"; that he has "corrected whatever procedures need correcting," and that "such activities as I am accused of will never happen again." It is important for lawyers to bear in mind, however, that the primary purpose of bar disciplinary proceedings is not to punish the lawyers involved, but to protect the public, not only by deterring other lawyers from engaging in misconduct, but by removing lawyers guilty of serious misconduct from the practice of law. See In re Weinstein, 254 Or. 392, 394, 459 P.2d 548 (1969), and In re Moynihan, 166 Or. 200, 226, 111 P.2d 96 (1941). In our opinion this is such a case. For these reasons, and under the facts and circumstances of this case, we hold that the Accused shall be suspended from the practice of law for a period of three months and until he is able to show that he has the moral character and general fitness required for admission to practice law in Oregon, and that his resumption of the practice of law in this state will be neither detrimental to the integrity and standing of the bar or the administration of justice, nor subversive to the public interest, in accordance with Section 18 of the Rules of Procedure of the Oregon State Bar. The Oregon State Bar, as the prevailing party, is also awarded judgment against the Accused for its costs and disbursements. [*] Denecke, C.J., did not participate in the decision of this case. [1] The complaint also included the usual "cumulative" charge, which we find unnecessary to consider. [2] Section 18 of the Rules of Procedure of the Oregon State Bar provides: "Any person who has been an active member of the bar, but who has resigned (under Appendix B to these rules) or been disbarred, suspended for professional misconduct for a period of more than six months, suspended for any other reason, enrolled voluntarily as an inactive member for a period of more than six months or enrolled involuntarily as an inactive member, and who desires to be reinstated as an active member or to resume the practice of law in this state (except a person who has been suspended under section 4 of these rules solely for conviction of a misdemeanor involving moral turpitude or of a felony), may be reinstated, as an active member only, on application and compliance with the rules of the court and these rules of procedure and showing, to the satisfaction of the bar and the court, that he has the good moral character and general fitness required for admission to practice law in Oregon and that his resumption of the practice of law in this state will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive to the public interest. No such person shall resume the practice of law in this state without the recommendation of the bar, unless otherwise ordered by the court on its review of the action and recommendation of the bar. A person who has resigned (under Appendix A to these rules) or been suspended for professional misconduct or enrolled voluntarily as an inactive member, for a period of six months or less, and against whom no complaints or charges of professional misconduct were pending and unresolved at the time of such resignation, suspension or voluntary enrollment, and against whom no complaints or charges of professional misconduct are pending and unresolved at the end of such six-month or lesser period, shall be reinstated automatically, without application, unless the court, in any suspension order, shall have directed otherwise. Any such reinstated member shall pay to the Oregon State Bar, prior to reinstatement, the active membership fee and client security fund assessment for the calendar year of reinstatement, less any active or inactive membership fee and client security fund assessment already paid to the Oregon State Bar for the calendar year of reinstatement." [3] DR 9-102(A) provides: "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 * * *." (With two exceptions not relevant in this case.) [4] DR 6-101 provides: "(A) A lawyer shall not: "* * * "(3) Neglect a legal matter entrusted to him." [5] See note 3, supra.

e5b494ca70d05685178868cb23bfacc43b7107f460c60040daf001a6329a4bee

1980-11-04T00:00:00Z

077872be-bc65-4af4-8f20-4d68807aa40f

State v. Kersting

292 Or. 350, 638 P.2d 1145

oregon

Oregon Supreme Court

638 P.2d 1145 (1982) 292 Or. 350 STATE of Oregon, Respondent On Review, v. Dennis Dean KERSTING, Petitioner On Review. No. C 79-01-30263; CA 15260; SC 27698. Supreme Court of Oregon, In Banc. Argued and Submitted June 1, 1981. Decided January 12, 1982. Rehearing Denied February 24, 1982. *1146 Phillip M. Margolin, Portland, argued the cause and filed the briefs for petitioner on review. Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the petition for review and brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem. DENECKE, Chief Justice. The defendant was convicted of murder. The Court of Appeals affirmed his conviction. 50 Or. App. 461, 623 P.2d 1095 (1981). We granted review solely to consider one contention made by the defendant. That contention was that the Court of Appeals erred in adopting the "reliability" test for the admission of scientific testimony rather than the standard that scientific testimony must be based upon methods generally accepted in the scientific community. For examples, Frye v. United States, 293 F. 1013 (D.C. Cir.1923); United States v. Baller, 519 F.2d 463 (4th Cir.1975), cert. den. 423 U.S. 1019, 96 S. Ct. 456, 46 L. Ed. 2d 391; 79 A.L.R.3d 294 (1975). Upon a review of the record we find that we cannot reach this issue. Hairs were found on the victim's clothing and body. Admittedly, the defendant had been with the victim an hour or so before she was killed; nevertheless, the state contended that if the jury found those hairs were those of defendant, their presence had significance. The state called a witness, Mrs. Carpenter, who testified she had training and experience in comparing hair samples. She obtained the hairs from the victim, and also obtained hairs from the defendant's head and limb. She placed the hairs on slides and while the hairs from the victim and the defendant were side by side she examined them under a microscope. The defendant objected to the use of such evidence and an omnibus hearing was held on the issue. The defendant called a witness, Miss Carlisle, who, in effect, testified that the methods used by the witness called by the state had no general scientific acceptance. The trial court ruled that the state could introduce such testimony. At the trial before the jury the two witnesses again testified. After stating the procedures followed in making comparisons between the hairs found on the victim and those of the defendant, the state's witness testified she found one hair taken from the victim's sweater to be "indistinguishable" from some head hairs of the defendant; two hairs found upon the victim were not "similar" either to the defendant's or the victim's hair; and one hair was found to be "indistinguishable" from the victim's. She stated a limb hair found on the victim's hand was "similar" to an arm hair of the defendant. She defined "indistinguishable": Similarly, she defined a hair having some common characteristics to other hairs to be "similar." The witness also testified: The defendant's witness, Miss Carlisle, on direct examination by the defendant, testified before the jury as follows: Both the expert called by the state and the expert called by the defense agreed that hairs could be compared by visual observation and an opinion could be reached that hairs were "indistinguishable," "similar" or not "similar." They also agreed that one of the hairs found on the victim was "indistinguishable" from a hair from the defendant and another "was similar." Neither could testify that the hairs found on the victim came from the defendant. The issue of evidentiary competency of the opinions of expert witnesses, as was considered by the Court of Appeals, is not presented. The challenged evidence was testimony of mere observations, albeit observations aided by devices. However, the state's witness offered no expert opinion on identity but testified to what she observed; therefore, no expert opinion testimony was offered. If the technique used by the state's witness to substantiate her opinion that the hairs were "indistinguishable" or "similar" could be classified as the use of a scientific method, it is immaterial in this case whether the method used was either "reliable" or generally accepted in the scientific community because both witnesses formed the same opinion. The defendant also objected to the testimony of the state's witness that some of the hairs were "indistinguishable" or "similar" on the ground such evidence "had no probative value." The defendant did not elaborate on this ground. We infer, however, that the defendant's contention is that the evidence was inadmissible because the expert was unable to opine that the hair on the victim was from the defendant and that the evidence tended to prove no more than that there was a possibility that the hair was from the defendant because it was "indistinguishable" from hairs taken from the defendant. Evidence that tends to make a fact more probable or less probable has probative value. "Any evidence which tends to render the fact probable or improbable is relevant * * *." Klingback v. Mendiola, 138 Or. 234, 239, 6 P.2d 237 (1931).[1] We applied this principle of relevancy to evidence of hair samples: Affirmed. [1] Rule 401, Oregon Rules of Evidence provides: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." These rules were not in effect when this case was tried.

7b0911bca06be7604d8409ec31571e3bfd35f23690047fb3e2a59c52023eabc7

1982-01-12T00:00:00Z

723c3f9f-1b54-4b8e-8199-5469f66bd552

Miller v. Employment Division

290 Or. 285, 620 P.2d 1377

oregon

Oregon Supreme Court

620 P.2d 1377 (1980) 290 Or. 285 Gregory L. MILLER, Respondent, v. EMPLOYMENT DIVISION and Union Gospel Mission of Portland, Petitioners. No. 79-AB-380; CA 14548; SC 27075. Supreme Court of Oregon. Argued and Submitted November 3, 1980. Decided December 30, 1980. Paul R. Romain, Portland, argued the cause for petitioner Union Gospel Mission of Portland. With him on the brief were Ronald K. Ragen, and Ragen, Roberts, O'Scannlain, Robertson & Neill, Portland. William F. Gary, Asst. Atty. Gen., Salem, argued the cause for petitioner Employment Division. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and W. Benny Won, Asst. Atty. Gen., Salem. L. Ramsay Weit, Legal Aid Service, Portland, argued the cause and filed briefs for respondent. *1378 Before TONGUE, Presiding C.J., and HOWELL,[*] LENT, LINDE, PETERSON, and TANZER, JJ. TANZER, Justice. We review the decision of the Court of Appeals reversing an administrative order of the Employment Appeals Board (EAB) in a contested case denying unemployment compensation to claimant. The issue is whether services performed by claimant for his former employer are covered employment for the purposes of unemployment compensation pursuant to ORS 657.072. The answer depends upon determination of the validity of the Employment Division's administrative rule which purports to interpret ORS 657.072. The findings are not challenged. From July 1977 to March 1978 claimant worked for the Union Gospel Mission, an association of churches. He worked primarily as a truck driver, picking up articles donated to the Mission's thrift store. Employees of the store sort, clean and sell donated articles for profit which is used to support the Mission's religious activities. Claimant was not involved in any of the Mission's religious activities. The Employment Division referee concluded under ORS 657.072(1)(a)(A) and OAR 471-31-090(2) that claimant's services were covered employment. EAB reversed, concluding that the administrative rule "exceeds the range of interpretation entrusted to the Employment Division by statute." The Court of Appeals reversed the EAB and upheld the validity of the administrative rule. On review, we reverse the Court of Appeals, 45 Or. App. 1117, 610 P.2d 293, because the administrative rule is not authorized by ORS 657.072(1)(a)(A). Our review of the order is under ORS 183.482 and ORS 657.282 for error of law. Under ORS 183.400(2) we review the rule upon which the order is based. The controlling statute, ORS 657.072, provides: The Employment Division referee found that the Mission is an association of churches. Thus, claimant's employment by the Mission is clearly and specifically exempted from covered employment by the language of ORS 657.072(1)(a)(A) because it is "service performed * * * [i]n the employ of [an] association of churches." OAR 471-31-090(2) purports to interpret ORS 657.072. The rule limits the church employment exemption by allowing coverage for services performed "in furtherance of a trade or business for profit." The rule conflicts with the clear, unambiguous words of ORS 657.072(1)(a)(A) which absolutely exempt employment by an association of churches from unemployment insurance coverage regardless of whether the employment itself is for religious purposes or for profit. Claimant argues that the rule is a reasonable interpretation of the statute as a whole. The statute, however, is in alternative subsections. In contrast to subsection (A) of ORS 657.072(1)(a), subsection (B) allows exemption for organizations other than churches or associations of churches, "operated, supervised, controlled or principally supported by a church or convention or association of churches," only if they are operated "primarily for religious purposes." ORS 657.072(1)(a)(B) provides: See, for example, the application of the statute to parochial schools in Emp. Division v. N.W. Christian College, 31 Or. App. 201, 570 P.2d 100 (1977), rev. den. (1978); Emp. Div. v. Archdiocese, 42 Or. App. 421, 600 P.2d 926 (1979). A similar limitation upon the exemption exists for ministers and members of religious orders. ORS 657.072(1)(b). Subsection (b) exempts service performed: The existence of these express statutory limitations upon the exemptions in subsections (1)(a)(B) and (b) contrast with the absolute terms of ORS 657.072(1)(a)(A). Because claimant's employment comes within subsection (1)(a)(A), we do not consider whether the rule is valid as it applies to other subsections. We hold that ORS 657.072(1)(a)(A) does not allow the Employment Division to narrow its scope by interpretation as in OAR 471-31-090(2). An agency may not amend, alter, enlarge or limit the terms of a legislative enactment by rule. U. of O. Co-oper. v. Dept. of Rev., 273 Or. 539, 550, 542 P.2d 900 (1975). The definition of covered employment in ORS 657.072 is a complete expression of legislative policy and gives the agency no latitude to create an exception to the coverage of the statute by rule. Springfield Ed. Assn. v. Springfield School Dist. No. 19, 290 Or. 217, 225, 621 P.2d 547, 553 (1980). See also McPherson v. Employment Division, 285 Or. 541, 549-50, 591 P.2d 1381 (1979). Because the Employment Division rule conflicts with the legislative policy expressed in the unambiguous language of ORS 657.072(1)(a)(A), we hold the rule to be invalid.[1] We reverse the decision of the Court of Appeals and reinstate the EAB order finding respondent's services exempt from unemployment insurance coverage. Reversed. [*] Howell, J., retired November 30, 1980. [1] The Court of Appeals, in reaching a contrary result, relied heavily on the case of Shiloh Youth Revival Center v. Emp. Div., 44 Or. App. 81, 605 P.2d 704 (1980). Shiloh involved circumstances similar to the instant case although the issue there was the employer's liability for unemployment tax. The Court of Appeals in Shiloh applied OAR 471-31-090(2)(a) and found the employee's services covered because they were "in furtherance of a trade or business for profit." Shiloh is distinguishable from the instant case because the validity of the rule was not challenged. To the extent that Shiloh assumes the validity of OAR 471-31-090(2) as it applies to ORS 657.072(1)(a)(A), it is superseded by this opinion.

12072068cd70facabe5de0c269c69f506b3a3e34f0a05b4855b138ae3c8338f0

1980-12-30T00:00:00Z

c837c03f-f88e-4e5e-a8d1-b8e295c4bd0a

In Re Conduct of Montgomery

292 Or. 796, 643 P.2d 338

oregon

Oregon Supreme Court

643 P.2d 338 (1982) 292 Or. 796 In re Complaint As to the CONDUCT OF Kenneth M. MONTGOMERY, Accused. OSB No. 80-53; SC 28251. Supreme Court of Oregon, In Banc.[*] Argued and Submitted March 5, 1982. Decided April 6, 1982. *339 William B. Crow, Portland, argued the cause for accused. With him on the brief was Miller, Nash, Yerke, Wiener & Hager, Portland. S. Ward Greene, Portland, argued the cause for the Oregon State Bar. With him on the brief were Marjorie Anne Speirs, and McMenamin, Joseph, Babener, Greene & Perris, Portland. PER CURIAM. This is an attorney discipline case involving a loan from the client to the lawyer. We find that the accused lawyer, Kenneth M. Montgomery, violated DR 5-104(A), and we impose a public reprimand. Montgomery practices law in Portland. MacLellan and Farnham were two of the three principal owners of a corporation, BLT Enterprises, Inc. Montgomery represented BLT on an ongoing basis. He also represented MacLellan and Farnham on some personal matters and was personally involved in other business ventures with MacLellan. The third principal in BLT was a man named Thompson, who was inactive in the management of BLT. Both MacLellan and Farnham were highly competent in their fields. MacLellan handled the business and financial end of the corporation, and Farnham was largely responsible for the other operations of the company.[1] Prior to 1979, Montgomery made an unsuccessful investment and he needed cash. From previous discussions MacLellan was aware that Montgomery needed cash. Montgomery testified that after he was turned down by a bank he asked MacLellan whether BLT would be interested in lending him $20,000 for 45 days at a 20 percent annual interest rate, a then usurious rate of interest. See ORS 82.010 (1979), amended in 1981, and ORS 82.120(5) (1979), repealed in 1981. Or. Laws 1981, ch. 412. Montgomery knew that the rate was usurious. MacLellan did not. Montgomery testified that he knew that if usury were asserted as a defense the interest would be uncollectible and the principal forfeited to the common school fund. He also understood the risks of making an unsecured loan. None of these facts were disclosed to MacLellan or to BLT prior to the time that the loan was made. MacLellan was highly sophisticated in business and financial matters and routinely handled large financial transactions without consulting Farnham or Thompson. However, in view of the unique nature of this loan, he consulted with Farnham and obtained Farnham's approval before lending the money to Montgomery. Montgomery prepared and delivered a handwritten note. For some unexplained reason, the note is not in evidence. The note was not paid within the 45 days. Thereafter, the principals in BLT had a falling out, separate counsel were obtained, and the matter was reported to the Oregon State Bar.[2] A complaint was filed charging that Montgomery violated DR 5-104(A), which provides (the Arabic numbers are ours, and do not appear in the disciplinary rule itself): DR 5-104(A) contains four clauses. The first three clauses define the prohibition: entering a business transaction with a client if the client has a differing interest in the transaction and expects the lawyer to exercise independent professional judgment for the client's protection. The "unless" clause clause 4 permits such conduct if the lawyer (a) makes "full disclosure" and (b) obtains the client's consent. The Trial Board found that BLT and MacLellan "* * * implicitly relied on Montgomery's legal expertise regarding this transaction because no other counsel was available * * *" and that Montgomery should have disclosed four things to MacLellan: The Trial Board recommended that Montgomery be reprimanded. The Disciplinary Review Board concluded that Montgomery had not violated DR 5-104(A), saying: There is no question that Montgomery entered into a business transaction with a client and that they had differing interests therein. Montgomery concedes that the requirements of clauses (1) and (2) of DR 5-104 have been met. The determinative question is whether a violation of the third clause has been made out, that is, whether there is clear and convincing evidence that the client expected the lawyer "* * * to exercise his professional judgment therein for the protection of the client * * *." Prior to this transaction, BLT had loaned money to its employees at low rates of interest. There is no question that BLT, MacLellan and Farnham viewed this loan simply as a business loan and that BLT was aware of Montgomery's somewhat precarious financial situation. In that sense, we agree with the Review Board's conclusion that BLT was not relying upon Montgomery for any advice regarding the creditworthiness of the borrower. Even so, we are convinced that the lender was relying upon Montgomery's exercise of professional judgment, at least to the extent that (a) the loan was valid and legally enforceable, and (b) that the documents prepared by him were in proper form and evidenced a legally enforceable obligation. MacLellan was a sophisticated businessman with (quoting from Montgomery's brief) "* * * far greater business experience *341 and knowledge than [Montgomery]." And true, MacLellan testified that he "* * * would not have gotten another attorney involved in a minor transaction like that." But that analysis is incomplete. MacLellan testified: When a lawyer regularly represents a financial institution such as a bank, savings and loan association or finance company, and applies for a loan of a type which the client makes in the normal course of business, it may be that the lawyer need not advise the client to seek independent legal counsel or otherwise advise the client in the transaction. But that is a markedly different situation from the case at bar, for there the client is knowledgeable in all phases of the business transaction involved and no more expects professional judgment from the lawyer than it does in any other regular loan transaction with a borrower. It is clear that there is no expectation that the lawyer will "exercise his professional judgment for the protection of the client" because the client is already fully informed. But that is not the situation here. Even though MacLellan was generally knowledgeable in business and financial matters, he was virtually unaware of the consequences of making a loan at a usurious rate of interest. The transaction was not "regular," in the sense that a loan from a bank of savings institution is regular, and it is inescapable that there was an expectation, unspoken but real, that the transaction was valid and enforceable. The key is found in the response quoted above, "* * * I would have asked him why [I should consult another lawyer]," which confirms the unspoken but existing belief on the client's part that the transaction was what the client believed it to be a loan at a favorable rate of interest which was legally enforceable. When a lawyer borrows money from a non-lawyer client who is not in the business of lending money, the lawyer should assume that the client is relying on the lawyer for the legal aspects of the transaction to the same extent that the client would rely on the lawyer for advice were the client making the loan to a third person, unless the opposite is expressly stated. It would not occur to a trusting client that the lawyer would advise the client to enter into an unlawful contract. Thus, had BLT consulted Montgomery about a loan to a third person, although advice as to the creditworthiness of the third person would likely not be expected, advice as to the legal effect of the usurious rate of interest would likely have been given. In addition, a competent lawyer might have recommended that security be given by the borrower. In many situations the client would not be dealing with the lawyer but for the client's trust and confidence in the lawyer born of past associations. This trust is indispensable in some lawyer-client relationships. Requiring the lawyer-borrower to assume that the client is relying on the lawyer as to the legal aspects of the transaction is consistent with the realities of the situation, and perhaps more importantly, will tend to maintain a healthy, above-board relationship between the lawyer and the client with maximum protection to the client. The evidence in this case is clear that MacLellan was unaware of the significance of the usurious interest rate. We are convinced that had Montgomery advised him of the consequences of usury, or had MacLellan sought outside legal advice, the loan in this form would not have been *342 made. We find that the requirements of the third clause have been met. Although we are convinced that Montgomery would not have asserted a usury defense, that is beside the point, for as we observed in In re Drake, 292 Or. 704, 642 P.2d 296 (1982), which also involved a loan at a usurious interest rate: If the situation described in clauses (1), (2) and (3) of DR 5-104(A) is shown to exist, then the business transaction cannot be concluded "* * * unless the client has consented after full disclosure." One way for consent to be obtained is by having the client obtain outside counsel, for as we stated in In re Bartlett, 283 Or. 487, 496, 584 P.2d 296 (1978): If the advice to seek outside counsel has not been given, or though given has not been taken, then the lawyer must make "full disclosure." In this case, full disclosure would require the type of advice which a prudent lawyer would be expected to give the client if the client consulted the lawyer regarding such a loan to a third person.[3] We restate our conclusions regarding the third and fourth clauses of DR 5-104(A). As to clause (3) "if the client expects the lawyer to exercise his professional judgment therein for the protection of the client" when a lawyer seeks to borrow money from a non-lawyer client who is not in the business of lending money, the lawyer must assume, in the absence of contrary expression by the client, that the client is relying on the lawyer for professional judgment to the same extent that the client would rely on the lawyer for advice had the client consulted the lawyer concerning such a loan to a third person. As to clause (4) "unless the client has consented after full disclosure" if advice to seek outside counsel has not been given, or if given has not been taken, the lawyer should give the client the advice which a prudent lawyer would be expected to give the client if the client consulted the lawyer regarding such a loan to a third person.[4] *343 Montgomery has violated DR 5-104(A) and should be publicly reprimanded. This opinion will stand as that reprimand. Costs to Oregon State Bar. [*] Roberts, J., did not participate in this decision. [1] MacLellan has an impressive, successful record in business. BLT operated a number of restaurants. Farnham testified, "* * * [Y]ou would have to stretch your imagination to say I know a whole lot about any of the financial aspects of what's going on. I know a lot about hamburgers." MacLellan described Farnham's operational capabilities, "* * * [O]n a scale of one to ten, he's a fourteen." [2] As required by DR 1-103(A), the matter was reported to the Bar by the lawyers who subsequently represented the principals in BLT. DR 1-103(A) provides: "A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." [3] In order to discourage lawyers from borrowing from their clients, we restate this sentence from In re Drake, 292 Or. 704, 716, 642 P.2d 296 (1982): "Truly independent professional judgment can best be given in an atmosphere in which the lawyer is truly independent." When one borrows money from a client, it is more difficult to give independent advice, for the lawyer's judgment may be impaired by self interest. [4] Compare DR 5-101(A), which prohibits a lawyer from accepting employment without full disclosure and consent "* * * 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." In re Drake, 292 Or. 704, 642 P.2d 296 (1982), also involved a loan from a client to his lawyer. We held that both DR 5-104(A) and DR 5-101(A) had been violated. As to DR 5-101(A), we stated: "Unquestionably, Drake's `own financial interests' were involved. The evidence is convincing that this financial interest affected Drake's exercise of professional judgment. As stated in footnote 6 and as discussed above (see discussion under DR 5-104(A)), Drake did virtually nothing to protect his client by obtaining a note to evidence the debt or by obtaining security. There was no disclosure of the illegality of the interest rate. Truly independent professional judgment can best be given in an atmosphere in which the lawyer is truly independent. Although DR 5-101(A) may well have primary reference to other financial, business, property or personal interests of the lawyer, the existence of a debt between the lawyer and client may, and in this case did, constitute such an interest and had an effect upon the lawyer's ability to exercise independent professional judgment incident to the loan transaction itself." See also In re Tonkon, 292 Or. 660, 642 P.2d 660 (1982), for a discussion of DR 5-101(A).

09c30b859918d2ad618f3ebe70f982cc5fbb982c35e3b1fce1b37c583a508981

1982-04-06T00:00:00Z

a5e5fccd-0d92-4fdd-832a-5dd4bf2fde01

In Re Burrows

290 Or. 131, 618 P.2d 1283

oregon

Oregon Supreme Court

618 P.2d 1283 (1980) 290 Or. 131 In re Complaint As to the Conduct of Robert M. BURROWS, Accused. OSB No. 78-60; SC 26967. Supreme Court of Oregon, In Banc. Decided November 4, 1980. Argued and Submitted October 7, 1980. Robert A. Lucas, of Lucas, Petersen & Huffman, Rainier, argued the cause and filed a brief for the accused. Blair M. Henderson, Klamath Falls, argued the cause for the Oregon State Bar. With him on the brief was Robert D. Boivin, Klamath Falls. PER CURIAM. The Oregon State Bar brought disciplinary proceedings against Robert M. Burrows, the district attorney for Josephine County, for alleged unethical conduct. The Trial Board recommended a private letter of censure[1] by the Oregon State Bar, and the Disciplinary Review Board recommended a public reprimand. We dismiss the proceeding. We find these facts: The mother of one Robert Shoemaker received a letter from her son, who was alleged to have committed several crimes and was then in custody while awaiting trial on a charge of felony murder. Shoemaker had written the letter expressing his sorrow for unspecified acts he had committed and to ask his mother's forgiveness. The letter made no specific reference to the homicide. In February, 1978, Mrs. Shoemaker gave the letter to the district attorney, specifically authorizing him to use it in any manner to help young people. At the time Burrows received the letter, Shoemaker had already confessed to the homicide. Burrows did not believe that the letter was germane to any issue in the pending criminal case, nor did he believe that the letter had any evidentiary value. In May of 1978, while the Shoemaker case was pending, Burrows received an invitation from a teacher at Grants Pass High *1284 School to talk to four high school classes about the responsibilities and functions of the district attorney's office. He read the Shoemaker letter to the students. According to Burrows, the letter was read to show the impact of a momentary decision on one's life. Burrows told the students, "I hope none of you have to write a letter like this one to your parents." Burrows did not read the letter with intent to prejudice the rights of defendant Shoemaker nor did he intend to use the letter as evidence at trial. There was no prejudice to Shoemaker's rights. While the complaint did not charge violation of a specific Disciplinary Rule,[2] both the Disciplinary Review Board and the Trial Board found that Burrows' conduct was unethical and in violation of Disciplinary Rules 7-107(B)(3) and 1-102(A)(5). DR 7-107(B)(3) provides: DR 1-102(A)(5) provides: DR 7-107 is a comprehensive rule of professional conduct intended to insure that the trial of civil, criminal and administrative proceedings will be conducted in an atmosphere which is free from the taint of unfair pretrial publicity. The rule proscribes lawyers' comments of a kind designed or likely to have a prejudicial effect on prospective jurors. In Re Richmond, 285 Or. 469, 475, 591 P.2d 728 (1979). DR 7-107 was adopted following the decision of the Supreme Court of the United States involving the highly publicized murder trial of Sam Sheppard, Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966). DR 7-107 was previously considered by this court in the context of an administrative hearing in In Re Richmond, supra (DR 7-107(G)), and in the context of a civil trial in In Re Porter, 268 Or. 417, 521 P.2d 345 (1974) (DR 7-107(F)). This is the first case in which we have applied DR 7-107(B), which regulates pre-trial conduct of lawyers involved in criminal proceedings. The position of the Bar is: At the time of Burrows' appearance at the high school, a number of felony charges involving burglaries, thefts, attempted murder, and murder were pending against Shoemaker, and there existed other potential criminal charges as well. Although the *1285 Shoemaker letter could arguably come within the definition of an admission or statement, the relationship, if any, between the statements in the letter and any one of the pending or potential criminal charges is tenuous.[3] An inadvertent violation of a rule of professional conduct might cause as much harm as a wilful violation.[4] In that sense, the intent of the person charged is not necessarily an important or determinative factor. What is important is the effect which may ensue. We are persuaded that Burrows' reading of the letter was not likely to have any effect on the pending criminal case. The comments were not "of a kind designed or * * * likely to have * * * a prejudicial effect on lay fact finders." In Re Richmond, supra, 285 Or. at 475, 591 P.2d 728. Furthermore, DR 7-107(B)(3) refers to statements made by attorneys "for public communication." Although the high school students are unquestionably members of the public, we believe that Burrow's comments were not of a kind designed to reach the news media or those members of the citizenry who might be expected to be jurors, or be used beyond the purpose expressed by him. Under the circumstances of this case, we conclude that the reading of the letter did not constitute the kind of interference by extra-judicial statements with the fair adjudication of factual issues against which DR 7-107, including subsection (B), is directed. For the same reasons, we find no violation of DR 1-102(A)(5). The Bar's complaint is dismissed. [1] There is no provision in the Rules of Procedure Relative to Admission, Discipline, Resignation and Reinstatement for a "private letter of censure." [2] Since the filing of the complaint in this case, Section 15 of the Rules of Procedure has been amended so as to require the specification of not only the "acts or omissions of the accused," but also "the statutes, the canons, or the Disciplinary Rules violated," so that the accused is aware of the "nature of the charges against him." In re Ainsworth, 289 Or. 479, 488, 614 P.2d 1127 (1980). [3] Compare State v. Suttles, 287 Or. 15, 32, 597 P.2d 786, 795 (1979). [4] Compare In Re Porter, 268 Or. 417, 421, 521 P.2d 345 (1974).

4ab0798f5c7569f569f6618f7664ae17aac9313b4b5bee7da265b95649e27bea

1980-11-04T00:00:00Z

a88d474d-a713-4d0a-9410-ca1dfeed47e0

Alexanderson v. BOARD OF COM'RS, ETC.

289 Or. 427, 616 P.2d 459

oregon

Oregon Supreme Court

616 P.2d 459 (1980) 289 Or. 427 Alvin ALEXANDERSON, Petitioner, v. THE BOARD OF COMMISSIONERS FOR POLK COUNTY, Respondent. TC 25142; CA 13226 and SC 26628. Supreme Court of Oregon, In Banc. Argued and Submitted February 6, 1980. Decided July 23, 1980. Rehearing Denied October 28, 1980. Dissenting Opinion November 4, 1980. *460 Alvin L. Alexanderson, Salem, argued the cause and filed a brief pro se. Dennis McCaffrey, Polk County Legal Counsel, Dallas, argued the cause and filed a brief for respondent. Dissenting Opinion November 4, 1980. See 619 P.2d 212. LINDE, Justice. The issue for decision is whether Polk County unlawfully denied petitioner's application for an otherwise proper partition of his 25 acre tract of land on the ground that the partition would contravene a statewide planning goal promulgated by the Land Conservation and Development Commission ("LCDC"). The land in question qualifies as agricultural land within the definition of LCDC's Goal 3, relating to the preservation of such land for agricultural use.[1] At the time of the application it was used primarily as cherry orchard and was qualified for property tax assessment limited to farm use. ORS 308.370. The tract is located within an area designated by the Polk County Comprehensive Plan as "rural residential" and is zoned for "agricultural-residential" use with 5-acre minimum lot size. Petitioner applied to the county for permission to partition the tract into three lots, pursuant to Polk County's subdivision ordinance. Ord. # 118 (May 1, 1974) § 6. The county planning director and, on appeal, the Board of Commissioners disapproved the partition as inconsistent with statewide land use standards.[2] In proceedings upon a *461 writ of review, the circuit court vacated the Board's order and ordered approval of the proposed partition. On the county's appeal, the Court of Appeals reversed the circuit court, 42 Or. App. 618, 601 P.2d 139 (1979), and we allowed review. We affirm the decision of the Court of Appeals. The problem arises from the interplay between the county's exercise of its authority over subdivisions and partitions under ORS chapter 92, and the statewide standards that govern the exercise of its planning responsibilities under ORS chapters 197 and 215. With respect to the partition of a tract of land, which ORS 92.010(8) defines as its division into two or three parcels within a calendar year, the law distinguishes between a "major" partition, which includes the creation of a road or street, and a "minor" partition, which does not. ORS 92.010(2), (4). This case involves a minor partition. Under chapter 92, the county "shall" adopt standards for the approval of major partitions, ORS 92.044; it "may" adopt standards for the approval of minor partitions. ORS 92.046. If it does regulate minor partitions, such a partition must comply with the applicable ordinances, which in turn must comply with the county's comprehensive plan. ORS 92.046(5), (6). Under chapter 215, the county is required to adopt "zoning, subdivision and other ordinances applicable to all of the land in the county" that are "designed to implement the adopted county comprehensive plan." ORS 215.050(1), (2). With the adoption of ORS chapter 197 and of statewide planning goals, the statutes allowed a one-year period after the goals were approved by LCDC under ORS 197.240 within which to bring the comprehensive plan and the ordinances and regulations into conformity with the goals. ORS 215.050(3), ORS 197.250. The law prescribes procedures for LCDC to determine whether comprehensive plans or zoning, subdivision, or other ordinances or regulations comply with the goals, or to provide limited extensions of time for bringing them into compliance. ORS 197.251. The changed legal status of these local land use policies before and after this determination of compliance is important to the present case. ORS 197.275 provides: Polk County's comprehensive plan and land use regulations have not completed this process of acknowledgment. However, the county adopted a policy, expressed in a Board resolution, that during the transition period it would apply the statewide planning standards directly to individual requests for partitions. Petitioner relies on the continued effectiveness of the county's existing plan, ordinances and regulations pending their acknowledgment by LCDC, ORS 197.275(1), *462 supra, and contends that the county is bound to judge his proposed partition under its subdivision ordinance until it is properly revised or amended. This contention has merit unless the county is right in superimposing the statewide goals on individual decisions under the ordinance. The question is whether the legislature meant this to be done. The county relies on ORS 197.175, which directs cities and counties to "exercise their planning and zoning responsibilities" in accordance with state laws and statewide planning goals. It interprets this to mean that, because the adoption of comprehensive plans and zoning and subdivision ordinances is a planning and zoning responsibility, ORS 197.175(2), each individual decision under such an ordinance is equally an exercise of that responsibility. Standing alone, however, ORS 197.175 does not strike us as conclusive on the question, especially when ORS 92.046 leaves it to the county's discretion whether to regulate minor partitions at all. ORS 197.175 alone could equally be read to reflect a legislative division between statewide and local responsibilities that would test large-scale local policies-planning, zoning and subdivision ordinances, as well as annexations-against statewide goals, thereafter leaving individual cases to be decided under the local ordinances. Cf. Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 14-15, 569 P.2d 1063 (1977). However, there are other indications of the legislative policy. When a local government requires an extension of time to comply with the goals, ORS 197.252 authorizes LCDC as part of a compliance schedule "to direct the city or county to apply specified goal requirements in approving or denying future land conservation and development actions if the commission finds that past approvals or denials would have constituted violations of the state-wide planning goals...." The cryptic choice of the conditional phrase "would have," without stating what condition is meant, requires explanation. It is found in the legislative history of the section. The legislative history shows that in the major reexamination and revision of the land use laws in 1977, the question whether the state-wide planning goals did or did not apply directly to individual "land conservation and development actions" was a major point of contention between witnesses who favored and those who were critical of LCDC's statewide authority over land use. The applicability of the goals to individual "actions" grew into a crucial issue when it became clear that the satisfactory local comprehensive plans could not be completed in one year but would take several years. The issue had not been decided under the existing law. Moreover, while the legislature was in session, LCDC published its policies for attaching conditions to planning grants and to the extensions of the time allowed local governments for completing their plans. In this setting, there were proposals to have the 1977 legislation expressly affirm that state-wide goals govern "actions" directly until a comprehensive plan was completed and acknowledged, and proposals to have it expressly negate this. All such amendments failed. What emerged from the committee discussions instead was consensus to leave the law on the issue as it was, whatever that might be. The phrase "would have constituted violations of the state-wide planning goals" was placed in ORS 197.252, somewhat elliptically, to mean "would have" assuming the goals applied. If ever legislative history shows the enactment of a statute with a firm purpose not to legislate on an issue, the history of ORS 197.252 is it. Thus the question whether the state-wide goals would govern "land conservation and development actions" after the expiration of the time allowed to bring local plans into compliance with the goals stands where it stood before the 1977 legislation. At that time, and at the time relevant to the present case, LCDC was authorized to review any "land conservation and development action" alleged to conflict with the *463 statewide goals. ORS 197.300(1)(b) (1977).[3] Also ORS 197.275(2), quoted above, provides that after a compliance acknowledgment, "the goals shall apply to land conservation and development actions ... only through the acknowledged comprehensive plan and implementing ordinances." The implication is that before acknowledgment, the goals apply to such actions not only in this indirect way but directly. Although ORS 197.015 contains a list of definitions, the statute nowhere defines the key term "land conservation and development action." We read "action" in this context to go beyond the adoption of plans and general ordinances so as to reach action on applications of these general policies to specific tracts of land. This includes minor partitions if the local government has brought them within its subdivision ordinance. LCDC has included the partition of land in its definition of "development," OAR 660-15-000 (Appendix A). Accordingly, we conclude that Polk County followed the statutory scheme in applying the statewide agricultural lands goal to partitions under its subdivision ordinance. In the circuit court and in the Court of Appeals, petitioner contended that the Board erred in concluding that his proposal was incompatible with this goal or with a proper consideration of all applicable goals. The circuit court agreed. The Court of Appeals wrote no opinion besides citing its earlier opinion in Jurgenson v. Union County Court, 42 Or. App. 505, 600 P.2d 1241 (1979), which held a partition subject to Goal 3. As often happens, we are left to infer that it rejected petitioner's contention and the circuit court's conclusion on this issue in reversing the decision below. The petitioner has not pursued the merits of the issue in this court, relying only on his position that the county should not have applied the goal at all. Since we have reached a contrary conclusion, the decision of the Court of Appeals is affirmed. Affirmed. TONGUE, Justice, dissenting. In my opinion the holding by the majority in this case is not only contrary to the applicable law, but also creates an untenable situation for those persons who seek approval from a planning commission or board of commissioners to partition their property. This is particularly true in this case in which the application by this petitioner appears to have satisfied all requirements of the Polk County comprehensive plan and zoning ordinances. I must, therefore, respectfully dissent. Petitioner is the owner of 25 acres of land in Polk County. The tract includes a cherry orchard, together with some hay and pasture land. He sought to partition that tract into three smaller parcels. At the time of the application by petitioner for approval of that partition, the Polk County comprehensive plan designated the area as "rural residential," and the 25-acre tract was zoned "agricultural-residential," with a 5-acre minimum lot size. In addition, according to the trial testimony of E. Frank Wyckoff, the county planning director, requests for minor partitions *464 prior to December 1977 were handled under the county's subdivision ordinance through a relatively simple administrative procedure. Applicants had to secure the approval of the county road master (checked access), the county surveyor (checked lot sizes and survey accuracy), the county sanitarian (checked septic approval) and the county planning director. On December 28, 1977, the Polk County Board of Commissioners changed these rules by the passage of Resolution No. 325. Thereafter, applicants were further required to show that the partition "will conform to the state-wide planning goals adopted by the Oregon Land Conservation and Development Commission." (LCDC). As a result of Resolution No. 325, not only were the substantive requirements changed, but the procedures for obtaining approval of a partition were also changed. The county planning department began taking "full applications"; adjacent land owners had to be notified, and soil analyses conducted to determine the type of agricultural soil present. Thus, by resolution, without either the adoption of any ordinance or the amendment of its existing comprehensive plan or zoning ordinance, Polk County changed the substantive and procedural rules for minor partitions. Petitioner was faced with these new barriers when on February 21, 1978, he filed his request for approval of a partition of his property. As stated by the majority, that request was denied by the planning department and the board of commissioners because, in their view, it contravened LCDC's Goal 3, relating to the preservation of agricultural lands.[1] The majority concludes, after a review of the applicable statutes and their legislative history, that by "implication" those statutes require that the state-wide planning goals must be applied directly to applications for approval of individual partitions and that Polk County followed that "statutory scheme" in applying the state-wide agricultural lands goal (goal 3) to petitioner's application for approval of this partition. In my view, however, a review of this "statutory scheme" not only leads to the opposite conclusion but also illustrates the problems encountered by courts which embark upon searches for legislative "implication" or "policy" as the basis for defining legislative intent. Cities and counties in this state are required to adopt comprehensive plans for land development. ORS 215.050 and 197.175(2). ORS 197.175(1) provides in part: As stated by the majority, the county contends that this statute required it to apply LCDC Goal 3 to individual partition decisions. The majority properly concludes that this statute "does not strike us as conclusive on the question." The reason why that statute is not "conclusive" is that it is clearly not applicable. The reference in that statute to "planning and zoning responsibilities" is a reference to the adoption of comprehensive plans, ordinances and regulations, not to individual decisions regarding minor partitions. This is made clear by other statutes including ORS 197.275(2) which provides that: Thus, although the legislature did not define either "planning and zoning responsibilities" or "land conservation and development actions," it is clear that the legislature *465 intended to make a distinction between broad "legislative" functions on one hand and individual "actions," such as partitions, on the other. This distinction is implicitly recognized by the majority in its conclusion that "land conservation and development actions" go "beyond the adoption of plans and general ordinances so as to reach action on applications of these general policies to specific tracts of land." Because, in this case, the comprehensive plan prepared by Polk County had not yet been acknowledged by LCDC, the question presented by this case is whether the county must directly apply the state-wide planning goals to each individual "land conservation and development action" during the interim period preceding such acknowledgment. As previously stated, ORS 197.275(2) requires that the goals only apply indirectly through the comprehensive plan once that plan is acknowledged. Prior to acknowledgment, two other statutes (ORS 197.252 and 197.300(1)(b)) granted LCDC the authority to require that a particular "action" conform with the goals. These statutes do not, however, require that a county directly apply the goals unless LCDC has exercised its authority to require such action, as the following discussion will demonstrate. Counties and cities are required to develop comprehensive plans that conform to the state-wide planning goals "within one year from the date such goals are approved by the commission." ORS 197.250. If, however, as in this case, a county fails to complete its plan within this one-year period it may request an extension of time to do so. ORS 197.251. If LCDC grants the extension, that extension will include a "compliance schedule" which may include a requirement that the county directly apply the state-wide planning goals to individual "actions." ORS 197.252 states in part: The majority makes much of the ambiguities in this statute pertaining to the "conditions" under which LCDC may require that a county "apply specified goal requirements in approving or denying future land conservation and development actions." In my opinion, however, any such ambiguity is not relevant to this case. Instead, the relevant question under this statute (ORS 197.252) is whether LCDC has included in Polk County's "compliance schedule" any requirement that the county directly apply all or some of the state-wide planning goals to future individual "land conservation and development actions." The answer, of course, is that LCDC has not included any such requirement for Polk County. The other statute that authorized LCDC to require that a specific "land conservation and development action" comply directly with the state wide planning goals was ORS 197.300(1)(b) (repealed, 1979 Or. Laws c. 772 § 26). That statute provided: Once again, this statute at most requires LCDC to require direct application of the state-wide planning goals to individual "actions" upon the filing of such a petition. It is from these statutes that a majority concludes that the court should, by "implication," require counties to directly apply the LCDC goals to all individual "land conservation and development actions," including minor partitions. With all due respect, it is my opinion that these statutes imply no such conclusion. On the contrary, in my opinion, these statutes "imply" quite the opposite conclusion: that a county is to continue to apply its existing ordinances and regulations until such time as its comprehensive plan is acknowledged unless LCDC has issued a specific order requiring that the county directly apply certain state-wide planning goals to individual "actions." Not only is such a result the clear intent of the statutes involved, in my opinion, it is a sensible result as well. State-wide planning objectives necessarily require that counties and cities adhere to common goals and that local decisions are not to be made contrary to such goals. On the other hand, both the public in general and owners of land, in particular, are entitled to know with reasonable certainty whether a county will permit or deny particular land uses. The essence of land use planning is planning, not ad hoc decision making. The LCDC goals are in the nature of guidelines for legislation (comprehensive plans and ordinances) and not rules to be directly applied on an ad hoc (a case by case) basis. Where, however, a county or city chooses to ignore some or all of the goals, the law (ORS 197.252 and 197.300(1)(b)) provided a remedy whereby LCDC could step in and require compliance. In the absence of such action counties and cities were required to regulate land use by the application of their own local ordinances and, once acknowledged, through their own comprehensive plan.[2] In the absence of a state law requiring direct application of LCDC goals, the county's "action" must rest upon the authority of local county law. ORS 92.046 provides that counties "may" regulate minor partitions and, further, that counties "may" also "establish standards and procedures governing the approval of tentative plans for such partitions." (subsection (1)). Such "tentative plans" must also comply with the applicable zoning ordinances (subsection (5)). In addition, any ordinances or regulations passed relating to minor partitions of land must comply with the county's comprehensive plan (subsection (6)).[3] In addition, ORS 92.048 provides that such ordinances and regulations may only *467 be enacted or amended after a public hearing before the planning commission and a subsequent hearing before the governing body of the county. The statute further provides procedures for published notice of such hearings.[4] *468 Polk County has adopted a subdivision ordinance that also governed minor partitions (Ordinance No. 118). That ordinance was presumably enacted under the procedures prescribed in ORS 92.048, quoted above. As recognized by the majority, the Board of Commissioners passed a "resolution" declaring its intention to apply the state-wide planning goals to future individual requests for partitions. The record in this case does not disclose whether that "resolution" was passed pursuant to the requirements of ORS 92.048(5) relating to amendments of partition ordinances or regulations. We must assume, however, that this "resolution" was not so enacted, as contended by the petitioner in the circuit court, because the county failed to deny that contention before this or any court or to contend that it was empowered by local law, as opposed to state law, to directly apply the state-wide planning goals to petitioner's request for a partition. For the reasons previously stated, it is my opinion that the legislature did not intend that the state-wide planning goals be directly applied to individual "land conservation and development actions," particularly minor partitions, except in cases in which LCDC had issued orders as provided by ORS 197.252 and 197.300(1)(b). In addition, it is my opinion that it was clearly improper for a county to suddenly decide by resolution, without the notice or public hearing as required by ORS 92.048, that individual requests for partitions will be subject to a new set of rules. LENT and PETERSON, JJ., concur in this dissenting opinion. [1] Goal 3, "Agricultural Lands," provides in part: "Agriculture lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space. These lands shall be inventoried and preserved by adopting exclusive farm use zones pursuant to ORS Chapter 215. Such minimum lot sizes as are utilized for any farm use zones shall be appropriate for the continuation of the existing commercial agricultural enterprise within the area. "AGRICULTURAL LAND in western Oregon is land of predominantly Class I, II, III and IV soils ..." OAR 660-15-000(3) (Appendix A). The county found that petitioner's land falls predominantly into soil classes II and III. [2] The Board's order found as a fact that the land "has no existing structures; it is likely that partitioning would lead to construction of residences on each of the resulting parcels," and it stated as a conclusion of law that "[a]pproval of the request to partition the land would violate statewide planning goal 3 and the exclusive farm use statutes set forth in ORS Chapter 215." Only the applicability of Goal 3 was pursued on judicial review. [3] In 1979 this section was replaced by the authority of the newly established Land Use Board of Appeals to review "land use decisions," defined to include a decision by a county concerning the "application of ... [a] subdivision or other ordinance that implements a comprehensive plan." 1979 Or. Laws c. 772 §§ 1-6a, 26. The dissent would interpret ORS 197.300(1)(b) as delegating to LCDC authority to "require" application of the goals to land use decisions, and to do so only upon a petition by a governmental entity. However, we conclude that this section did not delegate discretionary authority to LCDC but rather "review" of "land conservation and development action[s]" for compliance with an existing obligation to observe the goals. The requirement of a petition by a governmental entity was designed only to limit the parties who had standing to initiate LCDC's review (as distinguished from judicial review in circuit courts). [1] See majority opinion, note 1. [2] In 1979 the legislature repealed ORS 197.300 and created the Land Use Board of Appeals to review "land use decisions" defined to include the "application of" the state-wide planning goals, comprehensive plan or zoning, subdivision or other ordinance that implements a comprehensive plan. 1979 Or. Laws c. 772 §§ 1-6a and 26. As with ORS 197.300, review of individual "actions" or "applications of" a comprehensive plan or ordinance is limited to cases where a petition has been filed with the Board. (§ 2a(1)). [3] ORS 92.046 provides: "(1) The governing body of a county or a city may, as provided in ORS 92.048, when reasonably necessary to accomplish the orderly development of the land within the jurisdiction of such county or city under ORS 92.042 and to promote the public health, safety and general welfare of the county or city, adopt regulations or ordinances requiring approval, by the county or city of proposed partitions not otherwise subject to approval under a regulation or ordinance adopted pursuant to ORS 92.044. Such regulations or ordinances may be applicable throughout the area over which the county or city has jurisdiction under ORS 92.042, or over any portion thereof. Such ordinances or regulations may specify the classifications of such partitions which require approval under this section and may establish standards and procedures governing the approval of tentative plans for such partitions. The standards may include all, or less than all, of the same requirements as are provided or authorized for subdivisions under ORS 92.010 to 92.160 and may provide for different standards and procedures for different classifications of such partitions so long as the standards are no more stringent than are imposed by the city or county in connection with subdivisions. "(2) Such ordinances or regulations may establish the form and contents of the tentative plans of minor partitions submitted for approval and may establish adequate measures for the central filing, including but not limited to recording with the city recorder or the county recording officer, and for the maintenance of tentative plans for minor partitions following approval. "(3) The governing body of a city or county may provide for the delegation of any of its lawful functions with respect to minor partitions to the planning commission of the city or county or to an official of the city or county appointed by the governing body for such purpose. If an ordinance or regulation adopted under this section includes the delegation to a planning commission or appointed official of the power to take final action approving or disapproving a tentative plan for a minor partition, such ordinance or regulation shall also provide for appeal to the governing body from such approval or disapproval and require initiation of any such appeal within 10 days after the date of the approval or disapproval from which the appeal is taken. "(4) The governing body may, by ordinance or regulation, prescribe fees sufficient to defray the costs incurred in the review and investigation of and action upon applications for approval of proposed minor partitions. "(5) No tentative plan of a proposed minor partition may be approved unless the tentative plan complies with the applicable zoning ordinances and regulations and the ordinances or regulations adopted under this section that are then in effect for the city or county within which the land described in the tentative plan is situated. "(6) Any ordinance or regulation adopted under this section shall comply with the comprehensive plan for the city or county adopting the ordinance or regulation." [4] ORS 92.048 provides: "The procedure for adoption of any ordinance or regulation under ORS 92.044 and 92.046 is as follows: "(1) The planning commission of the county or the city shall hold a public hearing on the proposed ordinance or regulation after publishing notice of the hearing once a week for two successive weeks prior to the hearing in a newspaper of general circulation published in the area in which land to be subject to such ordinance or regulation is situated or, if there is no such newspaper, a newspaper of general circulation published in the county. The notice shall contain the time, place and purpose of the hearing and a description of the land to be subject to the ordinance or regulation. "(2) Prior to the expiration of 60 days after the date of such hearing, the planning commission may transmit its recommendation regarding the proposed ordinance or regulation to the governing body of the county or city, as the case may be. If the planning commission recommendation has not been received by the governing body of the county or the city prior to the expiration of such 60-day period, the governing body may consider the ordinance or regulation without recommendation of the planning commission thereon. "(3) Prior to the adoption of such ordinance or regulation, the governing body of the county or the city shall hold a hearing thereon after giving notice of the hearing in the same manner provided in subsection (1) of this section. "(4) A copy of any regulation or ordinance adopted by the governing body of a county or a city under this section, together with a map of the area subject to the regulation or ordinance and a brief statement of the different classifications, if any, of land partitioning under the ordinance or regulation, shall be filed with the recording officer of the county in which the land subject to the ordinance or regulation is situated. Such ordinance or regulation shall not be effective until so filed. If the ordinance or regulation is applicable throughout all of the area over which the county or city has jurisdiction under ORS 92.042, only an outline map of such area shall be filed with the recording officer of the county. "(5) The ordinance or regulation may be amended from time to time by following the procedure prescribed in this section."

c425bd6eee3e5ba91483bebd7fea019fd937e389aecc7720de5abfa129807178

1980-11-04T00:00:00Z

3d66d37e-9fa5-41a9-bd3c-e463d4df87b3

Springfield Ed. Ass'n v. SPRINGFIELD, ETC.

290 Or. 217, 621 P.2d 547

oregon

Oregon Supreme Court

621 P.2d 547 (1980) 290 Or. 217 SPRINGFIELD EDUCATION ASSOCIATION, Petitioner, v. SPRINGFIELD SCHOOL DISTRICT NO. 19 AND EMPLOYMENT RELATIONS BOARD, Respondents, and School District No. 1, Multnomah County, and Oregon School Boards Association, Intervenors. Eugene Education Association, Petitioner, v. EUGENE SCHOOL DISTRICT NO. 4J, and Employment Relations Board, Respondents, and School District No. 1, Multnomah County, and Oregon School Boards Association, Intervenors. South Lane Education Association, Petitioner, v. SOUTH LANE SCHOOL DISTRICT NO. 45J3, and Employment Relations Board, Respondents, and School District No. 1, Multnomah County, and Oregon School Boards Association, Intervenors. CA 12102; SC 26542. Supreme Court of Oregon. Argued and Submitted March 4, 1980. Decided December 16, 1980. *550 Jennifer Friesen and Henry H. Drummonds, Eugene, argued the cause for petitioners. With them on the petition was Kulongoski, Heid, Durham & Drummonds, Eugene. On the briefs was Henry H. Drummonds of Kulongoski, Heid, Durham & Drummonds, Eugene. Bruce E. Smith, Eugene, argued the cause for respondent school districts. With him on the briefs were Moore, Wurtz & Logan, Springfield; Gary R. Ackley of Ackley & Kelsay, Cottage Grove; Young, Horn, Cass & Scott, Eugene; and Richard E. Miller of Hershner, Hunter, Miller, Moulton & Andrews, Eugene. Mark C. McClanahan, Portland, argued the cause for intervenors. With him on respondent school districts' briefs were Edward C. Harms, Jr., of Harms & Harold, Springfield; and Miller, Anderson, Nash, Yerke & Wiener, Portland, attorneys for intervenors. James A. Redden, Atty. Gen., and Al J. Laue, Asst. Atty. Gen., Salem, waived appearance for respondent Employment Relations Bd. Before DENECKE, C.J., and TONGUE, HOWELL,[*] LENT, PETERSON and TANZER, JJ. TANZER, Judge. These three consolidated contested cases originated six years ago in unfair labor practices complaints against three school districts filed with the Employment Relations Board (ERB) by complainants, three teachers' labor organizations. The complaints charged the school districts with unfair labor practices by refusal to bargain regarding some 92 proposals, including proposals regarding teacher evaluation. There have been two ERB orders and three Court of Appeals' opinions. The latest Court of Appeals' decision upheld an ERB order which required mandatory collective bargaining regarding certain aspects of the evaluation proposals and permissive collective bargaining as to others. The ultimate issue is whether teacher evaluation is a "condition of employment" under ORS 243.650(4) and therefore subject to mandatory bargaining.[1] The threshold issue is whether the meaning of the statutory phrase "condition of employment" is to be determined by the agency or by the court. That issue has dominated the most recent appeal and we allowed review in order to consider it. The first ERB order classified some proposals as mandatorily and others as permissively negotiable. The Court of Appeals held in its first opinion that "ERB's conclusion that matters which to a large extent involve questions of educational policy are not mandatory subjects for bargaining is not unlawful in substance.[2]Springfield Ed. Assn. v. Sch. Dist., 24 Or. App. 751, 759, 547 P.2d 647 (1976). Applying that principle, it affirmed the order in part. ERB had concluded that certain student teacher contracts were not a subject of permissive negotiation. The Court of Appeals, balancing the effect on teachers' employment and upon educational policy, concluded that the contracts were subjects for permissive bargaining and reversed that portion of the ERB order. 24 Or. App. at 760, 547 P.2d 647. Upon reconsideration, the Court of Appeals concluded, on the basis of its intervening opinion in Sutherlin Ed. Assn. v. Sch. Dist., 25 Or. App. 85, 548 P.2d 204 (1976), *551 that it had erred by itself weighing the effect on employment and educational policy because that application of the statute to the facts was properly a function of ERB, not of the Court of Appeals. Springfield Ed. Assn. v. Sch. Dist., 25 Or. App. 407, 410, 549 P.2d 1141 (1976). The case was remanded to allow ERB to apply the legal test which had been formulated by the Court of Appeals. On remand, ERB applied the Court of Appeals' formulation to the evaluation proposals. In summary, the Board classified the evaluation proposals into three component parts: the bases and use of evaluation, the mechanics of evaluation, and the minimum fairness procedures for evaluation. It found that the first two categories, bases and mechanics, were subjects of permissive bargaining because their relation to educational policy outweighed their impact on the teacher's employment. It held that the third category, fairness procedures, was a subject of mandatory bargaining because the effect on the teacher's employment outweighed the effect on educational policy. It surveyed the proposals, phrase by phrase, and classed each within one of the three categories. On review, the Court of Appeals found error but upheld the order. It reasoned that under the opinion of this court in McPherson v. Employment Division, 285 Or. 541, 591 P.2d 1381 (1979), the construction of the statutory term "other conditions of employment" was within the authority of the agency, not the court. Therefore, it concluded, ERB erred in applying the Court of Appeals' construction of the statute rather than formulating and applying its own. It nevertheless upheld the order on the basis of ERB's counsel's representation that the members of the Board, had they had the benefit of the McPherson opinion and known that they could make their own interpretation, would have chosen to adopt and apply the test formulated by the Court of Appeals as their own. The Court of Appeals concluded that a remand would be pointless and upheld the order. We agree that a remand for an order amended in that respect would needlessly extend this already protracted proceeding. We allowed the labor organizations' petition for review to determine whether the rule in McPherson had been correctly applied to this case; i.e., whether the construction of the statutory phrase "other conditions of employment" was properly an administrative or a judicial responsibility and, either way, whether the construction in this case was lawful. Allocation between agencies and courts of responsibility for giving specific meaning to statutory terms presents a problem of long standing. As might be expected with a problem so elusive, this court has historically followed several approaches and invoked various familiar phrases. The results are fairly harmonious, but neither the phrases used nor the theories relied upon are consistent. One prominent line of cases reviews agency action, whether by rule or order, by recognizing that the legislature gave to the agency, not to the court, authority to fill in the so-called "interstices" of the statutes they are required to administer. See, e.g., Ore. Newspaper Pub. v. Peterson, 244 Or. 116, 415 P.2d 21 (1966); U. of O. Co-Oper. v. Dept. of Rev., 273 Or. 539, 542 P.2d 900 (1975). A parallel line of cases, however, holds that it is the responsibility of the courts to construe such statutes, and the interpretation by the agency will merely be given some degree of respect. See, e.g., "great weight," City of Portland v. Duntley, 185 Or. 365, 203 P.2d 640 (1949) and Curly's Dairy v. Dept. of Agriculture, 244 Or. 15, 415 P.2d 740 (1966); "careful consideration," Gouge v. David, 185 Or. 437, 454, 202 P.2d 489 (1949).[3] Some cases hold both ways. In our oft cited case of Van Ripper *552 v. Liquor Cont. Com., 228 Or. 581, 365 P.2d 109 (1961), we said initially that the legislature conferred authority upon the agency to "fill in the interstices in the legislation," 228 Or. at 581, 365 P.2d 109, but concluded that agency interpretation would only be "generally given careful consideration by the courts," 228 Or. at 593, 365 P.2d 109.[4] Another line of cases categorizes agency determinations as fact or law, holding that fact determinations are for agencies and law is for courts. Professor Davis has demonstrated that courts generally have inconsistently assumed interpretive responsibility as a matter of discretion and have justified the results by manipulation of the fact-law distinction. Davis, Treatise on Administrative Law, § 30.08. In Baker v. Cameron, 240 Or. 354, 401 P.2d 691 (1965), this court, recognizing Davis' criticism, resolved to sort out law and facts. We held that once the historical facts are found, the question of whether those facts come within the meaning of a statute is one of law for the court. Because the agency presumably has "some expertise," and agency determination "should be given some consideration" by the courts. 240 Or. at 359-360, 401 P.2d 691. Thus the court assigned to itself the ultimate authority to determine what constitutes "employment" as that word is used in the Unemployment Compensation Act. Later, in Kirkpatrick v. Peet, 247 Or. 204, 428 P.2d 405 (1967), we held that application of the term "employer" in the same act was a task of law for the court. Most recently, in the context of review of rulemaking authority, we concluded in Morgan v. Stimson Lumber Company, 288 Or. 595, 607 P.2d 150 (1980), that the difference in our cases was not produced by the general phrases employed in various opinions. Rather, the results vary according to the nature and scope of the authority delegated by the statutes: See also Jaffe, Judicial Control of Administrative Action 572 (1965). Consistent with that observation, our most recent opinions look to the words of the statutes to determine the nature and scope of authority which they convey to the agency. Both McPherson v. Employment Div., supra, and Megdal v. Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980), involved review of orders in contested cases, but the latter discussed the need for rules in certain situations. Although the context, and hence some of the language, was somewhat different, the conceptualization in both cases was essentially the same and the analyses consistent. In McPherson and in Megdal we described three classes of statutory terms, each of which conveys a different responsibility for the agency in its initial application of the statute and for the court on review of that application. They may be summarized as follows: 1.) Terms of precise meaning, whether of common or technical parlance, requiring only factfinding by the agency and judicial review for substantial evidence; 2.) Inexact terms which require agency interpretation and judicial review for consistency with legislative policy; and *553 3.) Terms of delegation which require legislative policy determination by the agency and judicial review of whether that policy is within the delegation. It is the initial purpose of this opinion to elaborate on that categorization so as to clarify the respective responsibilities of administrative agencies and courts. The first class is of statutory terms which impart relatively precise meaning, e.g., 21 years of age, male, 30 days, Class II farmland, rodent, Marion County. Their applicability in any particular case depends upon agency factfinding. Judicial review of an administrative order applying such a term would normally be for substantial evidence under 183.482(8)(c) which provides: The second class is of terms which are less precise. Whether certain things are included will depend upon what the user intended to communicate or accomplish by the use of the word. To determine the intended meaning of inexact statutory terms, in cases where their applicability may be questionable, courts tend to look to extrinsic indicators such as the context of the statutory term, legislative history, a cornucopia of rules of construction, and their own intuitive sense of the meaning which legislators probably intended to communicate by use of the particular word or phrase. In any event, however, the inquiry remains the same: what did the legislature intend by using the term. In McPherson we characterized such statutory terms as embodying complete expressions of legislative meaning, even though that meaning may not always be obvious. When applying such statutory terms to specific facts, whether by order or by rule, the task of the agency, and ultimately of the court, is to determine whether the legislature intended the compass of the words to include those facts. The determination of the meaning of a statute is one of law, ultimately for the court. A later case construing the Unemployment Compensation Act illustrates our post-McPherson analytical approach as it applies to the second class of terms. The result in Taylor v. Employment Division, 286 Or. 711, 597 P.2d 780 (1979), was the same as that in Baker v. Cameron and Kirkpatrick v. Peet, supra, but the rationale was different. We followed the analytical framework developed in McPherson. Because ORS 657.100 purports to fully define the term "unemployment" and because that term has a relatively settled meaning historically, we inferred that the legislature had completely expressed its meaning as to what facts were to be covered by that word of the Act. Because the definition was intended to be complete, there was no latitude for the agency to make its own legislative or policy decisions as to the coverage of the statute because there were none left to make. Rather, the statute allowed only one interpretation as it applied to the facts of the case. The initial task of the agency and our ultimate task were merely to discern and apply the legislature's intended meaning. The question of whether the facts came within the statutory meaning was therefore held to be a legal question for the court and the agency determination was reversed. In saying that the legislature has completely stated its meaning and that the court ultimately discerns and applies that meaning as a matter of law, we recognize that imprecise terms in this second class are capable of contradictory applications, all of which are within the dictionary meanings *554 of the term. We refer to the legislature having expressed itself not in the semantic sense, but rather in the sense of having made a complete policy statement. Whether any possible meaning comes within the intended meaning depends upon the policy which the word or phrase is intended to convey. Thus, when we refer to a term representing a complete legislative expression, we refer to a completed legislative policy judgment having been made. Whether certain facts are within the intended meaning depends upon the policy that inheres in the term by its use in a statute which is intended to accomplish certain legislative purposes. For example, whether a contract log hauler is an employee under the Workers' Compensation Act, see Woody v. Waibel, 276 Or. 189, 554 P.2d 492 (1976) or whether a freight hauler is an employee under the Unemployment Compensation Act, see Mitchell Bros. v. Emp. Div., 284 Or. 449, 587 P.2d 475 (1978) and Byrne Trucking, Inc. v. Emp. Div., 284 Or. 443, 587 P.2d 473 (1978), depends upon the particular purposes of the respective statutes. Similarly, whether commission salesmen are employees for purposes of the Unemployment Compensation Act, see Baker v. Cameron, supra, and Kirkpatrick v. Peet, supra, and whether newsboys are employees under the National Labor Relations Act, see NLRB v. Hearst, 322 U.S. 111, 64 S. Ct. 851, 88 L. Ed. 1170 (1944), may depend upon the different legislative purposes of those respective statutes. Where the applicability of the term is not certain, its meaning is not a question of lexigraphy, but rather a question of the policy which is incorporated in the legislative choice of that word. The processes of administrative application of such terms and judicial review must be performed to effectuate the complete legislative policy judgment which such terms represent. When applying terms of complete legislative expression, it is the function of the agency to determine initially which decision is within the legislative policy, e.g. whether it is within the legislative purpose to consider a certain type of worker an employee under the particular statute. In some cases, legislative history will reveal that certain situations were expressly considered and intended to be included or excluded. More often, however, the test is general: whether a particular interpretation or application is consistent with or tends to advance a more generally expressed legislative policy. An agency may express its determination of which interpretation effectuates the statutory policy either by rule or, as here, by order in a contested case. ORS 183.470 requires that orders contain findings of fact and conclusions of law: A statute is interpreted in deed by orders or agencies which apply statutes to particular facts. The requirement of ORS 183.470 that the order contain findings of fact and conclusions of law is a requirement that the reasoning by which the agency applies a statute to facts to reach a result be expressed in the order. If the statute is plain on its face, the reason is obvious and may be expressed by a simple statutory reference. If the statute requires interpretation, however, the interpretation and the agency's rationalization of it are properly a part of the reasoning of the order. Thus, under ORS 183.470, the order itself is the instrument by which an agency demonstrates that a particular interpretation or application of a statute is within a generally expressed legislative policy. One effect of the 1979 amendments to the APA at the decisional stage is to require the agency to analyze its decision in statutory terms. As some knowledgeable *555 commentators have put it, a purpose was to emphasize to administrative agencies Judicial review of administrative application of such a term in an order is a review for error of law under ORS 183.482(8)(a) which provides: The dispositive question of law on review, under this section, is whether the agency action is within the legislative policy which inheres in the statutory term. An agency interpretation may be given an appropriate degree of assumptive validity if the agency was involved in the legislative process or if we infer that it has expertise based upon qualifications of its personnel or because of its experience in the application of the statute to varying facts. Judicial deference, however, is not automatic or unreasoning. If a statute must be interpreted to determine its applicability to the facts of a contested case, then, it is necessary for the agency to express in its order, to the degree appropriate to the magnitude or complexity of the contested case, its reasoning demonstrating the tendency of the order to advance the policy embodied in the words of the statute. Explicit reasoning will enable the court on judicial review to give an appropriate degree of credence to the agency interpretation. Dickinson v. Davis, 277 Or. 665, 561 P.2d 1019 (1977); see also Home Plate, Inc. v. OLCC, 20 Or. App. 188, 190, 530 P.2d 862 (1975). This was referred to in McCann v. OLCC, 27 Or. App. 487, 495, 556 P.2d 973 (1976) as a review for "substantial reason." If the agency interpretation is embodied in a rule, and the rule is otherwise lawful, the rule will be upheld on judicial review of either the rule or any order based upon the rule, if the interpretation can be determined to be within the statutory intent, but not otherwise. ORS 183.400(4)(b), U. of O. Co-oper. v. Dept. of Rev., supra. The issue of law on review is whether the agency interpretation coincides with the legislative policy which inheres in the meaning of the statute. The third class of statutory terms described in McPherson and Megdal express non-completed legislation which the agency is given delegation authority to complete. The legislature may use general delegative terms because it cannot foresee all the situations to which the legislation is to be applied and deems it operationally preferable to give to an agency the authority, responsibility and discretion for refining and executing generally expressed legislative policy. This pattern of general legislation and specific application arises in several contexts. In McPherson, we dealt with a statutory term, "good cause," which "calls for completing a value judgment that the legislature itself has only indicated." As other examples, we cited "fair," "unfair," "undue," "unreasonable," or "public convenience and necessity." 285 Or. 550, 591 P.2d 1381. The task of the agency administering such a statute is to complete the general policy decision by specifically applying it at retail to various individual fact situations. Cf. Dickinson v. Davis, supra, 277 Or. at 673, 561 P.2d 1019. Complainants contend that the McPherson concept is limited to terms of value judgment. Value judgments are not limited to good and bad. All legislative decisions involve value judgments of a political nature and so do delegated legislative decisions. *556 When an agency determines whether certain facts constitute good cause, for example, a decision either way reflects a choice of policy which is essentially legislative in that it refines a general legislative policy. For example, whether sexually discriminatory conditions are good cause for terminating employment is a matter of policy which the legislature can either specify in a statute or delegate. Cf. Fajardo v. Morgan, 15 Or. App. 454, 516 P.2d 495 (1973). The delegation of responsibility for policy refinement under such a statute is to the agency, not to the court. The discretionary function of the agency is to make the choice and the review function of the court is to see that the agency's decision is within the range of discretion allowed by the more general policy of the statute. This decisional relationship of agency and courts in contested cases is provided for in ORS 183.482(8)(b): McPherson involved an agency charged with the duty of administering an act by applying it adjudicatively to individual situations. The same pattern of legislative delegation and judicial review is more apparent where the legislature charges an agency with broad regulatory responsibility. Regulatory schemes may involve delegation of broader, almost plenary authority to make the policy decisions, legislative in nature, necessary to accomplish political objectives which the legislature expresses in general terms. For example, Megdal v. Board of Dental Examiners involved a general term in a licensing statute, "unprofessional conduct." We held, consistently with McPherson, that the term expresses a legislative objective, but does not represent completed legislation. The legislature could have specified in the statute whether false statements by a dentist to an insurer were cause for license revocation, but it did not do so. Instead, by use of the term "unprofessional conduct," it expressed a general legislative policy and delegated to the licensing agency the authority and responsibility to complete the legislation by rule specifying what specific acts could be the basis for license revocation. 288 Or. at 314, 605 P.2d 273.[6] The same principles apply to larger regulatory contexts. For example, the Oregon Liquor Control Commission performs its licensing function of the alcoholic liquor industry as "demanded by public interest or convenience," ORS 471.295(1), and that phrase is to be "liberally construed" to achieve several legislative policies, such as "[t]o protect the safety, welfare, health, peace and morals of the people of the state," ORS 471.030(1)(c). Likewise, the Public Utility Commissioner is required to regulate public utilities so as to allow them rates that are "just and reasonable," ORS 757.210, and to "protect such customers, and the public generally, from unjust and unreasonable extractions and practices and to obtain for them adequate service at fair and reasonable rates," ORS 756.040(1). The legislature can, if it chooses, enact more specific statutes as to liquor licensing policy and it could set utility rates from time to time by statute, but it does not. Rather, the agencies are empowered to regulate and, in so doing, to make delegated policy choices of a legislative nature within the broadly stated legislative policy. See *557 Crouse v. Workmen's Comp. Bd., 26 Or. App. 849, 853, 554 P.2d 568 (1976). At issue here is whether the term "conditions of employment" is a term of complete meaning subject to ultimate interpretation by the court or is a term of delegation which authorizes ERB to construe it by a refinement of legislative policy. The statute is not explicit. Cf. State v. Sargent, 252 Or. 579, 449 P.2d 845 (1969). The parties have not cited and we have not found any helpful legislative history on this point. The term does not stand alone. It appears within a broad statutory scheme to supplant the grace of the state with a labor-management relationship in government similar to that which exists in private enterprise with special provisions pertinent to public service, ORS 243.650 through 243.782. ORS 243.656 declares as policy the interest of the people in harmonious and cooperative labor relations in government, free from interruption and unresolved disputes, through a system of labor organization and collective bargaining.[7] The Employment Relations Board is mandated by ORS 243.766 to oversee that system. Pertinent to ERB's order in this case, subsection (3) grants broad authority for ERB to: The same statute provides an enforcement mechanism and authorizes ERB to conduct studies and make recommendations. The pertinent statutes are too lengthy to set out here. In summary, they regulate labor organization, bargaining, representation, mediation, factfinding, strikes, arbitration, and other aspects of public labor relations and assign administrative, regulatory and enforcement responsibilities to ERB for effectuation of the statutes. It is within this broad context that we look to the specific statutory term upon which this case resolves. ORS 243.672(1)(e) makes it an unfair labor practice for a public employer to refuse to "bargain collectively" with the representative of a bargaining unit. ORS 243.650(4) defines "collective bargaining" to comprehend "employment relations": "Employment relations" is defined by ORS 243.650(7) to include "other conditions of employment": The wording of subsection (7) indicates that the legislature chose to define "employment relations" by example, but did not use an exhaustive list of examples. Rather, it used a general term, "other conditions of employment," intended to allow ERB to include other subjects of like character. The legislature expressed its policy choice by listing definitional examples. The reference to "other" such subjects was not a delegation to ERB to make different choices; rather, it is, in effect, a direction to ERB to replicate the same choice by regarding as "employment relations" only those subjects which embody the same characteristics as "monetary benefits, hours, vacations, sick leave, grievance procedures," and no others. The question of whether any subject is like or unlike the listed matters is one of interpretation, not of discretion. The legislature expressed its meaning fully. Thus, despite the appearance of the term in the context of a broad regulatory scheme, we conclude that the statutory terms "employment relations" and "conditions of employment" were intended to charge ERB with interpretative rather than legislative responsibility. It is in this respect that the Court of Appeals erroneously read McPherson to require that it be bound by the agency interpretation. Complainants are correct in their assertion that interpretation in this case is for the court. Interpretation being a function of law ultimately for the court, we proceed under ORS 183.482(8)(a) to determine whether the administrative interpretation was erroneous. ERB's analysis was in two stages: the formulation of interpretive criteria and the application of those criteria. We will address each in turn. An interpretation of a statute is essentially an explanation of how the statute applies in a particular situation or type of situation. Explanation, by its nature, can usually be phrased in more than one correct way. Ordinarily, it is the initial responsibility of the agency, whether by rule or order, to explain the application of the statute to specific facts. Because the function of the court is to review an interpretation if review is sought, rather than to formulate it in the first instance, under ORS 183.482(8)(a) the court must uphold the order unless the agency has "erroneously interpreted a provision of law." Although the court might have expressed the interpretation differently if it had initial responsibility, the question on review is whether the agency interpretation is erroneous, not whether the court would have expressed the interpretation differently. Here, ERB's formulation of interpretive criteria is an accurate expression of the statutory meaning in that it correctly explains the statute without modifying its meaning. ERB deems those aspects of the evaluation proposals which have a greater impact on employment conditions and a lesser effect on "educational policy" to be conditions of employment. That interpretation is not erroneous because those aspects have characteristics similar to the statutory examples of "monetary benefits, hours, vacations, sick leave" and, particularly, "grievance procedures," ORS 243.650(7). Conversely, ERB deems those subjects whose dominant effect is to restrict educational policy (i.e., management prerogatives or proprietary functions as in the private *559 sector) not to be conditions of employment. ERB's interpretation correctly explains the statute and does not change it. Hence, we conclude that it is not an erroneous interpretation and we uphold it. Our review of ERB's application of its criteria to the evaluation proposals presents considerations other than pure questions of law. The process of application of the statute or the interpretation to facts is more adjudicative in nature and a different sort of judgment is required. Any aspect of teacher evaluation affects both educational policy and working conditions to greater or lesser degree. Classifying each part of the proposals according to the dominance of either quality can better be done by one who has special understanding of the regulated activity. Administrative agencies are generally assumed to have such understanding by reason of the ongoing nature of their responsibility, their familiarity with similar situations, their staff expertise, the background and competencies of their governing commissions, or any combination of these reasons. When the application of statutory policy to fact is entrusted to an agency, and the agency has correctly interpreted the law, then the function of the court on review is not to substitute its judgment, but to uphold any reasoned application of that interpretation to the facts. We next examine ERB's application of the criteria to the facts in that light. ERB expressed the reasoning behind its application of the criteria. It refined the employment/educational policy distinction by describing three elements of the evaluation processes: bases and use, mechanics and fairness procedures. The order describes them: ERB concluded that the bases for and use of evaluation related predominantly to educational policy, although they affect teachers' working conditions somewhat, because the bases represent the determination of programs and program standards and the use of evaluation is to determine whether these program standards are being met. The determination and measurement of program standards are management functions. ERB also concluded that the mechanics of evaluation also affect working conditions, but relate primarily to educational policy because the mechanics and bases of evaluation are "inextricably intertwined." The form, content, number and sequence of evaluations, and the resources allocated therefor, ERB reasoned, must be designed to correlate to the program standards and to serve as the basis for subsequent managerial action. Accordingly, both the bases for and uses of evaluation and the mechanics of evaluation were deemed not to be conditions of employment and, hence, subject to permissive rather than mandatory bargaining.[8] *560 ERB next concluded that those parts of the proposals dealing with procedural fairness (e.g., notice and opportunity to be heard) had no effect on the formulation and achievement of program and little effect on the allocation of resources, but greatly affected teachers' employment. Hence, procedural fairness procedures were deemed to be subject to mandatory bargaining.[9] Complainants offer several objections to ERB's three-part test. First, they contend that it differs from caselaw of other states which, essentially, classifies evaluation proposals as substantive (permissively bargainable) or procedural (mandatorily bargainable). ERB considered and expressly rejected this approach in favor of its own more sophisticated formula. Both formulations would usually yield the same result, but there are some holdings in other states requiring mandatory bargaining for some proposals similar to those which ERB would classify as mechanics of evaluation. Obviously, cases from elsewhere are of interest, but are not controlling. The issue on review is not whether another formulation is preferable, but whether ERB's formulation is erroneous. We hold it is not. Complainants also challenge the classification as being unsupported by substantial evidence. They argue that the three parts have not been shown by the evidence to bear the relationship to educational policy or employment conditions which ERB concludes *561 they have. This objection misconceives the classification. It is an analytical device, not a finding. The application of ERB's statutory interpretation must be reasoned and the classification is a part of ERB's reasoning process rather than a finding for which there must be evidence. The order is specific as to every aspect of the proposals. As to each, the classification is supported by reasoning. The order is too lengthy to set out, but an excerpt is illustrative of this section of the order: Because the reasoning of this section is express, it is adequate for judicial review. Because it rationally relates the decision to the interpretive criteria which, in turn, express the meaning of the statute, we uphold ERB's conclusion. On the same basis, we uphold all aspects of the order except for one. The order states this proposal: The order then states this conclusion: This reasoning appears to assume incorrectly that a proposal to require clarity of definition would require bargaining regarding the content or substance of the criteria. We read it as proposing only that the parties bargain as to whether evaluative criteria must be defined clearly, whatever the substance of the criteria may be. To use *562 ERB's phrase, the proposal does not purport to subject the bases of evaluation to mandatory bargaining. The reasoning expressed in the order is faulty in this respect and cannot be upheld. Applying ERB's criteria, a contrary result is required on proposal 3.e. Teacher performance is to be evaluated for conformity to the program and performance standards embodied in the bases of evaluation. Promotion and job security of teachers are likely to be affected by teacher evaluation. The ability of a teacher to object under proposal 3.g. to an evaluation as incomplete or unjust depends upon the ability of the teacher to ascertain the criteria under which he or she is being evaluated. In this sense, a proposal for a contract requirement that the evaluation criteria be clearly defined is akin to the notice and objection proposals which ERB has classified as fairness procedures subject to mandatory bargaining. On the other side, management has a predominant need to determine the content and substance of its educational objectives and the criteria by which it determines whether those objectives are being achieved. A requirement that the criteria be clearly defined would not restrict the discretion of the school districts to determine such policy. Indeed, clear definition is often an essential tool in policy development and any managerial prerogative to state criteria unclearly would be of dubious value. We can see, and the school districts have suggested, no restriction on management prerogatives which would result from the outcome of mandatory bargaining over whether the criteria for evaluation should be clearly defined. Because the effect of clarity of definition of evaluation criteria on teacher employment conditions is great and the restrictive effect on educational policy is minimal, then, applying the interpretive criteria of ERB, we conclude that proposal 3.e. is subject to mandatory bargaining. Having concluded that ERB erred regarding this proposal and that a correct interpretation of law "compels a particular action," we are authorized by ORS 183.482(8)(a) to set aside or modify the order or to remand the case to ERB for further action. Because this litigation has been protracted, because we uphold the order in all other respects, because the order may simply be corrected by modification in this single respect, and because no further determinations need be made by ERB to completely resolve the complaints, we elect to modify the order. The order is modified so as to include paragraph 3.e. regarding clarity of definition of evaluative criteria within the aspects of the complainants' proposals about which respondent school districts are ordered to cease and desist from refusing to bargain. In all other respects, the order is upheld. Modified. [*] Howell, J., retired November 30, 1980. [1] Since these proceedings began, the legislature has enacted ORS 342.850 which regulates teacher evaluation. It is not applicable to this contract year or this proceeding. [2] The order had defined "educational policy" for this purpose as equivalent to "management prerogative" and "proprietary functions" as those terms are used in the private sector. [3] See also, "we tend to defer," Fairview Hospital v. Moore, 28 Or. App. 637, 640, 560 P.2d 671 (1977); "usually accord considerable weight," Smith v. Peet, 29 Or. App. 625, 564 P.2d 1083 (1977); "due deference," Duncan v. Law Enforcement Council, 37 Or. App. 119, 123, 586 P.2d 393 (1978). [4] Although this court took three pages to make the theoretical shift in Van Ripper, the Court of Appeals, in its concise manner, has followed both the deference and interstitial approaches in one sentence: "We note preliminarily that an agency's interpretation of its statutory authority is entitled to deference by the courts and we cannot substitute our policy ideas for those of the agency." Miller v. OLCC, 42 Or. App. 555, 561, 600 P.2d 954 (1979). Oregon is not alone in this inconsistency. Professor Davis points out that the United States Supreme Court has failed, apparently consciously, to resolve its two inconsistent lines of cases. In one, it reviews agency construction for rightness; in the other, for reasonableness. Davis, Treatise on Administrative Law 311-313, § 30.00 (1980 Supplement). [5] This is the present version of the statute. Although it was in different form when this proceeding commenced, the 1979 amendment, 1979 Or. Laws ch. 593, sec. 24, was intended primarily to clarify rather than modify the nature and scope of judicial review. This is equally true of subsection (8) in its entirety, other parts of which are set out below. See Frohnmayer, Oregon Administrative Procedures Act Reform, Or.St. Bar CLE Administrative Law and Local Government 11 (1979). [6] In Megdal, we held that where rule-making authority is given together with broad professional licensing power, an agency could effectuate its delegated legislative authority only by adoption of rules. Three judges concurred that rules were required, but for a different reason: to facilitate judicial review under the Administrative Procedures Act, citing Sun Ray Dairy v. OLCC, 16 Or. App. 63, 517 P.2d 289 (1973). Although the court divided on the reason for requiring rules, the concurring opinion expressed no disagreement with the analysis by the majority which is referred to in the body of this opinion. On that, the court was unanimous. [7] ORS 243.656: "The Legislative Assembly finds and declares that: "(1) The people of this state have a fundamental interest in the development of harmonious and cooperative relationships between government and its employes; "(2) Recognition by public employers of the right of public employes to organize and full acceptance of the principle and procedure of collective negotiation between public employers and public employe organizations can alleviate various forms of strife and unrest. Experience in the private and public sectors of our economy has proved that unresolved disputes in the public service are injurious to the public, the governmental agencies, and public employes; "(3) Experience in private and public employment has also proved that protection by law of the right of employes to organize and negotiate collectively safeguards employes and the public from injury, impairment and interruptions of necessary services, and removes certain recognized sources of strife and unrest, by encouraging practices fundamental to the peaceful adjustment of disputes arising out of differences as to wages, hours, terms and other working conditions, and by establishing greater equality of bargaining power between public employers and public employes; "(4) The state has a basic obligation to protect the public by attempting to assure the orderly and uninterrupted operations and functions of government; and "(5) It is the purpose of ORS 243.650 to 243.782 to obligate public employers, public employes and their representatives to enter into collective negotiations with willingness to resolve grievances and disputes relating to employment relations and to enter into written and signed contracts evidencing agreements resulting from such negotiations. It is also the purpose of ORS 243.650 to 243.782 to promote the improvement of employer-employe relations within the various public employers by providing a uniform basis for recognizing the right of public employes to join organizations of their own choice, and to be represented by such organizations in their employment relations with public employers." [8] The parts of the order containing this reasoning state: "After weighing the element of educational policy involved in the bases for and use of teacher evaluations against the effect that these matters have on a teacher's conditions of employment, this Board concludes that the bases for and use of evaluations are not conditions of employment within the meaning of the Act and, therefore, are permissive subjects for bargaining. While the bases for and use of evaluations may affect a teacher's working conditions, potentially including the teacher's continued employment, the effect upon a teacher is outweighed by considerations of educational policy. A school district must be able to determine educational programs and program standards. Program and program standards determine the basis(es) for evaluations (e.g., the criteria, or standards by which performance is evaluated and/or areas to be evaluated) and the use of evaluations. In turn, evaluation of personnel and their performance is a primary basis from which to determine whether program standards are being met and maintained. "The mechanics of teacher evaluation (the form and format to be used, the contents of the evaluation report including recommendations for improvement of deficiencies, the manner in which the contents are reported, who conducts the evaluation, the number of evaluations, and the timing, sequencing and length of evaluation observation periods) may affect a teacher in about the same way that the bases for and use of evaluations affect a teacher's employment. On balance, the element of educational policy involved in the mechanics of teacher evaluation outweighs the effect on a teacher's conditions of employment. The mechanics and the bases for and use of teacher evaluation are inextricably intertwined. The bases for and use of teacher evaluations determine the mechanics of teacher evaluation. As the bases for and use of evaluations change, so are the mechanics likely to change. The criteria, standards and/or areas of evaluation will determine to a large extent the form and format of evaluations, the manner in which the contents of evaluations are reported, the number of evaluations, and the sequencing and length of evaluation observation periods. Some criteria, standards and areas of evaluation lend themselves more easily to narrative reports while other criteria, standards and areas are more easily quantified. The form utilized will reflect these distinctions. The number of evaluations and the timing, sequencing and length of evaluation observation periods are also directly related to the bases for evaluation. Some bases for evaluation require more frequent evaluations, closer sequencing and longer observation periods than other bases. The selection of evaluators is also, to a large extent, determined by the criteria, standards, and/or areas to be observed and evaluated. Furthermore, the assignment and utilization of both administrative and teaching personnel to conduct evaluations goes to the very heart of educational policy. In Springfield, this Board held that the criteria, standards and mechanics for the assignment and utilization of personnel is a matter of educational policy." (Footnotes omitted.) [9] "On balance, the element of educational policy involved in minimum fairness procedures intended to insure teachers notice of and the opportunity to respond to evaluation reports is outweighed by the effect such procedures have on a teacher's conditions of employment. Therefore, the teacher's right to notice as to the basis(es) for evaluations and the results of evaluations, the right to have evaluative statements reduced to writing, the right for teacher objections to evaluative reports to be received and the opportunity to request evaluations are mandatory matters for bargaining. Contrary to the School Districts' arguments, these procedures are distinguishable from the bases for and use of evaluations and the mechanics of evaluation. Teachers have a strong interest in assuring notice and the opportunity to be heard regarding evaluations actually conducted. * *"

3578c2b6178e1d162aa7286838d8bbbeeca83d93607bdfed5534525576cdac55

1980-12-16T00:00:00Z

df22bbb7-6061-4de7-af0e-f10e1d52c814

Pacific Power & Light Co. v. Paulus

292 Or. 826, 643 P.2d 871

oregon

Oregon Supreme Court

643 P.2d 871 (1982) 292 Or. 826 PACIFIC POWER & LIGHT COMPANY, a Corporation, and Jack L. McIsaac, Petitioners, v. The Honorable Norma PAULUS, Secretary of State of the State of Oregon, Respondent. Warren Hastings and Portland General Electric Company, an Oregon Corporation, Petitioners, v. The Honorable Norma Paulus, Secretary of State of the State of Oregon, Respondent. Nos. SC 28523, SC 28524. Supreme Court of Oregon, In Banc. Argued and Submitted April 7, 1982. Decided April 16, 1982. Robert F. Harrington, Stoel, Rives, Boley, Fraser & Wyse, Portland, argued the cause and filed the petition for Pacific Power & Light Co. Warren Hastings, Portland Gen. Elec. Co., Portland, argued the cause and filed the petition for Portland Gen. Elec. Co. Stanton F. Long, Deputy Atty. Gen., argued the cause for respondent. On respondent's answering memorandum were Dave Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen., William F. Gary, Sol. Gen., John A. Reuling, Jr., Chief Counsel Opinion Section, and Max Rae, Law Clerk, Salem. PER CURIAM. Pursuant to ORS 250.045, a prospective petition to initiate a state measure was filed with the Respondent, Secretary of State. Thereafter, the Attorney General provided a ballot title for the measure to be initiated, ORS 250.065. The form for a ballot title is prescribed by ORS 250.035(1): Two separate petitions have been filed in this court, challenging the title provided by the Attorney General as being insufficient and unfair. ORS 250.085. The court, on its own motion, consolidated both matters. The measure[1] to be initiated is agreed by all parties to be lengthy, detailed and complex. The Attorney General provided the following ballot title: Each petition alleges that title to be insufficient and unfair in various particulars. We have pointed out many times that our role is not to write a better title but only to determine if that provided by the Attorney General is insufficient or unfair.[2] Petitioners for review contend that the title proposed by the Attorney General fails to mention several important provisions of the measure to be initiated. The Attorney General answers that because of the length and complexity of the measure it is impossible within the statutorily prescribed word limitations to mention every important provision. We do not perceive that there is any precedential value in examining these points one by one in these pages. In each instance of contention between the parties, we find that the provisions described in the Attorney General's title are at least as important as those which he has chosen not to mention. We cannot fault his title for insufficiency or unfairness in those respects.[3] In addition to the omissions of which petitioners for review complain, they assert that portions of the provided title are erroneous and are, therefore, unfair as being calculated to mislead. Again, we find nothing to be gained by evaluating the claims seriatim. Although the claims are seriously *873 made and are well argued, we cannot agree that the Attorney General's language is erroneous or misstates the provisions of the measure. In some instances the language may be somewhat vague or general, but we attribute this to the Attorney General's desire to avoid a misinterpretation of the language of the measure. In other words, the measure itself, in certain particulars, may admit of varying impressions in the mind of the reader, and it is not the province of the Attorney General in discharging his duty to provide a title to make clear that which is not clear in the measure itself. Under ORS 250.085(3), we are required to certify a title to the Secretary of State, and we hereby certify to that official the title provided by the Attorney General as set forth above.[4] [1] In 1980 we reviewed a very similar measure and a ballot title provided by the Attorney General in Pacific Power & Light v. Paulus, 289 Or. 31, 609 P.2d 813 (1980). [2] ORS 250.035(I) requires that the 75 (or less) word statement shall be "concise and impartial." ORS 250.085 permits a challenge before this court, not on the grounds that the challenged title is not concise and impartial, but rather on the grounds that the title is insufficient or unfair. See also n. 4, infra. [3] The measure before us contains an important provision that did not appear in the 1980 measure considered by this court in Pacific Power & Light v. Paulus, supra. The provision is found in Section 12(2): "Effective 30 days after passage of this Act, loans or payments for termination of nuclear power plants in Washington State by Oregon municipal utilities, People's Utility Districts, and Rural Electric Cooperatives require a vote by residents of the municipalities, People's Utility Districts and by customer members of Rural Electric Cooperatives." The petitioners on review have convinced us that this provision is undoubtedly of importance, but we have simply been unable to find language which would permit mentioning this provision in the 75 (or less) word statement without omitting something else of equal importance or so editing the statement by deletion as to impair its understandability. [4] ORS 250.085(3) actually requires us, after our review, to certify to the Secretary of State a title which meets the requirements of ORS 250.035. That is the section of the code that calls for an explanation which is a "concise and impartial statement of * * * the chief purpose of the measure." It is readily seen that our duty to review calls for one thing and our duty to certify perhaps for a different thing. We believe the legislature should clarify our role in this process.

ae10639c634934e16de82c804f4364015d0b58aefe409c9a98936a2ed8886040

1982-04-16T00:00:00Z

20826963-94cb-4952-b21b-ac08771f5be5

SER Juvenile Dept. v. England

292 Or. 545, 640 P.2d 608

oregon

Oregon Supreme Court

640 P.2d 608 (1982) 292 Or. 545 IN THE MATTER OF SONJA CHARLOE, a Child. State of Oregon ex rel. Juvenile Department, Multnomah County, Respondent On Review, v. Delores M. ENGLAND, Petitioner On Review. SC 27983; CA 18918. Supreme Court of Oregon, In Banc. Argued and Submitted December 8, 1981. Decided February 10, 1982. *609 Craig J. Dorsay, Portland, argued the cause and filed the brief for petitioner. With him on the brief was Kent B. Thurber, Portland. Richard David Wasserman, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem. CAMPBELL, Justice. The issue in this case is whether an Indian foster parent has "legal custody" of an Indian foster child so as to come within the definition of "Indian custodian" under the federal Indian Child Welfare Act (hereinafter ICWA), 25 U.S.C. § 1901 et seq. Persons qualifying as "Indian custodians" under the ICWA are entitled to notice and certain other rights in proceedings to terminate placement. 25 U.S.C. § 1912. The Multnomah County Circuit Court Juvenile Department denied petitioner England's motion for reconsideration of its order revoking her status as foster parent of her niece, Sonja Charloe. The Court of Appeals affirmed, 52 Or. App. 843, 629 P.2d 1319 (1981), finding that petitioner was not an "Indian custodian" as defined by 25 U.S.C. § 1903(6): We allowed petitioner's petition for review.[1] Sonja Charloe was born November 4, 1970. Her mother, Eileen Charloe, was the daughter of a Seneca and Cayuga Indian father and a Scotch-Irish mother. Both Eileen Charloe and Sonja Charloe are enrolled members of the Seneca-Cayuga Indian Tribe of Oklahoma. Since 1970, Sonja's life has been divided between living with her mother and living with her mother's full sister and family (petitioner) or in an institution. Children's Services Division (hereinafter CSD) has been asked to intervene in the care of Sonja at least ten times since 1970, half of these by the mother, with or without police intervention, and half by petitioner. Sonja has been committed to the legal custody of CSD and made a ward of the court four times, the last of these on February 13, 1979. At the time of the hearing at issue CSD had legal custody of Sonja, and had placed her in the foster care of her aunt, petitioner. At the hearing, held January 15, 1980, it was determined that foster care with petitioner should be terminated. The natural mother received notice of the hearing pursuant to 25 U.S.C. § 1912. This provision also applies to removal from foster care. 25 U.S.C. § 1916. Petitioner did not receive notice under 25 U.S.C. § 1912, nor did she receive actual notice of the hearing. On June 9, 1980, petitioner filed a motion to invalidate the January 15, 1980 hearing and to hold a new hearing pursuant to 25 U.S.C. § 1914. A hearing was held on the motion on August 20, 1980, at which point the circuit court denied petitioner status as an "Indian custodian" and issued an order denying the motion for reconsideration: Petitioner filed a notice of appeal from the order denying the motion regarding the court's original order revoking the Englands' status as foster parents of Sonja Charloe. Petitioner alleges error in the Court of Appeals finding that, because legal custody of Sonja was in CSD pursuant to ORS 419.507(2),[2] petitioner did not fit the statutory definition of "Indian custodian" in 25 U.S.C. § 1903(6). Petitioner contends that: 1) the term "Indian custodian" should be interpreted in a way consistent with the purposes of the ICWA, which would suggest an interpretation of "legal custody" to *611 include actual lawful physical custody for purposes of status as an Indian custodian; and 2) Federal standards in the ICWA preempt state law defining legal custody. The state counters by arguing that "legal custody" means "legal custody" and that this was in CSD, and that preemption does not apply since the federal statute refers to state law for a definition of "legal custody," therefore there is no conflict to be resolved by resort to the doctrine of preemption. The primary controversy in this case revolves around interpretation of the term "legal custody" as used in the definition of "Indian custodian," 25 U.S.C. § 1903(6). We first look to the express language of this section, and then refer to the legislative history surrounding passage of the ICWA for elaboration. "Indian custodian" is defined by 25 U.S.C. § 1903(6) as: The literal language of this section indicates a clear intent that "legal custody" be used in its legal sense, i.e., as defined by state law or by tribal custom or law. Where the parent transfers temporary physical care, physical custody, and physical control to any other Indian person, such other person is to be considered an Indian custodian as well. The context lends support to a literal reading of 25 U.S.C. § 1903(6). Other definitions in 25 U.S.C. § 1903 include the following: The definitions quoted above illustrate the variety of terms deliberately used in the ICWA. It is unlikely that Congress, while taking care to distinguish meanings by the use of certain terms in its definition sections, would inadvertantly use a term of art such as "legal custody" to mean actual custody. The ICWA was enacted in 1978 to effectuate the dual policies of protection of the best interests of Indian children and promotion of the stability and security of Indian tribes and families. 25 U.S.C. § 1902. Congress found that because of the special relationship between the federal government and Indian tribes, and because of Congress' plenary power over Indian affairs (United States Constitution, Art. I, § 8, cl. 3), federal action was necessary to avoid the alarmingly high percentage of Indian family breakups resulting from the removal of Indian children from their homes by nontribal public and private agencies and their placement in non-Indian foster and adoptive homes and institutions. Congress also found that administrative and judicial bodies have often failed to recognize the essential tribal relations of Indian people and their cultural and social standards. 25 U.S.C. § 1901. The ICWA therefore aims to promote its stated policies by "the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." 25 U.S.C. § 1902. Among such minimum federal standards are the requirements of notice to parents *612 and Indian custodians of any hearing regarding change in foster care placement or any termination of parental rights, 25 U.S.C. § 1912; the affording such persons other rights such as the right to intervene and the right to appointed counsel, 25 U.S.C. § 1911; § 1912; and the requirement that preference be given in adoptive or foster placement to members of the Indian child's extended family and members of the child's tribe, 25 U.S.C. § 1915. Several things appear upon an examination of the ICWA itself. First, a distinction is drawn between those standing in the shoes of parents, whether by adoption or Indian custodian status or by blood, and foster parents or state agencies. Foster care is temporary in nature. It does not deprive the parent of his ultimate right to the child. See 25 U.S.C. § 1903(1)(i). Those having some form of permanent custodial responsibility for an Indian child, or those receiving custody from a parent, are given the benefit of certain minimum protections before they are deprived of an Indian child, even for temporary foster care. Such custodians also have the right to invoke the ICWA's protections regarding preferences to be given to Indian families in foster and adoptive care. Second, foster parents are given no express rights under the ICWA. Third, Congress expressly intended to use the term "legal custody" as a term of art, as is illustrated by its use of "lawful" and "legal" elsewhere in the ICWA, giving rise to the inference of different meanings. The legislative history does not contradict our reading of the ICWA. As originally proposed, the definition of "Indian custodian" included only those extended family members having temporary physical custody given by a parent or those having custody in accordance with tribal law or custom. S 1214, 95th Cong., 1st Sess. (1977). The final act broadened coverage to include "any Indian person," not merely extended family members to whom legal custody is given by state law or by tribal custom or law. Petitioner argues that the changes in drafting show the legislative intent to broaden the definition of Indian custodian. We agree, but we do not find this broadening intent to encompass petitioner's claim regarding related foster parents. All Indian persons coming within the definition of "Indian custodian" are allowed such status regardless of their status as relatives. This intent does not relate to the situation where an Indian extended family member does not come within the definition of "Indian custodian." Petitioner quotes the following passage from the legislative history in support of its contention that "legal custody" means actual physical custody rather than legal custody as defined by state law: This section describes the reasoning behind allowing Indian custodian status to some persons other than those accorded legal custody under state law or under formal tribal law or custom. The ICWA expressly allows for "Indian custodian" status to Indian persons given physical custody by a parent. This informal custom would not yield such status unless expressly so provided by the ICWA. Petitioner does not claim Indian custodian status pursuant to the ICWA's provision regarding informal transfers from a parent. Since petitioner did not receive Sonja from a parent, she cannot qualify under that provision. *613 As a general matter, foster parents who are paid for their temporary provision of room and board to children of others have no statutory rights on termination of their status. In Oregon, legal custody is in CSD where public funds are to be expended for foster care. CSD "purchases care" for foster children and supervises such care until adoption or majority. ORS 418.280; 418.480; 419.507(2). Indian foster parents are not included in the definition of "Indian custodian." We cannot say such persons are included in direct contradiction of the language of the Act. It is therefore unnecessary to invoke the constructional rules appellant argues for, since the legislative intent is clear on the face of the statute. A paid caretaker has very different concerns as to a child's welfare than does a family member who takes on the costs of care himself. We cannot say that the case is different where the paid caretaker also is a member of the child's extended family. Such a determination is up to Congress to make. We therefore hold that a member of a child's extended family who assumes foster care of such child and accepts state funds for such purpose does not become an "Indian custodian" and is therefore not entitled to notice of a hearing to terminate its parental status any more than a normal foster parent would be. Petitioner's preemption argument is unpersuasive to us because Congress expressly left the determination of "legal custody" up to state law. Even if the federal legislation totally preempted the field, such an express intent would allow state law to govern the determination of legal custody. Since preemption was not clearly intended by Congress, we cannot now read such intent into the legislation. Florida Avocado Growers v. Paul, 373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963). Affirmed. TANZER, Justice, concurring. I concur in the result. I do not disagree with the majority, but I believe that a threshold issue is dispositive. I would hold that the notice provisions of 25 U.S.C. § 1912 have been complied with. The statute is phrased in the alternative: The moving party "shall notify the parent or Indian custodian and the Indian child's tribe." (Emphasis supplied.) Because the parent had actual notice, there was no need to notify the Indian custodian. The statute was fully complied with by notice to the parent.[1] TONGUE, Justice, dissenting. The majority holds that a member of an Indian child's extended family, such as petitioner, who becomes the foster parent of such a child through the operation of state law, does not qualify under the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963, as an "Indian custodian" so as to be entitled to the procedural protections provided by the ICWA for "Indian custodians" in cases in which the placement of an Indian child is at issue.[1] "Indian custodian" is defined by 25 U.S.C. § 1903(6) as follows: The majority concludes that Congress intended to use the phrase "legal custody" in its "legal sense"; therefore, the majority reasons, because CSD had legal custody of the child, petitioner could not have had such custody and, therefore, could not qualify as an "Indian custodian." Because I do not believe that such a conclusion is compelled by the language of the ICWA and because, in my opinion, such a conclusion leads to results which are contrary to the stated purposes of the ICWA, I respectfully dissent. The Indian Child Welfare Act of 1978 was enacted based upon certain findings by Congress. Among those are the following: Furthermore, the ICWA contains the following declaration: Petitioner contends that Congress intended the term "legal custody" to be interpreted in a manner consistent with the stated purposes of the ICWA and that, consequently, a proper interpretation of the term includes any Indian who has actual lawful custody of an Indian child, however determined.[2] Petitioner further contends that *615 the federal standards established by the ICWA preempt state laws defining "legal custody." In support of her construction of the term "legal custody," petitioner sets out five "rules of judicial construction" which, she asserts, apply here. Of these, the principle that "statutes passed for the benefit of Indians are to be construed in favor of Indians," citing Bryan v. Itasca County, 426 U.S. 373, 392, 96 S. Ct. 2102, 2112, 48 L. Ed. 2d 710 (1976), seems particularly appropriate in this case because the remedial character of the ICWA is not in dispute.[3] The state contends that the ICWA requires an "Indian custodian" (other than one who obtained physical control from the parent) to have "legal custody" and that in this case "legal custody" was in CSD.[4] In response to the preemption argument, the state asserts that because the federal statute refers to state law for a definition of "legal custody" and there is no federal definition of "legal custody," there is no conflict to be resolved by resort to preemption. The Court of Appeals agreed with the state, holding that: The majority opinion, although purporting to analyze the language of the ICWA in order to find Congressional intent in using the term "legal custody," in essence, follows the same path as used by the Court of Appeals in reaching the result here. The majority states that: *616 The premise of the argument becomes its conclusion. The question here is whether "legal custody" was intended in its "legal sense." The majority answers the question by concluding, in effect, that the question does not exist. I am not convinced by the majority's reasoning that Congress intended the term "legal custody" to be limited to mean the result of a state determination of status rather than a functional custody lawfully achieved through the operation of tribal or state legal processes. The ICWA on its face does not disclose an unequivocal choice for either position. The definition of "legal custody" adopted by the majority means that in the future where, as here, CSD has "legal custody" of an Indian child and foster placement results in that child's living with members of her extended family, those family members will not qualify as "Indian custodians." This situation, given the remedial character of the statute, is indeed ironic; i.e., although the policy of the ICWA is served by allowing "Indian custodians" to intervene in child placement proceedings to insure placement in "foster * * * homes which will reflect the unique values of Indian culture * * *," 25 U.S.C. § 1902, the Indian member of the child's extended family who becomes custodian because of such placement[5] will not be able to intervene in any future decision to transfer placement, even though that proposed placement would be inconsistent with the express policy of the ICWA.[6] Petitioner's interpretation of the term "legal custody" is more consistent with the elimination of evils Congress sought to remedy, because both Congressional findings and petitioner's interpretation focus on the conditions of actual custody rather than the abstract legal status of the Indian child. It is possible that Congress did not intend for a person in the position of petitioner in this case to qualify as an "Indian custodian"; however, I am not convinced by the majority opinion that this is so. Because of the consequences of any decision in this matter, it is my opinion that this court should be more certain of its conclusions. As petitioner points out: With these considerations in mind and because the majority opinion adopts a definition of "legal custody" which reaches a result inconsistent with the remedial purposes of the Indian Child Welfare Act, I respectfully dissent. [1] Petitioner does not claim status as an "Indian custodian" under tribal law or custom or by transfer from the parent. Therefore only the state law question is before us. [2] ORS 419.507 provides: "A child found to be within the jurisdiction of the court as provided in subsection (1) of ORS 419.476, may be made a ward of the court. Where a child has been found to be within its jurisdiction, and when the court determines it would be in the best interest and welfare of the child, the court may: "(1) Place the child on probation or under protective supervision. The court may direct that the child remain in the legal custody of his parents or other person with whom he is living or may direct that the child be placed in the legal custody of some relative or some person maintaining a foster home approved by the court, or in a child care center or a youth care center authorized to accept the child. The court may specify particular requirements to be observed during the probation or protective supervision consistent with recognized juvenile court practice, including but not limited to restrictions on visitation by the child's parents, restrictions on the child's associates, occupation and activities, restrictions on the requirements to be observed by the person having the child's legal custody and requirements for visitation by and consultation with a juvenile counselor or other suitable counselor. Restitution for property taken, damaged or destroyed by the child may be required as a condition of probation. "(2) Place the child in the legal custody of the Children's Services Division for care, placement and supervision. "(a) The division may place the child in a child care center authorized to accept the child. "(b) If the child has been placed in the custody of the Children's Services Division, the court shall make no commitment directly to any residential facility, but shall cause the child to be delivered into the custody of the Children's Services Division at the time and place fixed by rules of the division. * * *" [1] At oral argument before this court, the state declined to urge this construction of the statute because, it contended, we should not impute to Congress an intention to violate the constitutional rights of foster parents. That contention is erroneous. First, the unambiguous words of the statute leave no room for judicial construction. If the statute is constitutionally deficient, that determination can be made in a proper proceeding which challenges the validity of the statute or asserts a constitutional claim. In this proceeding, petitioner seeks enforcement of her rights under the statute; she makes no constitutional claim. Second, whatever due process rights a legally established foster parent of less than 18 months may have, those rights do not include notice of and participation in judicial proceedings. See Smith v. Organization of Foster Families, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977). [1] 25 U.S.C. § 1912(a) and (b) provide as follows: "(a) In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. "(b) In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title." (Emphasis added) [2] Although there are facts below which would support petitioner's claim to "Indian custodian" status under the second part of 25 U.S.C. § 1903(6), "* * * [one] to whom temporary physical care, custody, and control has been transferred by the parent of such child," petitioner's argument on appeal is focused upon her being in "legal custody" of the child. [3] Petitioner further contends that because of the Congressional intent to promote the stability of Indian families, Congress did not intend to limit the class of "Indian custodians" only to those satisfying the state definition of "legal custody." She points to a portion of the House committee report which refers to 25 U.S.C. § 1903(6), the definition of "Indian custodian": "`Paragraph (6) defines "Indian custodian." Where the custody of an Indian child is lodged with someone other than the parents under formal custom or law of the tribe or under State law, no problem arises. But, because of the extended family concept in the Indian community, parents often transfer physical custody of the Indian child to such extended family member on an informal basis, often for extended periods of time and at great distances from the parents. While such a custodian may not have rights under State law, they do have rights under Indian custom which this bill seeks to protect, including the right to protect the parental interests of the parents.'" H.R.Rep.No. 1386, 95th Cong., 2d Sess. 20 (1978), reprinted in 1978, U.S.Code Cong. & Ad.News 7530, 7543. (Emphasis added) [4] In its Response to the Petition for Review, the state argues that: "An examination of the other portions of 25 USCA § 1903 shows that Congress understood the distinction between legal custody and other custodial or caretaking, relationships, and that it used the term `legal custody' in its technical sense." and that because: "Both the original bill and the final Act distinguished between `legal custody' and mere `custody' or `temporary physical care, custody, and control.' Under fundamental principles of statutory construction this Court must presume that Congress had a purpose in mind for all of the language it used. * * * The most logical interpretation of the statute is that, in using the term `legal custody,' Congress intended to denote a particular legal relationship not sufficiently defined by the term `custody.'" (Emphasis added) [5] 25 U.S.C. § 1915(b) provides as follows: "Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with "(i) a member of the Indian child's extended family; "(ii) a foster home licensed, approved, or specified by the Indian child's tribe; "(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or "(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs." [6] Whether foster parents generally have procedural rights under Oregon law, as discussed by the majority is not determinative of the question whether this petitioner has such rights under federal law. As stated in the following passage from the legislative history of the ICWA: "In Dice v. Akron, C.Y.Y.R.R. Co., 342 U.S. 359, 72 S. Ct. 312, 96 L. Ed. 398 (1952), the Court held: "`Congress * * * granted petitioner a right * * *. State laws are not controlling in determining what the incidents of this Federal right shall be.' "Chief Justice Holmes, in Davis v. Wechsler, 263 U.S. 22, 44 S. Ct. 13, 68 L. Ed. 143 (1923), put it succinctly: "`Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' "We will quote merely two other cases to support the proposition that Congress may, constitutionally, impose certain procedural burdens upon State courts in order to protect the substantive rights of Indian children, Indian parents, and Indian tribes in State court proceedings for child custody [citing American Railway Express Co. v. Levee, 263 U.S. 19, 44 S. Ct. 11, 68 L. Ed. 140 (1923), and Second Employer's Liability Cases, 223 U.S. 1, 32 S. Ct. 169, 56 L. Ed. 327 (1912)]." H.R. Rep.No. 1386, 95th Cong., 2d Sess. 18 (1978), reprinted in 1978 U.S.Code Cong. & Ad. News, 7530, 7540-41. [7] Upholding petitioner's claim to "Indian custodian" status would not bar CSD from making foster care placements, but would have the effect of allowing those in petitioner's position certain procedural protections when such placements are made. Such a result would be consistent with the requirements of 25 U.S.C. § 1915(b)(i), cited in note 5, supra.

b8f7b42c9776b38308bceacb5a50c2f00c4470e402403e26806f60b0d5eff68a

1982-02-10T00:00:00Z

0e7f8b6f-e591-464e-9f6a-593373e3edcb

Frasure v. Agripac, Inc.

290 Or. 99, 619 P.2d 274

oregon

Oregon Supreme Court

619 P.2d 274 (1980) 290 Or. 99 In the Matter of the Compensation of Lonnie FRASURE, Claimant, Respondent, and Permaneer Corp. and Chubb Pacific Indemnity Group, Respondents/Petitioners, v. AGRIPAC, INC., and Leatherby Insurance Co., Petitioners/Respondents. Nos. 76-5851, 77-2452, CA 12391, SC 26500. Supreme Court of Oregon. Argued and Submitted February 5, 1980. Decided November 4, 1980. *275 James D. Huegli, Portland, argued the cause for respondents/petitioners Permaneer Corp. and Chubb Pacific Indemnity Group. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, and Elizabeth K. Reeve and James M. Finn, Portland. Gary J. Ebert, Ontario, argued the cause for respondent Lonnie Frasure. With him on the brief was Yturri, Rose & Burnham, Ontario. Glen McClendon, Portland, argued the cause for petitioners/respondents Agripac, Inc., and Leatherby Insurance Co. With him on the brief were Lindsay, Nahstoll, Hart, Neil & Weigler, and Steven K. Blackhurst, Portland. Before DENECKE, C.J., and HOWELL, LENT, LINDE and PETERSON, JJ. PETERSON, Justice. This case arises under the Workers' Compensation Law. Both the type of accident *276 and the type of injury here being considered are commonplace. However, unusual issues concerning timeliness of claim and the liability of successive employers arose from an unusual flip-flop of medical opinion which occurred at a time far removed from the time of the accident. Claimant received a compensable injury on January 13, 1972, while employed by Permaneer Corporation. His claim was accepted by Permaneer and its compensation carrier, Chubb Pacific Indemnity Group, and was closed on December 4, 1972, with an award of permanent partial disability of 10 percent loss of the right leg and 15 percent of the maximum allowable by statute for unscheduled back disability. Due to an apparent worsening of claimant's condition, the claim was later reopened and surgery was performed. Following a period of recovery, the claim was closed for a second time, on June 5, 1974. Claimant was awarded additional permanent partial disability of 15 percent of the maximum allowable by statute for unscheduled low back disability. In 1975 claimant was accepted for retraining purposes. He completed a course of study as a machinist on May 9, 1975, and thereafter participated in an on-the-job training program as a machinist. His work performance and progress in his training program were satisfactory even though he continued to have pain in his back. He lost no time from training or work because of his back condition, but was laid off due to economic conditions. After his lay-off, claimant obtained employment as a laborer at Agripac, Inc. On his first day of work, Saturday, September 13, 1975, he was assigned to shovel corn. The work was fast and repetitive and involved lifting, bending, and stooping. While performing this task, and without any specific traumatic event, claimant's back began to hurt. Claimant told his foreman that his "back was hurting because * * of the shoveling of the corn." The foreman transferred claimant to a less demanding job (which also involved shoveling) for the remainder of the workday. The next day, Sunday, was not a workday and claimant rested all day. On Monday, September 15, 1975, he was assigned to a job sorting beets on a conveyor belt. This job involved prolonged standing. After several hours of work, claimant told his supervisor that his "back was hurting" and that he had to go home. Claimant left work, immediately sought outpatient treatment at the emergency room of a hospital, and never again worked at Agripac. Claimant consulted several physicians, all of whom concluded that his exertions at Agripac aggravated his original back injury of January 13, 1972. Claimant filed an aggravation claim with the Permaneer compensation carrier, which reopened claimant's file as an aggravation claim and commenced paying time-loss benefits and medical benefits through a second back operation.[1] The claim was closed, for a third time, on July 8, 1976, with an award for time-loss only. Claimant thereafter requested a hearing. ORS 656.283. In early 1977, prior to the hearing, and nearly one and one-half years after the Agripac incident, claimant's doctors changed their earlier opinions and unanimously concluded that claimant had suffered a new injury at Agripac rather than an aggravation of the old Permaneer injury. Promptly after receiving notice of the new medical opinions, claimant filed a claim for a new injury against Agripac and its compensation carrier, Leatherby Insurance Company. They denied responsibility, contending that the claim was not timely filed[2] and that claimant had sustained an aggravation rather than a new injury. *277 Claimant also requested a hearing on Agripac's denial of responsibility. The hearings referee concluded that claimant had sustained a new injury while shoveling corn at Agripac and that the claim was not barred by untimely filing of notice because Agripac had actual knowledge of claimant's injury.[3] The referee awarded claimant 75 percent of the maximum allowable by statute for unscheduled permanent partial disability. Agripac appealed to the Workers' Compensation Board. On de novo review, the Board agreed with the findings and conclusions of the referee, but reduced claimant's award from 75 percent to 65 percent of the maximum unscheduled permanent partial disability. Agripac appealed to the Court of Appeals. On de novo review, that court agreed that claimant sustained a new, otherwise compensable injury at Agripac, but that: On review in this court, Permaneer and Chubb Pacific assert that the Court of Appeals erred in its estoppel holdings. Claimant asserts that if he is not entitled to compensation from Permaneer, he is entitled to compensation from Agripac on the theory that his failure to give notice to Agripac under ORS 656.265(1) is excused by Agripac's knowledge of his injury, ORS 656.265(4)(a). We will first discuss the estoppel issue. The Court of Appeals, in its first opinion, held that Chubb Pacific "is estopped to assert the defense of nonliability and must be deemed to have assumed liability for the reasonable consequences of that action which resulted here. * * *"[4] *278 Chubb Pacific and Permaneer Corporation sought reconsideration, vigorously asserting that the Court of Appeals had "failed to apply the correct standard for the doctrine of estoppel in this case." In its opinion on reconsideration, the Court of Appeals adhered to its earlier holding: There is no estoppel in this case. The Court of Appeals erred in holding that Permaneer and Chubb Pacific were estopped to deny the compensability of the claim. One of the manifest purposes of Oregon's Workers' Compensation Law is to achieve prompt payment of claims to injured workers. The responsibility for making such payments is imposed on compensation carriers and direct responsibility employers, and such payments are to be made "promptly and directly to the person entitled thereto upon the employer's receiving notice or knowledge of a claim, except where the right to compensation is denied by the direct responsibility employer or corporation." ORS 656.262(2). The first payment must be paid "no later than the 14th day after the subject employer has notice or knowledge of the claim." ORS 656.262(4). Written notice of acceptance or denial of the claim must be given to the claimant within 60 days "after the employer receives notice or knowledge of the claim." ORS 656.262(5). ORS 656.262(8) provides for a 25 percent penalty for unreasonable delay or refusal to pay compensation or unreasonable delay in acceptance or denial of a claim. The legislature further provided, in the same statute, that acceptance of a claim or payment of compensation did not prevent the employer or carrier from subsequently denying the claimant's right to compensation. ORS 656.262(7) provides: Chubb Pacific's assertion that the claimant is not entitled to recover from it or Permaneer is not based upon lack of notice, but upon the premise that the claimant sustained a new injury at Agripac. We confess to some difficulty in reconciling the Court of Appeals opinion on reconsideration (that the "decision in the case at bar * * * does not change the existing rules allowing employers to commence payments to injured claimants immediately after the accident * * * but subsequently to contest the claim on the merits") with its original holding that Chubb Pacific, "by voluntarily accepting and processing claimant's claim and paying aggravation benefits to claimant * * [is] estopped to assert the defense of nonliability * * *." In our opinion, ORS 656.262(7) clearly applies, thus permitting Chubb Pacific and Permaneer to subsequently assert that they are not liable to the claimant, if the denial is based upon a defense other than lack of notice.[5] The Court of Appeals relied upon 3 Larson, Workmen's Compensation Law 15-149 and § 78.44 (sic, § 78.45), but the cases discussed therein involve attempts by employers and carriers who have paid benefits *279 to avoid liability on the ground of late notice, not on the ground that the claim is otherwise not compensable. Chubb Pacific and Permaneer make no such assertion here. Their contention is that the claim is otherwise not compensable. This distinction is made clear in the Oregon State Bar Handbook on Workmen's Compensation, § 12.17 (1975), wherein it is stated: We believe that the statutory policy requiring prompt payment of benefits is inconsistent with the holding of the Court of Appeals. As Judge Buttler succinctly stated in Jacobson v. SAIF, 36 Or. App. 789, 793, 585 P.2d 1146 (1978): Finally, it is appropriate to note that neither Agripac nor Chubb Pacific are "guilty" of making the type of representations normally associated with estoppel. They made (1) no false representations (2) with knowledge of the facts (3) with the intention that the other party rely upon it.[6] The policy underlying the statutes recognizes that prompt processing of claims by employers and carriers is a goal of the Workers' Compensation Law, to the benefit of injured wage earners. At the same time, the statutes assure employers and carriers that they will not be prejudiced by prompt payment of claims when they receive new information which reveals their nonliability for a claim. Under the Court of Appeals decision, employers would be compelled to either deny coverage or postpone acceptance as long as possible, thus risking penalties to themselves and denying benefits to the injured worker, often when the worker most needs the financial benefits afforded by the Workers' Compensation Law. We fear that the end result of the Court of Appeals holding would be to frustrate the purpose of the Act-prompt payment to and prompt treatment of the injured worker-with little or no benefit resulting therefrom. ORS 656.265(1) provides: ORS 656.265(4)(a) provides: *280 The referee thoroughly considered the facts of this case and concluded: The Board, on de novo review, agreed. The Court of Appeals' only finding relative to ORS 656.265 was: It appears to us that the Court of Appeals held (1) that no notice was given to Agripac of the "accident resulting in any injury," as required by ORS 656.265(1); (2) that Agripac was prejudiced by this delay, ORS 656.265(4); and (3) therefore, Agripac was not liable for claimant's compensation benefits, even though his "work activities at Agripac * * * were a material contributing factor to claimant's need for further back surgery; [and] the claimant in fact sustained a new injury for the purpose of this case." 41 Or. App. at 11, 596 P.2d 1015. Oregon's Workers' Compensation scheme requires that the claimant give "notice of an accident resulting in an injury * * * not later than 30 days after the accident." ORS 656.265(1). But the notice requirement is excused if (a) the employer "had knowledge of the injury" or (b) if the carrier or employer "has not been prejudiced by failure to receive the notice." ORS 656.265(4)(a). Here, the Court of Appeals held that Agripac and its carrier were prejudiced. We are bound by that holding, Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971), for this court does not review Workers' Compensation cases de novo. But from reading the opinion we are unsure whether the Court of Appeals found that the claimant was barred because of his failure to give "notice of an accident" as required by ORS 656.265(1), or because the employer had no "knowledge of the injury" under ORS 656.265(4)(a). A comparison of ORS 656.265(1) and ORS 656.265(4) will explain our uncertainty. ORS 656.265(1), reduced to its bare bones, says that notice of an accident resulting in injury shall be given "not later than 30 days after the accident." The language is straightforward enough, but the statute is, in fact, ambiguous. Ambiguity arises from the word "accident," which is not defined in the statute. An accident may, and usually is, associated with a violent event from which injuries result, as a collision between *281 cars or a fall on a slippery floor. But our statutes also permit recovery of compensation benefits even where there is no such "accident." For example, when a worker is performing a normal work activity and suffers injury because of some physiological weakness, the worker may be entitled to compensation even though the injury had no violent, external, or accidental cause.[8] The statute is ambiguous, at least to the extent that a compensable injury may occur which does not result from an "accident," as that term is used above. Thus, the calculation of time for giving notice could run from the time of an event which never occurred.[9] The legislature has not defined "accident" in the compensation law, leaving to courts the task of defining its meaning on a case-by-case basis. ORS 656.265(4) provides that failure to give notice bars a claim "unless the * * * employer had knowledge of the injury." (Emphasis added.) There may be a difference between "notice of an accident" under ORS 656.265(1) and "knowledge of the injury" under ORS 656.265(4)(a), particularly where (as here) there is no accident caused by violent or external means. The legislature appears to have carefully distinguished between "notice" and "knowledge" in other sections of the Workers' Compensation Law, as well. For example, the time for making payments is calculated from the time of "the employer's receiving notice or knowledge of a claim," ORS 656.262(2); employers are required to notify their compensation carrier "not later than five days after notice or knowledge of any claims," ORS 656.262(3); and the time for *282 furnishing an acceptance or denial is calculated from the time the employer received "notice or knowledge of the claim," ORS 656.262(5). The Court of Appeals found that neither Agripac nor Leatherby "received notice of the new injury within the time fixed by law." As stated above, we cannot tell whether the Court of Appeals found that claimant is barred because he failed to give "notice of an accident" under ORS 656.265(1) or because Agripac had no "knowledge of the injury" under ORS 656.265(4)(a). We therefore: 1. Reverse the Court of Appeals in its holding that Chubb Pacific or Permaneer Corporation are liable to the claimant. 2. Remand to the Court of Appeals for a determination whether Agripac "had knowledge of the [claimant's] injury," ORS 656.265(4)(a). Should the Court of Appeals find that Agripac had knowledge of the injury under ORS 656.265(4)(a), for entry of an award in claimant's favor consistent with the disability award of the Board, and for entry of an award in favor of Chubb Pacific against Leatherby Insurance Company for appropriate reimbursement for compensation payments it made, consistent with the Board order. Reversed and remanded to the Court of Appeals. [1] ORS 656.273 provides for the filing of claims, after the last compensation award, for additional compensation, including medical services, for worsened conditions resulting from the original injury. [2] Leatherby relied on ORS 656.265(1), discussed below, which requires notice within "30 days after the accident." [3] ORS 656.265(4)(a), quoted in full below. [4] The referee had also considered the estoppel question and held: "(4) The doctrine of equitable estoppel, or estoppel by conduct, has no application to the facts of this case. Such doctrine requires: (a) a false representation; (b) made with knowledge of the facts; (c) that the party must have been ignorant of the truth; (d) that the false representation was made with the intention that it should be acted upon by the other party; and (e) the party must have been induced to act upon it. Burnett v. SAIF, 29 Or. App. 415, 563 P.2d 1234 (1977). Among the first employer, its carrier and claimant, the referee questions whether the employer or its carrier knowingly made a false representation with the intention that claimant act upon it. Apparently, in good faith, but erroneous when using hindsight, the first employer and carrier accepted claimant's aggravation claim and processed the same. Such conduct does not appear to fall within the above doctrine. Among the first employer, its carrier, the second employer and its carrier, it appears all elements required by the doctrine are missing. The first employer or its carrier made no assertions to the second employer and its carrier, and the second employer and its carrier were not induced to act based on such assertions. When the new injury claim was presented to the second employer and its carrier, such claim was promptly denied, and no payment of workers' compensation benefits was made. The parties' request to apply the doctrine of equitable estoppel is denied." This finding was adopted by the Board. [5] ORS 656.265(5) requires the employer to raise "the issue of failure to give notice * * * at the first hearing on a claim for compensation * * *." [6] Bennett v. City of Salem, 192 Or. 531, 541, 235 P.2d 772 (1951), lists the elements of estoppel. [7] Compare ORS 656.262(3) which requires the employer to notify its compensation carrier "* * * not later than five days after notice or knowledge of any claims or accidents which may result in a compensable injury claim * *." (Emphasis added.) In a substantial sense, such a duty is virtually the same as the employee's duty to give notice. [8] In Demagalski v. State Ind. Acc. Comm., 151 Or. 251, 47 P.2d 947 (1935), the court denied recovery where normal stooping and lifting involved in decedent's job caused cerebral hemorrhage. "* * * [T]his court is committed to the line of cases which hold that where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected or unforeseen * * *." 151 Or. at 254, 47 P.2d 947. (Emphasis added.) The court concluded: "In the case at bar there is an entire absence of any evidence of an accidental cause of decedent's death. He was engaged in catching and crating pheasants. That is what he intended to do and that is what he did. There is no evidence that anything fell upon or against decedent or that anything in use by him failed to function in its normal and customary manner." 151 Or. at 255, 47 P.2d 947. In 1957, the legislature amended the Workers' Compensation Law to make compensable any "accidental injury arising out of and in the course of [the worker's] employment." The legislation further provided by definition: "An injury is accidental if the result is an accident, whether or not due to accidental means." (Emphasis added.) See ORS 656.005(8)(a), footnote 9 below. In a case of first impression under the 1957 amendments, the court stated in Olson v. State Ind. Acc. Com., 222 Or. 407, 409, 352 P.2d 1096, 1098 (1960): "It is quite clear that the language used in amending [the Workers' Compensation Law] was intended to enlarge the operation of the statute. The removal of the words `caused by violent or external means' undoubtedly had as its purpose the bringing within the coverage of the act those workmen who, though doing an intentional act required by their employment, suffered an unintended injury because of some physiological weakness, but were excluded from the coverage of the act because the injury suffered was not caused by an external force. * * *." The court concluded: "Under the interpretation we place upon the present statute, we believe there can be little question but that the accidental element in the present statute was satisfied. Bennie C. Olson did not intend his sudden death, it was not expected nor designed, but was an unlooked for and unexpected event. There is no evidence the deceased had any prior knowledge that he was suffering from a heart condition which would cause him to suffer death from the slightest labor performed." Id. at 414, 352 P.2d 1099. [9] See the definition of "compensable injury" of ORS 656.005(8)(a): "A `compensable injury' is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means." (Emphasis added.) A compensable injury is an accidental injury whether or not due to an accident.

2cf8c3402f24380753d2ebd19f7a86db8d98d20ef04d1f1a711cc6d617fbd10d

1980-11-04T00:00:00Z

a77d3cbd-31f3-46fe-aa28-95e04cfcf0f2

State v. Schoen

S057652

oregon

Oregon Supreme Court

FILED: April 14, 2010 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON Respondent on Review, v. TERRY DEAN SCHOEN, Petitioner on Review. (CC 04494; CA A129669; SC S057652) En Banc On review from the Court of Appeals.* Argued and submitted March 5, 2010. Neil F. Byl, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review.  With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Michael A. Casper, Assistant Attorney General, Salem, 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. BALMER, 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 Baker County Circuit Court, Warner Wasley, Senior Judge. 229 Or App 427, 211 P3d 948 (2009). BALMER, J. This case requires us to determine whether a reasonable jury could find that defendant "tamper[ed] * * * with property of another," as that phrase is used in ORS 164.345(1), the statute that defines the crime of third-degree criminal mischief.  At trial, defendant argued that his conduct -- kicking the door of a police car in which he had been placed following his arrest -- was insufficient to allow a conviction for that crime.  The trial court rejected that argument, and the Court of Appeals affirmed in a divided, en banc opinion.  State v. Schoen, 229 Or App 427, 211 P3d 948 (2009).  We allowed review and, for the reasons set out below, now reverse the decision of the Court of Appeals. Defendant interfered with the efforts of two police officers to enter his home to investigate a report of a domestic dispute.  The officers attempted to detain defendant, resulting in a physical struggle between him and the officers.  After subduing defendant, the officers placed him in the back seat of a police car.  While in the police car, defendant kicked the door a number of times.  No evidence was introduced at trial that the door was damaged or otherwise altered, either in function or appearance, by defendant's acts.  Defendant was charged with assault, disorderly conduct, harassment, and -- for kicking the car door -- third-degree criminal mischief, ORS 164.345(1).  That statute provides: "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 the person has such right, the person tampers or interferes with property of another." The criminal complaint alleged, as to the criminal mischief charge, that defendant "did unlawfully and knowingly tamper" with the police car.  As noted, at trial, defendant moved for a judgment of acquittal, arguing that evidence that he had kicked the door of the police car was insufficient to prove that he had committed third-degree criminal mischief.  Instead, he argued, the state was required to prove that there had been damage to the police car.  The trial court denied the motion, and a jury convicted defendant of all charges.  Defendant appealed, challenging only the trial court's denial of his motion for a judgment of acquittal on the criminal mischief charge. The Court of Appeals affirmed in an en banc decision with three different opinions.  At the outset, we observe that, although defendant was charged only with "tampering" and not with "interfering," all three Court of Appeals opinions appear to assume that defendant was charged with "tampering or interfering" with property.  The two opinions that reached the merits proceeded to determine whether defendant's conduct "tampered or interfered" with the police car.(1)  Indeed, the plurality opinion ultimately affirmed defendant's conviction because "[a] reasonable factfinder could find that defendant's acts constituted an 'interference' within the ordinary meaning of the statute."  Schoen, 229 Or App at 436 (Edmonds, J., concurring).  Although the opinions in the Court of Appeals apparently rest on an erroneous assumption as to the nature of the criminal mischief charge of which defendant was convicted, we nevertheless describe the opinions briefly because they provide useful background for the discussion that follows.  Four members of the Court of Appeals joined in a plurality opinion that concluded that the phrase "tampers or interferes with property of another" in ORS 164.345(1) covers all "unwarranted interferences with property."  Id. at 434 (Edmonds, J., concurring).  The plurality thus rejected defendant's argument that the statute required proof that defendant's conduct "affected" the property or impaired the use of the property and affirmed defendant's conviction.  Three judges agreed that defendant's conviction for third-degree criminal mischief should be affirmed, but did so on the grounds that defendant had failed to raise in the trial court and preserve on appeal his argument that the state must prove conduct that "affected" the property or its use.  Id. at 437 (Haselton, J., concurring).  Like the plurality opinion, Judge Haselton's concurring opinion treated the proceedings in the trial court as though defendant had been charged with "tampering or interfering" with the police car.  See id. at 440-41.  Three judges dissented, concluding that the phrase "tampers or interferes with property" requires proof of "an effect on property that changes its physical nature or limits the property's usefulness."  Id. at 445 (Sercombe, J., dissenting).  In the dissent's view, defendant's conduct did not impede the use of the patrol car or diminish or change the property for the worse so as to alter its functionality or value.  For that reason, defendant was not guilty of third-degree criminal mischief and his motion for judgment of acquittal should have been granted.  Id. at 452.  On review, defendant argues that a person "tampers or interferes with property" for purposes of ORS 164.345(1) when the person "appreciably alters the existing condition or use of the property at issue."  Defendant links the word "tamper" with a physical effect on the property and the word "interfere" with a change or rearrangement of the property that frustrates or hinders its use.  The state first argues that defendant failed to preserve the argument that he asserts in this court.  On the merits, the state argues that third-degree criminal mischief does not require the state to prove conduct that "alters the existing condition or use of property."  In the state's view, the statute prohibits "any act in which a person improperly and intrusively meddles with another person's property to frustrate or inconvenience that person."  We first consider the issue of preservation and then turn to the merits.  Both issues require us to focus on the motion for judgment of acquittal in the context of the case as it was charged and tried.  As noted, the criminal complaint did not charge defendant with "tampering or interfering" with the police car; the count at issue here alleged only that defendant, "with intent to cause substantial inconvenience to Baker City, did unlawfully and knowingly tamper with a patrol vehicle[.]"  (Emphasis added.)  The trial court's initial summary of the case to the prospective jurors, tracking the criminal complaint, similarly described the criminal mischief count as based on the state's contention that defendant had "tamper[ed]" with the police car.  (Moreover, the jury later was instructed that, to find defendant guilty of third-degree criminal mischief, it had to find, among other things, that he had "tampered" with the police car, again demonstrating that the trial court and the parties correctly viewed this case as one about "tampering" and not about "interfering.") When defendant moved for a judgment of acquittal, he argued that "[t]here's been no showing there's any damage to the vehicle of any kind.  So we don't believe there's enough [evidence] there [to support a conviction for criminal mischief]."  The trial judge responded that there was "sufficient evidence" for the jury to hear all the charges.  Defendant's motion, which did not use either the word "tamper" or the word "interfere," was necessarily directed at the state's alleged failure to prove the conduct element of third-degree criminal mischief as that crime was charged in the criminal complaint -- that defendant unlawfully tampered with the police car.  The trial judge's denial of that motion also was necessarily based on his understanding that the state had charged tampering and that defendant believed tampering required damage of some kind. To be sure, defendant's argument on appeal -- that the state had to show that his acts altered or changed the physical condition or affected the use of the police car in some respect -- is a refinement of the argument that he made to the trial court, and defendant now concedes that the state need not prove that he physically "damaged" the police car.  But because the element of the crime at issue in the motion for judgment of acquittal was whether defendant had "tampered," and not whether he had "interfered," it was plain that the motion focused the trial court's attention on whether defendant's kicking had any physical effect on the police car.  Thus, in our view, the "purposes of fairness and efficiency that underlie the [preservation] requirement," State v. Stevens, 328 Or 116, 122, 970 P2d 215 (1998), were adequately served by the grounds that defendant asserted in his motion for judgment of acquittal.  We therefore turn to the merits of defendant's appeal. We begin with the text of ORS 164.345(1).  The crime of third-degree criminal mischief, as charged in this case, consists of two elements:  (1) "tamper[ing] * * * with property of another" when one has "no right to do so nor reasonable ground to believe that [one] has such right," and (2) the "intent to cause substantial inconvenience to the owner [of the property] or to another person."  Here, defendant does not dispute that, by kicking the inside surface of the door of the police car, he intended to cause substantial inconvenience to the police officers at the scene.  Nor does he argue that he believed that he had a right to kick the door.  His only claim is that kicking the door did not "tamper" with property.(2) The word "tamper" is not defined in ORS 164.345(1), and, because it is a word of common usage, we turn first to its ordinary meaning.  See State v. Briney, 345 Or 505, 511, 200 P3d 550 (2008) (court gives words of common usage their plain, ordinary meaning).  Although the dictionary offers several definitions of "tamper," the parties agree that the second definition is applicable here:  "to interfere so as to weaken or change for the worse."  Webster's Third New Int'l Dictionary 2336 (unabridged ed 2002).  The dictionary also identifies "meddle" as a synonym for "tamper," and under the definition of "meddle," it distinguishes tamper from the other verb used in the statute, "interfere," noting that "TAMPER suggests unwarranted alteration or change, ill-advised readjustment, meddlesome experimentation, or improper influence," while "INTERFERE suggests taking part obtrusively and officiously in the affairs of others so as to hinder, frustrate, check, or defeat."  Id. at 1401.  As an initial matter, then, "tampering" with property would seem to require some improper alteration, change, or "readjustment" of the property. The legislative history of the crime of third-degree criminal mischief is also helpful to our inquiry.  See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (court may consider legislative history proffered by the parties, if useful).  ORS 164.345 was enacted as part of the 1971 revision of the Oregon criminal code.  Or Laws 1971, ch 743, § 145.  The commentary to the code noted that the new criminal mischief sections were intended to replace the statutes that "prohibit[ed] 'interference' or 'tampering' with certain classes of property."  Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report, §§ 145-147, 153 (July 1970).  The statutes to be replaced included a variety of laws that criminalized "interference" with various kinds of utility property.  Id.  Those statutes did not prohibit mere unauthorized "contact" with the physical property, but rather conduct that affected the property or its use.  They used the words "tamper" and "interfere" along with other verbs that suggest that some kind of adverse effect on the property or its use must be shown.  See, e.g., former ORS 164.610 (1969), repealed by Or Laws 1971, ch 743, § 432 (a person commits the crime of "interference with water rights and appliances" if the person intentionally "cuts, breaks down, injures, destroys, extends, alters, tampers or interferes with or removes" property related to pumping or transporting water) (emphasis added).  In writing the new criminal mischief statute -- which, as noted, was intended to prohibit the same conduct as the earlier statutes -- the drafters of the code used the verbs "tamper" and "interfere," but not the other verbs from the earlier statutes.  It thus appears that the drafters intended those two words to carry forward the concept of requiring some improper alteration of the property (tampering) or adverse effect on its use (interfering), rather than merely any unauthorized contact with the property. The crux of the legal dispute here is whether "tampering," for purposes of ORS 164.345(1), can be established even without a showing that the property or its use was "affected" by the defendant's conduct, as the state argues.  The Court of Appeals plurality opinion concluded that all "unwarranted interferences with property with the intent to cause substantial inconvenience to the owner or other persons [are] unlawful under ORS 164.345."  Schoen, 229 Or App at 434 (Edmonds, J., concurring) (emphasis added).  That holding, however, as previously noted, appears to have been based on the erroneous assumption that defendant had been charged with "interfering" with the police car, in addition to "tampering" with the police car, and thus appears to be the plurality's interpretation of the words "tampers or interferes," rather than the word "tampers" considered on its own.  The state nevertheless continues to maintain that "tampers" refers not only to "altering something's existing condition," but also to "interfering with it" or simply "meddling" with it. As the discussion above suggests, we disagree with the state's interpretation.  The legislature set out a specific mens rea in ORS 164.345(1) -- the intent to cause substantial inconvenience.  But the statute does not simply criminalize all acts done with that intent.  Rather, it also sets out a specific actus reus for third-degree criminal mischief:  "tamper[ing] or interfer[ing] with property of another."  And, in this case, only "tampering" was charged.  The statute, as applicable here, thus requires some specific conduct -- tampering -- with respect to property.  But what conduct is sufficient to violate the statute?  The state argues that the wrongful conduct is that which "improperly and intrusively meddles" with another person's property with intent "to frustrate or inconvenience that person."  Obviously, the last part of the state's proposed test is merely the mens rea element of ORS 164.345(1) and is not disputed here.  And the addition of the adverbs "improperly" and "intrusively" merely emphasizes the conclusion that the "meddling" is unauthorized or wrongful in some way; those words do not assist us in defining the kind of conduct prohibited by the statute.  Arguably, any conduct that a person engages in with respect to another's property could be considered "improper" or "intrusive" if it is performed with an intent to cause substantial inconvenience to the owner of the property (or another).  But the text, context, and legislative history of ORS 164.345, described above, lead us to conclude that the phrase "tampers * * * with property" was not intended to sweep so broadly.  As discussed above, "tamper" ordinarily refers to a change or alteration -- ordinarily for the worse -- in some thing (tangible or intangible).  We have found nothing in the text, context, or legislative history of ORS 164.345 to suggest that the legislature intended some different meaning when it used that word in the criminal mischief statute.  The state nevertheless argues that the word "tampers," standing alone, encompasses all (or virtually all) conduct that is prohibited by the words "tampers or interferes."  However, those two words, although arguably overlapping in certain respects, do point in different directions.  Indeed, the legislature's use of both words is at least some indication that the legislature intended "interfere" to mean something different than "tamper."  See ORS 174.010 ("[W]here there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.").  It is the word "interfere," not "tamper," that ordinarily is used in the sense of being "in opposition" to, "at cross-purposes" with, or hindering or frustrating a use or purpose.  See Webster's at 1178 (so defining "interfere").  We conclude that the word "tampering," as used in ORS 164.345(1), requires conduct that alters, rearranges, or changes property.  The foregoing interpretation, in our view, captures the majority of the hypotheticals raised by the drafters of the criminal code and discussed in the Court of Appeals opinions.(3)  See Schoen, 229 Or App at 435-36 (Edmonds, J., concurring); id. at 450-51 (Sercombe, J., dissenting) (both discussing hypothetical examples of third-degree criminal mischief). Throwing a switch on a train track that could change the path of a train or opening a gate that blocks access to a forest service road is conduct that alters, rearranges, or changes property, and constitutes "tampering" with property.  If done with the intent to cause substantial inconvenience, it constitutes third-degree criminal mischief.  Similarly, mixing up library books and reshelving them out of order is an alteration and rearrangement of property and constitutes "tampering" with property.  What constitutes tampering with property for purposes of ORS 164.345(1) may depend on the nature of the property:  merely entering a "clean room" at a manufacturing facility for silicon wafers or touching a valuable painting with one's finger might constitute tampering, while the same conduct with respect to other property would not.  The actus reus element of "tamper[ing] * * * with property" for purposes of third-degree criminal mischief may be easily met in many cases, but it requires some showing, beyond the intent to cause substantial inconvenience, of an appreciable physical change or rearrangement to property. Returning to the facts of this case, the state does not argue that defendant's kicking damaged the police car.  Nor, as noted, was there any evidence that the kicks altered, rearranged, or had any effect whatever on the car.  The state thus failed to introduce evidence that defendant "tampered" with the car.  Because the state introduced no evidence that defendant "tamper[ed] * * * with property," the trial court erred in not granting defendant's motion for a judgment of acquittal on the third-degree criminal mischief charge. 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 Court of Appeals' assumption is understandable, as the parties, in their briefs in that court, treated the case as though the relevant question was whether the state had proved that defendant had "tampered or interfered" with the police car.  We nevertheless find it appropriate to consider only whether defendant "tampered" with the police car.  As explained more fully below, the case was charged and tried on that theory, and the trial court, when ruling on defendant's motion for judgment of acquittal, would have understood the criminal mischief charge to involve only tampering. 2. Because defendant was not charged with "interfering" with property, we have no occasion to adjudicate the scope of that term or decide whether a reasonable juror could conclude that defendant's conduct constituted "interfering."  We discuss the meaning of "interfere" only insofar as it assists in our interpretation of the word "tamper." 3. Other conduct might constitute "interfering" with property for purposes of ORS 164.345(1), and therefore third-degree criminal mischief, but the present case requires us to consider only whether the charged conduct was "tampering."

0cc2d5fc4b4a6d506f64bb6202de87de2979c8d21a81b5ab3b66c7cd887d63b8

2010-04-15T00:00:00Z

ba9464a8-4b9c-4031-a088-dfd9193edb3a

Matter of Marriage of Eagen

292 Or. 492, 640 P.2d 1019

oregon

Oregon Supreme Court

640 P.2d 1019 (1982) 292 Or. 492 In the matter of the Marriage of Corey EAGEN, Respondent On Review, and Joyce Eagen, Petitioner On Review. CA 18270; SC 27951. Supreme Court of Oregon, In Banc. Argued and Submitted November 3, 1981. Decided February 10, 1982. *1020 Richard L. Lonergan, Portland, argued the cause for petitioner. With him on the petition were Andrew J. Gerlicher, Howard R. Lonergan and Clint A. Lonergan, Portland. On the brief was Andrew J. Gerlicher, Portland. Ronald E. Hergert, Oregon City, argued the cause for respondent. With him on the brief was Hibbard, Caldwell, Canning, Bowerman & Schultz, P.C., Oregon City. TANZER, Justice. This is an appeal from an order allowing credit for unpaid accrued child support. The marriage of the parties was dissolved in 1973. Custody of their 11-year-old child was awarded to the mother and the father was ordered to pay $150 per month child support until "further order of this court or until said minor child attains age 21, dies or marries or becomes self-supporting or otherwise emancipated, whichever first occurs." Despite the decree, the child lived with the father continuously since the dissolution until she married in November, 1977, except for one month when she stayed with her mother. The father made no support payments. In June, 1980, the father moved for an order giving him credit for all child support payments accrued since the decree because the child had lived with him and then married. For "equitable considerations," the trial court ordered the judgment for accrued child support payments satisfied as of the date of the dissolution forward, with the exception of $150 for the month during which the child lived with the mother. The Court of Appeals, 52 Or. App. 299, 628 P.2d 428, in banc, affirmed, for equitable reasons, among others. The dissenting judges concluded that no credit was allowable regardless of equitable considerations. This case is governed by ORS 107.135(2)[1] which provided: Before the enactment of the statute, this court had held that an order for periodic support payments was merely personal and was too indefinite to be enforceable by judgment lien. The court later acknowledged in Forbes v. Jennings, 124 Or. 497, 264 P. 856 (1928), that the purpose of the enactment of what is now numbered ORS 107.135(2) was to raise support orders to the dignity of judgments, enforceable as such. The general rule is that courts may deem a judgment satisfied only if paid according to its terms or in an alternative manner agreed to by the parties as satisfactory: *1021 If this were a proceeding in which the mother was seeking an order of support, her tacit agreement to the father's actual support of the child would have been material as a defense. After judgment, however, any such defense is immaterial because all defenses merge into the judgment, Security Inv. Co. v. Miller, 189 Or. 246, 251, 218 P.2d 966 (1950); see also Restatement (Second) of Judgments § 47 (Tent. Draft No. 1, 1973). Such prejudgment conduct cannot be deemed an agreement to accept an alternative form of satisfaction of the subsequent judgment. In Poe v. Poe, 246 Or. 458, 425 P.2d 767 (1967), this court rejected a motion to set aside an accrued judgment based upon a claim of estoppel. We held that the above statute barred the setting aside of a judgment: Although Poe involved estoppel, it is consistent with the broader proposition that judgments cannot be set aside for equitable reasons, except for fraud or duress or some equally egregious reason.[2] We are aware that some courts have set aside support judgments for equitable reasons, contrary to the general rule and to our holding in Poe, see Annot., Child Support Right to Credit, 47 ALR3d 1031 (1973), but those holdings do violence to principles protecting the integrity of judgments and have ramifications far beyond the law of domestic relations. There is language in Briggs v. Briggs, 178 Or. 193, 165 P.2d 772, 166 ALR 666 (1946), suggesting a general rule to the contrary. The language used and authorities cited in Briggs are not conclusive as to what rule was actually adopted as a rationale for the decision. The holding was consistent with our holding today: payments made directly to the children were not credited against accrued unpaid alimony and support. The order allowing certain credits, to which the dissent refers, was not in issue because it was consented to by the plaintiff, as the court expressly noted. 178 Or. at 203, 165 P.2d 772.[3] The remedy afforded to the noncustodial father in Ellis v. Ellis, 292 Or. 502 640 P.2d 1024 (decided this date), is not available to the father in this case. There we held that an order declaring the noncustodial parent's support obligation to have terminated when the child was emancipated merely clarified the application of the decree and did not modify it. In this case, by operation of the decree, the father's obligation continued as long as the mother had legal custody of the minor child and that state continued to exist until the child's marriage. For us to hold otherwise would be, in effect, a retroactive modification of the custody and support provisions which is prohibited by ORS 107.135(2). We share the concern of the Court of Appeals not to "countenance this mother's singularly unjust effort to undo the past and collect $10,500 which was decreed for child support and which the father has in fact paid," but we are obliged under the applicable Oregon statutes to hold that the father is not entitled to a satisfaction of judgment for the period from the date of the divorce to the marriage of the child. *1022 Because no such issues are presented to us, however, we express no opinion concerning the availability of other collateral remedial relief such as proceedings to enjoin enforcement of the judgment. Mason v. Mason, 148 Or. 34, 34 P.2d 328 (1934).[4] Modified. The order directing satisfaction is modified to apply only to those payments accrued under the decree from November, 1977, forward. No costs to either party. PETERSON, Justice, dissenting. Although ORS 137.135(2) prohibits a court from setting aside, altering or modifying a decree for installment payments of support provisions, I would hold, as did the Court of Appeals in this case, and as did this court in a previous decision, that "special considerations of an equitable nature may justify a court in crediting * * * payments [made directly to the children] * * * when that can be done without injustice to the * * * wife." Briggs v. Briggs, 178 Or. 193, 204, 165 P.2d 772 (1946). The decree in this case provides that the father was to pay "* * * through the Clerk of the Circuit Court for Clackamas County, Oregon City, Oregon, the sum of $150 per month as and for the support, care and maintenance of the minor child * * *." (Emphasis added.) The Court of Appeals found that "* * * the mother intentionally left her daughter with the father because the daughter might interfere with the traveling lifestyle mother chose to follow after the dissolution. Mother had, in fact, transferred the responsibility for the care and custody of the daughter to father. * * *" 52 Or. App. 299 at 303, 628 P.2d 428. The Court of Appeals also found that "* * * the father has supported and maintained the child himself, a service performed for the mother which the evidence shows had a value of at least $150/month. Unless some statute prevents it, father is entitled to a partial credit of the judgment because, so far as equity is or ought to be concerned, he has paid it." (Emphasis in original.) 52 Or. App. 299 at 302, 628 P.2d 428. The majority hold that "* * * the father's obligation continued as long as the mother had legal custody of the minor child * * *." This conclusion is based upon the premise that allowing the father credit for the support actually provided "* * * would be, in effect, a retroactive modification of the custody and support provisions which is prohibited by ORS 107.135(2)." I disagree. I would hold that when a parent is given actual custody on a permanent basis, by the parent having legal custody, giving credit to the supporting parent is not an alteration, modification, or setting aside of a decree for the payment of money. ORS 107.135(2) does not prohibit a payor from being given credit for monies paid pursuant to a decree. The Court of Appeals analysis on this point reflects fairness and equity; and its holding is squarely within the literal meaning of the statute. The Court of Appeals held: Our precedents suggest this result. In Briggs v. Briggs, 178 Or. 193, 165 P.2d 772 (1946), a decree required the husband to pay child support to the wife. While the children were in college, the husband paid money for the childrens' education directly to the children. He claimed that he should be given credit for those amounts, against the amount due under the decree. We acknowledged *1023 the fact that the statute provides that each support installment of a decree becomes a final judgment until the filing of a motion to modify the decree. We stated, "Once the total amount which the defendant was required to pay has been computed, it will be necessary to determine the credits which the court of equity should allow to [the father]." 178 Or. at 202, 203, 165 P.2d 772. We then concluded: We held that the father was entitled to credit on his child support obligation for money paid directly to the children during the time they were in college.[1] The majority rely upon Poe v. Poe, 246 Or. 458, 425 P.2d 767 (1967). That case is not in point. In that case, the husband obtained a divorce from the wife, and the decree required him to pay $15 per month as child support for each of two children. In 1952, he quit paying the child support payments. The wife raised the children. In 1966, the wife filed a motion for a judgment for the unpaid support payments. The husband then filed a motion to set aside the judgment, claiming that he quit making the payments at the wife's request, and that she had made no effort, since 1952, to collect the support money, and that she now be estopped. Citing ORS 107.135(2), we affirmed the trial court, holding that that statute prohibited courts from modifying or changing support money payments once they have become a judgment. Poe is distinguishable. There, the husband provided no support and did not have custody of the children and was, in effect, seeking a retroactive modification. The majority "* * * express no opinion concerning the availability of other collateral remedial relief such as proceedings to enjoin enforcement of the judgment." In Mason v. Mason, 148 Or. 34, 34 P.2d 328 (1934), a decree provided that the mother would have custody of the children, and receive monthly child support payments from the father. The mother subsequently abandoned the children, the husband took the children into his own custody and, as here, ceased paying any sums of money to the wife. Years later the wife sought to collect the accrued child support. The husband brought a separate suit to enjoin the enforcement of the writ of execution which had been issued incident to the attempt to collect on the decree. The trial court dismissed the husband's suit, and the husband appealed. On appeal, we reversed, saying: *1024 Compare: Chapman v. Chapman, 177 Or. 239, 244, 161 P.2d 917 (1945). I would do directly what the majority ultimately may approve indirectly. Finally, I would add that the decree entered by the trial court in this case, as stated above, requires the husband to pay the sum of $150 per month to the clerk of the court. The evidence shows that, shortly after the husband received custody of the minor child, he went to the county clerk's office and was advised by one of the deputies that he should write them a letter for the files and that he would no longer be "bothered" about the matter. The evidence shows that the husband discontinued the support payments with consent of the wife and the consent of the clerk. The application of a rule of law to the limitless fact situations which come before courts occasionally results in decisions which are unfair and inequitable. This is such a case, doubly regrettable because the statute does not require it. In defense of the majority (who have neither requested a defense nor really need a defender), it is well to remember this statement of Lord Blackburn in River Wear Commissioners v. Adamson, 2 App.Cas. 742, 746 (House of Lords, 1877): TONGUE, J., joins in this dissent. [1] The legislature has since dealt with this problem by amending ORS 107.135(2) by adding: "However, the court may allow a credit against child support arrearages for periods of time, excluding reasonable visitation unless otherwise provided by order or decree, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent." Or. Laws 1981, ch. 855. [2] See, e.g., Slate Const. Co. v. Pac. Gen. Con., Inc., 226 Or. 145, 359 P.2d 530 (1961), and O.W.R. & N. Co. v. Reid, 155 Or. 602, 65 P.2d 664 (1937). [3] The dissent also cites Chapman v. Chapman, 177 Or. 239, 161 P.2d 917 (1945), which is not in point. There, this court reversed a circuit court modification of a custody award and, as we read the opinion, gave credit to the respondent for care provided during the pendency of the modified order, 177 Or. at 244, 161 P.2d 917. If the court had intended a broader holding, it would surely have cited Chapman in the Briggs opinion only a few months later. [4] Certain of the reasoning in Mason was disavowed in Briggs, 178 Or. at 201, but the holding allowing a suit to enjoin enforcement of a judgment has not been overruled to date. See also Parker v. Reid, 127 Or. 578, 581-582, 273 P. 334 (1928). [1] Concededly, the holding is not a strong one for the position I espouse because the wife was apparently "willing to credit the [husband] on account of payments to the [children] while in college." 178 Or. at 203, 165 P.2d 772. The court concluded, however, that the husband should receive credit "[i]n view of the apparent consent of the plaintiff and the equities of the situation." 178 Or. at 207, 165 P.2d 772. (Emphasis added.)

b472d328c67ab014ce3951b4aabb473af1de3411429dd347aeb737f08aed84a7

1982-02-10T00:00:00Z

2c757366-fdb1-4fae-8448-aa74b39b5164

Matter of Fossum

289 Or. 777, 619 P.2d 233

oregon

Oregon Supreme Court

619 P.2d 233 (1980) 289 Or. 777 In the Matter of the Compensation of James E. FOSSUM, Deceased. Helen FOSSUM, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Argonaut Insurance Company and Underwriters Adjusting Co., Respondents. CA 14961; SC 26965. Supreme Court of Oregon, In Banc. Argued and Submitted June 25, 1980. Decided October 21, 1980. Opinion on Denial of Rehearing December 23, 1980. *234 Allen T. Murphy, Jr., Portland, argued the cause for petitioner. With him on the brief was Richardson, Murphy, Nelson & Lawrence, Portland. Darrell E. Bewley, Associate Counsel, State Acc. Ins. Fund, Salem, argued the cause for respondent State Acc. Ins. Fund. With him on the brief were K.R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, State Acc. Ins. Fund, Salem. Margaret H. Leek Leiberan, Portland, argued the cause for respondent Argonaut Ins. Co. With her on the brief was Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland. Jerard S. Weigler, Portland, argued the cause for respondent Underwriters Adjusting Co. With him on the brief was Lindsay, Nahstoll, Hart, Neil & Weigler, Portland. TONGUE, Justice. This is a workers' compensation proceeding brought by the widow of a worker who died from asbestos-caused cancer. The issue to be decided is whether, by reason of the provisions of ORS 656.807, the claim of the widow for widow's benefits is barred by passage of five years after his last exposure in employment to asbestos.[1] *235 In early 1977 Mr. Fossum learned that he had mesothelioma, a form of lung cancer caused by asbestos. He filed occupational disease claims with several prior employers for whom he had worked in positions that involved possible exposure to asbestos. He died in August 1977. His widow then promptly filed death benefit claims with her husband's prior employers. Evidence offered at the hearing before the referee included medical testimony that mesothelioma does not develop generally until 25 to 40 years after exposure to asbestos. The referee found that Mr. Fossum's death was caused by his employment in the shipyards in the early 1940's and that Kaiser Company, as his last employer in the shipyards, is the employer responsible for his condition. The referee also held that the failure of Mr. Fossum to file a claim for compensation within five years after last exposure, as required by ORS 656.807(1), did not bar a claim by his widow for widow's benefits filed within 180 days after the date of his death. The Workers' Compensation Board, on de novo review, found that claimant's widow had failed to establish either legal or medical causation and therefore is not entitled to a claim for widow's benefits. On appeal by claimant's widow to the Court of Appeals, that court did not decide whether or not the Board was correct in rejecting the claim of the widow for lack of evidence of causation, but held that the claim was properly denied for the reason that it was not timely filed and was barred as a matter of law because it was not filed within five years after the last exposure in employment to asbestos, as provided by ORS 656.807(1). 45 Or. App. 77, 607 P.2d 773 (1980). We allowed appellant's petition for review because of the importance of this question to dependents of workers who die from occupational diseases. In support of the opinion by the Court of Appeals and in opposition to the claim of Mr. Fossum's widow for widow's benefits, it is contended, as stated by the dissenting opinion in this case, that: We may agree that such reading of ORS 656.807 is not an unreasonable interpretation of that statute. We feel constrained, however, to reject such an interpretation for the following reasons: ORS 656.807(2) provides: Despite those clear and unambiguous words and despite the fact that the "occupational disease result[ed] in [the] death" of James Fossum, the dissent would hold that a claim may not be filed "within 180 days after the date of death" because, according to it, the provisions of subsection (1) "limit the filing of a claim in fatal cases."[2] The effect of such a holding would be to make claims filed after death not only limited by the five-year provision of subsection (1), but also restricted by that subsection's 180 day limitation. The widow of Mr. Fossum had no claim to assert for widow's benefits until such time as her spouse died. Her claim arose upon his death. Her claim does not derive from any claim of the deceased worker, but is an independent claim granted by the legislature to her. ORS 656.807(2), in defining her right to a claim under the Occupational Disease Law, provides in clear and unambiguous terms that she may file that claim within 180 days of the death of her spouse. She did so. It may be that subsection (1) of ORS 656.807, when read together with subsection (2) results in some ambiguity. In our opinion, however, any such ambiguity must be construed in favor of compensation, just as ambiguous provisions of insurance policies are construed in favor of the beneficiaries, particularly in view of the long-established *237 rule in Oregon that the Workers' Compensation Law must be liberally construed in favor of the worker and compensation. See, e.g., Burkholder v. SIAC, 242 Or. 276, 282-83, 409 P.2d 342 (1965); Newell v. Taylor, 212 Or. 522, 527-28, 321 P.2d 294 (1958). Of equal importance is the fact that the clear effect of the decision by the Court of Appeals in its holding that the failure of Mr. Fossum during his lifetime to make a claim for compensation within five years of last exposure in employment, as required by subsection (1), bars his widow from filing a claim for widow's benefits within 180 days of his death, as apparently permitted by subsection (2), is to hold that the claim of a widow to benefits under the Workers' Compensation Act is a claim that is derivative from and dependent upon the claim of a deceased husband for compensation during his lifetime. Again, this is contrary to the established rule in Oregon. The leading Oregon case on the subject of the independent status claims filed after death is Mikolich v. State Industrial Accident Commission, 212 Or. 36, 316 P.2d 812, 318 P.2d 274 (1957), in which this court reviewed the decisions on the question whether claims for widow's benefits are independent claims or are derivative claims and noted that the majority of the cases supported the conclusion that widows' claims are independent, not derivative claims. In that case this court held as follows (at 57, 316 P.2d 812): Because the claim of a widow is an independent claim, if a worker died at the end of two years without filing a claim for compensation, his widow would not have three more years in which to file a claim for widow's benefits within the five-year period specified in subsection (1). Instead, because a claim for widow's benefits is an independent claim, she would be required to file her claim within 180 days of his death, as required by subsection (2). For the same reasons, because the claim of the widow of a deceased worker is an independent, rather than a derivative claim, the failure of the deceased husband to file a claim for compensation within five years, in accordance with subsection (1), does not bar his widow from filing a claim for widow's benefits within 180 days of his death, as expressly permitted by subsection (2). The dissent argues that this court's pronouncement in Mikolich that the claims of a widow are independent of the claims of her deceased husband is irrelevant in the present case, since "all claims" are subject to the restrictions in subsection (1), whether "independent" or "derivative." In our view, such a contention is inherently contradictory. By subjecting claims filed after death to the restrictions found in subsection (1) as held by the Court of Appeals, they would lose any semblance of being independent claims. It is important to recognize that under the decision by the Court of Appeals, the claims by widows and their dependents can be cut off not only by the worker's failure to file within five years after exposure, but also by the worker's failure to file within 180 days after disability. The claims of widows and other dependents would thus become completely derivative from and dependent upon the claims of workers, because a worker's failure to comply with either provision of subsection (1) would extinguish not only his own claim, but those of his dependents as well. It may be that the rule stated by this court in Mikolich is not necessarily controlling in this case. We believe, however, that the rule as stated in that case is at least relevant to a proper decision in this case because the clear effect of the decision by *238 the Court of Appeals is that all claims filed after death are derivative from and dependent upon the worker's claim, a result inconsistent with the holding by this court in Mikolich.[3] Although decisions by other courts under other statutes may not be controlling upon this court in such a case, it is nevertheless significant, in our opinion, to note that the independent and nonderivative status of claims by widows for widow's benefits filed after death is also supported by numerous other cases and authorities. In 2 Larson, Workmen's Compensation Law, § 64.10 (1980), Independent Status of Death Benefit Claim beginning at page 11-119 and ending at page 11-123, the author states: To the same effect, 3 Larson's Workmen's Compensation Law, § 78.62, pp. 15-192 to 15-195 (1980), states as follows: *239 One of the leading cases on this subject is a decision by the Washington Supreme Court in Beels v. The Department of Labor & Industries, 178 Wash. 301, 34 P.2d 917 (1934). A deputy sheriff had been injured on December 31, 1931. He died January 14, 1933, without filing any claim. The time for filing such claims in Washington was one year.[4] The insurance carrier denied the claim on the basis of the statutes. The court held 34 P.2d at page 919: To the same effect, see Pardeick v. Iron City Engineering Co., 220 Mich. 653, 190 N.W. 719 (1922), in which an injured workman had made no claim for compensation although he lived for nearly 14 months after the accident.[5] The court held 190 N.W. at page 720: The New York court in the case of O'Esau v. E.W. Bliss Co., 186 A.D. 556, 174 N.Y.S. 739 (1919), is also to the same effect. The employee was injured on March 28, 1916, and died on account of such injuries on March 21, 1918. He had failed to file a notice of injury as required.[6] The widow filed a claim for death benefits the day after his death. The court held: In Wray v. Carolina Cotton & Woolen Mills Co., 205 N.C. 782, 172 S.E. 487 (1934), an employee was injured on November 28, 1930. His claim was filed April 12, 1932, and was dismissed because it had not been filed within one year after the accident.[7] The claimant died on August 24, 1932, and on September 8, 1932, his mother filed her claim. The Supreme Court of North Carolina held 172 S.E. at page 488: In Holahan v. Bergen Coal Co., 164 Pa. Super. 177, 63 A.2d 504 (1949), the Pennsylvania court found that the deceased's last employment was January 22, 1941. The widow filed her claim on December 1, 1941.[8] The court held at page 183, 63 A.2d 504: To the same effect, see Laird v. The State of Vermont Highway Dept., 112 Vt. 67, 20 A.2d 555 (1941); Fitzgerald v. Fisher Body, 234 Mo. App. 269, 130 S.W.2d 975 (1939); Judd v. Rinelli, 75 Idaho 121, 268 P.2d 671 (1954); American Radiator & Sanitary Corporation v. Gerth, 375 S.W.2d 817 (Ky. 1964); Lambing v. Consolidated Coal Co., 161 Pa.Super. 346, 54 A.2d 291 (1947); Ingalls Shipbuilding Corp. v. Dependents of Harris, 187 So. 2d 886 (Miss. 1966). See also Haco Drilling Co. v. Hammer, 426 P.2d 689 (Okl. 1967); Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470 (1928); Ross v. Mankato, 199 Minn. 284, 271 N.W. *241 582, 584 (1937); Wolanin v. Chrysler Corp., 304 Mich. 164, 7 N.W.2d 257 (1943); Magma Copper Co. v. Naglich, 60 Ariz. 43, 131 P.2d 357 (1942); Anno., 119 A.L.R. 1158-65 (1939). These cases hold that the failure of a worker to file within the appropriate time period after disability or injury in no way prejudices the right of a widow to file a claim for widow's benefits after the death of her husband, contrary to the result required by the decision of the Court of Appeals. The dissent seeks to distinguish those cases by stating that they are based on statutes which, unlike ORS 656.807, provide for separate periods of limitation for the worker and the beneficiary. In our opinion, however, such an analysis begs the question. It is true that those cases construed those statutes to provide a separate time limitation for claims filed after death. Whether ORS 656.807 likewise provides such a separate period for the claims of dependents is best determined by comparing the statutes involved in those cases with ORS 656.807, instead of presupposing that ORS 656.807 does not provide for a separate period and thus avoiding the persuasive reasoning found in those cases. Such a comparison indicates that, although ORS 656.807 is not identical to the other statutes, it is substantially the same and should be interpreted in a similar manner.[9] Each of the statutes upon which those cases are based provides separate periods for filing after disability or injury and for filing after death. Additionally, each of the filing periods, though stated separately, is for an identical duration, reinforcing that dependents have rights after death equivalent to the worker's rights after disability or injury. Both of these factors appear in ORS 656.807. Subsection (1) provides for filing claims after disability or knowledge of the occupational disease, while subsection (2) separately provides for filing claims after death. Both filing periods are 180 days. As such, the structure of ORS 656.807 is substantially the same as the structure found in other statutes concerning the filing of claims for worker's compensation benefits, and deserves the same interpretation. It is true that the statutes construed in those cases did not contain ultimate repose provisions such as the five-year limitation found in subsection (1) of ORS 656.807. The absence of such an ultimate repose provision does not make a comparison with those statutes less persuasive, however, because, as previously noted, it is of importance to recognize that the analysis by the dissent and the Court of Appeals would make filing after death dependent not only on the five-year limitation of subsection (1), but also on that subsection's requirement that claims be filed within 180 days after disability, a requirement similar to provisions found in the other statutes. Thus, the Court of Appeals has construed the provisions of ORS 656.807 that are found in the statutes involved in those cases from other states in a manner inconsistent with the conclusions drawn by other courts in construing those similar statutory provisions. It is also significant, in our opinion, to note that in Hovey v. General Const. Co., 242 Mich. 84, 218 N.W. 768 (1928), which may be the only case in which a court has interpreted a statute[10] containing an ultimate *242 repose provision in addition to separate provisions for filing after disability and after death, the Michigan Supreme Court held that the ultimate repose provision did not apply to claims filed after death. In reaching that conclusion, the court emphasized not only the structure of that statute, but also the general policy regarding the independence of claims filed after death, stating: The dissent recognizes the similarity of the statute construed in Hovey to ORS 656.807, but seeks to dismiss Hovey as being inconsistent with Oregon case law and therefore not persuasive. It states that Hovey ignored a clear legislative intent to apply the ultimate repose provision to claims filed after death, and thus is inconsistent with this court's holding in Rosell v. State Ind. Acc. Com., 164 Or. 173, 95 P.2d 726 (1940). In that case this court stated that the courts do not have the authority to waive conditions set by the legislature for filing claims, even if a potential claim by a dependent is extinguished before it ever accrues. The dissent's analysis misinterprets both Hovey and ORS 656.807. Hovey did not involve a statute with a clear legislative intent requiring that claims filed after death be subject to the statute's ultimate repose limitation. Rather, the case interpreted a somewhat ambiguous statute. In that situation the court appeared to reason that because the claims of beneficiaries are independent and do not arise until the worker's death, the ultimate repose limitation should not be applied to claims filed after death. In contrast, Rosell involved a statute with language that clearly required that in fatal cases a claim must be filed within a year of the injury, and not within a year of death.[11] The court applied a literal construction to the statute to deny a widow's claim filed within a year of death but more than a year after the injury occurred. *243 ORS 656.807 is similar to the statute applied in Hovey in that there is no clear expression in ORS 656.807 of an intent to apply the five-year ultimate repose provision to claims by widows and dependents filed after death. Instead, the most that can be said of ORS 656.807 is that it is ambiguous. Although the dissent's interpretation of ORS 656.807(2) may be plausible, it is necessarily speculative of what the legislature intended. At best, it points up the ambiguity created by reading subsection (1) together with subsection (2). In the absence of a clear expression in ORS 656.807 of legislative intent, we believe that the reasoning in Hovey is both applicable and persuasive. For similar reasons, this court's holding in Rosell, supra, does not require an interpretation of ORS 656.807 that applies either the five-year or 180 day provisions of subsection (1) to claims filed after death. The clear legislative intent present in the statute involved in Rosell to require that claims be filed within one year of injury and not within one year of death is not found in ORS 656.807. Indeed, to apply a literal reading to ORS 656.807(2), as applied by the court to the statute in Rosell, would require that a widow always be allowed 180 days after the worker's death in which to file a claim for widow's benefits. In sum, we are of the opinion that the rule stated by the previously cited cases and authorities is applicable to an interpretation of ORS 656.807 and should be followed and adopted by this court. Such a holding, in our opinion, is entirely consistent with this court's holding in Rosell, supra. Indeed, to hold to the contrary would be inconsistent, in our view, with the rule as previously established by this court in Mikolich, supra, that the claim of a widow for widow's benefits under the Workers' Compensation Act is not a derivative claim from and dependent upon the claim of her deceased husband for compensation, but is an independent claim. Furthermore, we believe that any ambiguity that might result from reading subsection (1) together with subsection (2) requires resolution in favor of the petitioner because of the rule that the Workers' Compensation Act must be construed liberally in favor of compensation. For these reasons, we reverse the decision by the Court of Appeals. Because, however, that court did not consider or decide whether or not the Workers' Compensation Board was correct in rejecting the claim of the widow of Mr. Fossum for lack of evidence of causation, we remand this case to that court for consideration and decision of that question. Reversed and remanded. TANZER, J., dissented and filed opinion in which DENECKE, C.J., and PETERSON, J., joined. TANZER, Justice, dissenting. The issue is whether the claim of the beneficiary of the deceased worker is barred by passage of five years after the last exposure to the employment causing the fatal occupational disease. The controlling statute of limitations is ORS 656.807: The majority declines to give to ORS 656.807(1) the basic effect of any statute of limitations: to provide finality or repose after a period of access to adjudication. By allowing filing of an occupational disease claim within 180 days of disablement or discovery and within a five-year period following *244 industrial exposure, the legislature has made adjudication available in most cases; by barring claims after five years, it has provided for repose. In Johnson v. Star Machinery Co., 270 Or. 694, 700-701, 530 P.2d 53 (1974), we stated the twofold "rationale behind the enactment of a statute of ultimate repose" such as the five-year provision of this statute: Although Johnson speaks of "negligence," the rationale is equally applicable to employment exposure.[1] The majority assumes the legislature ignored this fundamental rationale of limitations. In other statutory settings, this court has properly extended limitations where the pertinent statutes permit liberal judicial construction. For example, ORS 12.010 provides generally that, unless a statute provides a different limitation, actions of law shall be commenced within various time periods "after the cause of action shall have accrued." For limitation purposes, we have held that a cause of action does not accrue until discovery of injury, Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), and of the causation of the injury, U.S. National Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976), or until those matters should reasonably have been learned, Schiele v. Hobart Corporation, 284 Or. 483, 587 P.2d 1010 (1978). Similarly, we construed the limitation in the Tort Claims Act which runs from the date of "such accident or occurrence," ORS 30.275(3), to run from discovery of the injury because "there is no `accident or occurrence' unless the result is injury capable of compensation in an action for damages." Dowers Farms v. Lake County, 288 Or. 669 at 678, 607 P.2d 1361 (1980). The language of ORS 656.807(1) is finite; it does not allow for expansive judicial construction. The five-year ultimate limitation commences to run upon the occurrence of a specific event, "the last exposure in employment." The statute makes an express allowance for delayed discovery in the clause regarding filing within 180 days of disablement or discovery; it makes no such provision for delayed discovery in the five-year *245 ultimate limitation clause. Therefore, the worker's claim, had he survived, would have been barred under subsection (1) by the passage of five years between last exposure and filing even though he discovered the illness thereafter. Neither he nor his family would have had the benefits of compensation had the worker been disabled but lived. In contrast, where the statute is definite, we do not enlarge it. For example, we literally construed the more precise language of an earlier workers' injury statute in the case of Rosell v. State Ind. Acc. Com., 164 Or. 173, 95 P.2d 726 (1940). That statute provided: The injury occurred in 1930, the death in 1936 and the widow's claim was filed within a year of death. We held her claim to be barred because the statute so provided: The next question is whether subsection (2) eliminates the five-year bar in cases of beneficiaries' claims. The history of the statute demonstrates that it does not. Prior to 1959, ORS 656.807 existed in this form: Under the plain words of former ORS 656.807, "all claims," whether by the worker or a beneficiary, were void if not filed within the statutory notice period and ultimate limitation. The statute provided no exception to its absolute application. In 1959 the legislature amended ORS 656.807 to extend the limitations to their present duration and to add what now appears as subsections (2) and (3). Oregon Laws 1959, ch. 351, § 2. We find no recorded legislative history which reflects the purpose of subsection (2). In the absence of some legislative evidence to the contrary, I assume that the legislature intended that the statute in its amended form continue to accomplish the objective of statutes of limitation, finality and repose. Petitioner's contention that a literal reading of subsection (2) would allow a beneficiary 180 days from death in which to file a claim regardless of how many years have passed since the last exposure to the injurious condition, would obviate the finality function performed by the five-year ultimate limitation. There is no reason for the majority to conclude that the legislature intended to abandon the ultimate limitation so that even after the passage of 5 years, or, for that matter, over 30 years later an employer's financial exposure would be revived. The more reasonable reading of subsection (2) is that the legislature intended to liberalize the time after death in which a beneficiary could file a claim rather than to revive past liability. Under subsection (1) the worker may, within five years of his last employment exposure, file a claim within 180 days of disablement or discovery. Before the 1959 amendment, in case of death, a beneficiary was subject to the same time constraints to which the worker would have been subject had he not died. *246 For example, if the five years or 180 days passed on the day of the funeral without a claim having been filed, the beneficiary was barred from benefits. The effect of the 1959 amendment was to alleviate the harshness of that restriction by extending a grace period of 180 days to the beneficiary which would not be foreshortened by the expiration of the time "provisions" of subsection (1), (i.e., either the five year or the worker's 180-day period) during the 180 days after death. Reviewing the words of subsection (2) in that light, that purpose is evident: The majority adopts a different construction of the limitation because of the rule under other statutes that the beneficiary's death claim is independent rather than derivative from the worker's claim. See Mikolich v. State Ind. Acc. Com., 212 Or. 36, 316 P.2d 812, 318 P.2d 274 (1957), which applies a different statute. Neither the case nor the theory is dispositive, however, because the limitation of ORS 656.807 applies to "all claims," and the five-year limitation starts to run from the same event, "last exposure in employment," regardless of whether the claim is independent or derivative. The majority and the claimant cite 3 Larson, Workmen's Compensation Law § 78.62 and many cases for the proposition that after death, the beneficiary has a new and independent claim which is not prejudiced by the failure of the worker to have filed a claim within the limitation periods. All of the cases upon which Larson and the majority rely are either based on statutes which, unlike ORS 656.807, provide for separate periods of limitation for the decedent and the beneficiary, or are decided on other grounds.[2] The sole exception is Hovey v. General Construction Co., 242 Mich. 84, 218 N.W. 768 (1928) which allowed a late beneficiary's claim filed after the statutory period on the ground that the legislature, despite its words to the contrary, must not have intended otherwise. Hovey is therefore in direct opposition to the holding of this court 12 years later in Rosell v. State Ind. Acc. Com., supra. See also Johnson v. Compensation Department, 246 Or. 449, 452, 425 P.2d 496 (1967). Hovey is inconsistent with both the words of ORS 656.807 and with Oregon case law and is therefore not persuasive. The Court of Appeals reasoned that subsection (2) did not operate to eliminate the five-year ultimate limitation for a beneficiary, but only protected the beneficiary's entitlement to 180 days for claim filing from premature expiration due to the passage of the time period under subsection (1). Because in this case more than five years *247 had passed since the last exposure in employment, it held that this claim was limited by ORS 656.807. That conclusion was correct and I would affirm. DENECKE, C.J., and PETERSON, J., join in this dissenting opinion. [1] ORS 656.807 provides: "(1) Except as otherwise limited for silicosis, all occupational disease claims shall be void unless a claim is filed with the State Accident Insurance Fund Corporation or direct responsibility employer within five years after the last exposure in employment subject to the Workers' Compensation Law and within 180 days from the date the claimant becomes disabled or is informed by a physician that he is suffering from an occupational disease whichever is later. "(2) If the occupational disease results in death, a claim may be filed within 180 days after the date of the death; and the provisions of subsection (1) of this section do not limit the filing of a claim in fatal cases to less than 180 days from the date of death. "* * *". [2] See note 1, supra. [3] We are aware of the subsequent case of Fertig v. Compensation Department, 254 Or. 136, 455 P.2d 180, 458 P.2d 444 (1969), in which this court held that a widow could not secure permanent partial disability benefits unless an award of such benefits was made to her husband prior to his death. In that case, however, we interpreted a statute that explicitly conditioned payment to the widow upon her husband's prior award. That statute, ORS 656.218, stated: "In case of the death of a workman receiving monthly payments on account of permanent partial disability, such payments shall continue for the period during which said workman, if surviving, would have been entitled thereto, and such payments shall be made to the person or persons who would have been entitled to receive death benefits if the injury causing such disability had been fatal * * *." (Emphasis added) The statute presented in question, ORS 656.807, does not clearly condition the widow's benefits upon her husband's compliance, but is ambiguous. [4] The statute in question in Beels, Wash.Rem. Rev.Stat. 7686 (1932), stated: "(d) No application shall be valid or claim thereunder enforceable unless filed within one year after the day upon which the injury occurred or the rights of dependents or beneficiaries accrued." [5] The statute construed in Pardeick, 2 Comp. Laws 1915, § 5437, stated: "No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six months after the occurrence of the same; or, in case of the death of the employe, within six months after said death * * *." [6] The statute construed in O'Esau, Section 28 of the Workers' Compensation Law, stated that a right to compensation: "* * * shall be forever barred unless one year after the accident, or if death results therefrom, within one year after such death, a claim for compensation thereunder shall be filed with the commission." [7] The statute construed in Wray, the North Carolina Workers' Compensation Act (Pub. Laws: 1929 ch. 120), stated: "Sec. 24. The right to compensation under this act shall be forever barred unless a claim be filed with the Industrial Commission within one year after the accident, and if death results from the accident, unless a claim be filed with the Commission within one year thereafter." [8] The statute construed in Holahan, the Occupational Disease Act of 1939, stated: "Section 315. In case of disability all claims for compensation shall be forever barred, unless, within one year after the disability begins, the parties shall have agreed upon the compensation payable under this article, or unless, within one year after the disability begins, one of the parties shall have filed a petition as provided in article four hereof. In cases of death all claims for compensation shall be forever barred, unless, within one year after the death, the parties shall have agreed upon the compensation payable under this article, or unless, within one year after the death, one of the parties shall have filed a petition as provided in article four hereof." [9] See notes 3-7, supra. [10] The statute construed in Hovey, Michigan Public Acts of 1919, Part 2, Section 15, stated: "Sec. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six months after the occurrence of the same; or, in case of the death of the employe, within six months after said death; or, in the event of his physical or mental incapacity, within the first six months during which the injured employe is not physically or mentally incapacitated from making a claim: Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within three months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within six months after the happening of the accident but does develop and make itself apparent at some date subsequent to six months after the happening of the same, claim for compensation may be made within three months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employe, but no such claim shall be valid or effectual for any purpose unless made within two years from the date the accidental personal injury was sustained: and provided further, That any time during which an injured employe shall be prevented by reason of his physical or mental incapacity from making a claim, shall not be construed to be any part of the six months' limitation mentioned in this section: and provided further, That in all cases in which the employer has been given notice of the happening of the accident, or has notice or knowledge of the happening of said accident, within three months after the happening of the same, and fails, neglects or refuses to report said accident to the Industrial Accident Board as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employe or his dependents, or in favor of either said employer or his insurer, until a report of said accident shall have been filed with the Industrial Accident Board." [11] The statute construed in Rosell stated: "No application shall be valid or claim thereunder enforceable in non-fatal cases unless such claim is filed within three months after the date upon which the injury occurred, nor in fatal cases unless such claim is filed within one year after the date upon which the fatal injury occurred * * *." [1] See also James and Hazard, Civil Procedure 165-166, § 5.7 (2d ed. 1977), which states a third rationale: "(1) Protection of a defendant from stale claims-`from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.' [Citation omitted.] (2) Protection of defendant from insecurity, which may be economic or psychological, or both. `There comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations.' [Citation omitted.] (3) Protection of courts from the burden of stale claims which as a class probably contain more than their fair share of groundless and tenuous claims." [2] These cases involve statutes with separate claim periods for the worker and the beneficiary. Some also have ultimate limitations, but they are decided on the former ground: Judd v. Rinelli, 75 Idaho 121, 268 P.2d 671 (1954); American Radiator & Standard San. Corp. v. Gerth, 375 S.W.2d 817 (Ky. 1964); Pardeick v. Iron City Engineering Co., 220 Mich. 653, 190 N.W. 719 (1922); Ingalls Shipbuilding Corp. v. Dependents of Harris, 187 So. 2d 886 (Miss. 1966); Fitzgerald v. Fisher Body Shop, 234 Mo. 269, 130 S.W.2d 975 (1939); O'Esau v. E.W. Bliss, 186 App.Div. 556, 174 N.Y.S. 739, aff'd without opinion 227 N.Y. 597, 129 N.E. 921 (1919); Wray v. Carolina Cotton and Woolen Mills, 205 N.C. 782, 172 S.E. 487 (1934); Industrial Commission of Ohio v. Kamrath, 118 Ohio St. 1, 160 N.E. 470 (1928); Moore v. Dodge Steel Co., 206 Pa.Super. 242, 213 A.2d 130 (1965); Segal v. Segal, 201 Pa.Super. 367, 191 A.2d 858 (1963); Holahan v. Bergen Coal Co., 164 Pa.Supp. 177, 63 A.2d 504 (1949); Lambing v. Consolidated Coal Co., 161 Pa.Super. 346, 54 A.2d 291 (1947); American Motorists Ins. Co. v. Villagomez, 398 S.W.2d 742 (Tex. 1966); Beels v. Department of Labor and Industries, 178 Wash. 301, 34 P.2d 917 (1934). These cases were decided on grounds unrelated to limitations, such as res judicata, grounds for vacating claims: Magma Copper Co. v. Naglich, 60 Ariz. 43, 131 P.2d 357 (1942); Wolanin v. Chrysler Corporation, 304 Mich. 164, 7 N.W.2d 257 (1943); Roos v. Mankato, 199 Minn. 284, 271 N.W. 582 (1937); Haco Drilling Company v. Hammer, 426 P.2d 689 (Okl. 1967); Laird v. State of Vermont Highway Dept., 112 Vt. 67, 20 A.2d 555 (1941).

3af18143151f6bc7874171716ecbd2eb5a74ad208fd78b65c4a0ee06e4c1d792

1980-12-23T00:00:00Z

cb1a9365-196e-4c14-ab53-7cfd70567fef

Caterpillar Tractor Co. v. Dept. of Revenue

289 Or. 885, 618 P.2d 1261

oregon

Oregon Supreme Court

618 P.2d 1261 (1980) 289 Or. 885 CATERPILLAR TRACTOR CO. and Towmotor Corporation, Appellants, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. No. 1233; SC 26786. Supreme Court of Oregon. Argued and Submitted September 10, 1980. Decided October 21, 1980. Margaret M. Baumgardner, Portland, argued the cause for appellants. With her on the briefs was John R. Hay, Portland. Walter J. Apley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was James M. Brown, Atty. Gen., Salem. *1262 Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and TANZER, JJ. TANZER, Judge. This case involves a determination of the Oregon corporate excise tax liability of the two plaintiffs. Plaintiffs are foreign corporations, one the wholly owned subsidiary of the other, which do business in Oregon and are subject to Oregon excise tax. The defendant, the Department of Revenue, ordered each plaintiff corporation to compute its Oregon taxable income on a combined basis for the tax years 1969 through 1972, and denied plaintiffs the use of consolidated returns for those years, resulting in a deficiency assessment. Plaintiffs contested the disallowance of consolidated returns for the years in question. The Tax Court upheld the action of the Department. Plaintiffs appeal. Before addressing plaintiffs' contentions, we look to the two terms combined reports and consolidated returns. The practice of combined reporting and the factors that trigger its applicability are described in the administrative rules implementing ORS 314.615. Basically, ORS 314.615 requires a taxpayer with income from interrelated business activity within and outside of the State of Oregon to compute its net income attributable to Oregon based on a proportion of its total income.[1] Such a business is described by a rule as a "unitary" business. OAR 150-314.615(D).[2] Where two or more corporations are engaged in a unitary business, a rule provides that the Oregon net income for each will be allocated by computing a fraction of their total combined income; hence the term, "combined reporting." OAR 150-314.615.[3] The effect of the Department's requirement that the two corporations file combined reports, but not file consolidated returns was to require the two corporations to file separate returns in which each corporation would compute its Oregon net income on a combined basis. To understand the Department's action, it is necessary to differentiate a combined report from a consolidated return. A combined report is an accounting method whereby each member of a group carrying on a unitary business computes its individual taxable income by *1263 taking a portion of the combined net income of the group. A consolidated return is a taxing method whereby two corporations are treated as one taxpayer. The difference is stated in Keesling, A Current Look at the Combined Report and Uniformity in Allocation Practices, 42 J. of Tax 106, 109 (February 1975): Plaintiffs agree that they are a unitary business subject to combined reporting. They contest only the disallowance of their use of a consolidated return and the denial of tax advantages they claim the consolidated return would afford them.[4] Plaintiffs contend that allowance of a consolidated return by the two corporations as one taxpayer was mandated by former ORS 317.360 whenever the Department determined that they were affiliated corporations engaged in a unitary business. They argue that the Department had no discretion to disallow plaintiffs' use of a consolidated return once the Department had decided under its administrative rules that plaintiffs were affiliated corporations engaged in a unitary business and subject to combined reporting. To the contrary, former ORS 317.360 does not mandate the use of a consolidated return whenever the Department determines that combined reporting is required. During the years 1969-1972 subsection (1) of the statute read as follows: The plain language of the statute commits the decision whether to "permit or require" a consolidated return to the Department's discretion if two corporations are "affiliated" (as defined by former ORS 317.360(2)) and "income * * * affected or regulated by agreement or arrangement with such affiliated corporation." It does not require the Department to permit a consolidated return. The statute says "may," not "shall." *1264 Plaintiffs do not argue that the Department has abused its discretion under the statute. Rather, plaintiffs argue that because ORS 317.360 contains the only statutory reference to combined reporting, there is no other authority for the Department to require it. Therefore, plaintiffs argue, whenever the Department requires combined reporting, it thereby triggers the statute and the Department must permit consolidated returns. The argument does not follow. The authority for requiring combined reporting was derived from a statute other than ORS 317.360 during the years in question. The rules were promulgated under the general allocation statute, ORS 314.615. We have upheld the method of combined reporting and acknowledged that it was based on the general authority to require allocation of taxable income. Coca Cola Co. v. Dept. of Rev., 271 Or. 517, 533 P.2d 788 (1975), Zale-Salem, Inc. v. Tax Com., 237 Or. 261, 391 P.2d 601 (1964).[5]See Donald M. Drake Co. v. Dept. of Rev., 263 Or. 26, 31, 500 P.2d 1041 (1972). See also Joslin Dry Goods Co. v. Dolan, Colo., 615 P.2d 16 (1980). ORS 317.360 was repealed in 1975 and replaced by ORS 314.363, which expressly requires combined reporting, but that statutory change does not undercut our conclusion that the earlier use of combined reporting was based on authority other than ORS 317.360. The legislative history reflects that ORS 317.360, enacted in 1929, was in desuetude. The Department had required combined reporting as an accounting method since the 1950's and did not use its discretion to permit or require consolidated returns as a taxing device. In 1975 the Department proposed codification of combined reporting to forestall future challenges of the type made in Coca Cola Co., supra. At the same time, the Department sought repeal of ORS 317.360 because its existence had not accomplished the desired objective.[6] Thus, neither ORS 317.360 nor the requirement of combined reporting under the Department's rules required the Department to permit plaintiffs' use of consolidated returns. The Department had authority to require each plaintiff to compute its taxable income by the combined reporting method pursuant to ORS 314.615 and the rules promulgated thereunder without reference to ORS 317.360. It also had discretion not to permit plaintiffs to file a consolidated tax return pursuant to ORS 317.360(1). The Tax Court correctly upheld the Department's action disallowing plaintiffs' use of a consolidated return. Affirmed. [1] ORS 314.615 provides: "Any taxpayer having income from business activity which is taxable both within and without this state, [with certain inapplicable exceptions] shall allocate and apportion his net income as provided in ORS 314.605 to 314.675. * * *" [2] OAR 150-314.615(D) provides: "Where the taxpayer's Oregon business activities are a part of a unitary business carried on both within and without the state, use of the apportionment method is mandatory to determine the portion of the unitary net business income attributable to Oregon. "* * * "A `unitary business' is one the component parts of which are too closely connected and necessary to each other to justify division or separate consideration as independent units. If the business activities within Oregon are integrated with, dependent on or contribute to the business activities outside the state, the entire operation is unitary in character, and the income from Oregon business activities will be determined by the apportionment method." [3] OAR 150-314.615(E) provides: "Where two or more corporations are engaged in a unitary business, a part of which is conducted in Oregon by one or more members of the group, the Oregon net income of each corporation which is subject to the tax jurisdiction of this state shall be determined as follows: [the proportion of combined net income taxable in Oregon equals the proportion of the corporations' combined property, property and sales which is in Oregon] The use of the combined return required by this rule determines that portion of the unitary business net income attributable to Oregon business activities of the filing corporation. "Each filing corporation shall file a combined return which apportions the combined net income of the corporations whose incomes are included in the computation of the unitary net income. The department may require the submission of supporting schedules in columnar form to show separately and in combination the profit and loss statements, balance sheets, and surplus reconciliations of each such corporation. "* * *" [4] Plaintiffs seek to be treated as one taxpayer in order to gain two tax advantages: (1) the use of Towmotor's unused personal property offset (described in ORS 317.020(2)) against the combined incomes of the two corporations, and (2) the non-application of the so-called "throwback sales" rule of ORS 314.665. Because we hold that the Tax Court correctly affirmed the Department's order denying plaintiffs' use of a consolidated return, we do not reach plaintiffs' ultimate claim regarding tax advantages that may flow from a consolidated return. [5] Zale-Salem was based on a pre-existing statute, former ORS 314.280. ORS 314.615 was enacted in 1965 as part of the Uniform Division of Income for Tax Purposes Act ("UDITPA"), which was intended to establish uniform apportionment rules for taxpayers taxable in more than one state. Former ORS 314.280 was the pre-UDITPA counterpart of ORS 314.615. [6] Hearings on SB 679 before Senate Revenue Committee, 58th Or. Legis. Ass'y (March 26, 1975), testimony of Theodore W. deLooze for the Department of Revenue, proponent of the bill, Tape 8, side 2, 1570-end. Hearings on SB 679 before House Revenue Committee, 58th Or. Legis. Ass'y (May 27, 1975), testimony of Theodore W. deLooze for the Department of Revenue, proponent of the bill, Tape 40, side 1, 0934-1060.

ef2ab64e78af1e38d3223cdd4c869c0dedcdb19f068965194d781f083524ac89

1980-10-21T00:00:00Z

5d3e5d81-675f-418b-82c7-7af11877c297

Matter of Marriage of Mullinax

292 Or. 416, 639 P.2d 628

oregon

Oregon Supreme Court

639 P.2d 628 (1982) 292 Or. 416 In the matter of the Marriage of Jannett Bernice Mullinax, Petitioner On Review, and Richard Arnold Mullinax, Respondent On Review. No. 56294; CA A20238; SC 27883. Supreme Court of Oregon, In Banc. Argued and Submitted October 5, 1981. Decided January 25, 1982. *629 Larry T. Coady, Albany, argued the cause for petitioner on review. With him on the brief was Coady & Moore, Albany. Robert S. Gardner, Corvallis, argued the cause for respondent on review. With him on the brief was Ringo, Walton, Eves & Gardner, P.C. TONGUE, Justice. This is a suit for dissolution of marriage in which the wife has petitioned this court for review of the dismissal by the Court of Appeals of her appeal from the trial court's decree upon the ground that it was not filed within the time prescribed by law. We reverse that dismissal. On November 21, 1980, the trial court heard the dissolution case. Wife was petitioner; husband was the respondent. Following that hearing and prior to January 16, 1981, the trial court rendered its decision in the case in the form of a memorandum opinion and requested the wife's attorney to prepare the decree. In doing so, the wife's attorney included the following language in paragraph (3) of the decree: That decree was signed by the trial judge on "this 16th day of January, 1981, and entered nunc pro tunc to the 21st day of November, 1980." The decree was filed on the same day, January 16, 1981.[1] *630 The parties then discovered that the decree did not include a portion of the trial court's decision as set out in its memorandum opinion which provided that $50 of each month's child support payment of $200 was to be applied to a welfare indebtedness in the amount of $250. The parties stipulated to a modification of the decree in order to conform the decree to the provisions of the memorandum opinion. The wife's attorney then prepared an "Amended Decree of Dissolution of Marriage" which was identical in terms to the decree filed January 16, 1981, except for the language of paragraph (3), which, in the amended decree, provides as follows: It should be noted that paragraph (5) of both decrees provides that husband "* * * is to assume and pay all * * * family obligations * * * [which] include, but are not limited to * * * the Welfare arrearage." The provisions of paragraphs (3) and (5) of the amended decree would appear to refer to the same welfare obligation. The amended decree was signed by another judge of the same circuit court on "this 6th day of February, 1981, and entered nunc pro tunc to the 21st day of November, 1980." This amended decree was filed on the same day, February 6, 1981. On February 20, 1981, wife filed a notice of appeal from: No notice of appeal was filed by either party from the January 16, 1981, decree. The husband moved to dismiss the appeal from the amended decree on the ground that the notice of appeal had not been filed within the time prescribed by law. On May 5, 1981, the Court of Appeals granted husband's motion and dismissed the appeal, without opinion. ORS 19.026(1) provides that (with some exceptions not applicable here) a notice of appeal must be filed "within 30 days after the entry of the judgment appealed from." ORS 19.010 provides, in pertinent part, as follows: Wife contends that "* * * the present case is not distinguishable * * *" from the decision by this court in Hewey v. Andrews, 82 Or. 448, 159 P. 1149, 161 P. 108 (1916), rehearing denied (1917), and that "* * * Hewey is still good law." In Hewey, the court held, at 451, 159 P. 1149, as follows: In Hewey the modification of the original judgment was the result of the trial court's ruling on the motions for judgment n.o.v. made by counsel for defendants C.S. Andrews and Lilly M. Andrews. The trial court "* * * set aside, vacated, and held for naught * * *" the prior judgment as to Lilly M. Andrews but "* * * continued [that judgment] in full force and effect as to * * * C.S. Andrews * * *." This court explained its holding as follows (82 Or. at 451-52, 159 P. 1149): In ruling on the motions for judgment n.o.v. in Hewey, the court was required to determine whether there was substantial evidence to support the verdict rendered.[2]See Package Containers, Inc. v. Director's, Inc., 270 Or. 845, 846, 530 P.2d 40 (1974). Thus, any change made in the prior judgment would, in effect, be a new judgment raising new grounds for appeal rather than a reiteration of a judgment already entered. In other words, the second judgment in Hewey was the result of the exercise of the court's "judicial function." In this case, unlike Hewey, the parties, by stipulation, requested that the court enter, in the form of an amended decree, a judgment it had already rendered but which had been inaccurately incorporated in the decree first entered. The amended decree in this case was the result of the correction of a "clerical error" rather than the exercise of the court's "judicial function," a distinction explained in detail below. Indeed, as wife states in her supplemental brief: Finally, the amended decree in this case neither vacated nor incorporated by reference the earlier decree. In David M. Scott Construction v. Farrell, 285 Or. 563, 592 P.2d 551 (1979) this court was also called upon to decide which of two "decrees" was controlling for the purpose of measuring the thirty-day time limitation provided by ORS 19.026(1). That question was resolved by determining which of the two decrees was the "final" decree in the underlying suit. In making that determination, we noted the rule as stated in Moran v. Lewis, 274 Or. 631, 634, 547 P.2d 627 (1976), that "[o]rders are not appealable until the controversy is completely and finally settled in the trial court." We also noted (at 285 Or. 568, 592 P.2d 551) that, as stated in 1 Freeman on Judgments § 38, at 63 (5th ed. 1925): And that as stated in Freeman, supra, at §§ 33, 55: *632 Applying these rules, which we found to be consistent with our previous decisions,[3] to the decrees in Farrell, we held (285 Or. at 569-70, 592 P.2d 551) that the earlier decree entered by the trial court in that case was not a "final decree" so as to require the filing of a notice of appeal within thirty days from the entry of that decree, but that the subsequent decree, although entitled "Supplemental Decree," was the "final and appealable decree" in that case. Thus, the determination that only one of the two decrees in Farrell possessed the characteristics of a "final" decree under the rules as stated in that case answered the question presented in that case, i.e., from which decree the appeal should have been taken for purposes of ORS 19.026(1). The application of those rules to the two decrees here will not resolve the question presented in this case. This is so, because each of these decrees, considered separately and measured by the rules in Farrell, is "final and appealable." Each purports to finally "[determine] all the equities [and] the substantial merits of the case," in that each decree is a "decree of dissolution of marriage" and each, by its terms, (1) dissolves the marriage of the parties; (2) awards "sole and exclusive" custody of the child of the marriage; (3) requires husband to pay wife $200.00 per month for support of the child "until majority, and thereafter while the child is attending school, and is under 21 years of age * * *"; (4) provides that husband assume and pay all outstanding "family obligations as of November 21, 1980"; and (6) divides the parties' real and personal property between them. See ORS 107.105(1)(a), (b), (d) and (e). Furthermore, neither the original nor the amended decree contains reservations of jurisdiction which, as in Farrell, have the effect of making one or the other "interlocutory only," nor does the possibility that portions of either decree may be later modified under ORS 107.135(1)(a)[4] render those provisions not "final" and, therefore, not "appealable." See Prime v. Prime, 172 Or. 34, 40-41, 139 P.2d 550 (1943) (alimony); Sheedy v. Sheedy, 128 Or. 397, 401-02, 274 P. 316 (1929) (child custody); and Jolliffe v. Jolliffe, 107 Or. 33, 35-36, 213 P. 415 (1923) (alimony). The original decree in this case was amended pursuant to a trial court's "inherent power" to correct its record to conform to the judgment actually rendered, as discussed below. The existence of such authority does not of itself make the decree of January 16, 1981, "interlocutory only." But for the entry of the amended decree, February 6, 1981, the first decree in this case would have been "final and appealable." This court in Daugharty v. Gladden, 217 Or. 567, 341 P.2d 1069 (1959),[5] explained the distinction between the exercise of "judicial function" and the correction of "clerical error" by reference to the definition found in 1 Freeman on Judgments § 146, at 284 (5th ed. 1925): The purpose of an amendment correcting a "clerical error" is "* * * to make the record speak the truth and conform it to what actually occurred." Hubbard v. Hubbard, 213 Or. 482, 487, 324 P.2d 469 (1958). A trial court has "inherent power" to make such corrections. Daugharty v. Gladden, supra, 217 Or. at 576-77, 341 P.2d 1069, and cases cited therein. See also Far West Landscaping, Inc. v. Modern Merchandising, 287 Or. 653, 658, 601 P.2d 1237 (1979), and cases cited therein. This inherent power may be exercised even after an appeal has been taken from the trial court's judgment. See Caveny v. Asheim et al, 202 Or. 195, 208-210, 274 P.2d 281 (1954).[7] The amended decree in this case was entered, upon the stipulation of parties, for the purpose of correcting a "clerical error." Having concluded that the amendment herein resulted from the correction of a "clerical error," we must now decide the effect of the amendment upon the timeliness of this appeal, i.e., should the date for measuring the time allowed for the filing of a notice of appeal be the date of entry of the decree attempting, but failing, to incorporate the decision actually rendered or from the date of entry of the amended decree accurately stating that decision? The husband cites the Annotation, 21 A.L.R.2d 285 (1952) for a statement of the "general rule" applicable in such circumstances, which is as follows: In the better-reasoned decisions from other jurisdictions in which the "rule" stated in Annot., 21 A.L.R.2d 285 (1952), together with the qualifications to that rule, are applied, courts, having determined that an amendment to a prior judgment is "clerical," appear to base the decision whether the time for appeal should be measured from the original judgment or the amended judgment upon: (1) whether the amendment, in effect, either materially alters rights or obligations determined by the prior judgment or, (2) whether, because of the nature of the amendment, a right of appeal is created where one did not exist before. If the amendment is found to have either of these effects, the time for appeal is measured from the entry of the amended judgment.[8]See Adamson v. Brockbank, 112 Utah 52, 185 P.2d 264 (1947); Kolasz v. Levitt, 63 A.D. 777, 404 N.Y.S.2d 914 (1978). See also Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App.3d 1051, 35 Ill.Dec. 382, 387-88, 399 N.E.2d 216, 221-22 (1979). If, on the other hand, such effects do not result from the correction of the "clerical error," the amendment does not extend the time allowed for appeal. See Perfection Stove Co. v. Scherer, 120 Ohio 445, 166 N.E. 376 (1929). Compare B.G. Leasing, Inc. v. Heider, 372 So. 2d 184, 185 (Fla.App. 1979). This court has previously neither expressly adopted nor rejected such a rule. However, the reasoning expressed in decisions by this court in cases in which similar questions were presented is consistent with this rule and, therefore, we find it appropriate to apply the rule in this case. Thus, in Lee v. Imbrie, 13 Or. 510, 11 P. 270 (1886), plaintiffs brought suit against several defendants to recover subscriptions to unpaid capital stock. The "referee" found against defendants and held that defendant was liable for the full amount of the stock subscription less an offset. By inadvertence, reference to one of the defendants was omitted from the decree. Approximately one year later, upon motion of plaintiffs, an order was made that a decree be also entered against that defendant nunc pro tunc, which entry was made. That defendant then appealed and plaintiff moved to dismiss the appeal upon the ground that the time had elapsed in which to appeal. In denying that motion, this court made the following observation (13 Or. at 511-12, 11 P. 270): In other words, until a judgment was entered against that defendant, he had literally nothing from which to appeal. To conclude otherwise, as plaintiffs had urged, would, in effect, have deprived that defendant of all right of appeal. As stated in 1 Freeman on Judgments § 139 at 264 (5th ed. 1925): Similarly, in Ensley-Koebel v. Nat. Guar. Prop., 279 Or. 391, 568 P.2d 655 (1977), which began as a suit to foreclose a mechanic's lien, a judgment and decree of foreclosure were entered on April 30, 1976, in favor of cross-complainant, Continental, the assignee of a second mortgage. The foreclosure decree described two parcels of real property but made no reference to personal property. Pursuant to a writ of execution, the real property was sold. On August 9, 1976, Continental filed a motion to modify and amend the decree, based upon the affidavit of counsel that "by mistake and inadvertance," the decree as prepared by him did not refer to the personal property covered by the mortgage as recorded in the county records. An affidavit filed by Continental's president stated that it was *636 his intent to foreclose on both the real and personal property.[10] The trial court granted the motion and entered an amended decree on September 15, 1979, holding that the mortgage covered both real and personal property described therein, foreclosing the mortgage and directing that such property be sold as provided by law. Thereafter, over the objections of defendants, the trial court allowed Continental's motion to set aside the previous sheriff's sale and entered an order to that effect. Defendants appealed from that order. This court held as follows (279 Or. at 395-96, 568 P.2d 655): The court's conclusion that defendants should have appealed from the amended decree is consistent with the reasoning in Lee v. Imbrie, noted above, and reasonable under the facts of the case. As in Lee v. Imbrie, defendants could not have appealed the decree foreclosing the mortgage with respect to the personal property until such provision was made by the amended decree.[11] Indeed, it would be inequitable and illogical to require the time for defendant's appeal from the decree affecting the personal property to be measured from the entry of the original decree, particularly in *637 such a case in which the sole basis for the appeal was the amended portion of the decree. We conclude that our decisions in Lee v. Imbrie and Ensley-Koebel v. Nat. Guar. Prop., support the application in this case of the rule applied in other jurisdictions in such cases, which is as follows: If the amendment of a final judgment or decree for the purpose of correcting a "clerical error" either materially alters rights or obligations determined by the prior judgment or creates a right of appeal where one did not exist before, the time for appeal should be measured from the entry of the amended judgment. If, however, the amendment has neither of these results, but instead makes changes in the prior judgment which have no adverse effect upon those rights or obligations or the parties' right to appeal, the entry of the amended judgment will not postpone the time within which an appeal must be taken from the original decree. The amendment in this case corrected a "clerical error." The parties agree that the amended decree accurately states the decision by the trial court as expressed by its memorandum opinion. By requiring that $50 per month of husband's $200 per month child support obligation be applied as payment of a $250 welfare indebtedness "until it is paid," the amended decree had the effect of reducing the net amount received by wife for support of the child from $200 to $150 per month. Although this amendment did not affect the rights of the wife as dramatically as the amendments in Lee v. Imbrie and Ensley-Koebel affected the rights of appellants in those cases, and although the reduction in child support is not permanent, we hold that the amendment constituted a material change in the rights of the parties as stated in the original decree. Furthermore, assuming that paragraphs (3) and (5) of the amended decree refer to the same welfare indebtedness, the amendment to paragraph (3) had the effect of at least creating an ambiguity with regard to the responsibility for the discharge of that obligation, if not relieving the husband from that responsibility entirely. In that regard, as stated by this court in Farrell, (285 Or. at 568, 592 P.2d 551): It should also be noted that in a case such as this in which an amended decree is entered to correct a "clerical error," whether or not such an amended decree expressly vacates the prior decree, though a significant factor, will not always be dispositive on the question of the timeliness of an appeal. As stated in Hopfer v. Staudt, 207 Or. 487, 298 P.2d 186 (1956), at 502: Although the intent that the amended decree in this case supersede the original judgment is not so clear as the intent in a case such as Hopfer v. Staudt, in which the second judgment was, in effect, the exact opposite of the prior judgment, neither was the amended decree in this case a repetition or re-entry of the prior judgment, in which case the prior judgment would not be deemed to have been vacated or superseded. See Oxman et al v. Baker County, 115 Or. 436, 444, 234 P. 799, 236 P. 1040 (1925). *638 Compare Cockrum v. Graham, 143 Or. 233, 246-247, 21 P.2d 1084 (1933). This amended decree, with the exception of the modification to the child-support provision, incorporates completely the provisions of the original decree. It neither expressly vacates nor nullifies that prior decree. However, as we now hold, it is the effect of the amendment, rather than its particular form, which is crucial in determining whether time for an appeal should be measured from its entry. Therefore, we conclude that for these purposes, the effect of the entry of this amended decree by stipulation of the parties was to supersede and replace the original decree. Finally, we note that, although it was the attorney for the appellant who inadvertently omitted the provision later added from the original decree, our holding is not to be construed as limiting or creating an exception to the rule stated in Far West Land-scaping, Inc. v. Modern Merchandising, supra (287 Or. at 658, 601 P.2d 1237), that the "* * * inherent authority of the trial court to rectify its mistake [has not been] approved for the purpose of lengthening the statutory time for appeal." There is no indication that such was the purpose of the entry of the amended decree in this case. For all of these reasons, we hold that the notice of appeal in this case, filed February 20, 1981, was timely in that such notice was filed within thirty days of the entry of the amended decree on February 6, 1981, as provided by ORS 19.026(1). The order by the Court of Appeals dismissing wife's appeal is reversed. Reversed and remanded to the Court of Appeals. [1] Although the copies of the two decrees attached as exhibits to the petition for review note only the date of filing and not the date of the decrees' entry into the trial court's journal, wife in her petition for review states that the decrees were entered on January 16, 1981, and February 6, 1981, respectively, the same dates shown on the copies of the decrees as dates of filing. [2] We need not determine in the present case whether, as husband contends, Hewey should be limited to its own facts because the holding in that case has been codified by what is now ORS 19.026(2), which provides as follows: "(2) Where any party has served and filed a motion for a new trial or a motion for judgment notwithstanding the verdict, the notice of appeal of any party shall be served and filed within 30 days after the earlier of the following dates: "(a) The date of entry of the order disposing of the motion. "(b) The date on which the motion is deemed denied, as provided in ORCP 63 D. or 64 F." [3] Lyon v. Mazeris et al., 170 Or. 222, 230, 132 P.2d 982 (1943), and Hall et al v. Pierce, Bone, 210 Or. 98, 152-54, 307 P.2d 292, 309 P.2d 997, 309 P.2d 998 (1957). [4] ORS 107.135(1)(a) provides: "(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, or for the support of a party; * * *." [5] In Daugharty, a criminal defendant was indicted and convicted by a jury of "uttering" a forged check. By mistake, the judgment order stated that defendant had been indicted and convicted of "forgery." More than a year later the trial court signed an order amending the prior judgment to accurately reflect the indictment and verdict and entered the subsequent order "nunc pro tunc as of [the date of the original judgment]." The defendant, in his petition for a writ of habeas corpus, contended that the original judgment entered was void because it recited the conviction and sentencing of defendant for a crime different from that for which he was tried and convicted. [6] For examples of "clerical errors" made by counsel, see Kane v. Kane, 616 P.2d 780 (Wyo. 1980), in which counsel, while preparing a proposed decree as requested by the trial court, failed to include within the legal description all the land covered by the decree, and in Mulder v. Mendo Wood Products, Inc., 225 Cal. App. 2d 619, 37 Cal. Rptr. 479 (1964), cert. denied 379 U.S. 844, 85 S. Ct. 85, 13 L. Ed. 2d 50 (1964), in which an amended judgment was entered to eliminate an award of interest which had been inadvertently inserted in the original judgment, the draft of which had been prepared by counsel. [7] At 210, 274 P.2d 281, the court stated as follows: "As far as we are presently advised, this court has not yet recognized a right in the circuit court to change any part of its record after this court has acquired appellate jurisdiction in a given matter, except for the express purpose of making its record speak the truth as to matters and things transpiring prior to the entry of its original judgment or decree. Such is the tenor of Cranston v. Stanfield et al., supra, and we adhere to it." (Emphasis added) [8] We reject as unnecessarily mechanical and inconsistent with the decisions by this court in Lee v. Imbrie and Ensley-Koebel v. Nat. Guar. Prop, discussed infra at pp. 634-637, the statement of the "rule" in some cases to the effect that the only decision to be made is whether the amendment is "clerical." See Mulder v. Mendo Wood Products Inc., 225 Cal. App. 2d 619, 37 Cal. Rptr. 479, 489 (1964), cert. denied 379 U.S. 844, 85 S. Ct. 85, 13 L. Ed. 2d 50 (1964), in which the court held: "It is settled that where the amendment merely corrects a clerical error and does not involve the exercise of judicial discretion, the original judgment remains effective and unimpaired and the amendment does not operate as a new judgment from which a new appeal may be taken. (O'Connor v. Skelton (1961) 195 Cal. App. 2d 612, 614-615, 15 Cal. Rptr. 894; McConville v. Superior Court (1926) 78 Cal. App. 203, 207, 248 P. 553; George v. Bekins Van & Storage Co. (1948) 83 Cal. App. 2d 478, 480-481, 189 P.2d 301.)" It is significant that in Mulder an appeal was taken from the original judgment, so that the application of the rule as stated did not have the effect of foreclosing appellant's right of appeal. Compare George v. Bekins Van & Storage Co., 83 Cal. App. 2d 478, 189 P.2d 301 (1948). [9] Compare Fisher v. Portland Ry, L & P Co., 74 Or. 229, 137 P. 763 (1914) (overruling motion to dismiss appeal), decided on merits 74 Or. 229, 145 P. 277 (1915). In Fisher a jury on April 17, 1913, returned a verdict against defendant-appellant but not against the other defendant. On the same day a judgment was mistakenly docketed against both defendants. On July 3, 1913, defendant-appellant filed its notice of appeal. On August 29, 1913, the circuit court noting that through "inadvertence or mistake" a judgment was entered against both defendants when, in fact, a verdict had been returned against defendant-appellant only ordered the judgment amended to correctly reflect the actual verdict and ordered that "this order be entered nunc pro tunc as of the 17th day of April, 1913." No notice of appeal from this judgment was filed. In overruling respondent's motion to dismiss the appeal from the original judgment on the ground that it had been annulled by the amended judgment, this court explained (74 Or. at 232-33, 137 P. 763) as follows: "While the court used the expression that the original judgment was `annulled and held for naught,' subsequent language shows that the order was only nunc pro tunc in character. All the court professed to do by the last order was to eliminate one of the defendants and thereby relieve it from the burden of the first judgment. This the court had a right to do by the entry of the judgment of August 29, 1913, as and of April 17, 1913, so that the latter order would reflect the truth of the record which by inadvertence was omitted from the primal judgment: Grover v. Hawthorne, 62 Or. 65 (116 P. 100, 121 P. 804); Frederick & Nelson v. Bard, 66 Or. 259 (134 P. 318). Therefore, on principle, the only judgment which speaks the final determination of the rights of the parties as adjudged by the lower court is the one from which this appeal is taken under date of April 17, 1913." Fisher is to be distinguished from Lee v. Imbrie on its facts. The defendant-appellant in Fisher could have appealed and did appeal from the first judgment. Thus, the timeliness of the appeal was not at issue, but rather whether a subsequent judgment correcting "clerical errors" in a prior judgment nullified the prior judgment. In a similar situation, in Oregon-Wash. Co. v. School Dist. No. 25, 89 Or. 7, 173 P. 261 (1918), the court reached an opposite result from that in Fisher, holding that a later decree superseded the earlier decree and dismissing the appeal from the earlier decree. In Oregon-Wash. Co., however, the trial court entered an order vacating the prior decree. Furthermore, the amended judgment in Fisher was entered after the expiration of the term during which, at that time, the trial court had authority to effect a nullification of the prior decree. [10] The cross-complainant for foreclosure alleged that the mortgage covered real property to secure a note, attached a copy of the mortgage which described two parcels of real property as subject to the mortgage, and prayed for a decree of foreclosure and sale of "the property covered thereby." Following defendant's general denial in response to the cross-complaint, Continental filed a motion for summary judgment to which a copy of the mortgage was attached and which included a page not included in the copy attached to the original complaint and which, by its terms, granted to the mortgagee a security interest in "all personal property * * * now or hereafter placed in or affixed to the herein described real estate * * * including all equipment of every kind. * * *" [11] The amendment in Ensley-Koebel does not fall precisely within the definition of an amendment of a "clerical error" to the effect that such an amendment has the result of conforming the judgment entered to the judgment actually rendered; i.e., it does not appear that the trial court actually decreed foreclosure as to both real and personal property originally and the attorney failed to include reference to the personal property in the draft of the decree. However, because the original judgment rendered by the trial court did decree the foreclosure of the mortgage at issue in favor of Continental (which mortgage as recorded in the county records covered both real and personal property), we find the situation in Ensley-Koebel to be sufficiently analogous to the facts in those cases from this and other jurisdictions involving "clerical errors" to warrant our considering the reasoning in Ensley-Koebel in formulating a rule for the disposition of this case.

7dc90553bf58024b8d5654c365aba60d71904731ea9842b3bb0b2afb0142d2c3

1982-01-25T00:00:00Z

e2daa0da-3fb3-408e-b59a-726c9dbc194e

Adams v. Psychiatric SEC. Review Bd.

290 Or. 273, 621 P.2d 572

oregon

Oregon Supreme Court

621 P.2d 572 (1980) 290 Or. 273 Mary Alice ADAMS, Petitioner/Respondent, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent/Petitioner. No. 79-189; CA 15065; SC 27058. Supreme Court of Oregon. Argued and Submitted September 8, 1980. Decided December 30, 1980. Lisa Brown, Asst. Atty. Gen., Salem, argued the cause for respondent/petitioner. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and W. Benny Won, Asst. Atty. Gen., Salem. Susan Longbrook, Portland, argued the cause for petitioner/respondent. With her on the brief was Stephen M. King, Portland. Before DENECKE, C.J., and TONGUE, HOWELL,[*] LENT, LINDE, PETERSON and TANZER, JJ. TANZER, Justice. This case involves the sufficiency of an order of the Psychiatric Security Review Board (PSRB), following its initial hearing, committing petitioner to the Oregon State Hospital for care, custody and treatment. *573 The Court of Appeals, 45 Or. App. 997, 609 P.2d 908 vacated the commitment pursuant to ORS 183.480 et seq and we allowed PSRB's petition for review. On March 9, 1979, a jury found petitioner to be not responsible for murder by reason of a mental disease or defect. The trial court ruled that petitioner would have been convicted of manslaughter in the first degree if she had been found responsible. The trial court found that petitioner presently had a mental disease or defect and was substantially dangerous to herself and others. It placed her under the jurisdiction of PSRB for a maximum period of 20 years and ordered her committed to the Oregon State Hospital pending a hearing before PSRB. On April 6, PSRB held its initial hearing to determine whether petitioner should be confined or conditionally released. By order of May 3, it found that petitioner was affected by a mental disease or defect, that she presented a substantial danger to herself and others and that she could not be adequately controlled if she were conditionally released. It therefore ordered her committed to the Oregon State Hospital.[1] Petitioner petitioned for judicial review of the order, contending (1) that the findings of mental disease or defect and dangerousness were not supported by substantial evidence, and (2) that the standard of proof by a preponderance of the evidence for discharge from PSRB jurisdiction pursuant to ORS 161.351 was an unconstitutional deprivation of due process and equal protection. The Court of Appeals held that the challenged findings were not supported by substantial evidence and ordered petitioner discharged from PSRB jurisdiction. It did not reach the constitutional issue. The state petitioned for review, contending that the findings were supported by substantial evidence and that the Court of Appeals misconstrued the allocation of burdens of proof under former ORS 161.351. Because we have not hitherto examined the procedures of PSRB under former ORS 161.325 to 161.351, we allowed the petition.[2] *574 Because this is a review under the Administrative Procedure Act of PSRB's order concluding its initial hearing and not an appeal from the order of the trial court, we must first sort out the authority and responsibilities assigned by the legislature to the court and to the PSRB respectively. We must then sort out what is at issue before PSRB at its initial hearing as distinct from matters at issue at later hearings during PSRB's continuing supervision. The statutes in effect at the time of the initial hearing were inconsistent in several respects, but the statutory scheme as a whole was clear and any inconsistencies material to this case can be resolved in light of that statutory scheme. In summary, the trial court, upon appropriate findings, had the duty to commit the defendant to PSRB for a term of years. PSRB was required to commit the person to a state hospital unless it determined that he could be conditionally released.[3] Thereafter, PSRB was and remains authorized to transfer a person from one status to the other or to discharge the person. To particularize, when a criminal defendant was found not responsible due to mental disease or defect, the trial court was required to make a determination. If the court found the defendant to be no longer affected by mental disease or defect or, if affected, to be no longer dangerous or in need of care, supervision or treatment, the court was required to order the defendant discharged from custody. ORS 161.325, 161.329.[4] If, on the other hand, the court found that the defendant was still affected by mental disease or defect and that the defendant presented a danger which required hospital commitment or conditional release, then ORS 161.325 and 161.336(1) required that the court commit the defendant to the PSRB for a term corresponding to the maximum sentence the defendant would have received had he been found responsible. The responsibility of the court ended and that of PSRB commenced with the order of commitment to PSRB jurisdiction. Within 20 days of the commitment, PSRB was required to hold an initial hearing to decide whether the person should be committed to a state hospital or conditionally released.[5] The initial hearing was not an appeal from the circuit court. ORS 161.336(1) did not authorize PSRB at the initial hearing to review or redetermine the trial court finding of mental disease or defect and dangerousness. PSRB's function at that stage was essentially dispositional. This division of responsibility between the court and PSRB was clearly marked in ORS 161.336(1) which provided: The policy controlling the disposition at the initial hearing and later proceedings was expressed in ORS 161.336(11): The statutes also specified the conditions under which PSRB was to make either of the alternative dispositions. ORS 161.341 governed hospital commitment by PSRB at the initial hearing, and ORS 161.336 governed conditional release at that stage.[8] If PSRB found the person dangerous and not a proper subject for conditional release, it was mandatory ("shall") that PSRB commit the person to a state hospital. ORS 161.341.[9] Six months later and no more often than once every six months thereafter, the person could apply for discharge or conditional release, ORS 161.341(4) and (5), and, regardless of application, PSRB was required to review the commitment at least once every two years. ORS 161.341(6).[10] If, however, PSRB determined that the person, although dangerous, could be adequately controlled with supervision and treatment if conditionally released and that such supervision and treatment was available, then PSRB had discretion ("may") to release the person to a designated person or agency. ORS 161.336(2).[11] A conditionally released person could apply for modification of conditions or for discharge at any time, but no more often than once every six months, ORS 161.336(8)(a). Other subsections provided for conditions of release, continuing supervision, reporting, review, hospital commitment and discharge. There was no authority under these statutes for PSRB at its initial hearing to overrule the trial court by discharging the person. The authority for discharge existed only thereafter during the course of PSRB's continuing supervisory functions. *576 Confusion exists because both ORS 161.341(1) and 161.336(2) began with the phrase, "If the board finds [or `determines'] that the person presents a substantial danger to himself or others * * *" but went on to specify the different findings which support hospitalization or conditional release. This bit of drafting cannot be read literally to require a new finding of dangerousness. Read in the context of the entire statutory scheme, at least three reasons suggest that the legislature did not intend to require that PSRB make an independent finding of dangerousness at its initial hearing: (1) no more than 20 days before, dangerousness will have been found by the trial court as a requisite for having ordered the commitment; (2) there was no implication elsewhere in the statutes or in any of the legislative history that PSRB was intended to review that trial court finding de novo at its initial hearing; and (3) PSRB was given authority to choose between only two dispositions at this stage and dangerousness was a predicate for both of them. Therefore, we conclude that the statutory reference to PSRB's finding or determination of dangerousness was a drafting redundancy rather than an additional procedural prerequisite for PSRB's initial action. Although PSRB was required to make independent determinations of dangerousness when it periodically reviewed the commitment, its role at the initial hearing stage was simply to recognize that the person was dangerous to himself or others because the trial court had already adjudicated that fact.[12]See Cardwell v. PSRB, 38 Or. App. 565, 590 P.2d 787 (1979). We therefore conclude from this review of the statutory scheme that the only issue before PSRB at the initial hearing under the prior legislation was whether the person, although dangerous, "can be adequately controlled with supervision and treatment if he is conditionally released and * * necessary supervision and treatment is available" outside a hospital. If so, and only if so, PSRB had discretion to order conditional release. Petitioner challenges PSRB's findings that she has a mental disease or defect and that she presents a substantial danger to herself and others. She contends in a well-briefed argument that these findings are invalid because they are not supported by substantial evidence and because they are based upon a constitutionally impermissible standard of proof, preponderance of evidence. Because we conclude that PSRB was not authorized or required to make new findings of mental disease or defect and dangerousness at the initial hearing stage, its findings to that effect were superfluous. The trial court findings on those issues cannot be challenged in this proceeding, and we assume they were lawfully made. Even assuming plaintiff's challenges to the superfluous findings of the PSRB order to be well-taken, the remainder of the order is controlling and it is not challenged.[13] The Court of Appeals held that the PSRB findings of mental disease or defect and dangerousness were not supported by substantial evidence. That holding was based upon an erroneous application of ORS 161.351(1) *577 and (2) to this initial hearing order. Those sections provided: The Court of Appeals held: Interpreted in its statutory context, it is apparent that ORS 161.351 was intended to apply to periodic review hearings rather than to the initial hearing. As we noted above, ORS 161.336(1) specified that PSRB's only function at the initial hearing was "to determine whether the person is to be committed or conditionally released." There was no provision for discharge as a permissible action at that stage. Moreover, ORS 161.351(1) refers to a finding regarding mental disease or defect, an issue that is clearly not before PSRB at the initial hearing. That reference is evidence that the legislature was referring to subsequent hearings at which the continued existence of mental disease or defect would be an issue. Similarly, the concluding provision of subsection (2) of ORS 161.351 that "[t]he person shall continue under such supervision and treatment as the board deems necessary to protect the person and others" (emphasis supplied) is further evidence that the legislature intended to refer to review hearings rather than the initial hearing. Accordingly, we conclude that the specific statutes, ORS 161.336(1) and (2) and 161.341(1), governed the initial hearing and that ORS 161.351 applied only to subsequent hearings. The Court of Appeals erred in relying upon the latter statute. This opinion is concerned with the law governing the initial hearing. It is appropriate to clarify what this opinion does not deal with. Because this is not an appeal, we express no opinion as to the actual regularity of the post-verdict procedures in the trial court or as to the constitutionality of the statutes which govern those procedures. The arguments of the parties are based in part upon the statutes governing subsequent proceedings in the course of the continuing supervision by PSRB of persons committed to its jurisdiction. We need not consider those statutes in this case. Because certain problems are apparent, however, these statutes could benefit from legislative reexamination.[15] *578 Because the portion of PSRB's order which is challenged is superfluous and because the essential portion of the order concluding that plaintiff is not suitable for conditional release and that alternative supervision and treatment are not available is not challenged on review, we uphold the order. Reversed. [*] Howell, J., retired November 30, 1980. [1] The May 3, 1979 order of PSRB states: "The Board, having heard testimony and having received exhibits and after considering all of the evidence admitted on the record, finds as fact by a preponderance of the evidence that: "1. Mary Alice Adams was found not responsible by reason of mental disease or defect of the crime of MANSLAUGHTER IN THE FIRST DEGREE, and was placed under the jurisdiction of the Psychiatric Security Review Board for care and treatment for a period of time not to exceed twenty (20) years by Marion County Circuit Court Judge Pro Tem. Darrell J. Williams. "2. Mary Alice Adams is affected by a mental disease or defect, namely SCHIZOID PERSONALITY WITH ACUTE PSYCHOTIC EPISODES as demonstrated by the underlying facts shown by the evidence including: the evaluations by Dr. Stolzberg, M.D. and others who saw clear evidence of Ms. Adams' psychotic thought processes, emotional disturbance and impaired impulse control. "3. Mary Alice Adams presents a substantial danger to herself as demonstrated by the underlying facts as shown by the evidence including her past history of suicide attempts. "Ms. Adams presents a substantial danger to others as demonstrated by the underlying facts shown by the evidence including: the circumstances surrounding the crime of Manslaughter, for which she was placed under the jurisdiction of the Board and which included her shooting the victim with a shotgun. "4. Mary Alice Adams could not be adequately controlled with supervision and treatment if she were conditionally released into the community at this time. "5. Necessary supervision and treatment is not now available in the community. "The Board concludes as a matter of law that: "1. Mary Alice Adams, being affected by a mental disease or defect and presenting a substantial danger to herself and others, is under the jurisdiction of the Psychiatric Security Review Board. "2. The necessary supervision and treatment not being available, it would not be in the best interests of justice, the protection of society or the welfare of Mary Alice Adams to release her at this time. "IT IS HEREBY ORDERED, that Mary Alice Adams be committed to the Oregon State Hospital for care, custody and treatment." [2] The statutes were amended by Oregon Laws 1979 ch. 867 and ch. 885. All statutory references in this opinion are to the statutes in their 1977 form unless otherwise specified; the pertinent 1979 amendments are detailed in these footnotes. [3] In 1979 the statutes were amended to give this initial dispositional decision formerly handled by PSRB to the trial court. For specifics, see fn. 5. [4] ORS 161.325 provided: "After entry of judgment of not responsible due to mental disease or defect, the court shall, on the basis of the evidence given at the trial or at a separate hearing, if requested by either party, make an order as provided in ORS 161.329, 161.336 or 161.341, whichever is appropriate. If the court makes an order as provided in ORS 161.336, it shall also determine on the record what offense the person would have been convicted of had the person been found responsible." ORS 161.329 provided: "If the court finds that the person is no longer affected by mental disease or defect, or if so affected, that he no longer presents a substantial danger to himself or others and is not in need of care, supervision, or treatment, the court shall order him discharged from custody." These statutes remain substantially the same. The only change is a reference to the new statute which gives the trial judge court the initial dispositional decision. [5] In 1979 the statute was amended to eliminate the 20-day hearing by the PSRB and to put the initial decision whether to commit or conditionally release into the hands of the trial court. The responsibility of the trial court for the initial dispositional decision is now numbered ORS 161.327. [6] Former ORS 161.336(1) was amended and now appears as ORS 161.327; see fn. 5. [7] This section now appears unchanged as ORS 161.336(10). [8] These sections now cover conditional release or hospitalization after the trial court makes the initial dispositional decision. [9] ORS 161.341(1) provided: "If the board finds that the person presents a substantial danger to himself or others and that he is not a proper subject for conditional release, the board shall order him committed to a state hospital designated by the Mental Health Division for custody, care and treatment. The period of commitment ordered by the board shall not exceed the maximum sentence the person could have received had he been found responsible." [10] ORS 161.341(4) and (6) were amended in 1979 to change the six-month period for initial application for conditional release or discharge to three months and to provide that in no case shall a person be held in the hospital for more than six months from the date of the court's commitment order without a hearing by the PSRB to determine whether the person should be conditionally released or discharged. [11] ORS 161.336(2) stated in pertinent part: "If the board determines that the person presents a substantial danger to himself or others but that he can be adequately controlled with supervision and treatment if he is conditionally released and that necessary supervision and treatment is available, the board may order him conditionally released, subject to those supervisory orders of the board as are in the best interests of justice, the protection of society and the welfare of the person. The board may designate any person or state, county or local agency the board considers capable of supervising the person upon release, subject to those conditions as the board directs in the order for conditional release." [12] This interpretation of the role of the PSRB at the initial hearing is consistent with the subsequent legislative change. The 1979 amendment placing responsibility for the initial decision whether to commit or conditionally release in the trial court was made because the 20-day hearings had become burdensome for the PSRB. Hearings on HB 3016 before Senate Judiciary Committee, 60th Or.Legis.Ass'y (May 30, 1979), testimony of Jeffrey L. Rogers for the Psychiatric Security Review Board, proponent of the bill, Tape 44, Side 2 at 1028. Thus, under the new statutes there would continue to be no redetermination of mental disease or defect and dangerousness by the PSRB before the initial dispositional decision was made, the only change is in the body making the initial dispositional decision. A redetermination of petitioner's condition will only be made by PSRB as part of its continuing supervisory function, as under the old statute. [13] This is not to say that the PSRB finding regarding the availability of supervision and treatment in the community is impeccable. The form of that finding is subject to challenge because it sets out findings of ultimate facts but no findings of the primary facts as required by ORS 183.470(2). See Wright v. Insurance Commissioner, 252 Or. 283, 290-91, 449 P.2d 419 (1969). [14] ORS 161.351 is unchanged by the 1979 amendments. [15] For example, upon an application for conditional release, modification or discharge, or upon periodic review, ORS 161.336(8)(a) (renumbered 161.336(7)(a) in 1979) and 161.341(5) place the burden of proving his fitness upon the committed person, but ORS 161.351(2) provides that the state has the burden of proof of the facts which justify continued commitment.

7ce16a1cdc6d2b0e6935cd4209c61e8986b34eda940541091db07b460aa05626

1980-12-30T00:00:00Z

7e3b77c2-aa74-45d0-8889-ddfb0851582d

Rosboro Lbr. Co. v. Heine

289 Or. 899, 618 P.2d 960

oregon

Oregon Supreme Court

618 P.2d 960 (1980) 289 Or. 899 ROSBORO LUMBER COMPANY, Appellant, v. Walter R. HEINE, Harry Carson, Jr., and Pat McCarthy, County Commissioners of Marion County, Oregon, Respondents. No. 1269; SC 26669. Supreme Court of Oregon, In Banc.[*] Argued and Submitted June 25, 1980. Decided October 28, 1980. Rehearing Denied December 16, 1980. *961 Richard Bryson, Eugene, argued the cause for appellant. With him on the briefs was Bryson & Bryson, Eugene. Larry Jon Pound, Marion County Asst. Legal Counsel, Salem, argued the cause and filed the brief for respondents. TONGUE, Justice. This is a mandamus proceeding in the Oregon Tax Court by which the petitioner, a taxpayer, seeks to compel the respondents, members of the Marion County Board of Commissioners, to pay to it a tax refund of $40,505. The Tax Court dismissed the proceeding for lack of jurisdiction. Petitioner appeals.[1] The petition for an alternative writ of mandamus alleged that petitioner was the owner of timber and land in Marion County; that in 1959 the Department of Revenue made a cruise of the timber showing 31,006,000 board feet of timber. The petition alleged that for the tax years ending June 30, 1971 to 1975, Marion County levied and collected ad valorem property taxes and additional taxes on the timber on the assumption that the 1959 cruise was correct; that petitioner was required to report each year the "areas * * * logged" and that "the amount assumed to have been logged from said logged areas" was then deemed to have been severed for the purposes of the additional taxes and was subtracted from the original 31,006,000 feet for the purposes of ad valorem taxes for the following year. It was also alleged that a new cruise was made by the Department of Revenue in 1974 showing that not over 18,563,000 board feet of timber had been on the property and that the 1959 cruise was in error. Schedules were attached to the petition showing the amount of overpayment of ad valorem and additional taxes for each of the intervening tax years, totaling $40,505, paid by *962 the taxpayer through what it alleged to be "excusable neglect." Respondents, after the filing of a demurrer which was overruled, followed by an answer, filed a motion for a separate trial "on the several issues of jurisdiction and authority." An order was then entered by the Tax Court that "all legal issues of jurisdiction, authority and procedural correctness be tried prior to, and apart from the issue of valuation." At the trial on those issues, petitioner offered testimony to the effect that it did not know until 1974 that the 1959 cruise was in error, so as to enable it to appeal to the Board of Equalization for a refund before the end of each of the intervening tax years. Although it knew at the end of each year that the amount of timber reported to the tax assessor as "severed" did not "coincide" with the cruise amounts, petitioner always had some "hold over amounts" that had been "severed but not removed," making it "very difficult to tell how much there was and where the cutout was." Its testimony was that 1974 was "the first time that (it) was able to compare reports from (its) loggers as to harvest on the one hand with the cruise depletion by area that the Revenue Department was doing" and also that it kept its records on a fiscal year basis, while the state's records were on a calendar year basis, and that "they just give you a lump sum and so you have nothing to tie together." Testimony was also offered that in 1974, after two years of logging, and after selling a portion of the tract, petitioner discovered a "big discrepancy," and then sent its forester "up there looking to see what the problem was" and he discovered "huge piles of cull logs" which were "just wind shook and frost split to the point that they would make nothing but chips." Upon the basis of this evidence petitioner contended that its failure to appeal to the county Board of Equalization before the end of each tax year for the intervening years was "through petitioner's excusable neglect." Also offered in evidence by petitioner was the following correspondence with the Marion County Board of County Commissioners: A letter dated July 24, 1975, from petitioner's attorney to the Board of Commissioners enclosing a tax refund claim for $40,505.64 "based upon ORS 311.806"[2] and stating, as the "Legal Basis for Refund": Petitioner did not, however, submit with that letter any statement of facts explaining why it failed to discover the error in the 1959 cruise until 1974 or to otherwise support its contention of "excusable neglect." A further letter dated October 30, 1975, from petitioner's attorney to the Commissioners, saying that no response to the previous letter had been received and asking that the Board "rule on this claim and advise us." A letter dated November 1, 1975, from petitioner's attorney to the Commissioners with the following "request": Evidence offered by respondents included the minutes of a meeting of the Board of Commissioners on January 7, 1976, which included the following: On August 15, 1978, petitioner filed with the Tax Court a petition for alternative writ of mandamus. At the conclusion of the trial of those issues, and after receiving and considering briefs from both parties, the Tax Court dismissed this mandamus proceeding "for lack of jurisdiction" by a written opinion upon two grounds: *964 The Tax Court also rejected petitioner's contention that it could not petition for review for the lack of any record, holding that under ORS 34.030 a petition for review could "`describ(e) the decision (or determination) with convenient certainty'" and "set forth the errors alleged to have been committed" in such a manner as to obtain review of petitioner's contentions that either "the commissioners lacked jurisdiction over the assessed property due to its non-existence" or that "the petitioner's tax payments were made through excusable neglect." In appealing from that decision by the Tax Court, petitioner contends that the Tax Court erred in dismissing the case for lack of jurisdiction because: Based upon our review and analysis of the record in this case in the light of the contentions of the parties and the cases and authorities cited by them, we conclude that the decisive question in this case is whether writ of review was an available and adequate remedy in this case. If so, that was the exclusive remedy available to petitioner by reason of the express provisions of ORS 203.200, and the Tax Court properly dismissed this alternative writ of mandamus *965 regardless of whether the Tax Court was correct in holding that petitioner failed to properly exhaust its administrative remedies with the Board of Equalization and regardless of whether the Marion County Board of Commissioners properly denied petitioner's tax refund. Petitioner contends that writ of review is not available in the Oregon Tax Court because the specific authorization to that court to issue writs of mandamus by amendment of ORS 34.120, without making any change "that would specifically authorize the tax court to issue a writ of review" is "an indication that the legislature did not intend to add the writ of review jurisdiction to the tax court." Petitioner also contends that "ORS 305.425 requires all proceedings in the Tax Court to be heard de novo" and that "[t]his is totally in conflict with proceedings on writ of review," citing cases holding that on writ of review to a circuit court that court has no power to conduct a trial de novo, but is limited to a review of the record. We disagree. In 1964 this court, in City of Woodburn v. Domagalla, 238 Or. 401, 395 P.2d 150 (1964), held that the Oregon Tax Court had no power or jurisdiction to issue a writ of mandamus. In so holding this court noted (at 403-05, 395 P.2d 150) that ORS 34.120 then provided that the circuit courts "have exclusive jurisdiction of mandamus proceedings" and that "the jurisdiction of the tax court is nowhere expressly defined." In 1965 the Oregon Legislature, in direct response to Woodburn, amended ORS 305.405 so as to confer upon the Tax Court "the same powers as a circuit court," including "all ordinary and extraordinary legal, equitable and provisional remedies available in the circuit courts," and also amended ORS 34.120 so as to expressly grant to the Tax Court power to issue writs of mandamus. It did not, however, specifically amend ORS 34.030 so as to expressly grant to the Tax Court the power to issue writs of review. We recognize that the failure of the legislature to expressly confer upon the Tax Court power to issue writs of review, while expressly conferring upon it the power to issue writs of mandamus, provides the basis for a logical argument that the legislature did not intend to confer power upon that court to issue writs of review. We find, however, upon examination of the legislative history of the 1965 session of the Oregon legislature, that it quite clearly intended to confer the same power upon the Oregon Tax Court to issue all extraordinary remedies as conferred upon circuit courts, including writs of review. Both the 1965 amendment to ORS 305.405 and the amendment to ORS 34.120 were included in SB 4, "relating to the Oregon Tax Court," which was adopted after hearings before the joint Senate and House Interim Committee on Taxation. The record of the hearings before that committee indicates that this legislation was introduced in direct response to the then recent decision by this court in City of Woodburn v. Domagalla, supra. On October 10, 1964, Judge Peter Gunnar, the Oregon Tax Court judge whose tax court decision in Woodburn, holding that the Tax Court had all the powers of a circuit court, including mandamus jurisdiction, had been overruled by this court, appeared before the interim committee and gave his explanation of what the proposed amendments would accomplish. The interim committee appeared to fully accept his explanation of and purpose for the new legislation, which was "to create a court that had the powers of a circuit court limited only to the specific fields of taxation which were assigned to that court." A memorandum for the interim committee explaining the amendments was also prepared by the staff of the Legislative Counsel Committee, stating that although the amendments were specifically designed "to overcome the effect" of the decision by this court in Woodburn, supra, the amendments would also "accomplish * * * other changes" and would "confer upon the tax court all the powers of the circuit court in tax cases within its jurisdiction * *." *966 In light of this legislative history, we are of the opinion that in 1965 the legislature intended not only to confer upon the Tax Court power to issue writs of mandamus, but also intended to confer upon it all the powers of cirucit courts, including the power to issue writs of review. In 1975 and 1976 ORS 203.200 provided: ORS 203.120 lists 16 items of "county business," none of which specifically include tax refunds. Petitioner contends that ORS 203.200 and ORS 203.120 must be read together, with the result that "county business" for the purposes of ORS 203.200 must be held to include only those items listed in ORS 203.120 and that ORS 203.200 thus does not apply to this case and does not limit petitioner to the writ of review. In Russell v. Crook County Court, 75 Or. 168, 145 P. 653, 146 P. 806 (1915), this court considered the question of whether "county business" is limited to those items now listed in ORS 203.120 and held (at 177, 145 P. 653, 146 P. 806): Petitioner would distinguish Russell as having "no relevance here" because "it concerned an entirely different point, namely, whether the county could be restricted in its activities to the functions listed in ORS 203.120" and that it is "of no help in deciding whether the two statutes * * * should be construed together in deciding what items of county business were referred to in ORS 203.200." We agree that the two statutes must be read together, and that the term "county business" must be given the same meaning under both statutes. We believe that it follows, however, that just as the question of what is "county business" is not limited by the items listed in ORS 203.120 for purposes of deciding what "business" can be transacted by the county, neither is the meaning of that term for the purposes of ORS 203.200 limited by the items listed in ORS 203.120. The question remains whether the rejection by the Board of Commissioners of petitioner's tax refund was a "decision" that was "made in the transaction of county business" for the purposes of ORS 203.200. This court recently considered that question, although in a different context, in Strawberry Hill 4-Wheelers v. Benton Co. Bd. of Comm., 287 Or. 591, 601 P.2d 769 (1979). At page 600 this court cited previous decisions in cases involving claims against counties for payment of money, including Crossen v. Wasco County, 10 Or. 111 (1882), in which this court held (at 114) that: In Strawberry Hill this court went on to say (at 601-2, 601 P.2d 769) in referring to previous cases decided by this court: In our opinion, the denial of a claim for a tax refund is such an "administrative adjudication" as to be properly subject to writ of review under ORS 203.200. ORS 34.020 provides: Petitioner contends that it was not a party to a "process or proceeding" within the meaning of that statute; that there is no provision for the Board of Commissioners to hold a formal hearing on requests for tax refunds and that there was no record of a proceeding to be reviewed.[8] In our opinion, these contentions by the petitioner confuse two separate questions: (1) whether writ of review was not "available" as a remedy, so as to make mandamus an appropriate remedy, and (2) whether writ of review was not an "adequate" remedy in this case, so as to make mandamus an appropriate remedy. A writ of review is an "available" remedy under ORS 203.200 when it involves a "decision" by a county Board of Commissioners "made in the transaction of county business." As previously held, the denial by respondents of petitioner's claim for a tax refund was a "decision" made "in the transaction of county business" within the meaning of ORS 203.200. It follows that a writ of review was available as a remedy to the petitioner in this case. If, however, a writ of review, even though an "available remedy," would not have provided an adequate remedy to the petitioner, it might be contended that petitioner was entitled to a remedy by writ of mandamus. See Mt. Hood Stages v. Haley, 253 Or. 28, 37-39, 445 P.2d 878, 453 P.2d 435 (1969), and State ex rel. Ricco v. Biggs, 198 Or. 413, 425, 255 P.2d 1055 (1953). ORS 34.110 provides in part: If the petitioner in this case had requested a hearing before the Board of Commissioners for the purpose of offering evidence, such as upon the question of excusable neglect, and if it had requested the Board to then make a "finding" upon the basis of such evidence, such a request, if refused, might have provided a proper basis for a contention that a writ of review was not an adequate remedy and that petitioner was entitled to a writ of mandamus ordering the county commissioners to hold such a hearing, to receive and consider such evidence, and to make such a finding. In this case, however, petitioner made no such request, but instead demanded that the Board of Commissioners rule that as a matter of law it was entitled to a tax *968 refund. Having made its request for a tax refund on that basis, we are of the opinion that a writ of review provided an adequate remedy for review of the decision by respondents upon the request made by petitioner, i.e., that it rule as a matter of law whether petitioner was entitled to a tax refund on the basis of the claim submitted by petitioner. Having failed to apply to the Tax Court for a writ of review within 60 days of the rejection of its claim by respondents on January 7, 1976, as required by ORS 34.030,[9] petitioner is not now entitled to relief by writ of mandamus. See McAlmond v. Myers, 262 Or. 521, 526, 500 P.2d 457 (1972).[10] It follows that the Tax Court did not err in dismissing this proceeding. Affirmed.[11] [*] Denecke, C.J., and Tanzer, J., did not participate in the decision of this case. [1] ORS 305.445 provides for direct appeals to this court from decisions by the Oregon Tax Court. [2] ORS 311.806 provides: "(1) The county governing body shall refund to a taxpayer, out of the general fund or the unsegregated tax collections account provided in ORS 311.385, taxes collected by an assessor or tax collector pursuant to a levy of the assessor or of any taxing district or tax levying body plus interest thereon as provided in ORS 311.812, in the following cases: "(a) Whenever ordered by the Department of Revenue and no appeal is taken or can be taken from the department's order, or whenever ordered by the Oregon Tax Court or the Supreme court and the order constitutes a final determination of the matter; or "(b) Whenever taxes are collected against real or personal property not within the jurisdiction of the tax levying body; or "(c) Whenever any person, through excusable neglect, or through an error subject to correction under ORS 311.205 pays taxes on property in excess of the amount legally chargeable thereon, and then only in the amount of money collected in excess of the amount actually due; or "(d) Except as provided in ORS 311.803, whenever any person pays taxes on the property of another by mistake of any kind. "(2) No such refund shall be allowed or made after six years from the assessment date for the fiscal year for which the taxes were collected unless before the expiration of such period a written claim for refund of the collection is filed by the taxpayer with the county governing body. Where applicable, a certified copy of the order of the Department of Revenue or of the Oregon Tax Court or the Supreme Court shall be made a part of the claim. However, upon written request of the Director of the Department of Revenue or with the approval of the tax collector, the county governing body may order a refund of taxes paid to any taxpayer or class of taxpayers without the filing of a written claim. The request of the department shall be considered an order for the purpose of paragraph (b) of subsection (2) of ORS 311.812. "(3) Immediately upon payment of the refund and any interest thereon, the tax collector shall make the necessary correcting entries in the records of his office, and if the refund is made from the general fund, the county treasurer shall reimburse the general fund in the amount of the refunded tax and any interest paid thereon, from the unsegregated tax collections account provided in ORS 311.385. ORS 294.305 to 294.520 shall not apply to refunds made out of the unsegregated tax collections account." [3] ORS 305.410(1) provides: "(1) Subject only to the provisions of ORS 305.445 relating to judicial review by the Supreme Court and to subsection (2) of this section, the tax court shall be the sole, exclusive and final judicial authority for the hearing and determination of all questions of law and fact arising under the tax laws of this state. * * *" [4] See footnote 2, supra. [5] ORS 34.120 provides: "The circuit court or judge thereof of the county wherein the defendant, if a public officer or body, exercises his or its functions, or if a private person or corporation, wherein such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of mandamus proceedings, except that the Oregon Tax Court or judge thereof shall have jurisdiction in mandamus proceedings in all cases involving tax laws as defined in ORS 305.410, * * *." (Emphasis added) [6] ORS 34.020 provides: "Except for a proceeding resulting in a land use decision as defined in section 3, chapter 772, Oregon Laws 1979, for which review is provided in sections 4 to 6, chapter 772, Oregon Laws 1979, any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors, as provided in ORS 34.010 to 34.100, and not otherwise. Upon a review, the court may review any intermediate order involving the merits and necessarily affecting the decision or determination sought to be reviewed." [7] ORS 203.200 was repealed by 1979 c. 772 § 17. [8] Petitioner also contends that if a claim for a tax refund to a Board of County Commissioners is subject to writ of review, it would follow that every person with a damage claim or every workman whose claim is rejected would have to go to writ of review instead of filing suit in court, as is the present practice. [9] ORS 34.030 provides: "* * * A writ shall not be allowed unless the petition therefor is made within 60 days from the date of the decision or determination sought to be reviewed." [10] We also disagree with petitioner's contention that by our holding that writ of review was an adequate remedy in this case, persons with damage or wage claims against a county that are rejected will be confined to the remedy of writ of review and will not be able to file suit in district or circuit court. Most damage and some wage claims are not available to persons based upon specific statutory provisions, as are claims for tax refunds under ORS 311.806, but have an independent basis in tort and contract law. [11] It should be noted that we do not affirm the dismissal of this case solely "for lack of jurisdiction," as stated by the order of the Tax Court. ORS 34.120 provides that "the Oregon Tax Court * * * shall have jurisdiction in mandamus proceedings in all cases involving tax laws as defined in ORS 305.410." Instead, we affirm the Tax Court's dismissal of the case because petitioner's proper and exclusive remedy was by writ of review.

68c5ebc91ba5243d269c60965fb415a44bcdfc8d22cc37ef3e474cfef305e058

1980-10-28T00:00:00Z

7228c59f-040c-41fb-a81e-3e821e493db6

In Re Charles

290 Or. 127, 618 P.2d 1281

oregon

Oregon Supreme Court

618 P.2d 1281 (1980) 290 Or. 127 In re John F. CHARLES, Accused. OSB 78-17; SC 27092. Supreme Court of Oregon, In Banc.[*] Submitted on the Record October 6, 1980. Decided November 4, 1980. *1282 John E. Jaqua, of Jaqua & Wheatley, P.C., Eugene, for the accused. Derrick E. McGavic, and Dan E. Neal, Eugene, for the Oregon State Bar. PER CURIAM. The Oregon State Bar charged the accused, John F. Charles, with a violation of Disciplinary Rule 7-105 (A) of the Code of Professional Responsibility. DR 7-105 (A) provides: The case was presented to a trial board on oral stipulations stated at the hearing by counsel for the Bar and for the accused and a file consisting of a number of letters and a case summary prepared by the Bar's General Counsel. The following summarizes the facts appearing from these documents. Charles represented the owners of a ranch in Crook County, incorporated as Western Empire Development Co., Inc. (WEDCO), in a dispute with its former resident manager, Jim Palmer, over past wages and commissions. Palmer had sold some company assets to raise cash to pay his own and his wife's salaries, apparently on the suggestion of the company's previous lawyer. In the course of the dispute, WEDCO's president, Gerald Martin, wrote a letter to Charles in which Martin instructed Charles to "file a counter claim and also [immediately] file a complaint to the District Attorney" against Palmer. The letter continued: Thereafter, in a conference in the office of Palmer's attorney, Carl Dutli, the accused told Palmer that his client, Martin, intended to press criminal charges against Palmer. The exhibits reflect a factual disagreement between Palmer and Dutli on the one hand and Charles on the other whether the threatened criminal charges were brought up only once or two or three times, but it is conceded that Martin's threat was conveyed to Palmer in the context of settlement negotiations between the parties. In defense, the accused states that nothing in the stipulation shows the threat to have been made "solely to obtain an advantage." We do not find the oral stipulation, which was made in discursive statements of counsel at the trial board hearing in lieu of appearances by any witness or the accused, a very clear or coherent statement of the facts. However, the exhibits covered by the stipulation include a letter by Mr. Dutli, whose recital of the events in his office persuaded the trial board that the complaint was proved in this respect, and we agree with that finding. A violation of DR 7-105 (A) is therefore made out. The accused also points out that he told Palmer of Martin's intentions in the presence of Palmer's attorney, and that in fact no settlement was consummated nor were any criminal charges brought. However, these are not elements of the improper conduct condemned by DR 7-105 (A). The trial board recommended that the accused be reprimanded, and the Disciplinary Review Board joined in that recommendation. We agree. No costs to either party. Accused reprimanded. [*] Denecke, C.J., did not participate in this decision.

60cdc645f5e743cad3c18f379c1ea4e287f8d6858077d9ef82bcd748dac6b459

1980-11-04T00:00:00Z

11190925-6707-4229-99b0-0b4ee949ce44

State Ex Rel. Russell v. Jones

293 Or. 312, 647 P.2d 904

oregon

Oregon Supreme Court

647 P.2d 904 (1982) 293 Or. 312 STATE of Oregon, ex rel. Kenneth Kollman Russell, Plaintiff-Relator, v. The Honorable Robert E. JONES, Chief Criminal Circuit Court Judge of the Fourth Judicial District of the State of Oregon, Defendant. SC 28198. Supreme Court of Oregon, In Banc[*]. Argued and Submitted December 8, 1981. Decided June 30, 1982. Lawrence Baron, Metropolitan Public Defender, Portland, argued the cause for plaintiff-relator. With him on the brief were Gail Baron, Christopher Cournoyer, Mark Kramer, and Kenneth Lerner, Metropolitan Public Defenders, Portland. James E. Mountain, Jr., Deputy Sol. Gen., Salem, argued the cause for defendant. With him on the brief were David B. Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. TANZER, Justice. This is a proceeding in mandamus. We take the facts from the alternative writ and supporting documents. Plaintiff is the defendant in an underlying criminal prosecution. (Hereafter he is referred to as "defendant.") He entered a no contest plea to a felony charge of sexual abuse in the first degree. Apparently a presentence investigation was ordered to be performed by the Multnomah County Diagnostic Center. That agency requested the defendant to appear for interviews, including a psychological interview, but refused as a matter of practice to permit the defendant's attorney to attend the interviews. Defendant then moved to allow his attorney to attend the interviews. The motion was denied by the *905 circuit judge, the successor of whom is defendant in this proceeding. The court stated its reasoning: The trial court concluded that because there was no need for legal services, due process did not require the presence of counsel. The writ would require that the order of denial be vacated and that the trial court allow defense counsel to be present at presentence interviews. Defendant asserts three constitutional bases for a right to the presence of his attorney at the presentence investigation interviews. His first contention is under the right to counsel provisions of Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. Second, he asserts a right to the presence of counsel as ancillary to his right not to be compelled to testify against himself in any criminal prosecution, rights guaranteed under Article I, section 12, of the Oregon Constitution, and under the Fifth Amendment to the United States Constitution. His third contention is that, under the circumstances of this case, "fundamental fairness," as embodied by the Due Process Clause of the Fourteenth Amendment, mandates the presence of his attorney to insure his right to a fair trial. Finally, the defendant contends that the trial court abused its discretion in denying the defendant's motion to have counsel present at the presentence interview. We issued the alternative writ of mandamus to consider whether criminal defendants have a right to have counsel attend the presentence interviews. Article I, section 11, states that the accused shall have the right "to be heard by himself and counsel" in "all criminal prosecutions." The term "criminal prosecution" includes sentencing, a stage at which a judicial decision affecting a defendant's future liberty is made. Obviously, then, a defendant is entitled "to be heard by himself and counsel" at sentencing. A short answer, therefore, is that counsel cannot be excluded from any stage of the criminal prosecution at which a defendant is to be "heard," including the sentencing stage, whether this is wholly performed by the judge or shared with non-judicial persons. Beyond this short answer, we have the benefit of decisions of the United States Supreme Court under the Sixth Amendment, which, as is demonstrated by the excellent historical review in the dissent, was intended to assure similar protection to that stated in Article I, section 11. Under those decision, insofar as they affect this case, a criminal defendant's guarantee of the assistance of counsel exists at least at all court proceedings from arraignment through probation revocation as well as all post-indictment out-of-court critical stages where, without the assistance of counsel, the legal interests of the defendant might be prejudiced. Specifically, sentencing is a critical stage of a criminal prosecution at which a defendant is guaranteed counsel. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); Gebhart v. Gladden, 243 Or. 145, 412 P.2d 29 (1966). We agree with the dissenters as to the nature of those principles, but our application of them differs from that of the dissent because of our different view of the nature of a presentence investigation, to which we now turn. Before pronouncing sentence, a trial court will wish to be informed of such relevant information as the circumstances of the offense and the criminal record, social history and present condition and environment of the defendant. Before presentence reports were common, this information was generally provided at the sentencing hearing *906 by the prosecutor, the defendant, defense counsel and other sources. Today, ORS 137.530 provides an alternative method of gathering such information. Instead of the court doing so directly, it may direct probation officers to perform the initial task on behalf of the court, and to report back to the court: The court may also designate a person other than a probation officer to conduct the investigation. ORS 137.090. Defendant alleges that the presentence investigator, the diagnostic center, "told [him] to report for a psychological interview" as well as for a "general interview." Defendant does not dispute that the authority of the court to designate one other than a probation officer to make a presentence investigation, ORS 137.090, includes authority to designate the diagnostic center and that an interviewer may be a psychologist as well as anyone else. A judge's election to gather sentencing information through the agency of a probation officer or another makes the process no less a judicial procedure than when the judge does so directly. The investigation is simply an out-of-court inquiry and hearing on behalf of the judge. When the information has been gathered for the judge, the information in the report may be challenged and supplemented at the sentencing hearing. The information in the presentence report, other than certain diagnostic or confidential reports, may be disclosed to the state and the defendant, ORS 137.079, see also, Buchea v. Sullivan, 262 Or. 222, 497 P.2d 1169 (1972), and either party may complete the fact-gathering by offering evidence in aggravation or mitigation, ORS 137.080-137.100.[1] In other words, the investigator informally performs for the judge a function, in part, which would otherwise be performed by the judge as part of the formal sentencing hearing. Functionally, the investigation is a part of the sentencing procedure. A defendant is entitled to the assistance of counsel to the same degree when the judge seeks sentencing information from him in open court and when the judge does so indirectly through the out-of-court agency of a probation officer. Therefore we conclude that just as a sentencing hearing to determine a defendant's future liberty is a stage of a prosecution at which the assistance of counsel cannot be denied, so is *907 a presentence interview. The order barring counsel was unauthorized. We do not suggest that every defense attorney is duty bound to accompany his or her client at the probation office. Often, little purpose would be served by the presence of counsel at a presentence interview and a conscientious defense attorney would not necessarily feel obliged to attend to protect his client's interests. After guilt is no longer in issue, the inquiry is into defendant's background, present situation and attitude. At the hearing, the report of information given by the defendant is subject to disclosure and defense counsel can make objections and present evidence and additional statements by defendant. Given these procedural opportunities, rarely would there be risk of irremediable harm from the absence of counsel at the presentence interview. Yet, circumstances are conceivable where the presence of counsel would be helpful. We do not hold that the presence of counsel is required at every presentence interview or that his absence would constitute ineffective assistance of counsel. Rather, we hold only that Article I, section 11, and the Sixth Amendment require that counsel may not be barred from attendance at a presentence interview. Defendant's contentions under the self-incrimination provisions of Article I, section 12, and the Fifth Amendment, if material at all, are premature. Other than ORS 137.100, discussed below, we find no legal authority for a judge or probation officer to compel an unwilling defendant to make statements in the course of the sentencing process, whether in or out of court. Nor may he be compelled to submit to psychological interviews. No issue of compelled self-incrimination arises because there is no statutory or other authority to compel defendant to provide any information, regardless of whether it is incriminatory.[2] If a defendant offers himself or is called as a witness in mitigation or aggravation pursuant to ORS 137.100, see n. 1, he would then be subject to compulsion to testify generally and a question of compelled self-incrimination might arise. At that time some issue of the post-conviction scope of the privilege would be presented, but this case presents no such issue. The decisive factor in any presentence setting is not the official capacity or profession of the presentence investigator or the setting in which the inquiry is made, but rather the willingness of the defendant to provide information. A defendant with counsel may be expected to know that a purpose of a presentence investigation is to assist the court in determining whether a convicted defendant is more likely to respond to probation or incarceration and to what extent. State v. Scott, 237 Or. 390, 399-400, 390 P.2d 328 (1968). Indeed, ORS 137.530, although it allows exceptions, directs that "no defendant shall be placed on probation" until a presentence report is considered. Thus, the decision whether to cooperate by providing the court with desired information is likely to be motivated by knowledge of the practical consequences: if one wishes leniency, he is likely to cooperate in the presentence investigation. If a defendant declines to cooperate, or if his attorney injects himself in a way which reduces the effectiveness of the inquiry or examination, then the defendant subjects himself to sentencing based on less complete information and the direction of ORS 137.530 becomes applicable. With the assistance of counsel, a defendant can decide advisedly and voluntarily whether it is in his best interests to submit to interviews and examinations and, if so, whether with or without his attorney in attendance. In this case, for example, if defendant declines to cooperate or if the defendant's attorney attends and his service interferes with the ability of the psychologist to conduct an effective, complete psychological examination, then the judge may be required to impose sentence upon a noncooperative defendant based on the other information *908 before the court which, according to the petition, is: In such cases as this, defendants and defense counsel are not likely to find it in their self-interest to impede the process. Were that counsel's intention, he would more discreetly advise his client not to submit to examination at all. For these reasons, we expect the practical effects of our holding to be negligible in most cases, but helpful to the fact-gathering process or to the protection of the clients' rights in the exceptional cases where defense attorneys deem it advisable to attend presentence investigations or to witness psychological examinations. It is hard to anticipate why a defense attorney would wish to attend a presentence interview or examination or what professional service he could perform if present. Cf., United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Here, consistent with the trial judge's observations, the petition alleges a need for the attorney to provide what is essentially moral support rather than legal service. Nevertheless, we hold that counsel cannot be barred and the trial court had no authority to do so. Peremptory writ issued. LENT, J., filed a concurring opinion in which LINDE, J., joined. PETERSON and CAMPBELL, JJ., filed dissenting opinions. LENT, Justice, concurring. I concur in the result. I concur in the opinion of the court by Justice Tanzer that Article I, section 11, of the Oregon Constitution precludes the trial judge from barring attendance of this defendant's counsel at the presentence interview.[1] I see no reason to rest our decision upon the Sixth Amendment to the United States Constitution; therefore, I do not join in that part of Justice Tanzer's opinion. The Sixth Amendment is not by its terms applicable to the states. It is applicable only so far as its protection is necessary under the Fourteenth Amendment to the United States Constitution to ensure that a defendant not be deprived by the state of his "life, liberty, or property, without due process of law." This defendant asserts that he has a right to have counsel present by reason of the terms of the Oregon Constitution. The majority of this court agrees and will enforce that right. Where, therefore, can there be any cognizable claim that the state is depriving him of life, liberty or property without due process? That claim has become irrelevant because the state is affording him due process under state law. There is no need, in either logic or law, to reach his Sixth Amendment contention. For this reason, also, the dissent's argument that the presentence interview is not a "critical stage" in the criminal prosecution does not affect the result. That phrase refers only to the court's discussion of the federal Sixth Amendment precedents. The right of an accused under Article I, section 11, to be heard by himself or counsel, on which the court's decision rests, is guaranteed in "all criminal prosecutions," not limited to "critical stages" of such prosecutions. LINDE, J., joins in this opinion. PETERSON, Justice, dissenting. A majority of this court holds that Article I, section 11, of the Oregon Constitution *909 guarantees that defense counsel cannot be barred from attendance at a presentence interview and a plurality would reach the same result under the Sixth Amendment to the United States Constitution. I disagree with both conclusions. The majority holds that the presentence investigation "is a part of the sentencing procedure," and that "just as a sentencing hearing to determine a defendant's future liberty is a stage of a prosecution at which the assistance of counsel cannot be denied, so is a presentence interview." 293 Or. at 317, 647 P.2d at 906. The presentence interview may be the functional equivalent of a portion of the information-gathering process formerly conducted by the court during the sentencing hearing itself. However, a distinction should be drawn between the presentence interview and the sentencing hearing for purposes of extending to the defendant the right to have a lawyer present. Gebhart v. Gladden, 243 Or. 145, 148-149, 412 P.2d 29 (1966), describes the rationale underlying the right to counsel at a sentencing hearing as follows (quoting from Martin v. United States, 182 F.2d 225 (5th Cir.1950): As will be seen below, the reasons why assistance of counsel is required at sentencing do not exist at the presentence interview. The majority opinion never expresses any satisfactory reason why it is necessary that an attorney be present. On the contrary, the majority finds it "hard to anticipate why a defense attorney would wish to attend" (other than for "moral support" in this case) (293 Or. at 320, 647 P.2d at 908), states that "[o]ften, little purpose would be served by the presence of counsel at a presentence interview" (293 Or. at 317, 647 P.2d at 907), and merely concludes that "circumstances are conceivable where the presence of counsel would be helpful" (293 Or. at 318, 647 P.2d at 907). For centuries, the central concept of punishment was retributive: an eye-for-an-eye and a tooth-for-a-tooth. But as early as 1859, Article I, section 15, of the Oregon Constitution provided that "Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice." The 19th century saw the beginnings of individualized sentencing, and the 20th century has seen the advent of an enlightened diagnostic process popularly referred to as the presentence investigation. The first Oregon statute providing for presentence reports was passed in 1931, Or. Laws ch. 396, section 2, now ORS 137.530. Present Oregon statutes concerning presentence reports, their preparation and use, are found in ORS chapters 137 and 144. ORS 144.790 requires the Corrections Division to furnish a presentence report to the sentencing court whenever any person is convicted of a felony. The statute requires that the reports "* * * contain recommendations with respect to the sentencing of the defendant, including incarceration or alternatives to incarceration whenever the Corrections Division officer preparing the report believes such an alternative to be appropriate. All recommendations shall be for the *910 information of the court and shall not limit the sentencing authority of the court." ORS 137.079 requires that copies of the report and all other written information considered by the court in imposing sentence be made available to the district attorney and the defendant or his counsel a reasonable time prior to sentencing. ORS 137.530 provides: ORS 137.077 specifically provides that the presentence report is not a public record and shall be available only to the sentencing court, the Corrections Division and related agencies, appellate or review courts, the district attorney and the defendant or the defendant's counsel. Although a presentence report is required in all felony cases (unless the defendant requests otherwise and the court and prosecutor concur, ORS 144.795), there is no statutory requirement that such a report include a personal interview with the defendant. Except where a statute provides a mandatory penalty, the sentence imposed by the court usually involves the exercise of judgment by the sentencing judge. This statement from State v. Scott, 237 Or. 390, 399-400, 390 P.2d 328 (1964), is apposite: In Buchea v. Sullivan, 262 Or. 222, 228, 497 P.2d 1169 (1972), we stated: *911 The presentence interview is not conducted by a police officer. In many cases, the interviewer would be the defendant's probation officer, should the defendant be placed on probation. The examination is not prosecutorial in nature; rather, the aim is to obtain as much information as possible relevant to the imposition of an appropriate sentence. The interview is not initiated by the prosecution, nor is the interview adversarial. It is generally conducted with neither the defendant's attorney nor the prosecuting attorney present. It is not police-initiated custodial interrogation in the sense of the interrogation in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).[2] In summary, the presentence interview is made with the best interests of the defendant in mind, often in a noncustodial environment, with rehabilitation an important objective, and in an atmosphere which is neither prosecutorial nor adversarial. Article I, section 11, of the Oregon Constitution, reduced to its simplest terms, guarantees that "in all criminal prosecutions the accused shall have the right * * * to be heard by himself and counsel * * *.[3] Article I, section 11, was taken from essentially identical provisions in Article I, section 13, of the Indiana Constitution of 1851, and was adopted without amendment or discussion. C. Carey, A History of the Oregon Constitution 120, 402, 468 (1926).[4] *912 The right to counsel in the United States was not derived from English common law. On the contrary, the right to counsel as known in the United States arose as a reaction to perceived inadequacies in the English criminal law system. Under that system a person charged with a felony was denied the aid of counsel at trial, except with regard to legal questions, even though persons accused of misdemeanors and parties in civil cases were entitled to the full assistance of counsel. The English policy was rationalized by the maxim that "the judge was counsel for the prisoners." Although the policy was subject to vigorous criticism, the rule remained unchanged by Parliament until 1836.[5]See 4 Blackstone Commentaries 354-356; United States v. Ash, 413 U.S. 300, 306-310, 93 S. Ct. 2568, 2572-2574, 37 L. Ed. 2d 619 (1973); Powell v. Alabama, 287 U.S. 45, 60-61, 53 S. Ct. 55, 60-61, 77 L. Ed. 158 (1932). R. Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 720 (1976). An express grant of a right to counsel first appeared in the prerevolutionary Massachusetts Body of Liberties. 1 Schwartz, The Bill of Rights: A Documentary History 69 (1971). It provided: *913 The English rule was rejected by at least 12 of the original 13 colonies,[7]United States v. Ash, supra, 413 U.S. at 306-307, 93 S. Ct. at 2572; Powell v. Alabama, supra, 287 U.S. at 62-65, 53 S. Ct. at 61-62, although the scope of the colonial right to counsel, as granted by charter or statute or as allowed in practice, differed in various colonies.[8] A vivid example of the role of counsel in one colonial trial is presented by the 1735 seditious libel trial of the printer, Peter Zenger, in New York.[9] Two respected attorneys appeared on the defendant's behalf after his arrest, demanded reasonable bail, and filed objections to the commission of the court's two justices. In response, the court held the two attorneys in contempt and disbarred them, apparently deliberately, to remove from Zenger's defense "the most brilliant attorneys in the Province and the ones most likely to success." J. Marke, Vignettes of Legal History, 232 (1965). The court then appointed an attorney of its choice to defend Zenger. The appointed attorney entered a plea of not guilty on Zenger's behalf. However, Zenger's supporters *914 secretly retained a prominent Philadelphia lawyer, Andrew Hamilton, who appeared at trial and was grudgingly permitted to conduct Zenger's defense. Hamilton and the prosecutor engaged in vigorous legal argument before the court and the jury and Hamilton addressed the jury at length in summation. Zenger was acquitted. The details of this prerevolutionary trial demonstrate that even in a colony in which the right to counsel was not expressly guaranteed, the defense attorney played a significant role in the trial with respect to the technicalities of the law. James Madison, in drafting the Bill of Rights for recommendation to Congress, considered some 210 different amendments which had been proposed by the ratifying conventions of eight states. 2 Schwartz, supra at 983, 1167.[10] He did not use the "right to be heard by * * * counsel" language that was later included in the Oregon constitution, Id. at 1027, although such language was proposed by the minority in Pennsylvania. Our research has not disclosed any reason for Madison's choice of words and it appears that there was no congressional debate of the substance of the provision. It is clear, however, that the phraseology ultimately adopted by the drafters of the Oregon Constitution in 1859 ("to be heard by himself and counsel") predated the 1789 language of the federal bill of rights (the right "to the Assistance of Counsel for his defence") by some 13 years, and there is no historical basis for interpreting the "right to counsel" provisions of the two constitutions differently. It is apparent that the colonists, in guaranteeing the "right to be heard by counsel," contemplated the assistance of counsel in adversarial stages of criminal proceedings including the presentation of evidence, examination of witnesses and the presentation of legal objections, motions, and arguments to the judge and jury as to the law and the facts. I have found nothing in state or federal constitutional history that leads to the conclusion that the right "to be heard * * * by counsel" guaranteed by Article 1, section 11, of the Oregon constitution, and the defendant's right "to the Assistance of Counsel for his defence," guaranteed by the Sixth Amendment to the United States Constitution, were designed to achieve any other result. This court has held that the right to counsel in certain pretrial stages is an extension of a defendant's right to representation by counsel in court. State v. Newton, 291 Or. 788, 802, 636 P.2d 393 (1981). Both constitutions refer to the right to counsel "in all criminal prosecutions." The term "criminal prosecution" is not limited to the trial itself, but has been recognized in Oregon decisions as including a number of other procedures such as: arraignment, Miller v. Gladden, 249 Or. 51, 54, 437 P.2d 119 (1968); appeal, Richardson v. Williard, 241 Or. 376, 378, 406 P.2d 156 (1965); preliminary hearing, see State v. Clark, 291 Or. 231, 234, 630 P.2d 810 (1981); post-indictment lineup, see State v. Meyers, 24 Or. *915 App. 561, 564, 546 P.2d 771 (1976); and sentencing and probation revocation, Perry v. Williard, 247 Or. 145, 149, 427 P.2d 1020 (1967); Gebhart v. Gladden, 243 Or. 145, 150, 412 P.2d 29 (1966); all being situations in which an unaided layperson often lacks the training, education and skill to cope with procedures which are at times intricate. The point is that the right to counsel exists, not only in the formal trial stage of a criminal prosecution, but also in situations which present the same dangers that gave birth to the right itself. United States v. Ash, 413 U.S. 300, 311, 93 S. Ct. 2568, 2574, 37 L. Ed. 2d 619 (1973). Underlying all of these decisions and rules is the premise that the accused is entitled to the assistance of counsel in meeting the claims of the prosecution where, without the assistance of counsel, the defendant might be prejudiced in his or her defense. All of the situations in which the right to counsel has been upheld in this state involved trial-like situations in which there has been a confrontation between the prosecutor and the defendant. The confrontation may begin as early as the arraignment stage and it continues through the sentencing stage. But that does not mean that, at every intermediate step of the way, the defendant must be afforded the right to have counsel present. In a nonconfrontive situation such as a photographic (a "throwdown") display, the Supreme Court of the United States has held that cross-examination at trial is adequate protection under the federal counterpart to our Article I, section 11. United States v. Ash, supra, 413 U.S. at 313-314, 93 S. Ct. at 2575-2576. A presentence interview is neither adversarial, confrontive, nor a part of a "criminal prosecution," as that term is used in Article I, section 11. Whether the term "criminal prosecution" be viewed through the eyes of one of the framers of the constitution or through the eyes of a knowledgeable person in 1982, the presentence interview is not prosecutorial in nature. In such a situation, Article I, section 11, does not require that defendant be given counsel. Guilt is no longer an issue. The need to be heard by counsel is not there present, for the defendant has a constitutional right to be heard by counsel at the hearing at which the report is considered. ORS 137.079 requires that defendant or his attorney have access to the report "a reasonable time before the sentencing." These procedures are sufficient to protect the defendant's rights under Article I, section 11. There is no risk of irremediable harm from the absence of counsel at the presentence interview. I also disagree with the plurality's conclusion that to bar defendant's lawyer from the presentence interview would contravene the provisions of the Sixth Amendment of the Constitution of the United States. The plurality opinion's Sixth Amendment analysis appears to be: A defendant has the right to the assistance of counsel at all "post-indictment out-of-court critical stages, where, without the assistance of counsel, the legal interests of the defendant might be prejudiced" 293 Or. at 315, 647 P.2d at 905. Sentencing "is a critical stage of a criminal prosecution at which a defendant is guaranteed counsel," 293 Or. at 315, 647 P.2d at 905, and that "just as a sentencing hearing to determine a defendant's future liberty is a stage of a prosecution at which the assistance of counsel cannot be denied, so is a presentence interview," 293 Or. at 317, 647 P.2d at 906. Therefore, the Sixth Amendment (and the Oregon Constitution) "require that counsel may not be barred from attendance at a presentence interview." 293 Or. at 318, 647 P.2d at 907. It is not altogether clear whether the plurality bases its Sixth Amendment conclusion on the premise that the presentence interview is an "out-of-court critical stage" or on the premise that the presentence interview is a "court proceeding." The stated conclusion is that the presentence interview is a "stage of a prosecution." I am convinced that the Supreme Court of the United States would not hold that the defendant's Sixth Amendment rights have been violated in this case. The cases in which the right to counsel has been held to exist involve proceedings which were adversarial or confrontive in nature, or situations *916 involving obtaining evidence from the witness's lips for use at trial.[11] The Supreme Court's Sixth Amendment holdings are based, at least in part, upon the need for counsel to protect the defendant from the prejudice that "* * * an unaided layman [with] little skill in arguing the law or in coping with an intricate procedural system [would encounter in the absence of counsel]." United States v. Ash, 413 U.S. 300, 307, 93 S. Ct. 2568, 2572, 37 L. Ed. 2d 619 (1973). The right has been extended to various out-of-court events that are appropriately considered to be "critical" stages of a criminal prosecution because the absence of counsel, in such situations, presents danger of substantial irremediable prejudice. The function of the lawyer in such situations "has remained essentially the same as his function at trial." Ash, supra, 413 U.S. at 312, 93 S. Ct. at 2575. One such out-of-court event is a court-ordered pretrial psychiatric interview. Most courts hold that a defendant is not entitled to have counsel present at a court-ordered pretrial psychiatric interview, which the defendant must attend, or lose the right to assert a defense of lack of mental capacity. See United States v. Baird, 414 F.2d 700, 711 (2d Cir.1969); United States v. Bohle, 445 F.2d 54, 67 (7th Cir.1971). Compare, United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir.1976).[12] I perceive a greater need for the assistance of counsel in such a situation; more than in the present case. When the majority's conclusion is examined in light of only the words of the majority opinion itself, it is apparent that the conclusion results from intuition, not deduction. To illustrate my point, I quote from an authority with which the majority cannot but agree its own opinion: These statements point to the conclusion that there is no pressing need for the attendance of counsel at a presentence interview and that the question is better left to the discretion of the trial judge in a particular case, not as a matter of constitutional *917 right in every criminal case. See the dissenting opinion of Campbell, J., 293 Or. at 339, 647 P.2d at 919. The majority's strangest utterances are those which, after having created the constitutional right to assistance of counsel at the interview, then depreciate the need for its exercise. It is stated that "little purpose would be served by the presence of counsel at a presentence interview," that "a conscientious defense attorney would not necessarily feel obliged to attend to protect his client's interests," that "guilt is no longer in issue," that "we expect the practical effects of our holding to be negligible in most cases" (293 Or. at 317-18, 320, 647 P.2d at 907, 908). If the right exists, it will be exercised by many, perhaps most defendants, and their attorneys, out of caution or self interest, and the right would have to be intelligently and competently waived. Schram v. Cupp, 425 F.2d 612 (9th Cir.1970); Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). My research has found no decision of any court, state or federal, involving a claim of a deprivation of a federal or state constitutional right for failure to allow counsel to attend a presentence interview. While the absence of precedent is, by itself, neither dispositive nor even strongly suggestive of the proper result, the absence of such claims suggests that abuses are not occurring incident to presentence interviews and that the fears expressed by the defendant in his brief are either without basis or that a proper response can be made incident to the sentencing hearing.[13] This court's opinion heralds a new chapter in state and federal constitutional law, based upon a petition which, according to the majority, "alleges a need for the attorney to provide what is essentially moral support rather than legal service." 293 Or. at 320, 647 P.2d at 907. Although the quantitative defense of accused persons will be increased, I envision no overall qualitative increase in the defense effort, as a result of the court's opinion in this case. CAMPBELL, Justice, dissenting. I would hold that defendants in criminal prosecutions do not have an absolute right under Article I, section 11 of the Oregon Constitution or the Sixth Amendment of the United States Constitution to have a lawyer present at their presentence interviews. I would also note that as a matter of due process the sentencing judge in his sound discretion may be required to allow a defendant in a particular case the right to have his attorney present at the interview. This is not such a case. It is my opinion that the Article I, section 11 and Sixth Amendment problem should be resolved by "weighing or balancing" the competing interests. State ex rel. Ott v. Cushing, 289 Or. 695, 617 P.2d 610 (1980), State ex rel. Johnson v. Richardson, 276 Or. 325, 555 P.2d 202 (1976), Buchea v. Sullivan, 262 Or. 222, 497 P.2d 1169 (1972). The right of the defendant to have an attorney present at the presentence interview must be balanced and weighed against the right of the people to have a prompt, efficient, and reasonable system of preparing presentence reports. The mere fact that the presentence interview takes place after the commencement (arrest or arraignment) of a criminal prosecution and before the conclusion (sentence) does not make it adverse in nature. The district attorney or a deputy of that office is not present. The defendant is not sworn as a witness or cross-examined. A court reporter does not make a record of the interview. The general presentence interview is normally conducted by a probation officer. One of the functions of the interview is to determine if the defendant is a candidate for probation. Subject to certain exceptions the presentence report is made available to the defendant or his counsel. ORS 137.079. The majority at 293 Or. 320, 647 P.2d 907 (1982) says: In effect the majority has held that the defendant has an absolute constitutional right to have counsel present at the presentence interview, but then has gone further to give the Oregon State Bar some "fatherly advice" by saying that the defendant should exercise this right on only rare occasions. It is not certain that the bar will accept this "fatherly advice." In the first place, it is the defendant's right and not the attorney's right. The choice to exercise the right rests only with the defendant. Even so, some lawyers may think that they will be subject to a possible malpractice complaint if they do not attend the presentence interview. Others may perceive that their failure to attend will trigger post-conviction proceedings. The defendant may demand to have his attorney at the interview to "get his money's worth." Many of the attorneys who attend the presentence interview will be excess baggage. The presence of the attorney, or any third person for that matter, will tend to inhibit the interview.[1] The defendant should be given a chance to prove that he or she can handle a one on one interview and thereby show that he or she is a candidate for probation. The probation officer will get a more accurate and complete picture of the defendant at the interview if no third persons are present. *919 Given the opportunity, I would hold that the right of the people to have a prompt, efficient and reasonable procedure for preparing presentence reports outweighs the defendant's right to have an attorney present at the presentence interview. Setting up an interview for three people instead of two necessarily slows down the system. If the presence of an attorney in the vast majority of cases is not necessary, the efficiency of the procedure is reduced the time of the attorney would be better spent elsewhere. If the presence of the attorney inhibits the interview it is unreasonable to employ and pay one for that purpose.[2] The last thing the criminal justice system in Oregon needs is for this court to place upon it an additional burden when the present system, on occasion, sputters, squeaks and groans. I agree that there are certain isolated cases in which the defendant may need an attorney at the presentence interview. For example, where the defendant has been indicted for two interrelated crimes and has been convicted of one and the other is still pending it may be necessary that an attorney be present to make sure that the defendant does not discuss the pending case during the interview. The most reasonable way to handle this problem is to give all defendants, as a matter of due process, the right to petition the sentencing judge for permission to have an attorney to represent them at the presentence interview. The sentencing judge would then, based upon his sound discretion, determine if an attorney was necessary in the individual case. This procedure would follow that set out by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), regarding the necessity of an attorney to represent the defendant at a probation or parole revocation hearing. The Court at page 790, 93 S.Ct. at page 1763, 36 L.Ed.2d at page 666 said: In this particular case the trial judge exercised his discretion and denied the defendant's motion to have his attorney present at the presentence interview. The judge in making his ruling said: I would hold that the trial judge did not abuse his discretion. A further reason for denying the defendant's petition is that mandamus will not lie to control judicial *920 discretion. State ex rel. Ricco v. Biggs, 198 Or. 413, 255 P.2d 1055 (1953). For these reasons I dissent. [*] Tongue, J., retired February 7, 1982. [1] ORS 137.080: "After a plea or verdict of guilty, or after a verdict against the defendant on a plea of former conviction or acquittal, in a case where a discretion is conferred upon the court as to the extent of the punishment to be inflicted, the court, upon the suggestion of either party that there are circumstances which may be properly considered in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time and upon such notice to the adverse party as it may direct." ORS 137.090: "The circumstances which are alleged to justify aggravation or mitigation of the punishment shall be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken out of court at such time and place, and upon such notice to the adverse party, and before such person authorized to take depositions, as the court directs. The court may consider the report of presentence investigation conducted by probation officers pursuant to ORS 137.530 or any other person designated by the court." ORS 137.100: "If the defendant consents thereto, he may be examined as a witness in relation to the circumstances which are alleged to justify aggravation or mitigation of the punishment; but if he gives his testimony at his own request, then he must submit to be examined generally by the adverse party." [2] A presentence investigation differs in this respect from a compulsory psychiatric examination under ORS 161.315 for evidence of mental disease or defect. Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968), and its progeny have no application to this case. [1] Because I conclude that the defendant must prevail under Article I, section 11, of the Oregon Constitution, I would not consider it necessary to reach his claims concerning self-incrimination, fundamental fairness and abuse of discretion. [1] A commentary on presentence procedures in federal courts describes the function of the reports in the sentencing process as follows: "The development of sentencing procedures, including the presentence report, is intimately connected with the rehabilitative model of sentencing * * *. It [the rehabilitative sentencing model] is premised on the assumption that a sentencing judge, armed with an intimate knowledge of the offender's character and background and aided by scientific and clinical evaluations, can determine an appropriate sentence and treatment program that will rehabilitate the offender. Under this model, the sentencing judge seeks to define the offender's exact personality and social situation, and then prescribes an `individualized' sentence and treatment program. Because rehabilitation is the primary objective, the sentencing judge theoretically is less concerned with deterring future crime or achieving retribution for society. "Individualized sentencing based on the rehabilitative model involves three related premises in the American criminal justice system. First, a sentencing judge has broad discretion to select a sentence. He may sentence the defendant to a fixed or indeterminate period of imprisonment or commitment, a period of probation, a suspended sentence, a fine, or some combination of these. The judge's decision, if within statutory limits, is generally unreviewable. Second, a sentencing judge must have complete information about every aspect of the offender's life in order to make an accurate diagnosis and choose an effective sentence. Third, the sentencing decision is made in a quasi-administrative setting that is virtually free of trial-like procedural safeguards." (Footnotes omitted.) S. Fennell and W. Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv.L.Rev. 1613, 1621-1622 (1980). [2] Presentence reports are prepared and used after conviction incident to the imposition of sentence. Concerning the use of information incident to sentencing, Mr. Justice Black, speaking for the court in Williams v. New York, 337 U.S. 241, 246-251, 69 S. Ct. 1079, 1082-1085, 93 L. Ed. 1137 (1949), observed that the rules applicable to the adversarial phases of a criminal prosecution do not necessarily apply in a sentencing hearing. The opinion states: "* * * A sentencing judge * * * is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant if not essential to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial." "* * *. "* * * And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues." Compare this descriptive language from a more recent case, addressing the role of an analogous figure, the parole officer: "The parole officer's attitude toward these decisions reflects the rehabilitative rather than punitive focus * * *." Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973). [3] The Sixth Amendment provides that "in all criminal prosecutions the accused shall * * * have the Assistance of Counsel for his defense." [4] The 1851 Indiana constitutional provisions were derived from Article 13 of the Indiana constitution of 1816 ("That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel * * * and shall not be compelled to give evidence against himself"), which were adopted nearly verbatim from the Ohio constitution and received little or no discussion before adoption. R. Twomley, The Indiana Bill of Rights, 20 Ind.L.J. 211-212 (1945); 7 Swindler, Sources and Documents of United States Constitutions 554 (1978). A thorough history and analysis of the "right to be heard by himself" clause of Article I, section 11, is contained in the concurring opinion of Lent, J., in State v. Douglas, 292 Or. 516, 527-536, 641 P.2d 561 (1982). [5] This limitation on the right to counsel was described and criticized by Blackstone as follows: "When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, examined, and enforced by the counsel for the crown, or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. * * * And the judges themselves are so sensible of this defect, that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact: for as to matters of law, arising on the trial, they are entitled to the assistance of counsel. * * *. "* * *. "Upon the trial of issues which do not turn upon the question of guilty or not guilty, but upon collateral facts, prisoners under a capital charge, whether for treason or felony, always were entitled to the full assistance of counsel. * * * It is very extraordinary that the law of England should have denied the assistance of counsel, when it is wanted most, viz. to defend the life, the honor, and all the property of an individual. It is the extension of that maxim of natural equity, that every one shall be heard in his own cause, that warrants the admission of hired advocates in courts of justice; for there is much greater inequality in the powers of explanation and persuasion in the natural state of the human mind, than when it is improved by education and experience." 4 Blackstone's Commentaries 355-367. (Footnotes omitted; emphasis in original.) See also, F. Rackow, The Right to Counsel: English and American Precedents, Wm. & Mary Qtly., 3d Ser., XI, 3-12 (1954). [6] The Massachusetts Body of Liberties served as a model for the 1683 New York Charter of Liberties and the 1701 Pennsylvania Charter of Privileges. Note that the New York Charter of Liberties contained no provision concerning the defendant's right to counsel. Also note that an early Pennsylvania document, the 1682 "Pennsylvania Frame of Government and Laws Agreed Upon in England &c" provided, as one of the "Laws Agreed Upon in England," that "in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves, or, if unable, by their friends." (Emphasis added.) 1 Schwartz, The Bill of Rights: A Documentary History 51, 162 et seq. (1971). It is significant that the Pennsylvania document was authored by William Penn, who was himself subjected to a political trial in England, which was conducted without defense counsel or witnesses (although Penn and his co-defendant were allowed to freely speak, although not under oath). The future Pennsylvania colonists were concerned, even prior to leaving England, with the need to have another plead one's cause before the court, as incident to the right to "appear" on one's own behalf. The Frame of Government of 1682 was repealed and replaced by the Charter of Privileges of 1701, also associated with William Penn, which provided, in Article V, that "all criminals shall have the same privileges of Witnesses and Council as their Prosecutors." B. Schwartz, The Great Rights of Mankind 49 (1977). [7] An express provision for the right to counsel appeared in the following revolutionary constitutions (which were adopted by the people, through elected conventions, to replace colonial charters): Pennsylvania Declaration of Rights, Art. IX (1776) ("That in all prosecutions for criminal offenses, a man hath a right to be heard by himself and his council"); Delaware Declaration of Rights § 14 (1776) ("That in all prosecutions for criminal offences, every man hath the right * * * to be allowed counsel"); Maryland Declaration of Rights, Art. XIX (1776) ("That, in all criminal prosecutions, every man hath a right * * * to be allowed counsel"); New York Constitution, Art. XXXIV (1777) ("that in every trial on impeachment, or indictment for crimes or misdemeanors, the party impeached or indicted shall be allowed counsel"); Vermont Declaration of Rights § X (1777) ("That in all prosecutions for criminal offences, a man hath a right to be heard, by himself and his counsel"); Massachusetts Declaration of Rights, Part I, Art. § XII (1780), New Hampshire Bill of Rights, Art. XV (1784) ("And every subject shall have a right to produce all proofs, that may be favorable to him, * * * and to be fully heard in his defence by himself, or his council, at his election"). R. Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 713, 729-730 (1976); 1 Schwartz, The Bill of Rights: A Documentary History 231-375 (1971). The right to counsel was also granted by later constitutions and statutes which predated the federal bill of rights. See Powell v. Alabama, supra, 287 U.S. at 61-65, 53 S.Ct. at 61-62; State v. Douglas, 292 Or. 516, 527-528, 641 P.2d 561 (1982) (Lent, J., concurring); F. Rackow, The Right to Counsel: English and American Precedents, Wm & Mary Qtly., 3d Ser., XI, 12-20 (1954). [8] For example, New York and Rhode Island counsel could only address points of law. In Massachusetts, as noted above, the exercise of the right was only limited to one who found himself "unfit to plead his owne cause." Clinton, supra at 723-724. The limited right to counsel afforded a criminal defendant in colonial New York was described as follows: "* * * [I]n this field few forensic battles were fought, chiefly because counsel was only occasionally employed in criminal cases. Attorneys appeared for defendants in Dongan's time, but it is apparent from the sources that the restrictions of English law respecting the right to counsel were followed. That is to say, only on points of law could counsel appear in felony cases, and there is no evidence that the colonial judges indulged prisoners beyond this limit as sometimes occurred in England. In misdemeanor cases, the liberty of defendant to be represented at all stages of the proceedings was respected, and in the provincial court minutes are numerous instances where counsel made appearances, entered pleas, argued motions and the like." J. Goebel, Jr. & T. Naughten, Law Enforcement in Colonial New York 573-574 (1944). (Footnotes omitted.) Rhode Island, in its code of 1647, provided that: "* * * [I]t shall be the lawful privilege of any person that is indicted, to procure an attorney to plead any poynt of law that may make for the clearing of his innocencye." L. Levy, Origins of The Fifth Amendment: The Right Against Self-Incrimination 356 (1968). [9] The case is often cited as the case establishing the proposition that truth is a defense to libel. The trial is described in detail by Julius Marke in Vignettes of Legal History, 224-240 (1965), and by Irving Brant in The Bill of Rights, 175-182 (1965). [10] The ratifying conventions of eight states officially or unofficially proposed bills of rights as amendments to the federal constitution. 2 Schwartz, supra at 983 (1971). Three states included an express "right to counsel" in their proposed amendments. The first was Pennsylvania, where the minority issued an "Address and Reasons of Dissent," which was widely disseminated and which sought to grant the defendant "in all capital and criminal prosecutions * * * a right * * * to be heard by himself and his counsel." Id. at 627, 658. Virginia and North Carolina proposed bills of rights which would grant a criminal defendant the right "to be allowed counsel in his favor." Id. at 841, 967. The New York convention included the following provision as part of the official declaration of rights: "That in all Criminal Prosecutions, the Accused ought to * * * have the means of producing his Witnesses and the assistance of Council for his defense." Id. at 911-918. [11] The Supreme Court, in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), held that the right to the assistance of counsel is a fundamental right, essential to a fair trial. Consistent with Gideon, the Supreme Court has held that the defendant has a right to counsel at sentencing on a guilty plea, Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948); at a probation revocation hearing, Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); at an arraignment, Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961); at a preliminary hearing, Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), and at a lineup, U.S. v. Wade, 388 U.S. 218, 230-231, 87 S. Ct. 1926, 1933-1934, 18 L. Ed. 2d 114 (1967). [12] Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968); State ex rel. Ott v. Cushing, 289 Or. 695, 617 P.2d 610 (1980), and State ex rel. Ott v. Cushing, 291 Or. 355, 630 P.2d 861 (1981), all involved court-ordered psychiatric pretrial examinations on behalf of the state and in all of those cases the defendant's attorney was permitted by the trial court to attend. [13] The separate dissenting opinion of Campbell, J., points out further practical reasons why no constitutional right to counsel exists in this situation. The most puzzling aspect of the majority opinion is its inability to point to any significant reason why an attorney's attendance is or may be necessary at presentence interviews. The majority opinion may possess logical symmetry (Major premise: A defendant is entitled to attendance of counsel at a sentencing proceeding. Minor premise: The presentence interview is a part of the sentencing proceeding. Conclusion: Therefore a defendant is entitled to the attendance of counsel at a presentence interview), but its conclusion has an Achilles heel an inability to state why its deduction possesses good sense. [1] If the defendant's attorney is the dominant person present at the interview he will be hard pressed to keep from interjecting himself into the discussion. Anyone who has interviewed a 17 year old juvenile with his parents present knows who answers the questions. [2] The authority for talking about such a "vulgar" subject as money is Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), where the United States Supreme Court in considering the defendant's right to have an attorney at a probation or parole revocation hearing said at page 788, 93 S.Ct. at page 1762, 36 L.Ed.2d at page 665: "Certainly, the decisionmaking process will be prolonged, and the financial cost to the State for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review will not be insubstantial."

4f7eda03de926f69535fe3aeaa804285c82b4e888146eeca31c8c1844472e01f

1982-06-30T00:00:00Z

7d916a02-fa4d-417d-941a-7cc9adac0fe2

Richards v. Dahl

289 Or. 737, 618 P.2d 418

oregon

Oregon Supreme Court

618 P.2d 418 (1980) 289 Or. 737 Coral Jean RICHARDS, Petitioner, v. Royal A. DAHL and Winnifred V. Dahl, Husband and Wife, Jack Fawcett and Virginia Fawcett, Husband and Wife, and Warren R. Dahl, Dba Virwin, Respondents. CA 13885; SC 26840. Supreme Court of Oregon. Argued and Submitted June 24, 1980. Decided October 21, 1980. *419 Jossi Davidson, Silverton, argued the cause and filed the briefs for petitioner. Paul J. Lipscomb, Salem, argued the cause for respondents. With him on the brief were Ron P. MacDonald and Blair, MacDonald, Jensen & Lipscomb, Salem. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. DENECKE, Chief Justice. Plaintiff, defendants' tenant, brought this action for damages for the death of her infant son who was killed in a fire in plaintiff's apartment caused by an allegedly defective wall heater in that apartment. The trial court held there was no issue of fact and granted defendants' motion for a summary judgment and entered judgment for defendants. The Court of Appeals affirmed without opinion. 43 Or. App. 691, 604 P.2d 460 (1979). We reverse. We have previously stated that the principles announced in the Restatement of Torts (Second) reflect our views of the law governing the liability of a landlord to a tenant. Lapp v. Rogers, 265 Or. 586, 588, 510 P.2d 551 (1973). Section 358 of the Restatement provides that a landlord is liable if he fails to disclose to his lessee any condition which involves an unreasonable risk of harm if (a) the lessee has no reason to know of the condition or risk and (b) the lessor has reason to know of the condition and should realize the risk involved and has reason to expect that the lessee will not discover the condition or realize the risk. The parties agree that the crucial point in this case is whether there was any evidence that the defendant lessors should have known of any unreasonably dangerous condition. In considering the motion for summary judgment the trial court had the complaint, depositions of the plaintiff, defendant Royal *420 Dahl, and the plaintiff's expert, and the affidavits of plaintiff and of Royal Dahl. From these documents the following facts appear: The heater was located in a recess in the wall. When defendants purchased the apartment building in 1973 the heater was inoperable as a previous landlord had disconnected it in 1963 after having it installed in 1962. Defendant Royal Dahl, who managed the apartment, did not try to use the heater until 1976 when it would not function. Dahl called an electrician who got it operating by replacing a fuse. Later that year it again would not function and the electrician called by Dahl remedied that by closing the circuit breaker. (It is not clear why a fuse was replaced in one instance and a circuit breaker closed in the other.) No cleaning or maintenance was performed on the heater while the defendants owned the apartment. In September 1977 plaintiff and her son moved into the apartment. The fire occurred in November 1977. Prior to the fire plaintiff tried to operate the heater but it would not respond; therefore, she believed it inoperable and moved a dresser to within four inches of the heater. The dresser "overlapped the * * * heater by one half." On the evening of the fire plaintiff put her child down for a nap and went to another apartment to visit. She was gone about 30 minutes when someone yelled "fire." At some time before this, unknown to the plaintiff, the heater was turned on, probably by another tenant putting in another fuse. The fuse box was located outside plaintiff's apartment and was accessible to anyone in the building. The heater caused the wall in which it was located to ignite or it ignited fabric materials in front of or in direct contact with it. The most obvious danger was the presence of the dresser next to the heater; however, the evidence available upon the motion was that this did not cause the fire. Plaintiff alleged that defendants provided her with an unreasonably dangerous heater in that "The heater appeared to be inoperable but could be activated without plaintiff's knowledge either spontaneously or by persons outside of Plaintiff's apartment." Defendants first contend that if the facts alleged were proven, such facts do not create an unreasonably dangerous condition. We conclude there was evidence that the condition created was unreasonably dangerous. No photographs or any detailed testimony about the nature of the heater are in the record. From what is in the record we infer that the device produced heat by electricity being sent through wires which caused them to become red hot. If materials capable of ignition were close to the heater they could catch fire and there is evidence this is what occurred. The materials were either the wall materials or transient materials which came close to or in contact with the heater. When an operable heater is capable of such destruction, a tenant will have to use care in keeping materials capable of ignition from the proximity of the heater and in checking that no such materials are in the vicinity of the heater before leaving a helpless infant alone in the apartment when the heater is operating. If the heater is incapable of operating, these precautions need not be taken. For these reasons we regard providing a heater capable of being put into operation without the knowledge of the plaintiff, who believed the heater incapable of operation, as maintaining a condition which could involve an unreasonable risk of harm. Plaintiff did not know the heater was operable. She did not expressly communicate this belief to defendants. The defendant Royal Dahl testified he did not know that the heater was inoperable; rather, he believed that it could be operated by a thermostat in plaintiff's apartment, and he did not know that plaintiff believed it was inoperable. We are of the opinion that there was an issue of fact whether Royal Dahl should have known that plaintiff believed the heater inoperable. After plaintiff had occupied the apartment Dahl had been in the apartment "on a few occasions." He "was always watching out for a fire hazard, it *421 worried me." He did not deny seeing the dresser, stating "there might have been" one there; he could not recall. In November, placing a wooden dresser four inches from a heater of this kind can certainly create an inference that the person who placed the dresser was unaware that the heater might be placed in operation without the occupant's knowledge. The defendants contended: That the placement of the dresser four inches from the heater could not have caused this particular fire is not relevant to the issue of whether Dahl knew plaintiff believed the heater inoperable. Plaintiff's expert did not state that the placement of the dresser was not an apparent fire hazard; he stated in effect that placing the dresser next to this heater did not cause this particular fire. Defendants also contended in their motion for summary judgment that plaintiff's complaint failed to state a cause of action. A motion for summary judgment is not the appropriate procedure to raise this issue; it should be raised in a responsive pleading or motion to dismiss, ORCP, Rule 21 A. However, as this issue can be raised for the first time as late as on appeal, we will consider defendants' contention. When the issue, however, is not raised by a responsive pleading or a motion to dismiss, it is judged by something more than the allegations of the complaint. In Fulton Ins. Co. v. White Motor Corp., 261 Or. 206, 219, 493 P.2d 138 (1972), the court stated: In Spears v. Huddleston, 265 Or. 168, 508 P.2d 438 (1973), we extended this principle to a situation in which the defendant attacked the sufficiency of the pleading for the first time at the close of the evidence by moving to withdraw the claim made by the pleading from the jury because it failed to state facts constituting a cause of action. We stated: The primary reasoning behind these decisions is that when evidence has been received, *422 that evidence, rather than the allegations of the complaint, should determine whether the party has presented a cause of action. The pleading is a summary or outline of what the party expects to prove. The proof itself, not the summary, should determine whether the party has a cause of action. All the evidence is usually not presented at the motion for summary judgment; however, the moving party must introduce enough evidence to prove there is no genuine issue of any material fact "and that the moving party is entitled to a judgment as a matter of law." ORCP, Rule 47 C. If all the evidence on one material element of the cause of action is favorable to the moving party and there is no issue of fact on this material element, the moving party is "entitled to judgment as a matter of law." Because this is the procedure on motions for summary judgment, whether the plaintiff has stated a cause of action should be decided upon the basis of the evidence considered in passing on the motion, not the allegations of the complaint. We have already decided that there was evidence of all the elements plaintiff must prove to make a cause of action. The trial court erred in entering judgment for defendants. Reversed and remanded. LENT, Justice, concurring. I concur in the majority opinion but wish to add two thoughts not covered therein. My recollection is, and my notes show, that one of the reasons we allowed review in this case was because of a general impression shared by the members of this court that trial courts were overusing summary judgment procedure in disposing of actions for damages for alleged negligence.[1] Given our opinion in Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970),[2] which indicates that this court believes that it is the rare negligence case which should be taken from the jury to hold for either plaintiff or defendant as a matter of law, I believe a trial judge should be just as cautious in disposing of negligence cases by summary judgment without jury intervention as the judge must be at the close of evidence in a jury trial. This court has so held in Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978). Since my recollection is that that belief was shared by other members of the court and served as one of the bases for allowing review, I had hoped that the opinion of the court would address that matter. I write separately, also, to express a caveat. The court notes that in Lapp v. Rogers, 265 Or. 586, 588, 510 P.2d 551 (1973), this court adopted the principles of 2 Restatement (Second) of Torts, § 358. Since that case was decided, the legislature has abolished the "doctrine of implied assumption of the risk." ORS 18.475(2); Or. Laws 1975, ch. 599, § 4. This court is not faced in this case with determining whether § 358 carries with it some of the trappings of implied assumption of risk. If it does, I do not understand that the court, by the reference to that section, intends to diminish the effect of that legislative abolishment by the decision in this case. Compare the back *423 door intrusion of assumption of risk embodied in 2 Restatement (Second) of Torts, §§ 343 and 343A. See Shepler v. Weyerhaeuser Company, 279 Or. 477, 495, 569 P.2d 1040 (1977). I do not at this point take a position that § 358 does introduce the concept of assumption of risk; I merely express the opinion that it is arguable that the section does that. If it does, it seems clear to me that this court could no longer analyze the liability of landlord to tenant under that section. [1] An examination of the record on appeal in this case discloses that the trial judge did not yield to any temptation to dispose of this case in a manner requiring less judicial time than a trial would, for he obviously spent many hours in arriving at decision. [2] We have since indicated the continuing vitality of the policy espoused in Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970), in several decisions: Allen v. Shiroma/Leathers, 266 Or. 567, 514 P.2d 545 (1973); Fred Meyer, Inc. v. Temco Met. Prod., 267 Or. 230, 516 P.2d 80 (1973); Sabolish v. Playland Shows, Inc., 267 Or. 339, 516 P.2d 1271 (1973); Cutsforth v. Kinzua Corp., 267 Or. 423, 517 P.2d 640 (1973); McEwen v. Ortho Pharmaceutical, 270 Or. 375, 528 P.2d 522 (1974); Kirtland v. Davis, 276 Or. 613, 555 P.2d 1262 (1976); Jacobs v. Tidewater Barge Lines, 277 Or. 809, 562 P.2d 545 (1977); Katter v. Jack's Datsun Sales, Inc., 279 Or. 161, 566 P.2d 509 (1977); Thomas v. Inman, 282 Or. 279, 578 P.2d 399 (1978); Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Kirby v. Sonville, 286 Or. 339, 594 P.2d 818 (1979); Welch v. U.S. Bancorp, 286 Or. 673, 596 P.2d 947 (1979); and Arp v. Kerrigan, 287 Or. 73, 597 P.2d 813 (1979). See, also Vetri, "Tort Markings: Chief Justice O'Connell's Contributions to Tort Law," 56 Or.L.Rev. 235, 238 to 242.

077d0faaa2d1b181b229c672210f517da6209b9aab689c500ad71ad30fedae44

1980-10-21T00:00:00Z

d1b052f2-11e0-4db4-b6df-e4e6515fd671

City of Klamath Falls v. Winters

289 Or. 747, 619 P.2d 217

oregon

Oregon Supreme Court

619 P.2d 217 (1980) 289 Or. 747 CITY OF KLAMATH FALLS, Respondent-Petitioner, v. Thomas M. WINTERS and Elena Winters, Appellants-Petitioners. No. 76-259 C; CA 12533; SC 26587, 26611. Supreme Court of Oregon. Argued and Submitted March 3, 1980. Decided October 21, 1980. *219 Richard B. Thierolf, Jr., Klamath Falls, and Rex E.H. Armstrong, Portland, argued the cause for appellants-petitioners. With them on the briefs were Jerry A. Jacobson, Klamath Falls, and Carl R. Neil, Portland. B.J. Matzen, City Atty., Klamath Falls, argued the cause and filed the briefs for respondent-petitioner. Mark E. Pilliod, Deputy City Atty., Beaverton, filed a brief amicus curiae. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. TONGUE, Justice. This is a criminal case involving two defendants, Thomas Winters and his sister, Elena Winters. Both defendants were charged and convicted in the Klamath Falls Municipal Court of disorderly conduct. Thomas Winters was further charged and convicted of resisting arrest. Both charges were based upon violations of Klamath Falls municipal ordinances.[1] Defendants appealed to circuit court where their case was tried de novo pursuant to ORS 221.390.[2] Both defendants requested that the jury be instructed that the defendants had a right to resist the use of excessive force by police officers in making an arrest. That instruction was not given. The circuit court jury returned a verdict of guilty. That court then imposed upon defendant Elena Winters a $53 fine and 10 days in jail with 9 days suspended-the same sentence as had been imposed by the municipal court. Defendant Thomas Winters received a more severe sentence. The municipal court had sentenced him to 15 days in jail with 12 days suspended, and a $53 fine. The circuit court sentenced him to 30 days in jail, with no days suspended, plus a $450 fine on the resisting arrest conviction and a $53 fine on the disorderly conduct conviction. Defendants then appealed to the Court of Appeals, citing as error the circuit court's failure to give the requested jury instructions and the circuit court's imposition of a more severe sentence against defendant Thomas Winters.[3] *220 Respondent, the City of Klamath Falls, moved to dismiss the appeal, contending that ORS 221.350 and 221.360, as interpreted by this court in City of Salem v. Polanski, 202 Or. 504, 276 P.2d 407 (1954), restricts the right of persons convicted in municipal court to a de novo appeal in circuit court and only allows further appeal to the Court of Appeals in "cases involving the constitutionality of the charter provision or ordinance under which the conviction was obtained." (ORS 221.360). Defendants responded by contending that this restricted right of appeal in cases originating in municipal court denied them equal protection of the laws, and that they were also denied equal protection of the laws because the police had unlimited discretion to prosecute them in municipal court, rather than in district court. The Court of Appeals held that ORS 221.360 was unconstitutional as a denial of equal protection of the laws insofar as it imposed such a restriction upon appeals from municipal courts because there exists no corresponding restriction on appeals from district courts and, further, that jurisdiction is granted to the Court of Appeals under ORS 138.040. 42 Or. App. 223, 228-29, 600 P.2d 478 (1979). The Court of Appeals affirmed the circuit court convictions, however, holding that defendants were not entitled to a jury instruction to the effect that a person may use reasonable physical force in resisting allegedly excessive force used by an arresting officer and, further, that the circuit court had properly imposed a more severe sentence on defendant Thomas Winters. 42 Or. App. at 229-30, 600 P.2d 478. Both parties petitioned this court for review of the decision of the Court of Appeals. Defendants' petition contends that: Defendants' petition does not raise the issue regarding the circuit court's imposition of a more severe penalty against defendant *221 Thomas Winters. Defendants did, however, raise this issue during oral argument. The city's petition contends that: Both petitions for review were allowed by this court. Thus, we are requested by the parties to decide four questions: 1. Whether the Court of Appeals had jurisdiction to hear defendants' appeal in view of the limited grant of jurisdiction contained in ORS 221.350 and 221.360; 2. Whether the difference in appeal rights available to defendants prosecuted in municipal court, as compared with those available to defendants prosecuted in district court, or the discretion in the police to prosecute defendants in municipal court, rather than in district court, violated constitutional guarantees of equal protection of the laws; 3. Whether the use of reasonable force to resist the use of excessive force by a police officer in making an arrest could be raised by defendants as a defense to a charge of resisting arrest, and 4. Whether the circuit court could properly impose a more severe sentence following de novo review than had been imposed by the municipal court. As held in McGarger v. Moore, 89 Or. 597, 599, 175 P. 77 (1918), after considering the provisions of § 6 of Article VII (Original) of the Constitution of Oregon and § 2 of Article VII (Amended) of that constitution: To the same effect, see City of Portland v. Duntley, 185 Or. 365, 371, 203 P.2d 640 (1949), and State ex rel. Venn v. Reid, 207 Or. 617, 630-31, 298 P.2d 990 (1956).[4] The question to be decided is whether any statute conferred jurisdiction upon the Court of Appeals to consider the appeal in this case. As previously stated, defendants were convicted in municipal court of violating municipal ordinances. They then appealed to the circuit court per ORS 221.350.[5] This appeal to the circuit court was not an appeal in the usual sense,[6] but was a trial de *222 novo as provided by ORS 221.390.[7] Following their conviction in circuit court, defendants appealed to the Court of Appeals. That appeal was considered by that court on its merits in spite of the provisions of ORS 221.360, which provide: This court held in City of Salem v. Polanski, 202 Or. 504, 276 P.2d 407 (1954), that when, as in this case, defendants do not attack the validity of the underlying city charter provisions or ordinances, then, by reason of the provisions of ORS 221.360, no right of appeal exists beyond the circuit court. The court stated (at 509-10, 276 P.2d 407): As will be subsequently discussed, the Court of Appeals held that ORS 221.360 violated equal protection guarantees The Court of Appeals then held that because defendants had been convicted in circuit court upon a trial de novo, jurisdiction to hear the appeal was conferred by ORS 138.040, which states in part: In other words, the Court of Appeals appears to have reasoned that ORS 138.040 grants a general right of appeal and that ORS 221.360 restricts that right in cases originating in municipal court. Thus, upon holding ORS 221.360 to be invalid as unconstitutional, an appeal was permitted under ORS 138.040. We cannot agree with that interpretation of these statutes. In Portland v. White, 106 Or. 169, 173, 211 P. 798 (1923), this court held that: *223 That opinion further held that because the statute limited appeals to judgments in criminal actions, it did not grant appellate jurisdiction in cases involving municipal ordinance violations. Since 1923 the Oregon legislature has enacted a series of statutes granting appellate jurisdiction in cases involving violations of municipal ordinances. In 1927 the legislature enacted a statute granting a right of appeal from convictions in municipal courts to the circuit court and further to the Supreme Court "in the same manner as other appeals are taken from the circuit court to the Supreme Court in other criminal cases." 1927 Or.L., c. 114, § 1. In 1929 the legislature amended that statute, eliminating the right of any appeal to the Supreme Court. 1929 Or.L., c. 196, § 1. That statute became OCLA § 95-2802 and was amended in 1943 (1943 Or.L., c. 277), in 1947 (1947 Or.L., c. 462), and again in 1949 (1949 Or.L., c. 121). That statute, as amended so as to limit appeals to the Supreme Court to issues involving the constitutionality of city charter provisions or ordinances, was then codified in 1953 as ORS 221.350, 221.360, 221.370 and 221.380. For an extended discussion of these amendments, see City of Salem v. Polanski, supra. In State v. Kingsley, 19 Or. App. 379, 527 P.2d 744 (1974), the Court of Appeals, citing Polanski, held that a person charged and convicted of violating a municipal ordinance in a district court could not appeal to the Court of Appeals. The following year the legislature enacted ORS 46.047 (1975 Or.L., c. 611, § 15) granting a right of appeal to the Court of Appeals in such cases.[9] We also note that the 1979 legislature considered a bill which would have repealed ORS 221.360 and amended ORS 221.350 to grant an unlimited right of appeal to the Court of Appeals in cases originating in municipal courts. That bill (SB 814) was defeated. Defendants contend that in recent years this court has changed its position regarding the characterization of municipal ordinance violations and now regards those violations as "crimes," particularly when, as in this case, a penalty of imprisonment can be imposed. See, e.g., Stevenson v. Holzman, 245 Or. 94, 458 P.2d 414 (1969); Grayson; Heer v. State, 249 Or. 92, 436 P.2d 261 (1968), and State v. Hayes, 245 Or. 179, 184, 421 P.2d 385 (1966). Thus, according to defendants, it would then follow that because the municipal ordinance violations in this case are "crimes," they are included in the grant of jurisdiction to the Court of Appeals under ORS 138.020 and 138.040. Defendants then contend that ORS 221.350 and 221.360 should also be regarded as grants of appellate jurisdiction, rather than restrictions on that jurisdiction. Thus, according to defendants, the legislature has provided two overlapping grants of appellate jurisdiction and a defendant convicted of violating a municipal ordinance is free to take either a limited appeal under ORS 221.360 or an unlimited appeal under what defendants contend to be the grant provided by ORS 138.040. We cannot agree with these contentions. The cited cases dealt with the question whether violations were criminal in nature in the constitutional sense of requiring certain due process protections. They did not purport to give meaning to statutory words beyond that intended by the legislature. In our opinion, it is clear that in cases involving violations of municipal ordinances the legislature has chosen to grant appellate *224 jurisdiction under a statutory scheme that is separate and distinct from that provided by ORS 138.020 and ORS 138.040. For over fifty years the legislature has separately treated appeals in such cases based upon the assumption that these statutes did not apply to appeals from violations of municipal ordinances. For this court to now declare that these statutes provide a grant to the Court of Appeals of appellate jurisdiction over appeals by persons convicted of violating municipal ordinances so as to permit such persons to raise on such appeals issues other than the constitutionality of the charter provision or ordinance involved would be contrary to the obvious intention of the legislature, as evidenced by this long legislative history. As previously stated, however, defendants contend that a denial of jurisdiction over their appeal in this case would result in a violation of their constitutional right to equal protection of the laws. If this be true, it is arguable that the remedy for such a constitutional violation would be to grant defendants a right to appeal in spite of the lack of any specific statutory grant of appellate jurisdiction. Also, if that contention by defendants compels the conclusion that the municipal ordinances under which defendants were prosecuted and convicted are themselves invalid for constitutional reasons, the Court of Appeals would have had jurisdiction under ORS 221.360 to consider that question. For these reasons, we shall proceed to consider these constitutional questions. It is well established that there is no constitutional right to an appeal. Lindsey v. Normet, 405 U.S. 56, 77, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972); State v. Endsley, 214 Or. 537, 539, 331 P.2d 338 (1958). As defendants contend, however, and as stated in Lindsey v. Normet, supra (at 77, 92 S.Ct. at 876): As previously stated, the Court of Appeals held that: The Court of Appeals reached that conclusion by applying a "rational basis test" for legislative classifications. Finding no "rational basis for differentiating between similarly situated defendants' appeal rights," that court concluded that there had been a violation of equal protection of the laws. The city, in its petition for review, contends that "equal protection" does not require identity of treatment and that when the appellate rights in cases originating in municipal court are compared with the appellate rights in cases originating in district court, no equal protection violation exists. We are also reminded by the United States Supreme Court's opinion in San Antonio School District v. Rodriguez, 411 U.S. 1, 24, 93 S. Ct. 1278, 1292, 36 L. Ed. 2d 16 (1973), that "* * * the Equal Protection Clause does not require absolute equality or precisely equal advantage." To the same effect, see e.g., Ross v. Moffitt, 417 U.S. 600, 612, 94 S. Ct. 2437, 2445, 41 L. Ed. 2d 600 (1974), and Douglas v. California, 372 U.S. 353, 367, 83 S. Ct. 814, 821, 9 L. Ed. 2d 811 (1963).[10] *225 As previously stated, in those cities where persons charged with violating municipal ordinances are tried in municipal court, they may take an appeal to the circuit court and obtain de novo review in the form of a new trial. ORS 221.350 and 221.390. In cities where such persons are tried in district court, they may appeal to the Court of Appeals. ORS 46.047. To convicted defendants seeking appeal, there are advantages inherent in each of these systems. Persons convicted in municipal court have the advantage of a complete new trial, including the right to a new jury. Thus, they have the opportunity to seek review not only of legal questions, but they may also seek new factual determinations as well. They also have an advantage resulting from possible use of the trial in municipal court for the purpose of "discovery" and prior to trial de novo in the circuit court. Further appeal to the Court of Appeals, however, is limited to questions of the constitutionality of charter provisions or ordinances. Persons convicted in district court have the advantage of appellate review before a multi-judge court.[11] That review, however, is limited to errors of law appearing on the record (ORS 138.220), and such persons do not have the advantages resulting from a review by trial de novo in the circuit court. It would be difficult to state categorically which system offers greater advantages to defendants. Whether one or the other system is to the advantage of a particular defendant depends on whether his defense rests only on factual contentions or also on legal contentions. Thus, if we were to hold ORS 221.360 to be invalid upon the ground that a defendant convicted in municipal court and circuit court is denied equal protection because he does not have the same right to appeal to the Court of Appeals as granted to a defendant convicted in a district court, a person convicted in a district court could equally contend that he is denied equal protection in that he does not have the same right to review by a trial de novo in circuit court as granted to a defendant convicted in municipal court. Yet, both defendants whose cases originate in municipal court and defendants whose cases originate in district court enjoy advantages on appeal that are not available to the other. For these reasons, it may well be that the differences between the procedures available to a defendant convicted in a municipal court, as compared with those available to a defendant convicted in a district court, do not rise to such a level of "inequality" as to constitute "unequal" protection of the laws. In any event, however, we are of the opinion that ORS 221.360 does not deny equal protection of the laws for other good and sufficient reasons. The Court of Appeals, assuming that these differences were of such a nature and degree so as to constitute "unequal protection," proceeded to test the validity of ORS 221.360 by the use of more traditional equal protection analysis. Defendants contended, and the Court of Appeals held, that these differences were the result of a legislative classification of appellate jurisdiction which must satisfy a "rational basis" test in order *226 to pass equal protection scrutiny. The Court of Appeals held that no "rational basis" existed to justify the classification. As previously noted, there is no constitutional right to an appeal. See State v. Endsley, supra, and Lindsey v. Normet, supra. Therefore, we are not dealing in this case with a classification affecting fundamental rights. It is also clear that this case does not involve classifications that are inherently suspect (such as those based upon race, religion, national origin, etc.). In the absence of fundamental rights or a suspect class, statutory schemes are examined to determine whether they rationally further legitimate objectives of state law. San Antonio School District v. Rodriguez, supra, at 17, 93 S. Ct. at 1288. Stated otherwise, a statutory scheme violates equal protection if it discriminates without any rational basis in terms of the purposes of the act, i.e., affords benefits to some while denying those benefits to others in a manner that is capricious or arbitrary. Renaldi v. Yeager, 384 U.S. 305, 308, 86 S. Ct. 1497, 1499, 16 L. Ed. 2d 577 (1976); Bock v. Bend School Dist. No. 1, 252 Or. 53, 55, 448 P.2d 521 (1968). In our opinion the statutory scheme for appellate review as set forth in ORS 221.360 satisfies the "rational basis" test. By generally limiting review of municipal court convictions to local circuit courts, the legislature has reduced the burdens placed upon the cities and upon the Court of Appeals. Defendants contend that the only purpose served by this differential treatment is "to save the state and cities the cost of this group of appeals," and further, that the U.S. Supreme Court has "rejected costs as a distinguishing factor," citing Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892 (1963); Burns v. Ohio, 360 U.S. 252, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), and cf. Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972). We note, however, that these cases dealt with statutes and rules that prevented indigents from obtaining appellate review in circumstances under which such review was available to persons with means, which is not true in this case. We further note that more recent opinions of the U.S. Supreme Court have recognized that costs and cost-related factors are legitimate distinguishing factors and can support the rationality of legislative classifications. See Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172, 35 L. Ed. 572 (1973), and North v. Russell, 427 U.S. 328, 96 S. Ct. 2709, 49 L. Ed. 2d 534 (1976). We also find a rational basis for ORS 221.360 limiting the appeal rights of persons convicted of municipal violations in cities where such violations are initially triable in municipal courts, while persons charged with municipal violations in certain cities are tried initially in district courts and, pursuant to ORS 46.250, may appeal to the Court of Appeals. To allow those who are initially tried in municipal courts review by the Court of Appeals would be contrary to the previously noted purpose of balancing the costs and burdens of cities and the Court of Appeals. On the other hand, to allow those initially tried in district courts de novo appeals to circuit courts could well impose undue burdens upon counties in that it could well increase costs and add congestion to court dockets. Because those district court defendants should have some right to appeal, a rational solution is to allow review by the Court of Appeals. Thus, in our opinion, Oregon's statutory scheme for appeals is a rational attempt to evenly spread the costs and burdens of appeal throughout different levels of government. In addition, we note that other jurisdictions have considered similar problems and determined that no equal protection problems were presented. In Whittaker v. Superior Court of Shasta County, 68 Cal. 2d 357, 66 Cal. Rptr. 710, 438 P.2d 358 (1968), the California Supreme Court examined the validity of a statutory scheme that established different appeal rights from the county courts of counties with relatively large populations as opposed to those with smaller populations. The fact that appeals in the larger counties were presented to a *227 three-judge superior court panel while appeals in smaller counties were heard by a single superior court judge did not, in the opinion of the court, create an equal protection violation. Other cases holding that different appeal rights pass equal protection scrutiny include Appeal of O'Rourke, 220 N.W.2d 811 (Minn. 1974) (appeal with leave of court only); In re Maricopa County, Juvenile Action No. J-72804, 18 Ariz. App. 560, 504 P.2d 501 (1973) (different procedures provided in juvenile cases as opposed to appeals in adult cases); Saunders v. Reynolds, 214 Va. 697, 204 S.E.2d 421 (1974) (different appeal rights for misdemeanors tried in courts not of record and felonies tried in courts of record). For these reasons, we hold that the Court of Appeals erred in its holding that ORS 221.360 is invalid as a denial of equal protection of the laws. Defendants contend not only that they were denied equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution of the United States, but also that they were discriminated against in a manner contrary to Article I, Section 20 of the Constitution of Oregon, which provides: Thus, defendants contend that other defendants, whose cases are prosecuted in state district courts, are granted an unlimited "privilege" of appeal to the Court of Appeals, a "privilege" denied to them "upon the same terms." We believe, however, that substantially the same analysis applies. It is true that the provisions of Article I, Section 20 of the Oregon Constitution are not identical with those of the Fourteenth Amendment of the Constitution of the United States. Thus, as we said recently in State ex rel. Reed v. Schwab, 287 Or. 411, 417, 600 P.2d 387 (1979) quoting from an earlier opinion by this court: For examples of cases in which the applicability of the two provisions might not be identical, see Linde, Without Due Process, 49 Or.L.Rev. 125, 142-43 (1970). See also Tharalson v. State Dept. of Rev., 281 Or. 9, 15, 573 P.2d 298 (1978). Nevertheless, in the usual case substantially the same analysis is applicable in determining whether there has been a denial of equal protection of the laws or a grant of a privilege or immunity on terms not equally applicable to all citizens. Thus, as held by this court in School Dist. No. 12 v. Wasco County, 270 Or. 622, 628, 529 P.2d 386 (1975): To the same effect, see, e.g., Phillips v. City, 192 Or. 143, 153, 234 P.2d 572 (1951); and Savage v. Martin, 161 Or. 660, 693, 91 P.2d 273 (1939). See also Jarvill v. City of Eugene, 289 Or. 157, 184, 613 P.2d 1 (1980). Indeed, in State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955), relied upon by defendants *228 in challenging the constitutionality of the Klamath Falls ordinance in this case, this court, in considering the problem presented in that case, which has considerable similarity to the problem presented in this case, for reasons stated below, said (at 703, 281 P.2d 698) that: Upon application of such an analysis to the question whether ORS 221.360 grants the "privilege" of an unlimited appeal to the Court of Appeals to defendants prosecuted in district courts for violation of state laws which does not "upon the same terms * * * belong" to these defendants, we are unable to escape the conclusion that these defendants are not denied such a "privilege" as individual persons, but only because they are members of a "class" of persons who are prosecuted in municipal courts for violation of municipal ordinances, as distinct from persons prosecuted in state district courts for violation of state statutes. For reasons previously stated, we have held that such a classification is not unreasonable for purposes of the Equal Protection clause of the Fourteenth Amendment of the Constitution of the United States. For the same reasons, we hold that such a classification or discrimination is not "palpably arbitrary" for purposes of the privileges and immunities clause of Article I, Section 20 of the Constitution of Oregon. Again, see School Dist. No. 12 v. Wasco County, supra, at 628, 529 P.2d 386. As stated in Mallatt v. Luihn et al., 206 Or. 678, 702, 294 P.2d 871 (1956): Defendants also contend that they were denied equal protection of the laws for another reason. Citing State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955), and State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955), defendants contend that the ordinances they were convicted of violating were identical to state criminal statutes covering the same offenses[12] and that the arresting officer *229 "had the option to charge them under either the municipal ordinances or the state statutes." Because a charge under the state statute would have been tried in district court with a right of appeal to the Court of Appeals, defendants contend that "this discretion to accord some individuals a broader right of appeal than others charged with identical offenses violates Article I, Section 20." The record before us and the original briefs presented by the parties in this case do not disclose whether under the ordinances or charter of the City of Klamath Falls the arresting officer, city attorney or any other city official was granted or permitted unlimited discretion to charge defendants with violating either the municipal code or the state criminal statutes. In response to a request by this court for supplemental briefs, however, it is conceded by the city that there is no provision of any ordinance or of the city charter which limits or controls the exercise of such a discretion, although contending that it is the "unwritten policy" of the city and its police department that "an offense against a city ordinance is to be charged into Municipal Court as a municipal offense, unless there exists a companion charge over which the Municipal Court does not have jurisdiction," in which event "both charges would be brought under statutes in state court." In State v. Pirkey, supra, this court reviewed the constitutionality of a statute that provided that the crime of drawing a bank check without sufficient funds in the bank with which to pay the check in full could, in the discretion of the grand jury or magistrate to whom complaint was made, be prosecuted as either a felony or a misdemeanor. In State v. Cory, supra, this court reviewed the constitutionality of a statute that granted to district attorneys, in cases involving non-violent crimes, unlimited discretion to file or not file an information seeking a sentence under Oregon's Habitual Criminal Act. In both cases this court held that the statutes violated equal protection because they constituted an unauthorized delegation of discretionary power. In cases since Pirkey and Cory we have made it clear that the rule of Pirkey is limited to cases in which there is no basis for distinction between the two offenses as described in the two statutes involved in *230 such cases. See State v. Reynolds, 289 Or. 533, 538, 614 P.2d 1158 (1980). It is also important to note that in Pirkey the same conduct that constituted an offense under either statute might be punished more leniently or more severely dependent upon the complete discretion of a prosecutor in initiating a prosecution under one statute, rather than under the other. It was the unbridled power conferred upon the prosecutor to determine what maximum punishment the judge could later impose that was held to be the fatal flaw of the statute in Pirkey. It is also important to note that in both Pirkey and Cory the exercise of discretion presented the potential for significant prejudice to the defendants involved, i.e., greater or lesser punishment, and in both cases the discretion in question was exercised to the detriment of the defendants. In this case, however, both of the municipal ordinances under which defendants were charged carried a maximum penalty of a $505 fine and 60 days imprisonment, whereas the state statutes defendants claim they could have been charged with violating carry maximum penalties of imprisonment for one year and a $1,000 fine in one instance and imprisonment for 6 months and a $500 fine in the other.[13] Thus, defendants may have been ultimately benefited by the decision to prosecute them under the municipal ordinances because the ordinance violations carried lighter penalties than violations of the corresponding state statutes. Defendants contend that the rule of Pirkey is nevertheless applicable and controlling in this case because not only are the offenses described in the ordinances identical with those described in the statute, but defendants prosecuted under the ordinances suffer substantial prejudice in that although they have a right to a trial de novo in circuit court they have no right of appeal to the Court of Appeals for any error committed in the prosecution or trial of this case, as does a person charged with the same offense in violation of the state statute, but that defendants are limited in any such appeal to a challenge of the constitutionality of the ordinance. Regardless of whether any such prejudice is sufficiently comparable to the prejudice suffered by the defendant in Pirkey, we are of the opinion that such a contention must be rejected for another reason. In United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979), the defendant was convicted under 18 U.S.C. § 922(h) of being a felon who received a firearm that had traveled in interstate commerce and was sentenced to the maximum term, five years' imprisonment. The Court of Appeals, noting that the substantive elements of § 922(h) and 18 U.S.C.App. § 1202(a) [18 U.S.C.S.Appx. § 1202(a)] are identical as applied to a convicted felon who unlawfully receives a firearm, held that no more than the two-year maximum sentence provided by § 1202(a) could be imposed upon the defendant, thus applying a rule similar to that applied by this court in Pirkey. 442 U.S. at 116-117, 99 S. Ct. at 2200. The Supreme Court of the United States reversed and held, in a unanimous opinion, that: Of more direct significance for purposes of this case, the Court also stated: In our opinion, the decision by the Supreme Court of the United States in Batchelder is directly contrary to the rule as adopted by this court in Pirkey. It follows, in our opinion, that the Equal Protection clause of the Fourteenth Amendment of the Constitution of the United States can no longer be properly held by this court to be violated in cases in which a prosecutor, grand jury or magistrate has complete discretion to decide whether to charge under one of two statutes (or under a municipal ordinance or a statute) with identical elements even though, depending upon such a choice, the maximum penalty which may be imposed upon conviction is greater under one statute (or ordinance) than under the other. For similar reasons, it also follows, in our opinion, that by reason of the decision in Batchelder, it cannot be properly held by this court that the Equal Protection clause of the Fourteenth Amendment is violated in a case such as this in which the potential prejudice to the defendant is not the possibility of a heavier penalty, but a difference in his right of appeal. As previously stated, there are both advantages and disadvantages to defendants prosecuted under municipal ordinances in municipal courts, as compared to defendants prosecuted under state statutes in district courts, and it would be difficult to state categorically which offers greater advantages to such defendants. In addition, as previously noted, there is no constitutional right of appeal. Thus, no fundamental right is involved so as to require a broad application of the Fourteenth Amendment, and no discrimination on grounds that are inherently suspect, such as race, religion, etc., is charged. See Tribe, Constitutional Law, §§ 16-6, 16-7 (19__). Accordingly, we do not believe that any prejudice to a defendant prosecuted under a municipal ordinance in a municipal court can properly be said to be sufficiently greater or different than the prejudice to the defendant in Pirkey so as to properly hold that the Equal Protection clause of the Fourteenth Amendment is violated in this case, but not in a case such as presented in Pirkey. Defendants also contend that the "privileges and immunities" provision of Article I, Section 20, of the Oregon Constitution is violated in this case. Even assuming, however, that Article I, Section 20, is to be interpreted as conferring rights substantially different or greater than those conferred by the Equal Protection clause of the Fourteenth Amendment, neither the ordinance under which these defendants were prosecuted nor the statute describing the same offense were "laws" which "granted" to any "citizen or class of citizens" any "privileges or immunities" which, upon the same terms, do not "equally belong to all citizens." Defendants do not contend that either that ordinance or that statute is unconstitutional. If any such privileges were "granted" by any "law," they were conferred by ORS 221.360, which provides for differences in the rights of appeal by defendants prosecuted in municipal courts and in state district courts. For reasons previously stated, that statute does not violate Article I, Section 20. As previously stated, defendants also contend that this court should reverse the holding by the Court of Appeals that the circuit court did not err in failing to give an instruction requested by the defendants *232 that they had a right to resist the use of excessive force by police officers and in holding that the circuit court did not err in imposing a more severe jail sentence and fine upon defendant Thomas Winters than that imposed by the municipal court. As also previously noted, however, by reason of ORS 221.360 the Court of Appeals had no jurisdiction to consider those questions. That court did so, however, and these defendants thus have had the benefit of an appeal to the Court of Appeals on those questions. Under these circumstances we decline to review the decision by the Court of Appeals upon those questions.[14] For all of these reasons, the convictions of these defendants are affirmed. Affirmed. LENT, J., dissented and filed opinion. LENT, Justice, dissenting. I dissent from the result reached by the majority. The municipal ordinance and the state statute both describe prohibited conduct in substantially identical terms. The police officer has unfettered discretion in deciding whether to charge one with violating the ordinance or the statute. The decision of the police officer fixes the appellate rights of the person charged, and that decision may well adversely affect the ultimate rights of the person charged. To me this constitutes a violation of the defendants' rights under both the Fourteenth Amendment (Equal Protection Clause) to the United States Constitution and Article I, section 20, of the Oregon Constitution. I would, therefore, reverse the convictions for violation of the ordinance. Defendants have so contended, relying upon our decisions in State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955) and State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955). In Pirkey this court held a statute to violate both constitutional provisions because that statute granted to a grand jury or a magistrate the "unguided and untrammeled" discretion to decide whether to prosecute a defendant for a felony or a misdemeanor for given proscribed conduct. In Cory this court reviewed the constitutionality of a statute that granted to district attorneys, in cases involving non-violent crimes, "unbridled" discretion to file or not to file an information seeking a sentence under Oregon's Habitual Criminal Act. This court held that both the state and federal constitutions' equal protection provisions[1] were violated by the statute and, therefore, struck down the statute. The basis of finding the statute to be unconstitutional was held to be the grant to the district attorney of the right to act according to his "whim and caprice." In the case at bar the same kind of "unguided," "untrammeled" and "unbridled" discretion is granted to a police officer to decide the course of prosecution according to his "whim or caprice." The majority rejects deciding this case under the rule of Pirkey and Cory, however, upon the ground that United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979) has overruled those cases. In that case the prosecutor had discretion as to which felony would be charged. One carried a possibly greater period of incarceration, and the other carried a possibly greater fine. The United States Supreme Court found no denial of constitutional right of the defendant was worked by allowing the prosecutor to choose under which section of the criminal law to proceed. One must wonder, of *233 course, whether the result would be the same had the prosecutor been granted unlimited discretion whether to charge for a felony or a misdemeanor. That was the situation presented in Pirkey but not presented in Batchelder. There is another distinction with respect to Batchelder. The court there said, "[A] decision to proceed under § 922(h) does not empower the Government to predetermine ultimate criminal sanctions." 422 U.S. 125, 99 S. Ct. at 2205. As the court noted, the sentence to be imposed was still preserved for the judge. In the case at bar, the charging police officer has the capacity to predetermine finally and completely defendants' appeal rights. If I assume, however, that as a matter of federal constitutional law the defendants here are not entitled to prevail, that does not answer the question of whether Article I, section 20, of the Oregon Constitution prevents their conviction. I do not perceive how a United States Supreme Court decision as to the effect of the federal constitution upon prosecutorial discretion with respect to federal statutes can overrule the decisions of this court as to the protection accorded by the Oregon Constitution. Especially I find that idea difficult to accept given the fact that Oregon has no constitutional provision using the term "equal protection." Assuming, however, for the sake of argument, that the two constitutions mean exactly the same thing, I find nothing in the majority opinion that convinces me the reasoning of Pirkey and Cory is fallacious. I would interpret Or.Const. Art. I, § 20, as this court did in those cases and reverse the convictions.[2] [1] Resisting arrest-ch. 31, § 15.1 of the Code of the City of Klamath Falls; Disorderly conductch. 31, § 6 of the same code. [2] ORS 221.390 provides: "(1) When any person convicted in a municipal court appeals to the circuit court as provided in ORS 221.350 and 221.360, such person shall be tried in the circuit court pursuant to the statutes which prescribe the procedure for trial of violations of the criminal statutes of the state, except that the prosecution shall be handled by an attorney provided by the city from the municipal court from which the appeal was taken. "* * * "(3) Upon a verdict of guilty the circuit judge may impose any sentence within the limits prescribed by the charter or ordinance for violation of which the conviction was had, and if a fine is imposed, it shall be paid to the county clerk and by him remitted, on or before the 10th day of the following month, to the proper city officer. "(4) This section does not apply where the appeal involves only an issue of constitutionality of the charter or ordinance." [3] Following their conviction in circuit court, defendants instructed their attorney to appeal. Their attorney filed motions for appointment of counsel and for a transcript for an appellant without funds. He also prepared a notice of appeal which he served on the city attorney, district attorney, county clerk and circuit court reporter on November 19, 1976, well within the 30-day period required by ORS 138.071. That attorney, however, neglected to file the notice of appeal with the Court of Appeals. Defendant then petitioned the circuit court for a writ of habeas corpus, contending that they had been denied effective assistance of counsel, and requesting that they be granted a delayed appeal. The circuit court then issued a "judgment" granting the writ as a "delayed appeal." Defendants also filed a petition for post-conviction relief seeking the same remedy. This was not acted upon by the circuit court because the Court of Appeals has held that such relief is not available to persons convicted of violating municipal ordinances. Rutherford v. City of Klamath Falls, 19 Or. App. 103, 526 P.2d 645 (1974). It is clear, however, that habeas corpus is available in such cases. See Stevenson v. Holzman, 254 Or. 94, 458 P.2d 414 (1969). In Shipman v. Gladden, 253 Or. 192, 453 P.2d 921 (1969), this court held, under facts similar to this case, that a defendant who had been denied an appeal because his attorney had failed to timely file a notice of appeal could obtain a "delayed appeal" by filing a petition for post-conviction relief pursuant to ORS 138.510 et seq. Arguably, this case does not apply to the use of habeas corpus to secure a "delayed appeal." We note, however, that the reasoning employed by the court in Shipman would appear to be applicable to a habeas corpus proceeding under ORS 34.310 et seq. First, the court held that an attorney's failure to timely file a notice of appeal constituted incompetence as a matter of law and a denial of due process, thus rendering the conviction void unless an appeal were granted. Because the conviction would be void without an appeal, post-conviction relief was available pursuant to ORS 138.530. 253 Or. 199-203, 453 P.2d 921. This same determination that the conviction would be void will also support a habeas corpus petition. Smallman v. Gladden, 206 Or. 262, 269-70, 291 P.2d 749 (1956). Next, in holding that a delayed appeal was appropriate relief under the Post-Conviction Hearing Act by virtue of ORS 138.520, which permits the grant of "* * * such other relief as may be proper and just," this court said in Shipman (at 204, 453 P.2d 921) that this "conveys the same meaning as ORS 34.670, which directs a habeas corpus court `to dispose of the party as the law and justice of the case may require.'" In any event, respondent has not challenged this grant of a "delayed appeal" by habeas corpus, either before this court or the Court of Appeals, apparently in recognition that our previous decision in Shipman, unless overruled, would require such a result. We agree that Shipman is controlling in this case. [4] § 6 of Article VII (Original) of the Constitution of Oregon provides: "The Supreme Court shall have jurisdiction only to revise the final decisions of the Circuit Courts * * *." § 2 of Article VII (Amended) of that constitution provides: "The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. But the supreme court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings." [5] ORS 221.350 provides: "Whenever any person is convicted in the municipal court of any city of any offense defined and made punishable by any city charter or ordinance, unless the charter of the city prohibits appeals from such court, such person shall have the same right of appeal to the circuit court within whose jurisdiction the city has its legal situs and maintains its seat of city government as now obtains from a conviction from courts of justice of the peace. The appeal shall be taken and perfected in the manner provided by law for taking appeals from justice courts." [6] Criminal appeals are generally limited to reviewing questions of law appearing on the record. See ORS 138.220. [7] For the provisions of ORS 221.390, see note 2, supra. [8] ORS 138.020 provides that: "Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in cases prescribed in ORS 138.010 to 138.300, and not otherwise." (Emphasis added) The predecessor to this statute provided as follows: "The party aggrieved, whether the state or the defendant, may appeal from a judgment in a criminal action in cases prescribed in this chapter and not otherwise." (Emphasis added) Or. Laws (1920), § 1604; OC (1930), § 13-1202; OCLA § 26-1302. [9] Since the decision of this court in Polanski in 1954, the legislature has also enacted other statutes relating to violations of municipal ordinances. Thus, ORS 46.040 now grants district courts concurrent jurisdiction with municipal courts of all cases involving municipal ordinance violations. (1963 Or.L., c. 513, § 2; 1971 Or.L., c. 743, § 311; 1973 Or.L., c. 645, § 2). ORS 46.045 grants the Multnomah County District Court exclusive jurisdiction to hear cases involving violations of ordinances of the City of Portland (1971 Or.L., c. 633, § 2). [10] These opinions construe the Equal Protection Clause of the Fourteenth Amendment and do not address the guarantees of our state constitution found in Article I, Section 20, which states: "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." This court has consistently held that the scope of these two provisions is the same. As stated in Plummer v. Donald M. Drake Co., 212 Or. 430, 437, 320 P.2d 245 (1958): "The controlling principles which guide the courts in determining questions of alleged unconstitutional discrimination or class legislation are the same whether it is the equal protection clause of the Fourteenth Amendment of the Constitution of the United States which is invoked, or the privileges and immunities provision in Art. I, § 20 of the Oregon Constitution." See also Olson v. State ex rel. Johnson, 276 Or. 9, 15-16, 554 P.2d 139 (1976). In this case, however, we need not reconsider that question. [11] In State v. Classen, 285 Or. 221, 244, 590 P.2d 1198 (1979), Justice Lent, in his specially concurring opinion, quoted from Leflar, Internal Operating Procedures of Appellate Courts, p. 4. "`* * * It is assumed correctly that a collegial body, removed from local pressures, sitting calmly in a quiet atmosphere with each judge thinking independently, is best able to catch mistakes and remedy them. The ideal of impartial justice can thus be approached.'" [12] Arrest Klamath Falls Municipal Code Ch. 31 § 15.1 provides: "A person commits the crime of resisting arrest if he intentionally resists a person known by him to be a peace officer in making an arrest. `Resists,' as used in this section, means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person. It is no defense to a prosecution under this section that the peace officer lacked legal authority to make the arrest provided, he was acting under color of his official authority." ORS 162.315 provides: "(1) A person commits the crime of resisting arrest if he intentionally resists a person known by him to be a peace officer in making an arrest. "(2) `Resists,' as used in this section, means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person. "(3) It is no defense to a prosecution under this section that the peace officer lacked legal authority to make the arrest, provided he was acting under color of his official authority. "(4) Resisting arrest is a Class A misdemeanor." Disorderly Conduct Klamath Falls Municipal Code Ch. 31 § 6 provides: "A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) Engages in fighting or in violent tumultuous or threatened behavior; or (b) makes unreasonable noise; or (c) uses abusive or obscene language, or makes an obscene gesture, in a public place: or (d) disturbs any lawful assembly of persons without lawful authority; or (e) obstructs vehicular or pedestrian traffic on a public way; or (f) congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or (g) initiates or circulates a report, knowing it to be false, concerning an alleged or impending fire, explosion, crime, catastrophe or other emergency; or (h) creates a hazardous or physically offensive condition by an act which he is not licensed or privileged to do." ORS 166.025 provides: "(1) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: "(a) Engages in fighting or in violent, tumultuous or threatening behavior; or "(b) Makes unreasonable noise; or "(c) Uses abusive or obscene language, or makes an obscene gesture, in a public place; or "(d) Disturbs any lawful assembly of persons without lawful authority; or "(e) Obstructs vehicular or pedestrian traffic on a public way; or "(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or "(g) Initiates or circulates a report, knowing it to be false, concerning an alleged or impending fire, explosion, crime, catastrophe or other emergency; or "(h) Creates a hazardous or physically offensive condition by any act which he is not licensed or privileged to do. "(2) Disorderly conduct is a Class B misdemeanor." [13] Klamath Falls Municipal Code Ch. 1 § 7: "Whenever in this Code or any other ordinance of the city any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or an offense, or no specific penalty is provided therefor, the violation of any such provisions of this Code or any other ordinance of this city shall be punished by a fine not exceeding Five Hundred and Five Dollars or imprisonment for a term not exceeding sixty days or by both such fine and imprisonment * * *." Resisting arrest is a Class A misdemeanor, ORS 162.315(4), and disorderly conduct is a Class B misdemeanor, ORS 166.025. The penalties for these crimes are contained in ORS 161.615 and 161.635. [14] We recognize that it has been some time since this case was argued in this court. The parties should know, however, that the many and complex questions presented by this case have been the subject of discussion by the court in numerous conferences extending over a period of several months. [1] Oregon has no "equal protection" provision in so many words. Article I, section 20, of the Oregon Constitution provides: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." That is the section to which reference is made by this court, however, when speaking of the state constitution's guarantee of equal protection. [2] I shall not pursue in this opinion why I believe there are significant differences which flow from the differences in constitutional text. I would point out that an analysis based upon "classes" affected will not always apply when testing constitutionality under the state constitution because of the deliberate distinction made between any "citizen" and any "class of citizens."

4ee29e85aba349ac75664a158db98d2a6cdb1e9cd3e4e5708aa1b4f93ca21ea0

1980-10-21T00:00:00Z

bff62c7a-f794-48a3-99c6-498cc10a90eb

State v. Odam

290 Or. 160, 619 P.2d 647

oregon

Oregon Supreme Court

619 P.2d 647 (1980) 290 Or. 160 STATE of Oregon, Petitioner, v. Gene D. ODAM and Leonard Driscoll, Respondents. Nos. C14010-C14012; SC 26357. Supreme Court of Oregon, In Banc.[*] Argued and Submitted December 3, 1979. Decided November 28, 1980. Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for petitioner. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Allison Smith, Asst. Atty. Gen., Salem. James E. Mountain, Jr., Salem, argued the cause for respondents. On the brief was Robert G. Danielson, Sweet Home. Affirmed by an equally divided court. [*] Holman, J., retired January 20, 1980.

9dae56f562e622a6366a96644280e44bdf8cd962a05c2e71801745eeeea8ccc2

1980-11-28T00:00:00Z

f9215a3a-122c-48b3-b793-9b584b44395f

FIRST FED. S. & L. ASS'N OF SALEM v. Gruber

290 Or. 53, 618 P.2d 1265

oregon

Oregon Supreme Court

618 P.2d 1265 (1980) 290 Or. 53 FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SALEM, a Corporation, Plaintiff-Purchaser, v. Matthew GRUBER and Alice S. Gruber, Husband and Wife, Defendants. Robert Harris, Petitioner (Assignee of Purchaser), v. William B. Barnum, Jr., Respondent (Assignee of Defendants). CA 14254; SC 27041. Supreme Court of Oregon. Argued and Submitted September 8, 1980. Decided November 4, 1980. Rehearing Denied December 9, 1980. Charles R. Markley, of Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, argued the cause and filed briefs for petitioner. Thomas C. Howser, of Cottle, Howser & Hampton, Ashland, argued the cause and filed brief for respondent. Kenneth Sherman, Salem, for Oregon Bankers Assn., and William E. Rosell, Portland, for The Oregon Bank, filed an amici curiae brief. Before DENECKE, C.J.,[*] and HOWELL, LENT, LINDE and TANZER, JJ. HOWELL, Justice. This case involves the attempted redemption of real property sold at an execution *1266 sale under a decree of foreclosure entered by the Circuit Court for Deschutes County. The trial court found the redemption was proper and entered an order directing conveyance of the property to the redemptioner.[1] The Court of Appeals affirmed. We granted review to consider whether the notice of intent to redeem was timely under ORS 23.570(1), which provides that a redemptioner must give not less than two days' nor more than 30 days' notice of his intention to apply to the sheriff for redemption.[2] The date of the execution sale was December 16, 1977. One calendar year later, at about 8 p.m., the purchaser was served in Portland with notice that the redemptioner would make an application to redeem on December 16.[3] The notice included a demand for an accounting. Approximately 30 minutes later, in Bend, the redemptioner paid the redemption money to the sheriff. On December 26, 1978, the purchaser applied ex parte for, and was granted, a court order directing the sheriff to convey the property to him on the ground that the attempted redemption was not timely. The sheriff returned the redemption money to the redemptioner, and the redemptioner subsequently applied to the circuit court for an order vacating the December 26, 1978, order on the grounds of surprise. After a hearing the circuit court vacated its previous order conveying the property to purchaser. The trial court did not discuss the sufficiency of the 30-minute period between the notice and the act of redemption, but concluded that notice of intent to redeem was timely under ORS 23.570 because it was given not less than two days before the end of the one-year redemption period. The court reasoned as follows: Since the sale was on December 16, 1977, the one-year redemption period began on December 17, 1977, and ended on December 16, 1978. However, December 16, 1978, was a Saturday, which under ORS 174.120[4] is considered an excluded day, and thus the time was extended one day. The next day was Sunday, which is defined as a "legal holiday" under ORS 187.010(1)(a)[5] and therefore was also excluded under ORS 174.120. Accordingly, the trial court concluded that the time computation statutes extended the *1267 redemption year to the end of the day December 18, 1978, and therefore the December 16 notice was timely. The court directed conveyance to the redemptioner, but stayed the issuance of the corrected conveyance in order to give the purchaser the opportunity to appeal. On appeal to the Court of Appeals, the purchaser assigned as error the trial court's order in favor of the redemptioner. The purchaser conceded that December 18 was the last day of the redemption period but argued that the two-day notice required by ORS 23.570(1) must be measured from the intended date of redemption and not from the last day of the one-year redemption period.[6] The Court of Appeals held that the notice of intent to redeem was timely because it was given not less than two days before the end of the one-year redemption period. We agree with the purchaser that the Court of Appeals misinterpreted the notice required by ORS 23.570(1) when it concluded that the time was determined by the end of the one-year redemption period. The right to redeem is strictly statutory and therefore redemption must be pursued only in accordance with the applicable statutes. Stamate v. Peterson, 250 Or. 532, 444 P.2d 30 (1968). The redemption statutes impose two time limitations upon the mortgagor's right to redeem. First, ORS 23.560(1) stipulates that redemption may occur "at any time within one year after the date of sale."[7] Second, ORS 23.570(1) provides that the redemptioner must give the purchaser "not less than two days' nor more than 30 days' notice of his intention to apply to the sheriff for that purpose." (Emphasis added.) The language of ORS 23.570(1) makes clear that the two-day notice to the purchaser must be measured from the intended date of the application to the sheriff and not from the end of the one-year period. In holding that 30 minutes' notice was timely if within two days of the end of the redemption year, both the trial court and the Court of Appeals relied on Kirk et al. (Rose) v. Woods et ux., 218 Or. 593, 346 P.2d 90 (1959). However, while we did state in Kirk that notice was timely when given two days within the end of the one-year period, our statement should not be construed as meaning that the only time provision the redemptioner has to comply with is the one-year limitation. The notice was timely in Kirk because the last day of the redemption year was the intended date of redemption, not because the notice period was measured from the end of the redemption year. To the extent that the language in Kirk seems to approve the application of notice as the end of the one-year redemption period instead of from the time of notice of intent to redeem, it is overruled. Redemption is allowed any time during the one-year period. ORS 23.560(1); see e.g. Haskin v. Greene, 205 Or. 140, 286 P.2d 128 (1955); Wilson v. Crimmins, 172 Or. 616, 143 P.2d 665 (1943); Alpha Corporation v. McCredie, 157 Or. 88, 70 P.2d 46 (1937). But under the interpretation of ORS 23.570(1) urged by the redemptioner (and found by the Court of Appeals) that "not less than two days nor more than 30 days" is measured from the end of the *1268 redemption year, a redemptioner would not be able to redeem during the eleven months immediately following the execution sale. There is no reason for the legislature to limit the right of redemption to the final 30 days of the one-year redemption period. Moreover, under ORS 23.560(2), the purchaser has a right to receive, at the time of redemption, reimbursement for payment of senior liens, taxes and sums expended to prevent waste. Thus, the notice provision was intended to give the purchaser adequate opportunity to establish the amount necessary to redeem. Because the purchaser was given insufficient notice, the Court of Appeals was in error in holding that notice of redemption was timely under ORS 23.570(1).[8] Since we hold that the attempted redemption is invalid because it was untimely, we need not reach the other issues raised by the purchaser. Reversed. [*] Denecke, C.J., did not participate in this decision. [1] First Federal, which purchased the property at the execution sale, subsequently assigned all of its interest in the property to petitioner Harris for the amount of the purchase price. The Grubers, the original owners of the property, assigned their rights to respondent Barnum by way of an unacknowledged deed a few minutes after 8 p.m. on Saturday, December 16, 1978. For convenience, petitioner Harris, assignee of the original purchasers, is denominated "purchaser" herein; respondent Barnum is denominated "redemptioner." [2] ORS 23.570(1) provides: "The mode of redeeming shall be as provided in this section: "(1) The person seeking to redeem shall give the purchaser or redemptioner not less than two days' nor more than 30 days' notice of his intention to apply to the sheriff for that purpose; if with reasonable diligence personal service of such notice can not be made within the state, then proof thereof by affidavit filed with the sheriff shall be equivalent to such personal service. At the time and place specified in the notice, which place shall be the office of the sheriff at the courthouse, such person may redeem by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate, as in the case of sale on execution, adding therein the sum paid on redemption, from whom redeemed, and the date thereof. The redemptioner shall file the certificate of redemption with the clerk of the court out of which execution issued. The clerk shall record it in the book of executions, under the same heading as the original execution, and shall index the same in like manner with the additional words `redemption certificate,' and when the certificate is so recorded, shall place it with the execution and judgment roll." [3] The notice of intent to redeem referred to December 16, 1978, or December 18, 1978. However, application was actually made on December 16, 1978, and that has been the date used by the parties. [4] ORS 174.120 provides: "The time within which an act is to be done, as provided in the civil procedure statutes but except as otherwise provided in ORCP 10, is computed by excluding the first day and including the last unless the last day falls upon any legal holiday or on Saturday, in which case the last day is also excluded." [5] ORS 187.010(1)(a) states that "The following days are legal holidays in this state: (a) Each Sunday. * * *" [6] In addition, purchaser claimed the notice was defective in that it specified two different dates for redemption and the application to the sheriff was made prior to the time specified in the notice. He also contended that the statutory procedure was not complied with in that redemptioner did not submit proof that the notice was served on the purchaser, ORS 23.570(2)(a), and no affidavit of the assignment of redemption rights or the redemption amount was submitted, ORS 23.570(2)(c). [7] ORS 23.560(1): "(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 property sold, may, at any time within one year after the date of sale, redeem the property; provided that a transfer of the judgment debtor's interest in the property, either before or after sale, shall preclude him from the right to redeem unless the proceeds from the sale are insufficient to satisfy the judgment, in which event the judgment debtor shall have the right to redeem at any time within 10 days after the year herein allowed for redemption, and not otherwise." [8] We note that notice in this case would have been untimely even under the interpretation of ORS 23.570(1) given by the Court of Appeals. There must be "not less than two days nor more than 30 days" between the notice and the intended date of redemption. By "not less than" we mean there must be not less than two full days between the notice and the act of redemption. Watson v. City of Salem, 84 Or. 666, 164 P. 1184 (1917). Where, as here, notice is given on Saturday, December 16, redemption may only occur after December 18, i.e., December 19, or later. This would be clearly beyond the redemption period. In so clarifying the construction of "not less than" in this context, we overrule the construction given the language in Kirk wherein we stated that notice given March 9 was "not less than two days" before the end of the redemption year on March 11.

5bea33573c28c76773701fc66d8726109e1e0de707814ec84321c98563c39eca

1980-11-04T00:00:00Z

4b911c37-3e90-4479-a99a-36f17b0b04cb

Stevenson v. State Dept. of Transp.

290 Or. 3, 619 P.2d 247

oregon

Oregon Supreme Court

619 P.2d 247 (1980) 290 Or. 3 Dale STEVENSON, Personal Representative of the Estate of Brenda Fern Stevenson, Deceased, Petitioner, v. STATE of Oregon Department of Transportation, Highway Division, Respondent, and James Linder, an Incompetent, by and through Emma Linder, His Guardian Ad Litem, Petitioner. No. 76-956-L; CA 10590; SC 26610, 26623. Supreme Court of Oregon. Argued and Submitted March 4, 1980. Decided November 4, 1980. *248 Richard K. Lane, of Brown, Hughes, Bird & Lane, Grants Pass, argued the cause and filed the briefs for petitioner Dale Stevenson. William E. Duhaime, of Brophy, Wilson & Duhaime, Medford, argued the cause and filed the briefs for petitioner James Linder. Edward H. Warren, Portland, argued the cause and filed the brief for respondent State of Oregon. Clayton C. Patrick and Michael R. Shinn, Salem, filed the brief amicus curiae on behalf of Oregon Trial Lawyers Ass'n. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. DENECKE, Chief Justice. This case requires us to consider the meaning of the provision in the Tort Claims Act that public bodies are immune from tort liability arising out of the performance of a discretionary function. The action is against the State of Oregon by the plaintiff Stevenson for wrongful death and by the cross-claimant Linder for personal injuries resulting from a collision between a truck and a passenger car at the intersection of Redwood Avenue and the Redwood Highway near Grants Pass. The intersection is controlled by traffic signals which normally remain green for Highway traffic unless a change in the lights is activated by vehicles passing over sensors in the Avenue. The truck was on the Highway and, according to undisputed testimony, entered the intersection with a green light. There was no direct evidence about the color of the light controlling traffic on the Avenue at the time the car entered the *249 intersection.[1] Witnesses who saw the car enter the intersection testified that its driver did not brake, slow, or take any apparent evasive action. The case was presented to the jury on two alternative factual charges of negligence against the state highway division. One theory was that the signal lights, at the time of the accident, were malfunctioning and showed green in both directions. The other was that the arrangement and design of the signals were deceptive so that motorists on the Avenue, until they rounded a curve leading directly into the intersection, could see the light governing traffic on the Highway and thus be led to believe that Avenue traffic had a green light when in fact it did not. The state was alleged to be negligent in failing to shield the Highway light so as to prevent this misleading effect. The trial court overruled the state's motions for a directed verdict and to withdraw from the jury's consideration the allegations of negligence supporting each of these theories. The jury returned a verdict in favor of the car's injured driver and the estate of the deceased passenger, finding that 65% of the negligence which caused the accident was attributable to the state and 35% to the driver. The Court of Appeals reversed. Stevenson v. State of Oregon, 42 Or. App. 747, 601 P.2d 854 (1979). We conclude the Court of Appeals was in error in holding that there was no evidence from which the jury could find that at the time of the fatal collision the light malfunctioned and showed green in both directions. The signal light was installed in August 1975 and there was evidence that from that time on there were complaints of malfunction. There was evidence that these malfunctions occurred up to the time of the fatal collision and thereafter. The Highway Division personnel were aware of these complaints and made frequent inspections but the jury could find that whatever the cause these malfunctions had not been corrected at the time of the collision. The evidence was that the light was green for the truck. There was no direct evidence of the color of the light for the passenger car; however, the evidence was that it entered the intersection without braking or slowing down. From the evidence of the malfunctions and the conduct of the driver of the car the jury could properly infer that the light was green for the passenger car as well as the truck, and the state was negligent in failing to correct this malfunction. The other allegations of negligence present the substantial problem in this case. The evidence would permit a finding that highway division employes were negligent in failing to provide shields adequate to prevent motorists on the Avenue from being misled by the green light governing traffic on the Highway. The state argues, however, that determining the need for such a change in equipment is a discretionary function, and that the state cannot, under the provisions of the Tort Claims Act, be held liable for a negligent exercise of that discretion. ORS 30.265(3), which is part of the Tort Claims Act, provides: We granted review in this case because we were concerned that in at least some kinds of situations questions of discretionary immunity under the statute were being decided by a mechanical or semantic approach; that is, were the state employees engaged in designing or planning, in which case they would be immune, or in maintenance, in which case they would not be immune. See Smith v. Cooper, 256 Or. 485, 475 P.2d 78, 45 A.L.R.3d 857 (1970). *250 The issue in Smith v. Cooper, supra, concerned the common law immunity of public officers and employes rather than the statutory immunity of public bodies. It was decided after the enactment of the Oregon Tort Claims Act, but the act did not apply in that case because the cause of action had arisen before its effective date. We noted that our prior case law had established that public employes were not liable for negligently performing a discretionary function and identified two possible reasons for the doctrine of public employes' immunity: In our discussion of how to determine when a public employe is performing such a function we examined, in addition to cases involving the common-law immunity of public employes, the interpretations given by the federal and California courts to those jurisdictions' respective tort claims acts. Those statutes, like ours, provide immunity from liability for both the government and its employes arising out of the performance of a discretionary function.[2] The term "discretionary" in those statutes, as in ours, appears to have the same meaning when applied to governmental immunity as it does when applied to public employes' immunity. When we decided Smith v. Cooper we were mindful that although the case was not governed by the Tort Claims Act our decision would be important to the future construction of the statute. See 256 Or. at 506, n. 4, 475 P.2d 78, and opinion of Sloan, J., dissenting, at 513, 475 P.2d 78. Because the statutory standard is the same for both governmental and public employes' immunity, we examined the reasons for both kinds of immunity when considering the meaning of the term "discretionary function." With respect to governmental immunity we said: *251 We examined the allegations of negligence in that case in light of that factor: Immediately following this explanation, we said: This broad statement has resulted in a line of cases analyzing problems of public liability for injuries caused by road and highway conditions by attempting to determine whether the alleged defect was the result of planning and design on the one hand or of "maintenance" on the other. See, e.g., Daugherty v. State Highway Comm., 270 Or. 144, 147, 526 P.2d 1005 (1974); Hamilton v. State, 42 Or. App. 821, 827, 601 P.2d 882 (1979); Gallison v. City of Portland, 37 Or. App. 145, 148, 586 P.2d 393 (1978) rev. den. 285 Or. 319 (1979); Mayse v. Coos County, 35 Or. App. 779, 782, 583 P.2d 7 (1978); Jones v. Chehalem Park & Rec. Dist., 28 Or. App. 711, 716-17, 560 P.2d 686 (1977); Lanning v. State Hwy. Comm., 15 Or. App. 310, 316, 515 P.2d 1355 (1973); Weaver v. Lane County, 10 Or. App. 281, 288-89, 499 P.2d 1351 (1972). The distinction made between highway planning or design and maintenance may have been an overgeneralization even when it was made with reference to the original Oregon Tort Claims Act; it is an overgeneralization when applied to the present version of the statutes providing for recovery against governmental entities and public employes. Or. Laws 1975, ch. 609. The decisions that make up planning and design of highways and their maintenance involve the exercise of two very different kinds of judgment. First, there is the exercise of what we may term governmental discretion or policy judgment. The decision to build a highway rather than a railroad track is such a decision. When a governmental body by its officers and employes makes that kind of decision the courts should not, without clear authorization, decide whether the proper policy has been adopted or whether a given course of action will be effective in furthering that policy. This is the modern rationale for governmental immunity for discretionary acts.[3] We have no doubt that when the legislature provided immunity for discretionary acts it intended to provide immunity for those kinds of decisions. We described this kind of discretion in McBride v. Magnuson, 282 Or. 433, 437, 578 P.2d 1259 (1978): Like virtually every other activity, both planning and design, as well as maintenance of roads, frequently require the making of decisions which do not involve the making of public policy; for example, the decision whether to make a safety fence two feet rather than three feet high or the decision to first remove the snow from Street A rather than from Street B. These decisions involve the use of "discretion" in the sense that a choice must be made but they do not involve the use of "discretion" in the sense that a policy decision is required. These nonpolicy decisions may be such that the court can quite easily understand the factors or ingredients which should be considered in reaching the decision; for example, the decision whether to remove the snow from Street A rather than Street B. On the other hand, nonpolicy decisions might involve extremely technical considerations requiring specialized education and experience by the decision maker; for example, given certain soil and moisture conditions, how steep can the sides of a highway cut be made. That decisions require expertise does not, for that reason alone, make such decisions discretionary in the sense that there is immunity from liability for injuries caused by the making of such decisions. That the decisions involve very technical considerations will make it difficult for jurors or judges to completely assess the decision to determine if it was made with reasonable care, but the same difficulty is encountered when jurors and judges are called upon to assess the decision of a private party which involves very technical considerations; for example, whether the drug Chloroquine was reasonably safe for the treatment of ankylosing spondylitis. Cochran v. Brooke, 243 Or. 89, 92, 409 P.2d 904 (1966). The distinction between a technical nonpolicy decision and a governmental policy decision was noted in Griffin v. United States, 500 F.2d 1059, 1066 (3d Cir.1974): There is only one apparent reason for providing immunity from liability for the negligence of public employes who are required to make nonpolicy decisions involving highly technical considerations and the necessity of having expertise and that is the old rationale for governmental immunity generally; that is, the public interest in recruiting able public servants and encouraging them to exercise their expert judgment freely, uninfluenced by the fear of personal liability should their judgment later be questioned in court. This public interest, however, now has been advanced by the legislature in a manner different than by providing immunity for such employes. In 1975, the legislature amended the Tort Claims Act to require that public bodies defend and indemnify their employes against all tort claims arising out of the performance of their duties, except for claims involving "malfeasance in office or willful or wanton neglect of *253 duty."[4] The effect of this amendment is to eliminate the ground for concern by public employes that they can be held liable for a good faith failure to use reasonable care. The California Supreme Court has pointed out that a comparable statutory indemnification scheme in that state substantially eliminates the concerns that support the doctrine of public employes' immunity: Similarly, under our statutory scheme, public employees have, in addition to the immunity expressly provided by statute,[5] the right to call upon their employer to defend any action and pay any judgment based on the performance of their duties unless the claim is based on aggravated misconduct. Whether the limited exceptions apply is determined not by the allegations of the third party's complaint but by the Attorney General after investigation. ORS 30.285(3). The legislature has thus eliminated the reasons for concern that the prospect of personal liability might dampen the ardor of public employes in the performance of their duties or discourage able persons from accepting responsible employment in the public sector. To the extent that a public employe's job performance may be influenced by concern about possible liability for "malfeasance in office or willful or wanton neglect of duty" the influence is likely to be a salutary one. We think it unlikely that the legislature intended a broad construction of the discretionary function exception in order to eliminate those kinds of concerns. When applying that provision, then, the inquiry is whether the function in question involves the exercise of what we have described as governmental or policy discretion. We are well aware that in stating this conclusion we do not provide a readily-applied method for deciding close cases. There are, of course, circumstances in which *254 it is clear merely from a description of the decision in question that governmental discretion was necessarily involved. Examples are the decision to build a new highway or to initiate a new governmental program. In other situations, however, no determination about immunity will be possible until it is known how the particular decision was made. The facts of the following two cases illustrate the kinds of administrative decisions in which governmental discretion may or may not have been exercised: In State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972), the court held that the state was not necessarily immune from liability when the negligence charged was the failure of the highway authorities to install a cattle guard at a particular entrance to a controlled-access freeway. In Lewis v. State, 256 N.W.2d 181 (Iowa 1977), the state's motion to dismiss on the pleadings was held properly overruled when the negligence alleged was a failure to design and construct a portion of an interstate highway so as to prevent vehicles from crossing from the northbound lanes into the southbound lanes. One clue to whether governmental discretion was exercised is to examine the level of administration at which the decision claimed to be "discretionary" was taken and whether there is evidence of delegation of responsibility for policy choice to that level, as distinguished from the routine decisions which every employe must make in every action he or she takes. Cf. Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979); McBride v. Magnuson, supra, 282 Or. 433, 578 P.2d 1259. If the responsible officials had determined, for example, that their budgets would not permit them to provide all desirable safety features and that the public would be better served by facilities other than cattle guards or median barriers, that would constitute the immune exercise of governmental discretion. If, on the other hand, they had decided to install cattle guards or median barriers wherever certain kinds of conditions existed and the failure to install them in a particular location was the result of a failure to determine that those conditions did in fact exist at that location, no exercise of judgment about governmental policy would be involved. Similar examples can be given in the area of what is normally considered to be road or highway maintenance. The appropriate agency might decide, for example, that its budget would permit the repaving of either of two sections of a highway but not both. The decision to repair one rather than the other would not be grounds for tort liability if made in the deliberate exercise of the agency's authority to set such priorities. The discretionary function immunity would not, however, necessarily insulate the agency from liability for the negligent performance by its employes of certain tasks related to such a decision-for example, determining the extent of the actual disrepair in each section and the kinds of hazards that existed as a result. The case before us is one in which the nature of the underlying decision by highway division employes-whether to provide special shielding on the highway traffic lights or to make other changes to eliminate the alleged misleading condition-might or might not have been made in the exercise of governmental discretion. The burden is on the state to establish its immunity. In some instances, the nature of the function alone is sufficient to establish immunity. In other instances, evidence of how the decision was made is necessary. The California court reached a similar conclusion in Johnson v. State, supra, 73 Cal. Rptr. at 249, n. 8, 447 P.2d at 361, n. 8. Accord: King v. City of Seattle, 84 Wash. 2d 239, 525 P.2d 228, 233 (1974). The state has argued that there is immunity in this case because the arrangement of the traffic lights and the design of their shielding were appropriate matters for engineering judgment. It may be conceded that this is so, but there is nothing in the record to suggest that the responsible employes of the highway division made any policy decision of the kind we have described as the exercise of governmental discretion. *255 There is frequent reference in the testimony to the guidelines for traffic signals in the Uniform Traffic Control Device Manual, a set of national standards which have been adopted by the state highway division. The state does not, however, contend that anything in the manual prevented appropriate changes to existing traffic signals in order to eliminate a hazardous condition. The state concedes that if the statutory discretionary immunity does not apply there was evidence from which the jury could find that its employes' engineering judgment was negligently exercised. We hold that on this record the state was not immune by virtue of ORS 30.265(3)(c) as a matter of law. The trial court did not err in refusing to withdraw from the jury's consideration the question of negligence involving inadequate shielding of the highway traffic lights. Reversed with instructions to reinstate the judgment for the plaintiff. TANZER, J., filed a concurring opinion. TANZER, Justice, concurring. I write separately because I believe the allegations of negligence based on placement and shielding of the signal can be analyzed more simply and clearly. Particularly, the responsibility of judge and jury in determining whether acts are discretionary or nondiscretionary should be delineated in light of the facts of this case. I agree that "design" and "maintenance," as those terms are used in Smith v. Cooper, are often analytically helpful as a shorthand sorting device, but may not be an adequate formula for the decision of close cases. Particularly, they do not provide an appropriate division of discretionary and nondiscretionary acts in this case. The underlying theory of Smith v. Cooper, however, that executive and legislative decisions involving governmental decisions are not subject to judicial review, provides a sound basis for analysis in this case and I take it that that theory is reaffirmed. The preliminary question of law before the court is whether the acts alleged as negligent are immune. If there is no dispute of fact, this can be done prior to trial.[1] If the facts are disputed, the court should identify the facts upon which the jury can find liability and those upon which there can be no liability and instruct the jury appropriately. Here, the second allegation of negligence was that the signal on the highway was improperly shielded to avoid peripheral visibility: The analysis should be in two steps: (1) The Highway Division adopted the Uniform Traffic Control Device Manual, as a set of national standards for traffic signals. That adoption of policy was an act of *256 governmental discretion under ORS 30.265(3)(c); the state is therefore immune from liability for any claim resulting from that discretionary act, even if discretion was abused. (2) The making and installation of a particular signal is an act in implementation of that policy. If it is done in conformity to that policy, then it is immune as part of the "discretionary function or duty." If the implementation is done in conformity with the policy, it has the protection of law accorded to the policy itself. If not, and if there is no other discretionary reason for the deviation from policy then there is no immunity. The discretionary decision applicable to the second allegation of negligence is found in the manual. The manual begins with general provisions that traffic control devices should be safe, effective, etc. The provision specifically applicable to the allegation in this case deals with direction and shielding of signals: Under these circumstances, the preliminary determination of law for the court is simply that if the signal was shielded and directed as required by the manual, the defendant is immune from liability; if not, the court may enforce liability. For various procedural reasons, the trial court did not go through the process of identifying immune and non-immune conduct. The net result, however, was the same. There is no need for an instruction to mention the terms "immunity" or "discretionary function or duty" if the court simply instructs them as to which facts are actionable and which are not. There was evidence that a driver on the avenue can see another signal indication than that controlling his movement. The case was submitted to the jury under instructions that installation of a signal in a manner which allows that condition can be negligence. That instruction identified for the jury, as a matter of law, the acts which would constitute non-immune, non-discretionary conduct. [1] Of the three persons in the car, one died as a result of the accident and the other two have no memory of what happened. [2] The federal act provides: "The provisions of this chapter and section 1345(b) of this title shall apply to- "(a) Any claim based upon * * * the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680. The California Government Code provides that, with certain exceptions, "a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability," § 815.2(b), and that "* * * a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." § 820.2. [3] See, e.g., Jaffe, Judicial Control of Administrative Action 241, 259 (1965); James, Tort Liability of Governmental Units and Their Officers, 22 U.Chi.L.Rev. 610, 651 (1955); Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception, 31 Wash.L.Rev. 207, 240 (1956); Herzog, Liability of the State of New York for "Purely Governmental" Functions, 10 Syracuse L.Rev. 30, 32-33 (1958); Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo.L.J. 81, 121-23 (1968); Note, Separation of Powers and the Discretionary Function Exception: Political Question in Tort Litigation Against the Government, 56 Iowa L.Rev. 930, 950-51 (1971); Comment, The Discretionary Function Exception to Government Tort Liability, 61 Marquette L.Rev. 163, 166 (1977). [4] ORS 30.285, as amended, provides, in part: "(1) The governing body of any public body shall defend, save harmless and indemnify any of its officers, employees and agents, whether elective or appointive, against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of duty. "(2) The provisions of section (1) of this section do not apply in case of malfeasance in office or wilful or wanton neglect of duty." [5] In addition to immunity for claims arising out of the performance or nonperformance of a discretionary function, ORS 30.265(3) provides immunity from liability for: "(a) Any claim for injury to or death of any person covered by any workmen's compensation law. "(b) Any claim in connection with the assessment and collection of taxes. "* * *. "(d) Any claim which is limited or barred by the provisions of any other statute. "(e) Any claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing. "(f) Any claim arising out of an act done or omitted under apparent authority of a law, resolution, rule or regulation which is unconstitutional, invalid or inapplicable except to the extent that they would have been liable had the law, resolution, rule or regulation been constitutional, valid and applicable, unless such act was done or omitted in bad faith or with malice." [1] In Comley v. Emmanuel Lutheran Charity Board (State Bd. of Higher Ed.), 35 Or. App. 465 at 468-69, 582 P.2d 443 (1978), the Court of Appeals observed: "The issue of immunity may properly be raised by demurrer, Smith v. Cooper, 256 Or. 485, 488, 475 P.2d 78, 45 A.L.R.3d 857 (1970), but that is not the only means of interposing an immunity defense. Wright v. Scappoose School Dist., 25 Or. App. 103, 106, 548 P.2d 535 (1976). The determination of whether immunity precludes a plaintiff's recovery is a question of law for the court. Weaver v. Lane County, 10 Or. App. 281, 299, 499 P.2d 1351 (1972). As such, unless it is waived, the defense may be raised in any pleading or motion appropriate for joining legal issues. See, e.g., Hulen v. City of Hermiston, 30 Or. App. 1141, 569 P.2d 665 (1977) (motion to strike treated as demurrer); Lanning v. State Hwy. Comm., 15 Or. App. 310, 515 P.2d 1355 (1973) (motion for directed verdict and nonsuit); Sullivan v. State, 15 Or. App. 149, 515 P.2d 193 (1973) (motion for directed verdict); Weaver v. Lane County, supra (motion for judgment N.O.V.). Summary judgment is appropriate where there are no material issues of fact and the moving party is entitled to judgment as a matter of law. ORS 18.105(3). If there are no disputed facts relevant to the issue of immunity, it may therefore be raised and resolved on a motion for summary judgment. See, Higgins v. Redding, 34 Or. App. 1029, 580 P.2d 580 (1978)."

646e5ae34aeb2ac3160ca8970cf5470b6edeff370d37b2653f397d62e4b70009

1980-11-04T00:00:00Z

f4096071-dc8d-44c4-aa4b-805c2b3636b3

MacAfee v. Paulus

289 Or. 651, 616 P.2d 493

oregon

Oregon Supreme Court

616 P.2d 493 (1980) 289 Or. 651 James J. MacAFEE, Petitioner, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent. OREGONIANS FOR WILDLIFE CONSERVATION, Petitioner, v. Norma PAULUS, Secretary of State of the State of Oregon, Respondent. SC 27201, SC 27205. Supreme Court of Oregon. Argued and Submitted August 26, 1980. Decided September 11, 1980. *494 James J. MacAfee, Monmouth, argued the cause pro se. David A. Rhoten, of Rhoten, Rhoten & Speerstra, Salem, argued the cause for Oregonians for Wildlife Conservation. Wm. F. Gary, Asst. Atty. Gen., Salem, argued the cause for respondent. Before DENECKE, C.J., and TONGUE, LENT, LINDE, PETERSON[*] and TANZER, JJ. PER CURIAM. Petitioner brought an original proceeding in this court under ORS 251.235 to challenge the explanation of a ballot measure prepared for use by the Secretary of State in the Voters' Pamphlet and suggested an amendment. ORS 251.185.[1] Subsequently a second petitioner filed a petition proposing a contrary amendment of the explanatory statement. After the oral argument, we certified the statement as written to the Secretary of State. The statutes provide the following procedures for the preparation and review of statements explaining initiated or referred state measures in the Voters' Pamphlet. Preparation. A committee is selected, composed of two persons appointed by the proponents of the proposed action, two persons appointed by the Secretary of State "from among the opponents, if any," and a fifth member selected by the other four or, if they do not do so, by the Secretary of State. ORS 251.205.[2] The committee's assignment is to "prepare and file with the Secretary of State, an impartial, simple and understandable statement explaining the measure and its effect." ORS 251.215(1). The Secretary of State must conduct a hearing, after statewide notice to provide opportunity for written or oral submission of suggested changes in the explanatory statement. ORS 251.215(2). If such suggestions are submitted, the committee must consider them and may revise the explanatory statement. ORS 251.215(3). If the committee fails to submit an explanatory statement, a statement prepared by the Legislative Counsel Committee is substituted under the same procedures. ORS 251.225. Apart from the official explanatory statement, there are provisions for printing arguments for and against a measure in the Voters' Pamphlet. ORS 251.245-ORS 251.275. Judicial review. ORS 251.235 provides for review of explanatory statements by this court in these terms: This section requires attention to two issues. First, petitioner MacAfee suggests that we should not consider the counter-petition of Oregonians for Wildlife Conservation because that petitioner did not first make his objections at the Secretary of State's hearing on the explanatory statement. However, as ORS 251.235 is written, it merely requires that the challenged explanatory statement be one "for which suggestions were offered" at the hearing. The opening words "Any person ..." do not limit petitions in this court to persons who offered such a suggestion at the hearing. Second, the section requires a petitioner to state the reasons why the proposed explanatory statement is "insufficient or unclear." These adjectives are not quite the same as those describing the duty of the committee, which is to prepare an "impartial, simple and understandable statement explaining the measure and its effect." ORS 251.215. These criteria obviously overlap, but they are not identical. A statement will be "unclear" if it is not "understandable." A clear but complicated explanation of a complicated measure is hard to fault as "insufficient." But a good faith effort to keep a statement "simple" may render it "insufficient" by omission or oversimplification. Moreover, when a measure itself is unclear and subject to contested interpretations, a statement that purports to give the voter a clear explanation of "the measure and its effect" may not be "impartial." If a committee finds itself in genuine and serious doubt about a measure's meaning and effect, the impartial and understandable, if not simple, answer may be to say so and let the argumentative pages of the Voter's Pamphlet argue the point. In any event, we do not believe that ORS 251.235 meant to call on this court to settle disputes over the meaning of a measure in reviewing and certifying explanatory statements, especially since Voters' Pamphlet statements in turn become "legislative" history when that meaning later is disputed by persons affected by the measure in a concrete case. At this stage, the court's scrutiny goes only so far as necessary to determine, not whether a more detailed or comprehensive explanatory statement might have been written, but whether the committee's statement falls short to the point of being "insufficient." The present dispute. In the present case, there is a disagreement whether or not two sections of an initiative measure render its eventual effect doubtful. The measure proposes to license and for most purposes to forbid the sale or use of certain animal traps. Permits by the State Department of Agriculture could be issued to trap predatory animals in defined areas upon verification that the predators caused losses of livestock. After 1985, such traps could be sold or used only if the Oregon State Health Division found a danger to human health and safety. Section 6 of the proposed measure reads: Section 16 of the measure would amend an existing statute, ORS 610.105, by omitting "trapping" as indicated in the brackets and adding the underlined words: The disagreement between the two petitioners is whether the measure is susceptible to a future interpretation that would allow the Department of Agriculture or the Health Division (or possibly another agency) to require a permit for the sale or use of mouse, rat, or gopher traps. The committee's explanatory statement proposes to include this sentence, adopted from the ballot title earlier prepared by the Attorney General: "Would not forbid use or sale of mouse, rat, gopher traps, or live `box' traps." Petitioner MacAfee asks us to delete this sentence in the explanatory statement and substitute words equivalent to section 6 of the measure, quoted above. Petitioner Oregonians for Wildlife Conservation claims that while section 6 exempts such traps from the present measure, it does not necessarily preclude their regulation under other laws, and that section 16, also quoted above, either would actually require permits for such traps or at least leaves the matter in doubt. It therefore submits a diametrically opposite substitute for the disputed sentence, which would state that the measure would require permits to trap rats, mice, or gophers. In view of our previous conclusion that our review under ORS 251.235 is not the time to resolve such disputes further than necessary to test the adequacy of the explanatory statement, we do not pursue the competing arguments here. The committee's explanatory statement would inform the public that this measure itself would not forbid the use or sale of the mentioned kinds of traps. We do not find this statement to be "insufficient or unclear," in the words of ORS 251.235, or not "impartial, simple and understandable" in the words of ORS 251.215. The explanatory statement was therefore certified to the Secretary of State. Explanatory statement certified. [*] PETERSON, J., did not participate in the decision of this case. [1] ORS 251.185: "The Secretary of State shall have printed in the voters' pamphlet for a general or special election a copy of the title and text of each state measure to be submitted to the people at the election for which the pamphlet was prepared. Each measure shall be printed in the pamphlet with the number, ballot title and the financial estimate under ORS 250.125, if any, to be printed on the official ballot, and with the explanatory statement and arguments filed relating to it. The Secretary of State also shall have printed in the voters' pamphlet any county measure, and ballot title, explanatory statement and arguments relating to it, filed by the county under ORS 251.285." [2] The statute defines "proponents" to mean: "(a) With respect to any state measure initiated or referred by petition, the chief petitioners; or "(b) With respect to a measure referred by the Legislative Assembly, a Senator appointed by the President of the Senate and a Representative appointed by the Speaker of the House." ORS 251.205(2).

1305fd7e4ac53707843079e6e142b401480e1c7fdd94cfb1a0a398941c8d490e

1980-09-11T00:00:00Z

a47a135b-d316-4f28-9023-e80ec6587741

State Ex Rel. Ott v. Cushing

289 Or. 695, 617 P.2d 610

oregon

Oregon Supreme Court

617 P.2d 610 (1980) 289 Or. 695 STATE of Oregon ex rel. Calvin Roy Ott, Plaintiff-Relator, v. L.A. CUSHING, As Circuit Judge of the State of Oregon for Josephine County, Defendant-Respondent. No. 80-522-C; SC 27199. Supreme Court of Oregon, In Banc.[*] Argued and Submitted September 9, 1980. Decided October 7, 1980. *611 Donald F. Myrick, Grants Pass, argued the cause and filed the brief for plaintiff-relator. William F. Gary, Deputy Sol. Gen., Salem, argued the cause for defendant-respondent. With him on the brief were James M. Brown, Atty. Gen., and John R. McCulloch, Jr., Sol. Gen., Salem. TONGUE, Justice. This is a mandamus proceeding in which the petitioner, who is the defendant in a *612 criminal prosecution for the crime of murder, seeks to modify an order issued by the respondent, the trial judge before whom that proceeding is pending, which directed the defendant to submit to a psychiatric examination under conditions specified by the terms of that order. Both attorneys for petitioner and attorneys for the State of Oregon, who represent the respondent, agree that the order in question was prepared in an effort to comply with the requirements of ORS 161.315[1] and also with the requirements of the rule stated by this court in Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968),[2] and that the validity of the rule as stated in that case is not in issue in this proceeding, despite subsequent doubts expressed by members of this court in State ex rel. Johnson v. Woodrich, 279 Or. 31, 566 P.2d 859 (1977).[3] For that reason and because both the trial of the petitioner and his psychiatric examination preceding that trial have been postponed awaiting a decision by this court in this proceeding, we shall limit our opinion to a brief discussion of petitioner's objections to the terms of that order. The order provides as follows: Petitioner's first objection to the order is that: This court has not previously addressed the question of whether there is a right of either counsel to be present at a pretrial psychiatric examination concerning the defense of lack of responsibility due to mental defect.[4] Assuming, without deciding, that such a right exists, we are of the opinion that the right to effective counsel is adequately protected by a provision in the order permitting the defendant to have his attorney present at such examination and that there is no good reason to compel the attendance of his attorney at the examination. Moreover, the right of a defendant to the assistance of counsel carries with it the correlative right to dispense with such assistance. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). To require that the defendant's counsel be present at the psychiatric examination would violate this right. There may also be tactical reasons why a defendant would prefer to attend a psychiatric examination without the presence of his counsel. To compel the attendance of defendant's counsel might thus unnecessarily limit the defendant's own freedom in choosing an appropriate course of action for defending himself. For these reasons, we believe the order is proper in permitting, but not requiring, defendant's counsel to be present at the examination. Petitioner's second objection is that: We agree with petitioner's contention that his right to effective assistance by counsel may be impaired if his counsel is under a direct order "not to advise the defendant to remain silent to questions asked by Dr. Thompson which do not fall within the limitations of specification II," or be subject to possible punishment for contempt of court. That provision of the order not only might well result in a possible *614 "chilling effect" upon counsel in his effort to properly advise the defendant, but is also overly broad in that there may be questions other than those foreclosed by specification II which may be improper. This would place defendant's counsel in a difficult position when confronted by an improper question, but one which he has been ordered by the court not to advise the defendant not to answer. We recognize, as contended by the state, that disobedience of an order by a court is not punishable as contempt unless such disobedience is willful. State ex rel. Oregon State Bar v. Wright, 280 Or. 713, 715, 573 P.2d 294 (1977). Despite that requirement, however, we are of the opinion that counsel for a defendant in such an examination may well be hesitant to advise the defendant to remain silent when it is uncertain whether a particular question falls within the parameters of specification II, so as to precipitate contempt proceedings against him. We also believe that it is unnecessary to place counsel for the defendant in such a position because the rights of the state are adequately protected by paragraphs (3) and (5) of the order, which provide that if a defendant improperly refuses to answer a question, the defense of extreme emotional disturbance can be stricken. Thus, if the defendant's counsel improperly advises his client to remain silent, those provisions of the order will apply. For these reasons, paragraph (4) of the order should be modified to delete the provision beginning with "but Donald F. Myrick is ordered * * *." For similar reasons, the words "or his attorney" should be deleted from paragraph (5) of the order. We do not agree, however, with petitioner's contention that the order should also provide for a procedure under which there may be immediate rulings on objections by counsel to questions asked during the psychiatric examination. In State ex rel. Johnson v. Woodrich, supra, this court reviewed various alternatives to the rule in Shepard v. Bowe, supra, and in rejecting the possible use of a bifurcated trial noted that efficient judicial administration is an important consideration in such cases. For similar reasons, we believe that a procedure requiring immediate rulings on objections would be inconsistent with efficient judicial administration and that such a procedure would impose an unnecessary burden upon the courts. More importantly, we believe that providing for immediate rulings on objections to questions would greatly hinder the effectiveness of the psychiatric examination. In State ex rel. Johnson v. Richardson, 276 Or. 325, 329, 555 P.2d 202 (1976), we stated that the rights of the defendant must be weighed against "the right of the people, as represented by the state, to present competent, persuasive evidence on the defense raised by the defendant." We disagree with petitioner's contention that providing immediate rulings on objections can be achieved without unfairly impinging upon the effectiveness of the medical examination. In our opinion, such a procedure would cause intrusions and delays that would make it difficult, if not impossible, for the examiner to adequately evaluate the defendant's mental state. We do agree, however, with petitioner's contention that some means should be provided to ensure that there is no controversy over what questions were asked, what answers were given to such questions, and what, if any, objections were made to questions which were not answered. For that reason, we believe that the order should therefore be modified so as to include a provision to the effect that there should be a tape recording of the examination as proposed by petitioner.[5] Petitioner's third objection is that: *615 In State ex rel. Johnson v. Richardson, supra at 328-29, 555 P.2d 202, this court held that a defendant should be required to answer questions not pertaining to the commission of the crime, and that if the defendant refuses to do so, the affirmative defense of mental defect will be stricken. We held that such a rule represented a proper balance between protecting a defendant from self-incrimination and ensuring that the state has sufficient information from which to properly diagnose defendant's mental condition. To not impose such a sanction would allow defendant to totally frustrate the purpose of the psychiatric examination by refusing to answer questions that pose little threat of self-incrimination, but are necessary to an adequate understanding of the defendant's mental state. It is true that a defendant might in good faith refuse to answer a question and thereby jeopardize the availability of an insanity defense. This might even result from the mistaken advice of defendant's legal counsel, as argued by petitioner. We see no escape, however, from the rule as stated in Richardson that refusing to answer a proper question requires forfeiture of the defense of mental defect. The purpose of the rule, to ensure that the state examiner acquires adequate information on which to accurately evaluate the defendant's mental state, is the same whether the defendant refuses to answer in bad faith or innocently refuses to answer due to mistaken legal advice. In the latter instance the defendant must bear the consequences of the mistaken legal advice just as any defendant in a criminal trial must bear the consequences of mistakes by his attorney, provided, of course, that the attorney is not incompetent. For these reasons, we believe that the order is not improper in providing that if the defendant fails to act in accordance with the terms of the order, he shall not be entitled to introduce expert testimony on the issue of extreme emotional disturbance. The respondent is directed to modify the order which is the subject of this proceeding in accordance with this opinion, and upon such modification the alternative writ of mandamus shall be dismissed. LINDE, J., concurred and filed opinion. TANZER, J., concurred and filed opinion in which HOWELL, J., joined. LINDE, Justice, concurring. In the order at issue here, quoted in the Court's opinion, the circuit court ordered a defendant who is charged with murder to "answer all questions asked of him" by the state's psychiatrist, other than "questions concerning his acts or conduct at or immediately near the time of the commission of the offense." The defendant was ordered to answer these questions even though the same order begins by recognizing that the questioner is acting "for and on behalf of the State of Oregon" in a criminal prosecution and that the defendant is so informed. In my view, a court order that compels a person to answer questions on behalf of the prosecution concerning his alleged responsibility for a crime contradicts the constitutional guarantee that "[n]o person shall be ... compelled in any criminal prosecution to testify against himself." Or.Const. art. I, § 12. The order is not saved by excluding questions concerning defendant's "acts or conduct at or immediately near the time of the commission of the offense." Even this exclusion is limited to "acts or conduct," which may or may not be controverted. It does not exclude questions concerning defendant's perceptions, thoughts, or emotions, though these may be the decisive issue for his guilt or innocence of the charge. On that issue, the order seeks to compel the defendant to testify against himself in answer to questions put "for and on behalf of the State." If this feature of the order had been attacked, I do not see how it could be sustained. Were questions of the kind covered by this order put to defendant in court, which is the tribunal for trying his guilt, he would be entitled to stand mute. That constitutional rule cannot be circumvented by ordering him to answer the questions *616 before trial. To repeat what I said in State ex rel. Johnson v. Woodrich, 279 Or. 31, 39, 566 P.2d 859, 862 (1977): If is it thought that some kind of psychiatric examination may be compelled by drawing a line between privileged "testimonial" cooperation and "nontestimonial" cooperation outside the constitutional privilege, see State ex rel. Johnson v. Dale, 277 Or. 359, 364, 560 P.2d 650 (1977), this order does not draw that line. However, the present petition for a writ of mandamus does not object to the circuit court's order in this respect. The other challenges to the order are correctly dealt with in the Court's decision, in which I therefore concur. TANZER, Justice, concurring. Because the state submitted the challenged order and has no objection to it, this case presents no occasion to re-examine the holdings, commencing with Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968) upon which the order is based. Accordingly, I concur in the majority opinion. It is difficult from the detached position of a reviewing court to know whether our theoretical solutions work. If the order in this case is representative, and I suspect it is, then our case law commencing with Shepard v. Bowe is utterly inappropriate. Instead of providing for an objective psychiatric or psychological examination as contemplated by ORS 161.315, we have created a deposition-like adversary proceeding which has very little to do with truth-seeking. It is time, in a proper case, to reexamine this procedure in light of the defendant's rights, the nature of mental defenses, the informational requirements of the examiner and the needs of the adjudicative process, but I concur that this is not the case in which to do so. HOWELL, J., joins in this concurring opinion. [*] Lent, J., did not participate in this decision. [1] ORS 161.315 provides: "Upon filing of notice or the introduction of evidence by the defendant as provided in subsection (3) of ORS 161.309, the state shall have the right to have at least one psychiatrist or licensed psychologist of its selection examine the defendant. The state shall file notice with the court of its intention to have the defendant examined. Upon filing of the notice, the court, in its discretion, may order the defendant committed to a state institution or any other suitable facility for observation and examination as it may designate for a period not to exceed 30 days. If the defendant objects to the examiner chosen by the state, the court for good cause shown may direct the state to select a different examiner." [2] In Shepard this court reviewed an order which specifically required the defendant in a psychiatric examination to "answer questions concerning his accident or conduct at or immediately near the time of the commission of the alleged crime." After reviewing varying ways in which other jurisdictions have dealt with such orders, we concluded that: "The only way in which the constitutional right of the defendant not to be compelled to testify against himself can be adequately preserved is to hold that the defendant cannot be required to answer the questions which the trial court's order requires him to answer * * *." 250 Or. at 293, 442 P.2d at 240. This court recognized that the effect of its holding might be to lessen the quality of evidence available to the state, but expressed the view that such a possibility was a necessary price to be paid to enforce the defendant's constitutional protection. [3] In Woodrich this court re examined the rule as stated in Shepard. No single view commanded a majority of the court. An opinion by Justice Holman, joined by Chief Justice Denecke and Justice Lent, reaffirmed the limitations of Shepard, after considering several alternative solutions to the problem of self-incrimination, such as use of a limiting instruction, some form of exclusionary rule, and the use of bifurcated trials. That opinion concluded that although the rule in Shepard is subject to criticism, it is the most satisfactory solution to the problem. Justice Linde concurred in the result reached by the majority in dismissing the mandamus proceeding in that case, suggesting that the permissible scope of the state's examination should be limited to "non-testimonial" matters. Justice Howell, joined by Justices Tongue and Bryson, dissented, contending that this court should adopt an exclusionary rule such as that used in federal courts. Such a rule would allow unrestricted questioning of the defendant during a psychiatric examination, but would preclude use by the state of incriminating answers to such questions. [4] See State ex rel. Johnson v. Richardson, 276 Or. 325, 330 n. 3, 555 P.2d 202 n. 3 (1976). [5] At least one other court has required a similar procedure during psychiatric examinations to "aid in attaining the goal of accuracy in the trial * * *." Houston v. State, 602 P.2d 784, 796 (Alaska 1979).

7548e859e8c888226b8f345c37d47a3bdb6f0d0bfc9b154be09d23ddcebec5c5

1980-10-07T00:00:00Z

5253da03-b8ff-4530-8dcf-147297bf6d56

Watzig v. Tobin

642 P.2d 651

oregon

Oregon Supreme Court

642 P.2d 651 (1982) 56 Or.App. 645 Margaret Ann WATZIG, Petitioner On Review, v. Robert TOBIN and Raedene L. Tobin, Respondents On Review. No. 19-221; CA 17350; SC 27686. Supreme Court of Oregon. Argued and Submitted June 1, 1981. Decided March 16, 1982. *652 Raymond J. Conboy, Portland, argued the cause for petitioner on review. With him on the brief were Garry L. Kahn and Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland. Larry Dawson, Portland, argued the cause and filed the brief for respondents on review. Before DENECKE, C.J., and TONGUE,[*] LENT, LINDE, PETERSON and TANZER, JJ. PETERSON, Justice. This is an action to recover damages for personal injuries sustained when plaintiff's car struck defendants' Holstein cow on the coast highway near Tillamook. The jury returned a special verdict finding plaintiff to be 50 percent negligent and defendant 50 percent negligent and awarded total money damages of $10,500. Plaintiff appealed, contending, inter alia, (1) that the verdict was invalid because the award was solely for special damages, or at most, nominal general damages, and thus improper, and (2) that the trial court erred in refusing to give her requested instructions on res ipsa loquitur and statutory negligence. The *653 Court of Appeals affirmed. We allowed the plaintiff's petition for review to consider the res ipsa loquitur and statutory negligence aspects of the case. It was after midnight. The plaintiff was driving north on highway 101 near Tillamook. She saw a cow on the side of the highway. She slowed, went around the animal, and as she did so she saw a second cow which she ran into. Both cows belonged to the defendants and had escaped from their farm. There were three gates to the barnyard where the cows were confined. Two of the three gates were permanently secured with rope and wire, so securely that in order to open them "you just about had to have wire cutters." The third gate, through which cows had escaped in the past, had been equipped with a "cable clamp" device several months before the accident. The defendants' daughter, Linda, a community college student who was familiar with dairy operations, was in temporary charge while her parents were visiting in Washington. Linda testified that she visually checked the gates from inside the house before going to bed at approximately 10:30, that there was a yard lamp that illuminated the area, and that she could see two of the three barnyard gates from the window of her parents' bedroom, including the gate which was not permanently wired shut. At that time the gates were closed. Her brother, Robert, testified that he had hurriedly checked the gates in the afternoon after milking and that he again checked the gates when he returned from a party, slightly intoxicated, at 1:30 a.m. The accident occurred at about 2 a.m. The Court of Appeals, 623 P.2d 1121, 50 Or. App. 539, held that this was not an appropriate case for a res ipsa loquitur instruction, stating: There is nothing particularly mysterious or profound about the doctrine of res ipsa loquitur. Perhaps the labeling of the doctrine with a Latin title has served to confuse rather than enlighten. In essence, the rule that "the thing speaks for itself," res ipsa loquitur, is a rule of circumstantial evidence that allows an inference of negligence to be drawn if the accident is of a kind which ordinarily would not have occurred in the absence of the defendant's negligence, even though it is impossible to determine the specific way in which the defendant was negligent. Kaufman v. Fisher, 230 Or. 626, 635, 371 P.2d 948 (1962). This court's most comprehensive discussion of the res ipsa loquitur doctrine appears in Kaufman v. Fisher, supra, in which we stated: We specifically held that "* * * [t]o make the doctrine of res ipsa loquitur available to the plaintiff it is not necessary that he eliminate other probable causes." The test was stated as follows: "Could it have been reasonably found by the jury that the accident which occurred in this case is of a kind which more probable [sic][1] than not would not have occurred in the absence of negligence on the part of [the defendant]?" 230 Or. at 638-639, 371 P.2d 948. The Court of Appeals was not correct in stating that res ipsa loquitur would only apply if no conclusion could be drawn from the fact that a cow escaped from a pasture other than that the accident was caused by the defendants' negligence. In this case the operative incident is the escape of the cows. Res ipsa loquitur applies if the incident the escape of the cows was of a kind which does not normally occur in the absence of negligence and the negligence which caused the incident was probably that of the defendant. In a number of earlier cases we have listed "elements" of res ipsa loquitur which must be proved. For example, in Brannon v. Wood, 251 Or. 349, 355, 444 P.2d 558 (1968), we stated that the elements of res ipsa loquitur are: In Kaufman v. Fisher, 230 Or. 626, 634, 371 P.2d 948 (1962), we also relied on Prosser and listed these "necessary elements of the doctrine": In Pattle v. Wildish Construction Co., 270 Or. 792, 797, 529 P.2d 924 (1974), we held that exclusive control is not required[3] and *655 both Cramer v. Mengerhausen, 275 Or. 223, 228, 550 P.2d 740 (1976), and Powell v. Moore, 228 Or. 255, 268, 364 P.2d 1094 (1961), make it clear that the plaintiff's participation does not necessarily exclude the operation of res ipsa loquitur.[4] If exclusive control or custody is not required, and if plaintiff's voluntary participation does not bar its application, res ipsa loquitur would seem to require nothing more than evidence from which it could be concluded that the event was of a kind which does not normally occur in the absence of negligence and that the negligence which caused the event was probably that of the defendant. Obviously, the participation of the plaintiff or others in the event or in the control of the instrumentality are relevant, but strictly speaking, the operation of res ipsa loquitur requires neither exclusive custody or control of the defendant nor absence of participation by the plaintiff. The Court of Appeals' reliance on the fact that "a cow can escape from even an adequate enclosure," as support for its holding that res ipsa loquitur is inapplicable in such cases, is unpersuasive. The conclusion which must be drawn to render the doctrine applicable is not whether a cow can escape such an enclosure, but rather whether a jury could reasonably find, under the evidence, that it is more probable than not that the escape of the cows would not normally occur in the absence of negligence and that the negligence was that of the defendants. Kaufman v. Fisher, supra, 230 Or. at 636, 639-640, 371 P.2d 948.[5] This is not a situation, such as might be presented in a medical malpractice case, in which plaintiff would need expert testimony to show that accidents of this kind do not commonly happen in the absence of negligence by persons in defendants' position. See Mayor v. Dowsett, 240 Or. 196, 217-218, 400 P.2d 234 (1965). There was evidence that the cows were within the *656 defendants' exclusive control and the jury could reasonably have concluded that the cows normally could not escape from the enclosure if the gate was securely locked. Although we do not hold that res ipsa loquitur applies to every case in which a cow escapes from an enclosed area and enters a public highway, under the facts of this case, a jury could conclude that the cows would not have escaped in the absence of negligence and that the negligence which caused their escape was that of the defendants. Res ipsa loquitur was applicable.[6] The plaintiff alleged and the court submitted these allegations of negligence to the jury: The jury, by special interrogatory, found that the defendants were "* * * at fault in one or more of the respects claimed in the plaintiff's complaint which caused damage to plaintiff." The jury also answered another special interrogatory as follows: Based upon the jury's special findings, judgment was entered for the plaintiff. Even though the plaintiff prevailed, she claims: The res ipsa loquitur doctrine is of unique, inestimable assistance to plaintiffs in situations in which the plaintiff is unable to reconstruct the specific facts. The law comes to the plaintiff's aid to permit the drawing of an inference of specific fault where there is no direct evidence of specific fault. In the absence of a res ipsa loquitur instruction, the jury found that defendants *657 were at fault in one or more of the respects charged.[7] Having in mind the effect of res ipsa loquitur an inference of an unspecified fault may be drawn if the accident is of a kind which ordinarily would not have occurred in the absence of the defendants' negligence there is no way that the event at bar can be or should be treated any longer as an "unexplained" event. The jury found that the defendants were at fault in one or more of the specific respects alleged in the complaint. The mere existence of the event could not have given rise to a finding of greater fault. The plaintiff was not prejudiced by the failure to give the requested instruction. This statement from Cramer v. Mengerhausen, 275 Or. 223, 227-228, 550 P.2d 740 (1976), is in point: Beglau v. Albertus, 272 Or. 170, 536 P.2d 1251 (1975), cited by the plaintiff, is distinguishable. There, the trial judge failed to instruct the jury upon the application of a statutory requirement for headlights. Judgment was entered for the defendant following a jury verdict assessing defendant's fault at 36 percent and plaintiff's fault at 64 percent. The trial court set aside the judgment for defendant and ordered a new trial. We affirmed because "* * * we ordinarily accord considerable latitude to the trial court in its determination whether such an error was prejudicial * * *." 272 Or. at 187, 536 P.2d 1251. We did not reverse the trial court because of the failure to give the requested instruction. The plaintiff also requested that the court instruct the jury as follows: The trial court did not err in failing to give this instruction. Although the first sentence of the requested instruction may be relevant to a proper res ipsa loquitur instruction, the remainder of the instruction is incorrect because res ipsa loquitur creates only a permissible inference and shifts neither the burden of proof nor the burden of going forward. See Powell v. Moore, 228 Or. 255, 268, 364 P.2d 1094 (1961), and Ritchie v. Thomas, 190 Or. 95, 112, 224 P.2d 543 (1950). See also, former ORS 41.320, repealed, Or. Laws 1981, ch. 892; and Rule 307, Oregon Evidence Code. No error resulted from the trial court's failure to give either a res ipsa loquitur instruction or the requested instruction set forth above.[8] The accident occurred on a section of the coast highway which is governed by ORS 607.510, which provides: Violation of ORS 607.510 is punishable as a misdemeanor. ORS 607.992. The plaintiff asserts that the trial court should have given the following instruction: The effect of this instruction would be to instruct the jury to find the defendants at fault from the presence of their cattle on a highway unless they proved that they had an excuse for violating the statute and that the excuse was "reasonable." Although ORS 607.510 is not a part of the Oregon Criminal Code, provisions of the Oregon Criminal Code nonetheless relate to its application. ORS 161.035(2) provides that unless otherwise provided, or unless the context otherwise requires, the provisions of the Criminal Code of 1971 govern the construction and punishment of any offense outside the Criminal Code. ORS 161.095(2) provides: ORS 161.105(1)(b) provides: As stated above, ORS 607.510 is "an offense defined by a statute outside the Oregon Criminal Code." In construing ORS 607.510, our first inquiry must be whether ORS 607.510 "* * * clearly indicates a legislative intent to dispense with any culpable mental state requirement * * *." ORS 161.105(1)(b). "Culpable mental state" is defined in ORS 161.085(6) as follows: *659 Parker v. Reter, 234 Or. 544, 383 P.2d 93 (1963), although decided before the enactment of the Criminal Code in 1971, is relevant to whether ORS 607.510 "* * * clearly indicates a legislative intent to dispense with any culpable mental state requirement * * *." ORS 161.105(1)(b). Parker v. Reter involved a statute which is similar to ORS 607.510. There, as here, the defendant raised cattle on a ranch near a public highway. The applicable statute was ORS 607.045(1), which provided: In Parker, the plaintiff's automobile collided with two cows which had escaped from the defendant's barn and went upon the adjoining highway. The trial court instructed the jury that the defendant was negligent as a matter of law. On the appeal, we construed the statute to extend to cattle running upon a highway and held that the statute was not violated unless the owner was at least negligent in permitting livestock to run at large. 234 Or. at 549, 383 P.2d 93. Quoting from Lemery v. Leonard, 99 Or. 670, 678-679, 196 P. 376 (1921), we stated: The verb "allow," as used in ORS 607.510, has essentially the same meaning as the verb "permit," as used in ORS 607.045(1). Therefore, the words of ORS 607.510 "No person shall allow cattle * * * to run at large, be pastured, staked or tethered * * *" do not "* * * clearly indicate a legislative intent to dispense with any culpable mental state requirement." On the contrary, these words, our holding in Parker v. Reter, supra, and ORS 161.095(2) and ORS 161.105(1) compel the conclusion that one of the culpable mental states defined in ORS 161.085 must be proved. The plaintiff's requested instruction is inconsistent with the requirement that at least criminal negligence must be shown before the statute would be violated. Therefore, the trial court properly refused to give the requested instruction. The plaintiff also contends that the trial court erred in receiving the verdict over the plaintiff's assertion of jury misconduct and in its instruction on lookout. We concur with the Court of Appeals' discussion and resolution of these issues, 50 Or. App. at 541-542, 545-546, 623 P.2d 1121, and will not otherwise discuss them herein. Affirmed. [*] Tongue, J., retired February 7, 1982. [1] To avoid future quotations of this sentence with "[sic]" added, we now declare "probable" to be "probably." [2] See also, Powell v. Moore, 228 Or. 255, 266, 364 P.2d 1094 (1961), and cases cited therein; Mayor v. Dowsett, 240 Or. 196, 220, 400 P.2d 234 (1965); Brannon v. Wood, 251 Or. 349, 355, 444 P.2d 558 (1968); American Village v. Stringfield Lbr., 269 Or. 41, 43, 522 P.2d 891 (1974). [3] The requirement of exclusive control does not mean that the defendant's control must have been exclusive in terms of physical possession, but only that "it must appear that the negligence of which the thing speaks is probably that of defendant and not of another." Pattle v. Wildish Construction Co., 270 Or. 792, 797, 529 P.2d 924 (1974), citing 2 Harper and James, The Law of Torts 1085, § 1917 (1956). [4] Cramer v. Mengerhausen, 275 Or. 223, 229, 550 P.2d 740 (1976), adds that because of the advent of comparative fault, res ipsa loquitur may apply even if plaintiff's fault contributed to the injury. See note, 52 U.Colo.L.Rev. 565 (1981). [5] "Whether the inference of negligence is drawn from specific conduct or simply from the fact that the accident happened, the test of preponderating probabilities is the same; in either case plaintiff can get to the jury if there is a rational basis for concluding that it was more probable than not that the defendant's failure to exercise reasonable care was the cause of the accident. "* * *. "We come then to the question of whether the doctrine of res ipsa loquitur applies to the present case. Could it have been reasonably found by the jury that the accident which occurred in this case is of a kind which more probably than not would not have occurred in the absence of negligence upon the part of Fisher? That is a question which cannot be answered with any precision because we do not have statistical data on the relative probability of the negligence of drivers as a cause of this kind of accident. The determination of where the probabilities lie must, ordinarily, be made upon the basis of past experience as it is seen and appraised by the court. `These are the judgments of "common sense."' 2 Harper & James, Torts § 15.2, p. 879 (1956). "The process of judgment involves an examination of the inventory of possible causes for an accident of the kind in question. Initially this inquiry is made by the trial judge in determining whether the case should be submitted to the jury. Upon the basis of his understanding of how accidents of the kind in question happen he decides where the probabilities lie. If he decides that the probabilities of non-negligent causes are as great or greater than the probability of a negligent cause attributable to the defendant he withdraws the case from the jury. On the other hand, if, from the same source of knowledge, he concludes that accidents of the kind in question more often than not occur because of someone's negligence (or if he is of the opinion that expert testimony probably would demonstrate this proposition), he submits the case to the jury. The conclusion thus reached by the trial judge is tentative only because the jury may conclude otherwise. Therefore, although we frequently speak in terms of our own examination of the probabilities (e.g., Secanti v. Jones, 223 Or. 598, 606, 349 P.2d 274, 277 (1960); Eitel v. Times, 221 Or. 585, 593, 352 P.2d 485 (1960)) we are simply saying that because we are of the opinion that the probability of the defendant's negligence is greater than the probability of other causes the jury is entitled to reach the same conclusion, although it is not required to do so." (Footnote omitted.) Kaufman v. Fisher, 230 Or. 626, 636, 639-640, 371 P.2d 948 (1962). [6] "`In civil cases the plaintiff has the burden of proving his case by a bare preponderance of the evidence. This means that he must satisfy the triers of fact that fifty-one per cent of the probabilities are in his favor. In negligence cases he is required only to convince the jury that it is more likely that his injuries were caused by negligence than that they were not. He must do so by evidence, and not by mere speculation and conjecture; [citing cases] and where the probabilities are at best evenly balanced between negligence and its absence, [citing cases] it becomes the duty of the court to direct the jury that there is no sufficient proof. A case of res ipsa loquitur is no exception to these familiar rules. It is the plaintiff's task to make out a case from which, on the basis of experience, the jury may draw the conclusion that negligence is the most likely explanation of the accident. That conclusion is not for the court to draw, or to refuse to draw so long as there is enough to permit the jury to draw it; and even though the court would not itself infer negligence, it must still leave the question to the jury where reasonable men may differ as to the balance of probabilities.' Prosser, Selected Topics on the Law of Torts, pp. 319-320 (1954)." Quoted in Kaufman v. Fisher, 230 Or. 626, 635, 371 P.2d 948 (1962). [7] Compare Brannon v. Wood, 251 Or. 349, 356-357, 444 P.2d 558 (1968), which held that where only specific acts of negligence are charged, a res ipsa loquitur instruction must be limited to the specific acts of negligence alleged. But see and compare Dacus v. Miller, 257 Or. 337, 479 P.2d 229 (1971). [8] The plaintiff also asserts that the requesteds instruction set forth in the text was relevant to her statutory negligence claim. As discussed in part IV of the opinion, the mere presence of the cows on the highway does not, of itself, show a violation of the applicable statute, ORS 607.510. Therefore, the requested instruction was not applicable to the claimed violation of the statute. The res ipsa loquitur instruction requested by the plaintiff but not included in the text of the opinion contained language to the effect that "* * * the fact that there was an injury to plaintiff is no indication that anyone was at fault." The instruction drawn from Uniform Instruction No. 22.00, would have been better without that phrase. In view of that, and in light of the foregoing discussion of res ipsa loquitur, the form of Uniform Instruction No. 22.00 may be questionable. [9] ORS 161.085 provides: "* * *. "(7) `Intentionally' or `with intent,' when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described. "(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 his conduct is of a nature so described or that a circumstance so described exists. "(9) `Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. "(10) `Criminal negligence' or `criminally negligent,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

61f2cc1dd3cee36fa39e1625b66a428f46a4f179bc5be06fb2f80f65afdcb8ad

1982-03-16T00:00:00Z

55f5e782-e2b5-408f-82e2-574f74ff10f5

Hall v. State

290 Or. 19, 619 P.2d 256

oregon

Oregon Supreme Court

619 P.2d 256 (1980) 290 Or. 19 Marjorie A. HALL, Respondent, v. STATE of Oregon, Petitioner. No. A7706-08646; CA 12599; SC 26695. Supreme Court of Oregon. Argued and Submitted April 9, 1980. Decided November 4, 1980. *258 James M. Brown, Asst. Atty. Gen., Salem, argued the cause for petitioner. With him on the briefs were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Gregory P. Lynch, of Lynch & Siel, P.C., Portland, argued the cause for respondent. With him on the brief was Nancy W. Campbell, certified law student. Before DENECKE, C.J., and HOWELL, LENT, PETERSON and TANZER, JJ. DENECKE, Chief Justice. The issues in this negligence action against the state of Oregon are related to, although not the same as, those before us in Stevenson v. State of Oregon, 290 Or. 3, 619 P.2d 247, also decided today. In both cases the state is contending that, as a matter of law, it is not liable for injuries allegedly caused by the state's creation of dangerous highway conditions. In Stevenson the state's position was that it was immune from liability under the circumstances. In this case its position is that even if there is no immunity, there is no evidence from which a jury could find that the state, acting through its employes, was negligent in failing to remove sand from a state highway. The plaintiff in this case sought damages for personal injuries sustained when the car in which she was a passenger went out of control on the banked curve of the entrance ramp to Interstate 80 off the Morrison Bridge in Portland. There was evidence from which the jury could find that the driver lost control because the car encountered sand on the dry pavement and that the sand had been placed there by highway maintenance crews in late November or early December of 1976. The jury could further find that the icy conditions which had created a need for the sand were over by December 3 and that highway maintenance crews had not swept the sand from the ramp by December 13 when the accident occurred. At the close of plaintiff's case the state rested without presenting any evidence and moved for a directed verdict. The trial court granted the motion on the ground that the evidence was not sufficient to permit the jury to determine whether, by December 13, the state had had a reasonable time in which to remove the sand from the ramp. The Court of Appeals reviewed the evidence and held there was evidence from which the jury could find the state did not use reasonable care: We granted the state's petition for review. The state does not contest the Court of Appeals' conclusion that the jury could find that the sand, on dry pavement, constituted a hazard and that the state had a duty to sweep it up within a reasonable period of time. The state's position is that the evidence was not sufficient to permit the jury to determine what a reasonable time would be. Plaintiff's evidence showed that the ramp in question was within the areas assigned to two highway maintenance districts. The depositions of the maintenance supervisors of both districts were in evidence. The supervisors testified that the sand had been distributed throughout both maintenance districts during a brief period up to December 3. Neither supervisor was able to determine from his records whether his crew *259 had spread the sand on this ramp. One supervisor testified that between December 3 and December 13, the date of the accident, his crew spent two days and part of a third on sweeping operations. During this same period there were four weekend days during which no sweeping was done. The jury could have found, however, that maintenance work of some kind was performed on at least two of those days. Two days were spent filling potholes, a part of one day the crew was dealing with high water and drainage problems caused by rain, and one day was spent picking up supplies for devices called "impact attenuators," which the supervisor characterized as an "emergency item" which needed to be repaired immediately. There was evidence that the potholes had "showed up all over," but no testimony as to where they were or the degree of hazard, if any, that they presented. In the other maintenance area, its supervisor testified, the crew engaged in sweeping operations during every weekday of that period except Friday, December 10. He not say what his crew was doing on that day or whether any of his employes worked on the weekends. The evidence showed that each of these highway maintenance districts had one mobile sweeper and a crew of approximately 10 men. One of the supervisors described the equipment and crew necessary for sweeping operations: The supervisor's testimony was uncertain as to how the order of sweeping operations within their districts was determined. One supervisor testified that sweeping usually starts in the areas where the most sand has been put out. Later he testified that curbed areas are swept before open areas, and that median lanes on the freeway are also high priority areas. There was evidence from which the jury could find that at the place where the accident occurred the ramp had curbs on both sides which would tend to confine sand on the surface to the traveled area of the highway. The supervisor testified, however, that this ramp and others would be among the last areas to be swept. Still later he testified that when sand was And finally, when asked whether sweeping operations would be ordered on the basis of what are "high priority areas," he answered: The other supervisor testified that the sand was swept from the freeway system before other roads were swept. He also testified that high priority was given to areas like the Interstate Bridge which have "no shoulders, no place for the sand to go." He also testified that "We generally start on the Interstate Bridge and work south" and that the ramps were not generally swept during this process.[1] When sweeping, he said, "We have an established-start at one place and generally go right through * * *." On the question of how long it takes to sweep up sand, the testimony came from a *260 single witness. One supervisor, when asked how long it would take to sweep up the amount of sand that would be distributed during four days of sanding operations, answered that if there were no other emergencies and no equipment breakdowns it would "probably take two or three weeks to clean it up." Later he testified that five days of sweeping would have been enough to clean up all the sand which had been distributed in his section during the days just prior to December 3. To summarize, the jury had before it evidence that sand on dry pavement constitutes a hazard to motorists, evidence which would permit a finding that the hazard could be greater on this ramp than on other kinds of highway areas, and evidence from which it could find that the curbing on this ramp would prevent the dry sand from being thrown off the traveled portion of the roadway by the traffic. There was also evidence of the amount of equipment and the size of the crew necessary for sand sweeping operations, of the equipment and crew available, and of the amount of time spent on sweeping between December 3 and the time of the accident. In the case of one maintenance district there was evidence of what the crew was doing on most of the days when it was not sweeping; as to the other district there was no such evidence. Finally, there was evidence from which the the jury could infer that the sand on this ramp could have been removed, given the equipment and crew available, prior to the time of the accident. In arguing that plaintiff did not make out a prima facie case of negligence, the state appears to be contending for a special standard when governmental entities are defendants. Although the issue of discretionary immunity, which we considered in Stevenson v. State, supra, is not directly involved in this appeal, some of the state's arguments would fit more comfortably within the discretionary immunity analysis than they do within the normal negligence framework. The state contends that if the Court of Appeals' decision is allowed to stand the jury could "impose liability if it found that the state should have put on extra crews or provided extra equipment or overtime to remove sand," and that the jury "would be allowed to review choices that properly rest elsewhere." The Court of Appeals' opinion, the state complains, "renders possible broad jury review of [governmental] maintenance priorities" and "does not confront the nature of governmental resource allocation choices involved nor the extent to which those choices relate to plaintiff's claim of negligence." Compare Stevenson v. State, supra, 290 Or. 3 at 12-14, 619 P.2d 247 at 252-254. In order to properly evaluate these kinds of contentions, we think it will be helpful to analyze this case in the first instance as though the defendant were a private party and the injury had occurred on a private bridge and roadway system. After addressing the problem of the standard of care in that hypothetical context, we will consider whether a different analysis is required because the defendant is the state. Not surprisingly, we have found no cases involving similar facts in which the defendant was a private party. There are, however, many cases in which a claim for damages is based on an alleged hazard created by transitory conditions which the occupier of land has a duty (at least to invitees) to discover and remedy within a reasonable time. Our own decisions in such cases contain no indication that plaintiff's prima facie case must include direct evidence to inform the jury what would be a reasonable time in which to take action. If there is evidence to support the other elements of plaintiff's case, it seems to be understood that a jury question is presented when plaintiff has shown the nature of the hazard and that it existed for a period of time sufficient that appropriate action might have been taken. See, e.g., McVaigh v. Sandberg, 266 Or. 409, 513 P.2d 801 (1973) (plaintiff slipped and fell on floor of defendants' drug store; evidence that new floor wax had been used and that defendants knew other people had slipped on the floor); Bertrand v. Palm Springs, 257 Or. 532, 480 P.2d 424 (1971) (plaintiff slipped *261 and fell on wet floor in dressing room in defendants' health spa; defendant knew water tended to collect in the area and had instructed attendant to mop floor every 15 to 30 minutes); Pribble v. Safeway Stores, 249 Or. 184, 437 P.2d 745 (1968) (customer slipped and fell just inside store's entrance where water brought in by customers on rainy day made tile floor slippery); McKinley v. Steinbeck, 224 Or. 278, 355 P.2d 263 (1960) (plaintiff slipped on ice on steps outside defendant's motel; defendant either saw or should have seen the ice when he inspected the steps earlier the same morning). Compare Pavlik v. Albertson's, Inc., 253 Or. 370, 374, 454 P.2d 852 (1969) (no evidence to indicate whether lettuce leaf had been on supermarket floor "a few seconds, or a few hours"); Cowden v. Earley, 214 Or. 384, 327 P.2d 1109 (1958) (no evidence to permit finding that hotel owner had any opportunity to learn of water on stairway landing). In Lopp v. First National Bank, 151 Or. 634, 51 P.2d 261 (1935), we held that plaintiff had made a prima facie case when there was no direct evidence as to how long the slippery substance which caused her fall had been on defendant's floor. Plaintiff testified that defendant's manager, who helped her to her feet after the fall, said "I told them to clean that up and they haven't done it." The majority was of the opinion that the jury could have concluded, from that remark, that there had been sufficient time to clean up the floor. The opinion indicates that it was up to the defendant to rebut that permissible inference: In some jurisdictions there is frequent litigation involving the liability of private defendants for injuries allegedly caused by negligent failure to remove ice or snow from premises under their control. Although such cases maybe taken from the jury on various grounds, we have found no suggestion that plaintiffs have been required, in order to avoid a nonsuit or directed verdict, to provide direct evidence of what would have been a reasonable time in which to alleviate the hazard. See, generally, Anno., Liability for Injuries in Connection with Ice or Snow on Nonresidential Premises, 95 A.L.R.3d 15 (1979). The trial judge seems to have been of the opinion that expert testimony was necessary in order to inform the jury what would be a reasonable time within which to remove the sand. Expert testimony is an indispensable part of plaintiff's case only when the average juror cannot be expected to understand the issues without that kind of assistance. It is not required simply because the circumstances are outside the average juror's experience if the other evidence is such as to present the issues in terms which the jury can be expected to understand. Lynd v. Rockwell Manufacturing, 276 Or. 341, 349, 554 P.2d 1000 (1976); Simpson v. Sisters of Charity of Providence, 284 Or. 547, 557, 588 P.2d 4 (1978). Although the need for a logistics of highway sand removal are outside the probable experience of the average juror, there was evidence in this case informing the jury of the safety reasons for performing the task, the hazards of leaving it undone, the relative hazards among various kinds of highway areas, the way in which the job of sweeping highways is done, and the amount of time spent on that task during the relevant period. There was evidence from which the jury could find that the maintenance crews had not swept the more hazardous areas, including this ramp, before sweeping areas in which the danger was less. There was also some direct evidence from which the jury could conclude that the sand on this ramp could have been removed within that period. There is nothing about the issues presented by this kind of evidence which is beyond the capacity of jurors to understand without the assistance of experts. Before this court the state does not argue that expert testimony was required, *262 but contends that plaintiff, in order to show that the state acted unreasonably in failing to remove the sand prior to the day of the accident, must present evidence that removing sand was more urgent than the other tasks which highway maintenance crews were performing when they were sweeping the highways. In our examination of analogous cases, we have found no suggestion that proof of that kind is part of plaintiff's prima facie case when a private defendant is alleged to be negligent. Although it is part of plaintiff's burden in a negligence case to persuade the trier of fact that the defendant acted unreasonably, plaintiff is not ordinarily required, in order to make a prima facie case, to negate the possibility that there were special circumstances which made the defendant's conduct reasonable. It is up to the defendant to produce evidence to rebut a permissible inference of negligence by showing that there were good reasons why it did not in fact take a precaution that, according to plaintiff's proof, it might reasonably have taken. It is, of course, impossible to state accurately in general terms a rule for determining precisely when a plaintiff has produced enough evidence to permit a finding that defendant did not act reasonably. We are persuaded, however, that sufficient evidence was produced in this case. The kind of evidence which the state suggests we should require is much more likely to be available to the defendant than to the plaintiff. It is not surprising that we have found no authority suggesting that it is a necessary part of plaintiff's case. We conclude that were the defendant a private party the plaintiff's evidence in this case would be sufficient to survive a motion for a directed verdict. There remains the question whether the analysis should be any different because the defendant is the state rather than a private party. We hold that it should not. The legislature has provided that, except as otherwise limited by the statutes, all public bodies are liable for their torts. ORS 30.265(1). There is no suggestion in the tort claims act that where a public body's potential tort liability is based on negligence the plaintiff's proof is to be evaluated by any stricter standards than in negligence cases generally. The concerns expressed by the state in support of its argument for a more stringent standard were addressed by the legislature and accommodated in ORS 30.265(3)(c), providing for immunity of public bodies from tort liability based on the exercise of governmental discretion. For example, under that provision as we have construed it in Stevenson v. State, supra, the state could not be held liable on the ground that the legislature should have allocated funds sufficient to provide the highway maintenance divisions with more equipment or larger crews.[2] Neither the pleadings nor plaintiff's evidence in this case attempts to predicate liability on conduct which was undertaken as the result of a decision reached in the exercise of governmental discretion as described in Stevenson. The Court of Appeals was correct in holding that the state's motion for directed verdict should have been denied and in remanding the case for a new trial. The decision of the Court of Appeals is affirmed. [1] He later testified, however, that "we make a special point in sweeping" the ramps. The jury was not required to believe this testimony and reject his testimony to the contrary. [2] No such contention has been made in this case. Even so, after hearing the evidence and argument the trial judge could, if it seemed necessary, give a cautionary instruction to the jury.

a6fce420418175479e0db68a949c67d77e5be8e80b108dd10e869f6a14cb6d78

1980-11-04T00:00:00Z

0ded63d9-9e03-4bbc-9d87-6a72f875276e

In Re Huffman

289 Or. 515, 614 P.2d 586

oregon

Oregon Supreme Court

614 P.2d 586 (1980) 289 Or. 515 In re Complaint As to the Conduct of Donald E. HUFFMAN, Accused. OSB 78-54; SC 26821. Supreme Court of Oregon, In Banc. Argued and Submitted June 3, 1980. Decided July 23, 1980. Burton J. Fallgren, Portland, argued the cause for the accused. With him on the briefs was Donald E. Huffman, of Huffman & Barnes, Milwaukie. John Henry Hingson, III, Oregon City, argued the cause for the Oregon State Bar. With him on the brief was Roderick W. Kitson, Mulino. PER CURIAM. This is a disciplinary action involving a member of the Oregon State Bar, Donald E. Huffman. The Trial Board found Huffman not guilty. The Disciplinary Review Board found him guilty and recommended a public reprimand. We review de novo. ORS 9.480, ORS 9.535. The charges arose subsequent to a bitter marriage dissolution battle between Huffman's client and her then husband. Huffman's representation of a divorce client, Mrs. Diamond, began on December 3, 1974. At a conference, Huffman and Mrs. Diamond discussed the securing of his fee through taking a security interest in real property. On December 23, 1974, to secure Huffman's fee, Mrs. Diamond executed an assignment of her vendee's interest in a land sales contract which she owned by the entirety with her husband, the respondent in the dissolution proceeding. On December 26, 1974, the assignment was recorded, and on the same date the petition for dissolution was filed. At the trial on August 1, 1975, Mrs. Diamond did not testify about her assignment to Huffman even though she was questioned by him about the value of the property and encumbrances thereon. Huffman, likewise, said nothing about the assignment to the trial judge. He told the Trial Board that at the time of trial he had no recollection *587 of the security agreement. He testified that he did not remember the security agreement at that time because it was not contained in the client file, where it would be seen, but rather in an accounts receivable file. The trial judge, at the conclusion of the dissolution case, awarded the subject real property to the husband, "free and clear of any interest of the petitioner [wife]." The husband, being generally unsatisfied with the result, appealed to the Court of Appeals, which affirmed. The Oregon State Bar alleges that the failure to disclose the security agreement to the court violated Disciplinary Rules 7-102(A)(3), 7-102(A)(7), 1-102(A)(4) and 1-102(A)(6).[1] These rules provide: The Review Board, to the contrary, found that "[n]o credence can be given to the Accused's testimony to the effect that he forgot about the assignment." We are faced with directly contradictory findings from the Trial and Review Boards on this issue. The Review Board apparently considered Huffman's explanation not credible primarily because they found it inconceivable that he would have represented Mrs. Diamond in all of the pretrial matters, at trial, and a later appeal to the Court of Appeals, all without regard to or concern for the source of his compensation, especially when the fee had been his "first concern at the outset of his employment." The Trial Board, on the other hand, had the benefit of hearing the testimony of the accused. Neither the Review Board nor this court has had this advantage. In re Moynihan, 166 Or. 200, 221, 111 P.2d 96 (1941). Huffman testified that he forgot about the assignment and that as the case got messier and messier, his expectation of compensation virtually disappeared. He did, however, request that attorney fees be awarded against the husband in the trial court and on appeal. The Bar has not proved, by clear and convincing evidence, that the accused knowingly failed to disclose to the trial court his interest in property involved in the dissolution proceeding. We accordingly find Huffman not guilty of this charge. The Bar's second charge is that Huffman refused to release his security interest in the property awarded to his client's former husband unless he received the attorney fees owed him by his client. This is alleged to be violative of Disciplinary Rules 1-102(A)(5) and 1-102(A)(6): *588 On April 17, 1978, long after the trial and appeal, Mr. Diamond, to whom the property was awarded by the trial judge, decided to build a home on the property. In connection with mortgage financing, a title company became involved. Huffman testified that he received a telephone call from the title company, as follows: The title company sent Huffman a form of release in which he agreed to release his interest in the property on payment of his fee. Shortly after Huffman returned the release to the title company, he received a call from the attorney for Mr. Diamond, Richard Stinson. Stinson said that Huffman was not entitled to be paid his fees from that property, and requested that Huffman release his security interest forthwith. On May 3, 1978, Stinson wrote Huffman to the same effect and enclosed a quitclaim deed for Huffman to sign. Stinson's letter contained this paragraph: Huffman requested Stinson to "send me some kind of authority on why I should release it," and Stinson agreed to do so. Thereafter, the lawyers exchanged several phone calls, but Huffman did not execute the quitclaim deed and Stinson did not provide the authority requested. Huffman then turned the matter over to his partner. In a deposition of Huffman taken two months before the Trial Board hearing, Huffman stated that he knew at the time of Stinson's first call that he was not entitled to the security interest in Mr. Diamond's property. Nevertheless, Huffman refused to sign the release for a period of six months after he was requested to do so. The Review Board stated: *589 The Bar's complaint alleged that Huffman refused to release "without payment of the * * * fees owed him by [Mrs. Diamond] * * *." Huffman admits that he refused to sign the quitclaim deed that Stinson sent to him. He contends that his refusal arose from Stinson's failure to send him "authority," and not because of the nonpayment of his fee. We are unpersuaded by this argument. The record is clear that Huffman, in his dealings with the title company, agreed to release his security interest only after he received payment of his fee. Further, Huffman told Stinson in the initial phone call that he "thought [he] was going to be paid" by the title insurance company and requested authority from Stinson as to why he should release his interest. Stinson's testimony was that "[t]he gist of all the phone calls that I had from Mr. Huffman was that there was no way I was going to get a signed deed unless he got $1900." And most importantly, Huffman himself testified, "I knew that I was not entitled to the money." We agree with the Disciplinary Review Board. Huffman's conduct in refusing to release his interest in the property amounted to the knowing advancement of a claim that was unwarranted (DR 7-102(A)(2)) and the assertion of a position when it was obvious that such action would serve merely to harass another (DR 7-102(A)(1)). Although Huffman was not charged with violating DR 7-102(A)(1) or (2)[2] his conduct adversely reflects on his fitness to practice law, DR 1-102(A)(6). However, there is no record of a course of such conduct. To the contrary, Huffman testified that he had never before been accused of similar conduct. There was also evidence that a judge familiar with his reputation for truth and veracity had never heard anything negative about Huffman in that regard. Because the conduct here was an isolated occurrence, arising out of a bitter divorce dispute, we conclude that a public reprimand is sufficient to indicate to the Bar of this state and to the public the seriousness with which we regard this breach of professional responsibility. Huffman's conduct in refusing to release his security interest violated his ethical obligation as a member of the Bar of the state. This opinion will serve as a public reprimand for his misconduct. Reprimanded. Costs to the Oregon State Bar. [1] A further charge against Huffman is unsupported in the record and we therefore do not discuss it. [2] We suggest that Bar counsel strive to charge accused attorneys as specifically as possible, under the facts known to them at the time the complaint is filed.

289fc309e8b328add7cfa7dba0da513e6b44310bb5edf6f2c8f17ea5a15034d8

1980-07-23T00:00:00Z

6e5d0912-885f-473e-8bc9-b0dc5901e95f

State Ex Rel. Redden v. Discount Fabrics, Inc.

289 Or. 375, 615 P.2d 1034

oregon

Oregon Supreme Court

615 P.2d 1034 (1980) 289 Or. 375 STATE ex rel. James A. Redden, Petitioner, v. DISCOUNT FABRICS, INC., an Oregon Corporation, Respondent. No. A7703-03602; CA 14380 and SC 26874. Supreme Court of Oregon. Argued and Submitted June 2, 1980. Decided July 23, 1980. Rehearing Denied September 8, 1980. *1035 Erik G. Sten, Asst. Atty. Gen., Portland, argued the cause for petitioner. With him on the briefs were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. R. Alan Wight, Portland, argued the cause for respondent. With him on the brief was Miller, Anderson, Nash, Yerke & Wiener, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. TONGUE, Justice. This case involves a civil suit brought by the state Attorney General against defendant, Discount Fabrics, Inc., for alleged violations of Oregon's Unlawful Trade Practices Act (UTPA), ORS 646.605 et seq. The suit was tried in circuit court before a jury which returned a special verdict for defendant. Plaintiff appealed from the resulting decree. Plaintiff's sole assignment of error is that the trial court erred in its instruction to the jury that evidence of alleged "wilful" conduct by the defendant in violation of the Oregon Unlawful Trade Practices Act "must be clear and convincing, as distinguished from a mere preponderance of the evidence." The Court of Appeals affirmed without opinion. 44 Or. App. 295, 605 P.2d 760 (1980). Defendant operates a chain of 61 retail fabric stores covering six western states and British Columbia. In October of 1976 an investigator for the Consumer Protection Division of the Oregon Department of Justice purchased twelve samples of various fabrics from three of defendant's stores located in the Portland metropolitan area. Seven of these fabrics were labeled as containing 100 percent wool; one was labeled 80 percent wool; and four were labeled "wool blend." The actual wool content varied between 9 percent and 83 percent.[1] The state filed suit in Multnomah County Circuit Court, alleging twelve violations of the Unlawful Trade Practices Act in that *1036 "the false and incomplete descriptions of the boards of fabric offered for sale and the practice of misrepresentations by defendant were in violation of ORS 646.608(1)(e) and (g)."[2] By its first cause of suit the state sought a decree ordering defendant to pay a civil penalty of $25,000 for each of the twelve violations.[3] By its second cause of suit the state sought a decree enjoining defendant from further violations of the statute, ordering defendant to make restitution to consumers who had purchased mislabeled fabrics, and an award of reasonable attorney fees.[4] A jury was impaneled to hear the state's first cause of suit: the question of defendant's liability for a civil penalty.[5] ORS 646.642(3) provides that the state may recover such a civil penalty upon a finding that "a person is wilfully using or has wilfully used a method, act or practice declared unlawful by ORS 646.607 or 646.608 * * *." (Emphasis added). ORS 646.605(9) provides that "a wilful violation occurs when the person committing the violation knew or should have known that his conduct was a violation." (Emphasis added) At trial defendant did not contest the evidence offered by the state that identified the actual percentage of wool in the twelve pieces of fabric purchased by the Consumer Protection Division inspector. Instead, nearly all of the evidence presented by the state and by defendant went to the question whether defendant "knew or should have known" that the labels on the fabrics were incorrect. It appears from the record that the manufacture of the fabrics involved in this case involves various steps and often several different companies. Fabrics begin as "grey goods," followed by dyeing and finishing. The manufacturer of the "grey goods" is required by federal law (15 U.S.C. § 68c) to identify by a label or tag the percentage of wool content. Distributors of finished goods will "guarantee" that the fabrics they sell are as labeled. Defendant normally requested "guarantees" from its suppliers. In purchasing *1037 the fabrics involved in this case, however, defendant had not requested any such "guarantees." In September 1976, June Bert, the owner of another fabric shop in Lake Oswego, went to defendant's Lake Oswego store and purchased three samples of fabric labeled 100 percent wool. She ran a "burn test" and a "bleach test" on these fabrics and determined that they were about 50 percent wool. She then notified the Consumer Protection Division. In October one of its investigators, accompanied by Ms. Bert, went to defendant's Lake Oswego store. Ms. Bert selected by "feel" six fabrics that she thought contained less wool than was indicated on the label. The investigator then purchased a sample of each. The investigator also went to two of defendant's other stores in the Portland area, unaccompanied by Ms. Bert. At those stores he purchased additional samples, some duplicates of those purchased at the Lake Oswego store, others that by "feel" he thought might be mislabeled. The state offered testimony by other witnesses that in the case of at least some of the fabrics in question, it was fairly easy to tell by "feel" that they were not 100% wool and, further, that this could be determined by burning a sample (burning wool emits a strong odor) or by placing a sample in bleach (the wool fibers dissolve, leaving the man-made fibers). Defendant offered the testimony of its employees to the effect that defendant handles a large volume of fabric; that it had relied upon labels furnished by reliable manufacturers and, further, that determining wool content by "feel" is very difficult. (At trial Ms. Bert was asked on cross-examination by the defense to identify several samples of wool cloth as being either 100% wool or wool blends. She demonstrated great difficulty in doing so.) Two questions were submitted to the jury. First, as to each of the twelve fabrics, whether a misrepresentation had occurred. Second, if any misrepresentation had occurred, did defendant know or should it have known of such misrepresentation? As to the first question, the court instructed the jury that the state's burden of proof was "by a preponderance of the evidence." As to the second question, however, the court instructed the jury: By a special verdict in response to these questions, the jury found that misrepresentations had been made by the defendant in selling eight of the twelve fabrics but that none of those eight misrepresentations had been "wilful," (i.e. defendant did not know nor should it have known of such misrepresentations). The court then entered its Findings of Facts and Conclusions of Law incorporating the verdict in favor of the defendant on the first cause of suit and dismissing the second cause of suit for an injunction, restitution and attorney fees. As previously stated, the state appealed to the Court of Appeals, urging a single assignment of error: In response, defendant contends that the instruction was proper and, if it was not proper, that the error was not prejudicial. ORS 17.250(5) provides: Oregon's Unlawful Trade Practices Act (UTPA) is a comprehensive statute for the *1038 protection of consumers and provides for both public and private enforcement of its provisions.[6] In both instances it is clear that the legislature intended that such enforcement be obtained through the use of civil remedies rather than criminal sanctions.[7] The act is silent, however, with respect to the degree of proof required in such proceedings. Thus, the question is presented whether the "preponderance of evidence" standard as provided in ORS 17.250(5) should apply in such proceedings, particularly in deciding the question whether defendant's conduct was "wilful," or whether a higher standard or degree of proof should be required in deciding that question in such cases. In Cook v. Michael, 214 Or. 513, 330 P.2d 1026 (1958), this court held (at 525, 330 P.2d at 1032) that: And, further, (at 527, 330 P.2d at 1032): Thus, while the "preponderance of evidence" standard is the rule in most civil cases, an exception to that standard has been required in civil cases based upon common law fraud. See, e.g., Barkins v. The Stuyvesant Ins. Co., 255 Or. 222, 224, 465 P.2d 696 (1970). Defendant contends that when, in proceedings under the UTPA, the remedy sought requires proof of "wilfulness," the degree of proof required must be "clear and convincing" because had "these same allegations been made by a purchaser of goods without reference to the Oregon statute, the case would have been one for fraud and deceit under the common law." Thus, according to defendant, when the legislature codifies common law fraud, but is silent as to the degree of proof required, the assumption should be that the legislature intended that the common law rule requiring a "clear and convincing" degree of proof should apply. We disagree. In Wolverton v. Stanwood, 278 Or. 341, 563 P.2d 1203, reh. den. 278 Or. 709, 565 P.2d 755 (1977), this court said (at 713, 565 P.2d at 757): The elements of common law fraud, as stated by this court in Rice v. McAlister, 268 Or. 125, 128, 519 P.2d 1263 (1974), are: *1039 A review of the UTPA reveals that not all of these elements are required in order to recover under the act. For example, the element of reliance is notably different. In Sanders v. Francis, 277 Or. 593, 598-99, 561 P.2d 1003 (1977), this court considered whether reliance was a necessary element to a private action under ORS 646.638(1). That section requires that a private party has suffered an ascertainable loss "as a result of wilful use or employment by another person of a method or practice declared unlawful by ORS 646.608 * * *," before such party may bring a UTPA suit. This court determined that whether reliance was a necessary element depended upon the type of violation alleged and that reliance was not required in nondisclosure cases. Thus, reliance may not be an element of a private cause of suit under ORS 646.638(1) because of the requirement that the loss be the "result of" wilful conduct. In any event, no such requirement that a loss be the "result" of wilful conduct exists when, as in this case, suit is brought by the state under ORS 646.632 and when a civil penalty is sought under ORS 646.642(3). In addition, the element of scienter as required in an action for common law fraud is not required by the UTPA. In Horner v. Wagy, 173 Or. 441, 146 P.2d 92 (1944), this court considered whether it was error to instruct a jury that representations could constitute fraud "even though the defendant did not know whether such representations were true or false." This court stated (at 459, 146 P.2d at 99): This requirement that the statement be "attended by conscious ignorance of, or reckless indifference to, its truth or falsity" was further explained in Amort v. Tupper, 204 Or. 279, 282 P.2d 660 (1955) at 287, 282 P.2d at 664: See also Bausch v. Myers, 273 Or. 376, 379, 541 P.2d 817 (1975). By contrast, ORS 646.642(3) permits the imposition of a civil penalty if defendant "knew or should have known that his conduct was a violation." ORS 646.605(9). Thus, under the terms of that statute a defendant is liable for misrepresentations made negligently, without evidence that it was attended by either conscious ignorance or reckless indifference to its truth or falsity, whereas evidence that a misrepresentation was made negligently is insufficient in an action for common law fraud. In other words, the term "wilful," as defined by ORS 646.605(9), requires no more than proof of ordinary negligence by a defendant in not knowing, when it should have known, that a representation made by him was not true. In a cause of action for ordinary negligence the degree or standard of proof required is a "preponderance of the evidence." In our opinion, the same degree or standard of proof is required in a proceeding under the UTPA in view of the provisions of ORS 646.605(9), and we decline to extend to such proceedings the more rigorous degree or standard of proof required in an action for common law fraud.[8] *1040 Defendant also contends that because the statute authorizes the state to seek a severe "civil penalty" ($25,000 per violation per ORS 646.642(3)), this suit cannot be characterized as a "civil suit," but rather is in the nature of a criminal prosecution, requiring that the state prove its case beyond a reasonable doubt. In support of this contention defendant relies on Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977), in which this court held that even though the legislature sought to "decriminalize" the first offense of driving a motor vehicle under the influence of intoxicants (DUII), that offense and the means of enforcement and punishment retained too many penal characteristics not to be classified as a "criminal prosecution." Defendant's reliance on Brown is misplaced. In Brown this court considered several factors other than the severity of the fine, including Most of these factors are not present in actions brought under the UTPA. This court also noted in Brown that the legislature retained the criminal classification for a second and subsequent charge of DUII within five years. In addition, the court in Brown specifically noted (at 104, 570 P.2d at 58) that: The civil penalty applicable in UTPA cases, on the other hand, only applies to activities committed "in the course of the person's business, vocation or occupation * * *." ORS 646.607 and 646.608.[9] For these reasons, we hold that the trial court erred when it instructed the jury that because the second "count" of the complaint in this suit "alleged wilful conduct on behalf of the defendant * * * the evidence on that ("count") must be clear and convincing, as distinguished from a mere preponderance of the evidence."[10] This court has held on several occasions that when error is committed in the trial of civil as well as criminal cases an appellate court will ordinarily presume or "deem" that such error was prejudicial to the party against whom it was committed. See Elam v. Soares, 282 Or. 93, 102-03, 577 P.2d 1336 (1978), and the cases cited therein. As previously stated, the trial court erred in this case in instructing the jury *1041 that "* * * the evidence in that case must be clear and convincing as distinguished from a mere preponderance of the evidence." Defendant cites Medak v. Hekimian, 241 Or. 38, 404 P.2d 203 (1965), as authority for its contention that any such error was harmless rather than prejudicial. In that case this court considered the following instruction: This court stated (at 46, 404 P.2d at 207) that although the instruction was incorrect as to estoppel, While the conclusion in Medak that the error in the instruction in that case was not prejudicial was appropriate under the facts of that case, it does not follow that similar errors in instructions are likewise not prejudicial in all circumstances. Rather, in determining whether an error in an instruction is prejudicial, that error must be viewed in light of the evidence to be considered by the jury in its application of that instruction. Our review of the record in this case satisfies us that there was sufficient evidence from which the jury could have properly found by a preponderance of the evidence that defendant "wilfully" violated the provisions of ORS 646.608(1)(e) and (g) in that its employees "knew or should have known" that the labels on at least some of the fabrics were incorrect, so as to constitute a violation of the provisions of the statute in other words, that the defendant was negligent in not knowing that the labels were incorrect. That evidence included the testimony of the Consumer Protection Division investigator and June Bert that Ms. Bert was able to select, by "feel," four fabrics from defendant's Lake Oswego store that contained less than 100 percent wool, although labeled "100 percent wool." In addition, the investigator was also able to independently select by "feel," without Ms. Bert's assistance, another fabric from one of defendant's other stores that was likewise labeled as containing 100 percent wool when, in fact, the wool content was much lower.[11] Although the record indicates that during the cross examination of Ms. Bert, the defense was able to demonstrate that she could not consistently identify the wool content of fabrics by "feel," the jury was entitled to find that both she and the investigator were able to identify, by "feel," fabrics that were inaccurately labeled and that were on sale in defendant's stores. Further, the state offered the testimony of a Mr. Kooning, an officer and director of another firm that dealt in fabrics. He testified that he could tell by "feel" that of the seven fabrics in question that were labeled as 100 percent wool, three were obviously not 100 percent wool. He further testified that in his business he would not have accepted the manufacturer's label on those fabrics and that he would expect his employees to likewise reject those fabrics and to conduct a "burn test." Mr. Kooning also testified that he preferred to buy from companies that have a continuing guarantee filed with the Federal Trade Commission. Finally, the state offered the testimony of two adverse witnesses, Bernard Galitzki, defendant's president, and Pearl Galitzki, defendant's executive vice president, who testified that although defendant normally secured guarantees from their suppliers, they had failed to do so in the cases of the fabrics in question. In view of this evidence, from which the jury could have properly found by a *1042 preponderance of the evidence, if it believed that testimony, that defendant was negligent in not knowing that the labels were incorrect, we cannot say that it was harmless error for the court to instruct the jury that the evidence must be "clear and convincing." On the contrary, whether or not we "presume" that error to have been prejudicial, we conclude from our review of the record that this error by the trial court was prejudicial and we so hold. We have not overlooked the contention by defendant that "the State of Oregon has no right to enter into the field of regulation of interstate commerce on issues of fabric labeling because of preemption by federal law." This argument is based upon the assumption that Congress preempted the field by the passage of the Wool Products Labeling Act of 1939, 15 U.S.C. §§ 68-68j. According to defendant, this act demonstrates a pervasive scheme of regulation and that therefore, the states are preempted from taking action on the same subject. We cannot agree with this contention. Even assuming that the UTPA seeks to regulate the same subject as the Wool Products Labeling Act, defendant's contention is not persuasive. In Jones v. Rath Packing Co., 430 U.S. 519, 97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977), the U.S. Supreme Court stated (at 525, 97 S.Ct. at 1309) that: And, at 526, 97 S.Ct. at 1310: No such obstacle is presented in this case. As also stated by this court in Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or. 533, 543, 577 P.2d 477 (1978): Defendant also contends that federal law (15 U.S.C. § 68c) prohibits it from removing the manufacturer's label. We note, however, that that federal statute only penalizes removal if done "with intent to violate the provisions of sections 68 to 68j of this title * * *." In addition, section 68b(c) of the same act specifically allows any person to replace a label with a substitute if he "finds or has reasonable cause to believe" that the label is incorrect. Reversed and remanded. HOWELL, Justice, specially concurring. I concur in all aspects of Justice Tongue's opinion except that I do not approve of the references in the opinion to error being "deemed" or "presumed" to be prejudicial. As I stated in my brief dissent in Elam v. Soares, 282 Or. 93, 577 P.2d 1336 (1978), our function as an appellate court should be to decide whether the error was prejudicial, without any presumption as to whether it was prejudicial or harmless. In the instant case, to instruct the jury that the evidence must be clear and convincing rather than a preponderance was error requiring a reversal, and any references to evidence being "deemed" or "presumed" prejudicial is unnecessary. [1] Label on Actual Store Fabric Wool Location Board Content (1) Lake Oswego 80% Wool 16% (2) Lake Oswego Wool Blend 15% (3) Lake Oswego 100% Wool 83% (4) Lake Oswego 100% Wool 17% (5) Lake Oswego 100% Wool 29% (6) Sandy Blvd. 100% Wool 29% (Portland) (7) Sandy Blvd. Wool Blend 9% (8) Sandy Blvd. Wool Blend 52% (9) Gateway Shopping 100% Wool 17% Center (10) Gateway 100% Wool 29% (11) Gateway 100% Wool 20% (12) Gateway Wool Blend 31% [2] ORS 646.608(1) states in part: "A person engages in an unlawful practice when in the course of the person's business, vocation or occupation the person: "* * * "(e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that they do not have or that a person has a sponsorship, approval, status, qualification, affiliation, or connection that he does not have; "* * * "(g) Represents that real estate, goods or services are of a particular standard, quality, or grade, or that real estate or goods are of a particular style or model, if they are of another; * * *." [3] ORS 646.642(3) states: "In any suit brought under ORS 646.632, if the court finds that a person is wilfully using or has wilfully used a method, act or practice declared unlawful by ORS 646.606 or 646.608, the prosecuting attorney, upon petition to the court, may recover, on behalf of the state, a civil penalty to be set by the court of not exceeding $25,000 per violation." [4] ORS 646.632(1) provides: "Whenever the prosecuting attorney has probable cause to believe that a person is engaging in, has engaged in, or is about to engage in an unlawful trade practice, he may bring suit in the name of the State of Oregon in the appropriate court to restrain such person from engaging in the alleged unlawful trade practice." ORS 646.632(8) provides in part: "The court may award reasonable attorney fees to the prevailing party in a suit brought under this section. * * *" ORS 646.636 provides: "The court may make such additional orders or judgments as may be necessary to restore to any person in interest any money or property, real or personal, of which he was deprived by means of any practice declared to be unlawful in ORS 646.607 or 646.608, or as may be necessary to insure cessation of unlawful trade practices." [5] The complaint in this case was designated as a "suit in equity." Defendant demanded a jury trial as a matter of constitutional right on the first cause of suit, which sought to impose a civil penalty. The state, as plaintiff, without conceding defendant's right to a jury trial, waived its right to have the cause of suit tried before the court without a jury. That cause of suit was then tried before a jury in the same manner as in an action at law, and the court then adopted the verdict of the jury as its finding of fact on that cause of suit. [6] The Attorney General or county District Attorneys may make an "investigative demand" to determine whether any violation has occurred. ORS 646.618. They may also bring suit to enjoin further violations, ORS 646.632, to seek restitution for persons deprived of money or property, ORS 646.636, and to seek civil penalties for wilful violations of an injunction, voluntary compliance agreement, or the provisions of ORS 646.607 and 646.608. ORS 646.642. Private parties may initiate suit under ORS 646.638 seeking actual damages or $200, whichever is greater, and punitive damages. [7] ORS 646.642 provides for a "civil penalty," rather than a "fine." ORS 646.632 provides that state prosecuting attorneys may bring suit in the name of the state to seek an injunction. ORS 646.636 provides that the court may "make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property * * *." [8] We are also cognizant of the fact that the legislative history of the UTLA supports the view that it is to be interpreted liberally as a protection to consumers. Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or. 85, 90, n. 4, 566 P.2d 1177 (1977). In addition, we note that two other jurisdictions have interpreted their consumer protection acts to permit the imposition of penalties after proof of violations by a preponderance of the evidence. See Hyland v. Aquarian Age 2,000, Inc., 148 N.J. Super. 186, 372 A.2d 370, 372 (1977); Devine Seafood, Inc. v. Attorney Gen. of Md., 37 Md. App. 439, 377 A.2d 1194, 1197 (1977). [9] In Muniz v. Hoffman, 422 U.S. 454, 95 S. Ct. 2178, 45 L. Ed. 2d 319 (1975), the U.S. Supreme Court held that a $10,000 fine could be imposed against a labor union by a court for violation of a temporary injunction notwithstanding the Sixth Amendment guarantee of a right to trial by jury in a criminal prosecution. See also United States v. J.B. Williams Company, Inc., 498 F.2d 414, 421 (2d Cir.1974). [10] In addition, defendant contends that the question of which jury instruction was proper in this case was rendered moot by the trial court's refusal to issue an injunction. An injunction, according to defendant, is a prerequisite to the imposition of a civil penalty. This contention is without merit. ORS 646.642 clearly provides for a civil penalty under any one of three circumstances: a wilful violation of the terms of an injunction, a wilful violation of the provisions of an assurance of voluntary compliance, or a wilful violation of an act or practice declared unlawful by ORS 646.607 or 646.608. [11] Other fabrics purchased by the investigator at the other stores were "wool blends" and duplicates of fabrics selected by Ms. Bert at the Lake Oswego store.

515fa225dc06ce0af8a6b90504214aed3186a18a8ea938459c6d2d3f1105482d

1980-07-23T00:00:00Z

c51ca993-25a2-406b-a9a6-602604dca51f

Kashmir Corp. v. Patterson

289 Or. 589, 616 P.2d 468

oregon

Oregon Supreme Court

616 P.2d 468 (1980) 289 Or. 589 The KASHMIR CORPORATION, an Oregon Corporation, Petitioner, v. James H. PATTERSON and Norma Patterson, Respondents. No. 101,896; CA 12100; SC 26649. Supreme Court of Oregon. Argued and Submitted March 5, 1980. Decided September 10, 1980. *469 J.P. Harris II, Salem, argued the cause and filed the briefs for petitioner. With him on the petition for review was Mark K. Grider, certified law student. Michael J. Martinis, Salem, argued the cause for respondents. With him on the brief was Norman F. Webb, Salem. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. DENECKE, Chief Justice. This is an action by the plaintiff builder against the defendant homeowners for moneys allegedly remaining due for the construction of a home. The builder brought his action in two counts, one for moneys remaining due under an express, written contract, and the other for the reasonable value of services rendered in building the home. Upon the owners' motion, the trial court struck the builder's reasonable value count. A jury returned a verdict against the builder and for the owners on their counterclaims. The builder appealed to the Court of Appeals contending that the trial court erred in striking the reasonable value count. The Court of Appeals affirmed. 43 Or. App. 45, 602 P.2d 294 (1979). We granted review and we affirm. A claim for the reasonable value of goods or services is sometimes referred to as a claim in quasi contract or a claim for quantum meruit. It is not a claim based upon an express contract. Rather, it is a claim which the law will allow although the claim could not be based upon an express contract. It is a remedial device which the law has formulated to permit recovery for services or materials from a party even though under the law of express contracts that party would not be obligated to pay. Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or. 533, 557, 577 P.2d 477, cert. den. 439 U.S. 1051, 99 S. Ct. 733, 58 L. Ed. 2d 712 (1978); Schroeder v. Schaeffer, 258 Or. 444, 466, 483 P.2d 818, 477 P.2d 720 (1971). The distinction between recovery upon the contract and upon a quasi contractual or a quantum meruit basis is stated in Turner v. Jackson, 139 Or. 539, 548, 4 P.2d 925, 11 P.2d 1048 (1932): To the same effect 3A Corbin, Contracts § 710, p. 342. We have frequently held that a plaintiff may plead alternatively on an express contract and in quantum meruit, and that the plaintiff cannot be required to elect upon which theory plaintiff will rely. Brackett, Exec. v. U.S. Nat. Bank, 185 Or. 642, 652, 205 P.2d 167 (1949), and cases cited therein. The reason why the plaintiff need not elect is explained in State v. Montag, 132 Or. 587, 595, 286 P. 995 (1930): Our decision in this case does not overturn this well established rule. In the present case, when the builder prepared his complaint, he could not be certain what the position of the defendant would be. The builder probably knew that the owners would contend the builder had not satisfactorily completed his contract but the builder probably did not know whether the owners were going to contend the builder was not entitled to recover on the contract because he substantially failed to complete the contract. For this reason the builder had the right to allege a count based upon the express contract and one based upon quasi contract. When the owners filed their answer, however, the issues were narrowed. The owners admitted they entered into a contract with the builder whereby the builder agreed to build a house on a cost plus basis at an approximate cost of $66,800. The answer also alleged that the defendants paid the builder $65,000 and that the unpaid balance of the contract price represented cost incurred by the homeowners to complete the construction of their house. The owners also asked for attorney fees as provided by the contract. It is clear from the allegations of the answer that the defendants were not contending that the contract was no longer operative; rather, defendants were contending that the contract was in force but that the plaintiff failed to complete its obligation under the contract. The contract by its terms covers the present situation in which the owners contend they can deduct from the contract price and also recover damages because the builder has not satisfactorily completed the contract. The contract provides: The defendants did not file their motion to strike until after they answered the complaint. At that point the validity and enforceability of the contract were no longer in issue, and the trial court correctly struck the quantum meruit count. Feldschau v. Clatsop County, 105 Or. 237, 241, 208 P. 764 (1922), is authority for this proposition: Affirmed. TONGUE, Justice, specially concurring. As stated by the majority, the decision by the court in this case does not overturn the long established rule that a plaintiff cannot be required to elect between alternative counts of express contract and quantum meruit. The opinion by the majority fails, however, to make it clear that when any doubt exists regarding the existence or enforceability of an express contract, or when the express contract fails to provide the basis for payments to be made under the contract, a plaintiff may plead alternatively on an express contract and in quantum meruit without being required to elect. Similarly, this holding does not preclude a plaintiff from proceeding solely in quantum meruit even when the plaintiff admits to the existence and enforceability of an express contract recovering the same services. See Sinnock v. Zimmerman, 132 Or. 137, 144-45, 284 P.2d 838 (1930). In such a case, however, the terms of the contract will govern recovery. Id. It is only when a plaintiff proceeds on alternative theories of express contract and quantum meruit, and the defendant subsequently admits to the existence and enforceability of a contract which provides the basis for payments to be made under the contract that the plaintiff may be required to elect or the count in quantum meruit stricken. Because, however, those facts are present in this case I concur in the decision by the majority.

480f7d0e1961d8ed23d6ef4b20585ed8a1bd1e1b99b571b1fbbdc9b42d61a2d2

1980-09-10T00:00:00Z

5436c216-aeff-4efb-808f-4b960e58f1f6

State v. Alexander

289 Or. 743, 617 P.2d 1376

oregon

Oregon Supreme Court

617 P.2d 1376 (1980) 289 Or. 743 STATE of Oregon, Appellant-Petitioner, v. Leo ALEXANDER, Respondent-Petitioner. State of Oregon, Appellant-Petitioner, v. CLIFFORD ALEXANDER, Respondent-Petitioner. State of Oregon, Appellant-Petitioner, v. MICHAEL A. BRISBOIS, Respondent-Petitioner. CA 13568; SC 26909. Supreme Court of Oregon, In Banc. Argued and Submitted June 3, 1980. Decided October 21, 1980. Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellant-petitioner. With him on the briefs, were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Edward J. Jones, Oregon City, argued the cause for respondent-petitioners. With him on the briefs was Parkinson, Fontana, Schumann & Jones, Oregon City. PER CURIAM. The decision of the Court of Appeals, 44 Or. App. 557, 607 P.2d 181, is affirmed for the reasons stated in its decision. Affirmed.

b0d44daa7499897014d84a6ea2e409730edcd5b4385dbc70b848885581d034d7

1980-10-21T00:00:00Z

efafbb97-c0b0-47fe-b34d-559e1eae8ead

Matter of Brown

289 Or. 895, 618 P.2d 959

oregon

Oregon Supreme Court

618 P.2d 959 (1980) 289 Or. 895 In the matter of the Compensation of Rhonda Brown, Claimant. Rhonda Brown, Petitioner, v. EBI COMPANIES AND PUBLISHERS PAPER COMPANY, Respondents. WCB 78-9419; CA 15396; SC 26771. Supreme Court of Oregon, In Banc.[*] October 28, 1980. Thomas A. Caruso, St. Andrew Legal Clinic, Portland, and Douglas S. Green, of Welch, Bruun & Green, Portland, for the petition. Margaret H. Leek Leiberan, of Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland, contra. PER CURIAM. In Brown v. EBI Companies, 289 Or. 455, 616 P.2d 457 (1980), the present petitioner won reversal of a decision of the Court of Appeals that had affirmed the denial of her workers' compensation claim for failure to file a timely request for a hearing. This court ordered a remand to the Workers' Compensation Board for consideration of petitioner's contention that there was "good cause" for the failure to file the claim within the prescribed time. The claimant now petitions us to allow a fee for the services of her attorney in this court. The employer objects to such an allowance for lack of statutory authority. The pertinent section of the Workers' Compensation Law, ORS 656.386, provides: Plainly the statute does not expressly authorize this court to allow attorney fees. Even if the word "appeal" standing alone could be extended on historical grounds to *960 include this court's "review" under ORS 2.520, the statute's specific identification of the Court of Appeals forecloses that reading here. For the same reason an argument that when this court reverses a decision of the Court of Appeals against a claimant he or she in effect has prevailed on the appeal still does not authorize this court to set the fees. Petitioner asks that we nevertheless allow an attorney fee under a general policy of administering the procedural as well as the substantive provisions of the Workers' Compensation Law remedially in favor of the injured worker. Our decision in this case did not itself reinstate petitioner's delayed claim; it held that the referee or board could do so upon finding "good cause." If the claimant "prevails finally in a hearing before the referee or in a review by the board itself," ORS 656.386, supra, directs the referee or board to allow a reasonable attorney fee. We do not know whether in that event the board would take into account legal services for which no other allowance has been made, nor do we know what the Court of Appeals might do in case there is a further appeal. No question of attorney fees allowed or disallowed by the board or that court is before us. We hold only that the statute does not now authorize this court to allow attorney fees on review. If that is to be done, it is a task for legislation. Petition denied. [*] Denecke, C.J., and Tanzer, J., did not participate in this decision. [1] Attorney fees on "appeal" are also authorized by ORS 656.382 when an employer or the State Accident Insurance Fund Corporation initiates the request for a hearing, review, or appeal, and the worker's claim is sustained.

b8c109cf28f1cc950449c2eec4bbdb8f1318683fef3903ff30831e62607c7ec1

1980-10-28T00:00:00Z

a46102ec-bdaa-4ad7-b9c0-51569dd9d0ed

Webb v. HIGHWAY DIV. OF OREGON STATE

293 Or. 645, 652 P.2d 783

oregon

Oregon Supreme Court

652 P.2d 783 (1982) 293 Or. 645 Dennis WEBB, Petitioner On Review, v. HIGHWAY DIVISION OF THE OREGON STATE DEPARTMENT OF TRANSPORTATION, Respondent On Review. CA A20056; SC 28576. Supreme Court of Oregon, In Banc.[*] Argued and Submitted July 14, 1982. Decided October 19, 1982. Raymond J. Conboy, Portland, argued the cause for petitioner on review. With him on the briefs were Pozzi, Wilson, Atchison, Kahn & O'Leary and Jan Thomas Baisch, Portland. Richard David Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen. *784 CAMPBELL, Justice. Plaintiff brought this tort action for personal injuries following an accident between his vehicle and a truck driven by an employe of the Highway Division of the State of Oregon. Plaintiff, through his attorney, sent notice by regular mail to an employe of the Department of Justice who had authority to investigate tort claims and make settlements. The Oregon Tort Claims Act in effect at that time,[1] ORS 30.275(1), required notice to be given to the Attorney General personally or by certified mail, return receipt requested. The trial court held that proper notice had not been given and granted summary judgment for the defendant. The Court of Appeals affirmed. 56 Or. App. 323, 641 P.2d 1158. We hold that plaintiff substantially complied with the provisions of the statute and reverse. Plaintiff urges four grounds for reversal. He contends that the notice given substantially complied with the statute; that even if it didn't, the state waived the notice requirement; that if there were no waiver, the state is estopped to assert defects in the notice because of its subsequent actions; and that the statute on its face and as applied violates Article I, Section 20 of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. We are aware that jurisdictions presented with this constitutional argument concerning the notice requirements of tort claims acts have split on the question of their constitutionality, in that they provide disparate treatment of the victims of public and private tortfeasors, the former being disqualified by notice provisions which do not apply to the latter.[2] However, constitutional issues should not be decided when there is adequate statutory basis for decision. Douglas County v. Briggs, 286 Or. 151, 156, 593 P.2d 1115 (1979). Because of our decision in this case, we do not reach the constitutional, waiver, or estoppel issues. In our inquiry of the propriety of summary judgment we are governed by the rule from Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978), which states that summary judgment must be cautiously invoked, and is only applicable when there is no issue of material fact and the moving party is entitled to judgment as a matter of law. The accident occurred on February 12, 1979. On March 7, 1979, plaintiff's attorney sent a letter addressed to Mr. David Black, Department of Commerce, 428 Labor and Industries Building, Salem, OR 97310, containing information about the accident and asking for a confirmation of the receipt of the letter. Pertinent portions of that letter are as follows: Mr. Black's secretary replied with a form letter dated March 15, 1979, that acknowledged receipt and stated the claim was turned over to the liabilities claim division for disposition. Pertinent portions of that form letter are: The claim was then investigated. Black, in his deposition, stated that he had authority to investigate tort claims and to make settlements. In Urban Renewal Agency v. Lackey, 275 Or. 35, 41, 549 P.2d 657 (1976), we held the purpose of the Tort Claims Act notice sections is to give the public body timely notice of the tort claim and to allow its officers an opportunity to investigate matters promptly and ascertain all necessary facts. We decided Brown v. Portland School District # 1, 291 Or. 77, 628 P.2d 1183 (1981) after the trial court granted summary judgment in the present case, construing the same statute. In that case we found that notice sent by regular mail to the proper party and processed and investigated by the proper authorities was sufficient to withstand a demurrer. The three-justice plurality opinion stated: In Brown, supra, at page 82, 628 P.2d 1183, we went on to state: Justice Tongue concurred on the basis of waiver. The present case is similar to the situation in Brown, in that in both instances notices were sent by regular mail and in both instances the claims were processed and investigated. In the present case the state also made at least one settlement offer. Thus Brown would indicate at this *786 point in the inquiry the notice was sufficient, even though Brown is not a clear majority opinion. We still must examine whether the technically improper form of address of the letter is fatal to the notice requirements. The statute required notice to be presented to the Attorney General. The Attorney General is the head of the Department of Justice.[3] There is little doubt that a letter addressed: "To the Attorney General, attention David Black" would be sufficient. In this case, the letter was addressed simply: "To David Black." To distinguish the two forms would be to find a distinction without a difference. It appears that Black was indeed the proper person to receive this claim because he had the authority to investigate and settle claims. His office caused the claim to be disposed of in the regular manner. The state was in no way prejudiced because the letter was addressed to Black rather than to the Attorney General. Because we find the proper person received actual notice, we find that the present notice substantially complied with the statute. There remains one final problem. The trial judge, in his opinion letter wrote: The statute states the written notice must contain "* * * the time, place, and circumstances [of the damage] * * *." However, as we said in Sprague v. Astoria, 100 Or. 298, 304, 195 P. 789 (1921), considering notice provisions of municipal tort claims ordinance: In the present case, the reply letter from the Department of Justice asked for no further information. The claim was received by a person authorized to investigate and make settlement offers. It was assigned a number and investigated to the point settlement offers were made. We hold the present notice was sufficient in that it gave adequate information to the agency for their investigation. Reversed and remanded for further proceedings. PETERSON, Justice, specially concurring. In concurring with the result in this case, it is again necessary to point out that the majority's analysis of ORS 30.275 is, today, no less an unwarranted judicial excursion into the legislature's statute-making prerogative than it was when we decided Brown v. Portland School District # 1, 291 Or. 77, 628 P.2d 1183 (1981). The last six paragraphs of the majority opinion neither suggest nor compel the conclusion that the requirements of the statute were met. Rather, they show that the defendant either waived compliance with ORS 30.275 or it should be estopped to assert that the requirements of the statute were not met. See the dissenting and concurring opinions in Brown, 291 Or. at 85-98, 628 P.2d 1183. [*] Carson, J., sitting pro tempore. [1] ORS 30.275(1) effective in 1979 stated: "Every person who claims damages from a public body or from an officer, employe or agent of a public body acting within the scope of his employment or duties for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, the name of the claimant and his representative or attorney, if any, and the amount of compensation or other relief demanded. Claims against the State of Oregon or a state officer, employe or agent shall be presented to the Attorney General. Claims against any local public body or an officer, employe or agent thereof shall be presented to a person upon whom process could be served upon the public body in accordance with subsection (3) of ORS 15.080. Notice of claim shall be served upon the Attorney General or local public body's representative for service of process either personally or by certified mail, return receipt requested. A notice of claim which does not contain the information required by this subsection, or which is presented in any other manner than herein provided, is invalid, except that failure to state the amount of compensation or other relief demanded does not invalidate the notice." The present statute allows notice to be given in four different methods. Actual notice by any means of communication is deemed sufficient. [2] See Annotation, Modern Status of the Law as to Validity of Statutes or Ordinances Requiring Notice of Tort Claim Against Local Governmental Entity. 59 A.L.R.3d 93. [3] ORS 180.210 states: "There hereby is constituted an executive department to be known as the Department of Justice. The Attorney General shall be the head of this department and the chief law officer for the state and all its departments."

1adb5941b88928e4ef75530d4eeba46cd1815319285250d0fb979634b8200621

1982-10-19T00:00:00Z

1e4b8320-a5b7-4683-8c71-9cb4b8f108e8

West Side San. Dist. v. Health Div., Etc.

289 Or. 417, 614 P.2d 1151

oregon

Oregon Supreme Court

614 P.2d 1151 (1980) 289 Or. 417 WEST SIDE SANITARY DISTRICT, a Special District in Klamath County, Oregon, and Julia Rodriguez, an Individual, Petitioners, v. HEALTH DIVISION OF THE DEPARTMENT OF HUMAN RESOURCES OF THE STATE OF OREGON, Kristine Gebbie, Assistant Director for Health, Thereof, and Environmental Quality Commission of the State of Oregon, Respondents. CA 13765; SC 26617. Supreme Court of Oregon. Argued and Submitted March 3, 1980. Decided July 23, 1980. *1152 E.R. Bashaw, Medford, and Steven P. Couch, Klamath Falls, argued the cause and filed briefs for petitioners. Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. B.J. Matzen, City Atty., Klamath Falls, also argued the cause for respondents. Before DENECKE, C.J., and TONGUE, HOWELL, LENT and PETERSON, JJ. HOWELL, Justice. This is the fourth of four related cases decided this date presenting questions concerning the compulsory annexation of a territory by the City of Klamath Falls (City) to remove a danger to public health. The instant case arises from a petition for judicial review of the final order of the Environmental Quality Commission (EQC) certifying its approval of the City's plans for alleviating or removing the conditions causing a danger to public health in the territory.[1] The Court of Appeals affirmed, *1153 42 Or. App. 755, 601 P.2d 858 (1979). We granted review. In December, 1977, the Klamath County Board of Health, believing that a danger to public health existed within the subject territory, adopted a resolution, and forwarded a copy to the Health Division, proposing that the territory be annexed to the City of Klamath Falls pursuant to ORS 222.850 to 222.915. Those statutes provide for city annexation of a territory, The Health Division, after holding public hearings in the subject territory pursuant to ORS 222.870, issued an order finding that a danger to public health exists in the territory because of conditions The findings were filed with the City and with EQC pursuant to ORS 222.880(2). On November 1, 1978, pursuant to ORS 222.885, petitioners filed with the Health Division a petition, allegedly signed by not less than 51 percent of the registered voters in the territory proposed to be annexed, proposing an alternative plan of city annexation to a sanitary district instead of to the City. According to ORS 222.885(2): The Health Division, however, did not act upon the petition or perform any duties under ORS 222.885(2). As required by ORS 222.897, the City, on December 8, 1978, submitted to EQC its plans, with specifications and time schedule, for the construction of facilities to alleviate or remove the health hazard in the territory. EQC evaluated the City's plans pursuant to ORS 222.898 and, on January 29, 1979, issued a certificate approving the City's plans. Petitioners filed a petition for judicial review of the final order of EQC. They also sought judicial review of actions taken by the Health Division that preceded and formed the basis of the EQC final order. In their petition for judicial review in the Court of Appeals, petitioners argued, inter alia, that the final order of EQC is unlawful because: We are faced, however, with a problem not raised by the parties. ORS 222.896 provides: ORS 183.482(8)(a) provides that upon judicial review of contested cases: ORS 183.482(8)(a) permits a court to set aside or modify an agency's final order if that agency had erroneously interpreted a provision of law. That statute does not contemplate that a court on judicial review of one agency's final order consider whether another separate agency acted improperly and erroneously interpreted the law. If EQC were required to examine the legal validity of the actions of the Health Division with regard to finding a health hazard or with regard to submitting an alternative plan for review, or if EQC were required to act only upon legally valid actions of the Health Division, then perhaps the Court of Appeals would have had before it the question whether EQC erred in relying upon unlawful actions of the Health Division. But nowhere in ORS 222.850 to 222.915 is EQC required to review these actions. Therefore, the Health Division's actions were not reviewable before the Court of Appeals in this case unless properly made the subject of the petition for judicial review. Petitioners describe ORS 222.850 to 222.915 as contemplating a "combined administrative proceeding" for compulsory annexation involving both the Health Division and EQC. Petitioners suggest thereby that the Health Division's findings (pursuant to ORS 222.880) that a health hazard exists did not constitute a "final order" but was merely an interlocutory action forming the basis for the final order of EQC. The legislature, however, did not describe the statutory proceedings as being a combined administrative proceeding leading up to a single final order of EQC. For the following reasons, we believe that the Health Division's findings under ORS 222.880 constitute a final order separate from the final order of EQC. ORS 222.880(1) provides that, if the Health Division finds that no health hazard exists, the assistant director shall issue an "order" terminating proceedings under ORS 222.850 to 222.915. On the other hand, ORS 222.880(2) provides that, if the Health Division finds that a health hazard does exist, the assistant director shall "file a certified copy of his findings" with the City and with EQC. In the present case, the assistant director issued an "order adopting the findings of the hearings officer" determining that a health hazard exists. ORS 183.310(4) provides: The instant case presents a problem that is likely to occur whenever the legislature requires that the findings or recommendations of one agency be the basis of the actions of another agency. The legislature might have intended that the second, acting, agency reexamine the findings of the *1155 first agency for procedural regularity or for substantive validity. Also, the legislature might have intended the first agency's findings to be judicially reviewable either when the findings are made which may involve delay but may avoid needless action by the second agency or when the second agency issues its final order. The choice, once it is recognized, is for the legislature. In the instant case, the legislature did not specifically state that the findings of the Health Division pursuant to ORS 222.880(1) constitute a reviewable "order." An examination of the legislative history does not shed light on whether the legislature intended that the findings of the Health Division be subject to judicial review only after the findings become the basis of the final EQC or Health Division approval of City plans under ORS 222.898. However, if the legislature had intended that the findings not be a reviewable order, such an intent was not manifested clearly in the statute. On the other hand, the findings under ORS 222.880(2) is an agency action directed to the City because, upon receipt of the findings, the City is required by ORS 222.897 to submit plans for the alleviation or removal of the health hazard. The "findings" is therefore an "order" under ORS 183.310(4)(a). We are of the opinion that the legislature intended the "findings" of the Health Division under ORS 222.880(2) to be a final order of the Health Division with regard to the existence of a health hazard. It is separate from any other order of the Health Division and EQC. If petitioners intended to challenge the Health Division's findings under ORS 222.880, petitioners should have sought judicial review of the Health Division's final order within the time limit prescribed by ORS 183.482(1), that is, within 60 days following the date the order was served. Because petitioners did not seek judicial review within the statutory time limit, and for the other reasons set forth above, the actions of the Health Division pursuant to ORS 222.880 (finding a health hazard exists) and ORS 222.885 (petition for alternative plan) were not before the Court of Appeals in this petition for judicial review. We now turn to the contentions of petitioners that the final order of EQC is unlawful because EQC erroneously interpreted provisions of law. Petitioners argue that EQC failed to review the alternative plan petitioners had submitted to the Health Division. EQC, however, is not under a duty to consider an alternative plan unless the Health Division submits the plan to EQC. ORS 222.885(1) requires that the petition for an alternative plan be submitted to the Health Division, and ORS 222.885(2) requires that the Health Division submit the alternative plan to the appropriate agency for review. The statutes do not permit a petitioner to submit an alternative plan directly to EQC. Because the Health Division did not submit the alternative plan to EQC for review, EQC acted properly and did not apply the provisions of ORS 222.890 regarding review of an alternative plan. Petitioners contend that EQC, in evaluating the City's plans under ORS 222.898, failed to consider statewide land use planning goals. As we held in West Side Sanitary Dist. v. LCDC, 289 Or. 409, 614 P.2d 1148 (1980), EQC is not required by ORS 197.180(1) to consider land use planning goals in applying the provisions of ORS 222.898. Finally, petitioners argue that the final order of EQC is unlawful because EQC did not consider evidence relating to the reasonableness of the annexation. In Portland Gen. Elec. Co. v. City of Estacada, 194 Or. 145, 159, 241 P.2d 1129 (1952), we held that cities exercising the statutory power to annex territory must do so "reasonably." Even if we were to agree that "reasonableness" is required when cities choose to annex, "reasonableness" is nevertheless not required in compulsory annexations. In a compulsory annexation, a city is required to annex territory if a public health hazard exists and if the hazard may be removed or alleviated by city facilities. See ORS 222.855; 222.880; 222.900. Affirmed as modified. [1] In the first case, West Side Sanitary Dist. v. LCDC, 289 Or. 393, 614 P.2d 1141 (1980), petitioners sought review by the Land Conservation and Development Commission of the Health Division order issued pursuant to ORS 222.880, finding that a health hazard exists. In the second case, State ex rel. Rodriguez v. Gebbie, 289 Or. 399, 614 P.2d 1144 (1980), petitioners sought a writ of mandamus to compel the assistant director of the Health Division to initiate review of a petition submitted under ORS 222.885. In the third case, West Side Sanitary Dist. v. LCDC, 289 Or. 409, 614 P.2d 1148 (1980), petitioners sought LCDC review of the order of the EQC issued pursuant to ORS 222.898.

9027a3b62eb44cdeeedab3f35295482d54d5ca9f85e87bc374b20ffb4361303c

1980-07-23T00:00:00Z

20169b88-6048-4242-8d6e-0ad2df1a8296

State Ex Rel. Rodriguez v. Gebbie

289 Or. 399, 614 P.2d 1144

oregon

Oregon Supreme Court

614 P.2d 1144 (1980) 289 Or. 399 STATE of Oregon ex rel. Julia Rodriguez and West Side Sanitary District, a Quasi-Municipal Corporation in Klamath County, Oregon; and Julia Rodriguez and West Side Sanitary District, a Quasi-Municipal Corporation in Klamath County, Oregon, in Their Own Rights, Petitioners, v. Kristine M. GEBBIE, Assistant Director for Health of the Department of Human Resources of the State of Oregon; Also the Health Division of the Department of Human Resources of the State of Oregon, Respondents. CA 14230; SC 26607. Supreme Court of Oregon. Argued and Submitted March 3, 1980. Decided July 23, 1980. E.R. Bashaw, Medford, and Steven P. Couch, Klamath Falls, argued the cause and filed briefs for petitioners. Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. B.J. Matzen, City Atty., Klamath Falls, also argued the cause for respondents. Before DENECKE, C.J., and TONGUE, HOWELL, LENT and PETERSON, JJ. HOWELL, Justice. This is the second of four related cases decided this date presenting questions concerning the compulsory annexation by the City of Klamath Falls (City) of a certain area adjacent to the City because a danger to public health exists due to sewage conditions. In this case, plaintiffs sought a writ *1145 of mandamus to compel defendants[1] to stay further compulsory annexation proceedings and to initiate review of plaintiffs' alternative plan of annexation.[2] The Court of Appeals affirmed a judgment by the circuit court dismissing plaintiffs' alternative writ of mandamus. 42 Or. App. 618, 602 P.2d 282 (1979). We granted review. In December, 1977, the Klamath County Board of Health, believing that a danger to public health existed within the subject territory, adopted a resolution, and forwarded a copy to the Health Division, proposing that the territory be annexed to the City pursuant to ORS 222.850 to 222.915. Those statutes provide for city annexation of a territory, The Health Division, after holding public hearings in the subject territory pursuant to ORS 222.870, issued an order finding that a danger to public health exists in the territory because of conditions On November 1, 1978, pursuant to ORS 222.885, plaintiffs filed with the Health Division a petition allegedly signed by not less than 51 percent of the registered voters in the territory proposed to be annexed. The petition contained a proposal for an alternative plan of annexation to a sanitary district instead of to the City. According to ORS 222.885(2): On January 25, 1979, after plaintiffs realized that the defendants had failed to act upon their petition, plaintiffs filed a petition for alternative writ of mandamus seeking to compel defendants to perform their duties under ORS 222.885(2). The circuit court allowed the alternative writ of mandamus. Defendants filed an answer stating that they did not proceed under ORS 222.885(2) because the petition filed on November 1, 1978, was not signed by more than 51 percent of the registered voters within the territory proposed to be annexed, as required by ORS 222.885(1). Defendants explained that the determination of the insufficiency of the petition was based upon certification of the Clerk of Klamath County. That certification stated: Plaintiffs filed a reply which alleged that: Defendants moved for judgment on the pleadings and filed a memorandum in which they argued that ORS 222.885(1) "does not require a showing as to the propriety of the registrations but rather requires only a percentage showing of the registrants. The voter register is the basis for determining that." The circuit court granted the defendants' motion for judgment on the pleadings, explaining that "ORS 222.885(1) is a simple administerial test and does not allow going behind the registration record of the County Clerk." The Court of Appeals affirmed, citing its decision in West Side Sanitary Dist. v. Health Div., 42 Or. App. 755, 601 P.2d 858 (1979). In that decision the court had held that the term "registered voters," as used in ORS 222.885, does not refer to those persons who are both currently registered and qualified to vote in the area, but refers only to the names appearing on the county's registration list. The court agreed with defendants that they were entitled to rely on the presumption that the county clerk maintains a current voter registration list. ORS 222.885(1) provides: Under the general annexation statutes, ORS 222.111 to 222.750, annexation of territory to a city typically requires, among other things, either approval from a majority of "the registered voters" of the territory proposed for annexation (ORS 222.111(3)) or consent from more than half of the owners of land in the territory, who also own more than half of the land in the territory and of real property therein representing more than half of the assessed value of all real *1147 property in the territory (ORS 222.120(2); 222.170).[3] The requirement that registered voters in the territory vote on a question of general annexation reflects a legislative concern that these persons have some control over the decisions that will affect their property and their political organization. This concern is also reflected in compulsory annexations in ORS 222.885. Even though, under the compulsory city annexation statutes, a city is not required to submit the question of annexation to the registered voters of the territory, ORS 222.885 provides these registered voters with a method of avoiding city annexation by submitting to the Health Division a petition stating "the intent of the residents to seek annexation" to a different authority that will provide the facilities necessary to remove the danger to public health. We believe that the legislature, by using both the terms "registered voters" and "residents" in ORS 222.885(1), intended that only those voters registered to vote and resident in the territory be considered in determining whether the petition meets the 51 percent requirement. ORS 222.885(1) specifically requires the petition to represent the intent of the residents. If the defendants are correct that the term "registered voters" refers only to persons on the registration list and doesn't require those persons to currently reside in the territory then the requirement that the petition state the intentions of residents may be ignored. According to the legal analysis of the defendants, the following illogical case would be perfectly legal: If, for example, the registration list showed 380 persons and 200 of them no longer resided in the territory, a petition signed by every one of the remaining 180 residents would not satisfy ORS 222.885(1). Indeed, in such a case, no petition could satisfy ORS 222.885(1). The terms "registered voters in the territory" and "intent of the residents" in ORS 222.885(1) must therefore refer to registered voters who are residents of the territory at the time the petition is filed with the Health Division. The trial court entered a judgment on the pleadings in favor of defendants because they presented evidence as to the percentage of registered voters in the territory who signed the petition. Defendants did not consider, however, evidence as to the total number of registered and resident voters in the territory at the time of the filing of the petition and evidence of the percentage *1148 of registered and resident voters who signed the petition. Therefore defendants failed to show cause why the petition for an alternative plan failed to qualify under ORS 222.885(1). Judgment on the pleadings was improperly granted and the alternative writ of mandamus was improperly dismissed. We remand this case to the trial court with the following directions. Because ORS 222.885(1) contemplates that defendants will make a finding as to whether petitions filed under that statute satisfy the 51 percent requirement, the trial court should issue a peremptory writ of mandamus directing defendants to examine evidence and make a formal agency determination as to whether the petition in the instant case satisfied the 51 percent requirement. The defendants are not required to poll all persons in the territory to determine the total number of registered voters who are current residents. Any certification by the county clerk is not conclusive, and defendants must permit petitioners the opportunity to present their own evidence as to the number of registered and resident voters in the territory, including evidence challenging the county clerk's certification. After a hearing, defendants should issue an order determining whether the petition satisfies ORS 222.885(1). The opinion of the Court of Appeals is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. Reversed and remanded. [1] Defendants in this case are both the assistant director of the Health Division and the Health Division. [2] In the first case, West Side Sanitary Dist. v. LCDC, 289 Or. 393, 614 P.2d 1141 (1980), plaintiffs sought review by the Land Conservation and Development Commission (LCDC) of the Health Division order issued pursuant to ORS 222.880, finding that a health hazard exists. In the third case, West Side Sanitary Dist. v. LCDC, 289 Or. 409, 614 P.2d 1148 (1980), plaintiffs sought LCDC review of the Environmental Quality Commission (EQC) order issued pursuant to ORS 222.898, approving city plans to remove or alleviate the health hazard. In the fourth case, West Side Sanitary Dist. v. Health Div., 289 Or. 417, 614 P.2d 1151 (1980), plaintiffs sought judicial review in the Court of Appeals of the EQC order issued pursuant to ORS 222.898. [3] The statutes regarding the creation of an incorporated city from adjoining or nonadjoining incorporated cities require the approval of the "legal voters" of each incorporated city. ORS 222.250. And the statutes regarding merger of cities and municipal corporations require authorization from a majority of the "electors" of the two cities or municipal corporations affected. ORS 222.610. Consent of those in the territory to be annexed is not required if the territory is not an incorporated city but is surrounded by the annexing city. ORS 222.750. Consent is also not required under ORS 222.850 to 222.915. The state legislature's methods for city annexation of new territory date back to Or. Laws 1893, pp. 120-21, which provided, among other requirements, that the city submit the question of annexation "to the electors residing in the territory proposed * * * to be annexed * * *." Cf. Thurber v. McMinnville, 63 Or. 410, 416-17, 128 P. 43, 45 (1912). In Landess v. City of Cottage Grove, 64 Or. 155, 157, 129 P. 537, 538 (1913), we explained that a city must obtain "the approval of the legal voters residing within the territory to be annexed." (Emphasis added.) See also Couch v. Marvin, 67 Or. 341, 343, 136 P. 6 (1913). The term "legal voters" used in these decisions must be compared to the term "registered voters." In Roesch v. Henry, 54 Or. 230, 235, 103 P. 439 (1909), in construing a local option law regarding intoxicating liquors, we held that by the use of the terms "legal voters" and "registered voters," the statute permitted only qualified or legal voters whose signatures also appear on the registration books to petition for a local option election. The annexation statute was amended in 1949 to require a city to submit the question of annexation "to the registered voters residing in the territory proposed to be annexed * * *." Or. Laws 1949, ch. 210, § 1 (amending OCLA § 95-901). The term "registered voters" has appeared in the general annexation statutes (ORS 222.111 to 222.750) ever since, and was used in ORS 222.885 when the compulsory city annexation statutes (ORS 222.850 to 222.915) were adopted in 1967. See Or. Laws 1967, ch. 624, § 8a.

19cab7ec085453db2a5750a48841c3c3afb4ca676550a41178837dfb6fc1e9bb

1980-07-23T00:00:00Z

7fbefaeb-62ab-4864-a0d9-de90150ab118

State Ex Rel. Young v. Crookham

290 Or. 61, 618 P.2d 1268

oregon

Oregon Supreme Court

618 P.2d 1268 (1980) 290 Or. 61 STATE ex rel. Stephen Young et al., Plaintiffs-Relators, v. Honorable Charles S. CROOKHAM, Defendant. TC A7704-05707 etc.; SC 26305. Supreme Court of Oregon. Argued and Submitted January 7, 1980. Decided November 4, 1980. *1269 Don S. Willner and Charles S. Tauman, Portland, argued the cause for plaintiffs-relators. With them on the briefs were Willner, Bennett, Bobbitt & Hartman and Kafoury & Hagen, Portland. Wayne A. Williamson, Portland, argued the cause for defendant. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, Wayne A. Williamson, Ridgway K. Foley, Jr., Henry C. Willener and Elizabeth K. Reeve, Portland. Before DENECKE,[*] C.J., and HOWELL, LENT, LINDE, PETERSON and TANZER, JJ. LENT, Justice. The issue in this case is whether Oregon should adopt the so-called "one bite" or "first comer" theory of punitive damages whereby, in multiple litigation arising from a continuing episode, the award of exemplary damages to one plaintiff would preclude the recovery of punitive damages for all subsequent plaintiffs. Plaintiffs are 75 persons[1] who claim to have been exposed to E coli bacteria resulting in severe gastrointestinal illness while visiting Crater Lake Lodge in Crater Lake National Park. Defendant is the presiding judge of the Multnomah County Circuit Court. Defendant circuit judge made an order disallowing plaintiffs' claims for punitive damages in all subsequent cases after such damages were awarded in the case of Joachim v. Crater Lake Lodge, being Multnomah Clerk's No. 787420. Understanding the unique and controversial nature of his order, defendant encouraged plaintiffs to petition for a writ of mandamus to decide the issue before proceeding to trial in the remaining 75 cases. This court, exercising original jurisdiction, issued an alternative writ to consider what limits, if any, a trial court may impose on potentially cumulative punitive awards evolving from a single, albeit protracted, course of tortious conduct by a single defendant or set of defendants. Summer of 1975 saw a high incidence of severe intestinal illness among employees of Crater Lake Lodge and visitors to the lodge. The epidemic was determined by mid-summer to be the product of raw sewage overflowing into the water supply, and on July 11, 1975, the park and lodge were closed for the season by federal authorities. Alleging injury as a result of drinking the contaminated water, 76 persons, through common counsel, initiated a class action against Crater Lake Lodge, Inc. and Ralph Peyton, the manager thereof. Defendants below contested the propriety of a class action, and the circuit court refused to certify the class. This court held that order was not appealable as a matter of right. Joachim, et al v. Crater Lake Lodge, Inc., et al, 276 Or. 875, 556 P.2d 1334 (1976). Plaintiffs *1270 then filed individual actions and moved to consolidate the cases for trial on the issue of liability. Defendants below opposed consolidation, and the trial court denied the motion. Following denial of the motion to consolidate, the 76 plaintiffs signed an agreement which provided, among other things, that any punitive damages recovered by members of the group would be prorated and divided among all of them.[2] In early November, 1978, the first of the 76 cases went to trial before a jury. Both parties stipulated that the record of that case be made part of the record here. During that trial evidence was presented by plaintiff Janice Joachim of the conduct of defendants below from mid-June to July 11, 1975. Included was evidence of defendants' knowledge of wide-spread illness among employees, less-than-whole-hearted cooperation with health investigators, rousting of nauseated employees from their sick beds to work in the lodge's restaurant and food handling operations, failure to warn patrons and visitors of potential injury and attempts to cover up the seriousness of the problem including tearing down warning signs posted by the park management and removing newspapers containing accounts of the extent and severity of the illness. The evidence received concerned events both prior and subsequent to the date of Ms. Joachim's injury. The jury returned a plaintiff's verdict for compensatory and punitive damages, which judgment has been affirmed by the Court of Appeals in Joachim v. Crater Lake Lodge, 48 Or. App. 379, 617 P.2d 632 (1980), holding that the evidence was sufficient to support a finding of wanton misconduct. Following resolution of the Joachim case at the trial level, defendant herein entered an Order granting the motion of Crater Lake Lodge and Ralph Peyton for summary judgment on the issue of punitive damages. That order would eliminate any possibility of punitive damage recovery in the remaining 75 cases whose plaintiffs are petitioners in the instant case. Punitive damages are allowed in Oregon to punish a willful, wanton or malicious wrongdoer and to deter that wrongdoer and others similarly situated from like conduct in the future. Martin v. Cambas, 134 Or. 257, 293 P. 601 (1930); accord Noe v. Kaiser Foundation Hospitals, 248 Or. 420, 435 P.2d 306 (1967). This court agrees with the reasoning of International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S. Ct. 2121, 60 L. Ed. 2d 698 (1979) that contrary to early English theory, punitive damages under the modern view are not a substitute for compensatory awards nor an offset against litigation expense. Noe v. Kaiser Foundation Hospitals, supra. The propriety of the award of punitive damages in the Joachim case is not at issue in this case. The issue before this court is whether, after punitive damages have been awarded in one case, a judge may remove punitive damages from the jury's consideration in all subsequent cases involving the same set of defendants and arising from the same continuing wrongful act. Considerable concern has surfaced in recent decades over the effect of multiple punitive damages awards on a single defendant faced with mass litigation. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir., 1967); Globus v. Law Research Services, 418 F.2d 1276 (2d Cir, 1969); deHaas v. Empire Petroleum Co., 435 F.2d 1223 (10th Cir., 1971); see also, Kreindler, Punitive Damages in Aviation Litigation, 8 Cum.L.Rev. 607 (1978). Chief among the cases voicing concern about the effects of multiple punitive damages awards in mass litigation is Roginsky v. Richardson-Merrell, *1271 Inc., supra. That case considered the controversy surrounding the drug MER/29 which was distributed by its manufacturer despite studies indicating that the drug could cause cataracts in users. The MER/29 litigation involved some 1,500 cases across the nation, in many of which punitive damages were sought. Before deciding the case on other grounds,[3] the Roginsky court expressed grave concern at the potential for "overkill" inherent in allowing multiple recoveries of punitive damages for an indefinite class of plaintiffs. Implicit in Roginsky and other sources evidencing concern for defendants faced with the potential of such multiple awards is the proposition that the purpose of punitive damages is deterrence not destruction. See e.g., Maxey v. Freightliner, 450 F. Supp. 955, 961 (N.D.Tex., 1978). With this the court agrees. The apprehension expressed in the Roginsky dictum must, however, be placed in its proper perspective. First the MER/29 litigation involved an inascertainable number of plaintiffs bringing suit in a multitude of jurisdictions from coast to coast. In the instant case, the statute of limitations has run and the number of plaintiffs is therefore set. All pending cases against Crater Lake Lodge and Mr. Peyton are within a single jurisdiction, thus there is no danger of multifarious legal doctrines adding to the unpredictability of the cases as was true in the MER/29 situation. Second, the reasoning of Roginsky does not stand unchallenged. The California Court of Appeal, in an MER/29 case decided shortly after Roginsky, noted the decision of the Second Circuit and expressly chose to "respectfully disagree." Toole v. Richardson-Merrell, Inc., 251 Cal. App. 2d 689, 715, 60 Cal. Rptr. 398, 416 (1967), allowing recovery of punitive damages in MER/29 cases in California. Third, financial interests of the malicious and wanton wrongdoer must be considered in the context of societal concern for the injured and the future protection of society. Other aspects of the MER/29 analogy are particularly damning to defendant's position in the instant case. Hindsight demonstrates that the apprehension of the Roginsky court was heavily exaggerated. Of the 1,500 cases, in only 3 did juries award punitive damages. The vast majority of cases were settled and the financial destruction feared by the Second Circuit did not come to pass. See generally, Rheingold, The MER/29 Story-An Instance of Successful Mass Disaster Litigation, 56 Cal.L.Rev. Part 1, 116 (1968). Finally, Roginsky, despite the court's concern for defendants' plight in a mass litigation context, specifically rejects the one bite/first comer proposal as a solution. Each case to which this court has been referred by defendant which specifically considers the one bite/first comer approach to punitive damages, in the end, rejects that approach. deHaas v. Empire Petroleum Co., supra, rejects the first comer theory based on the language quoted above from Roginsky. Globus v. Law Research Service, *1272 supra, first finds the position espoused by defendant here unacceptable then goes on to note: This court cannot endorse a system of awarding punitive damages which threatens to reduce civil justice to a race to the courthouse steps. Defendant has been unable to refer us to any jurisdiction, nor have we found any independently, which has considered and adopted the one bite/first comer approach to punitive damages. This is, no doubt, due in part to the availability of other alternatives to deal with the potentially onerous effects of multiple awards of punitive damages. Among those alternatives are class actions, remittitur, total elimination of punitive damages in mass litigation and jury consideration of prior and potential punitive awards in each case. In this case plaintiffs' attempt to bring a class action, faced with active opposition from defendants below, was rebuffed. Plaintiffs' attempt to consolidate their causes for trial was successfully opposed by defendants. Remittitur, in consequence of Oregon Constitution Art VII, § 3, is not available in this state. Van Lom v. Schneiderman, 187 Or. 89, 110-113, 210 P.2d 461 (1949). Elimination of all punitive damages in mass litigation has been espoused on the premise that multiple compensatory awards serve as sufficient deterrent to obviate the need for exemplary awards. See e.g., Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. Part 2, 1258, 1323 (1976), for a critical discussion of this alternative. The elimination of all punitive damages in mass litigation overlooks the utility of punitive damages as an incentive to prosecute claims. While this court is aware of potential difficulties in multiple litigation, the desirability of inducing citizens to act as private attorneys general applies to the facts of this case. Additionally, it is far from certain that compensatory awards alone serve a serious deterrent function even in mass litigation. Total elimination of punitive damages in these cases is too strong a cure for the much feared, but as yet unrealized, problem of "overkill" in mass litigation. The remaining alternative for dealing with multiple punitive awards is to commit the issue of damages to the sound discretion of a fully informed trier of fact. In determining the amount of punitive damages, This position is in accord with Oregon statutes in a separate context. The legislature of this state, in the area of products liability actions, has recently enacted legislation which adopts in spirit, the Restatement view.[4] ORS 30.925(3)(g) provides: ORS 30.925 does not apply to this action, nor does any party suggest that it does. Nonetheless, such a legislative manifestation of public policy in an area so closely related to this case is properly entitled to consideration in determining the state of the law in Oregon on this issue. One question left open by the legislature in the products liability context, and critical to this case, is who, judge or jury, will evaluate the relevant criteria and determine when the deterrent effect is sufficient to reduce punitive damages in a subsequent case. Calculating punitive damages is the function of the finder of fact. Van Lom v. Schneiderman, 187 Or. 89, 108, 210 P.2d 461 (1949). This is not to say that the jury must award punitive damages in every case where malicious or wanton conduct is proven. The jury may refrain from giving any punitive damages even though all of the elements of malicious misconduct may have been established. Van Lom v. Schneiderman, supra at 108, 210 P.2d 461; accord, Prosser, Law of Torts, 4th Ed. (1971), Dobbs, Remedies, § 3.9, 204 (1973), Restatement (Second) of Torts, § 908 (1979). While opinions of the Court of Appeals are not binding on this court a well reasoned decision in Cooper v. Moscillo, 39 Or. App. 443, 592 P.2d 1034 (1979), involved a situation where defendant presented evidence of prior criminal punishment in connection with a claim for punitive damages in a subsequent civil action. Citing this court's decision in Roshak v. Leathers, 277 Or. 207, 560 P.2d 275 (1977), the Court of Appeals found that allowing the finder of fact to consider evidence of prior punishment was proper. Like ORS 30.925, Cooper does not apply to this action. However, the reasoning expressed in ORS 30.925, Cooper, the 1979 Restatement (Second) of Torts, McCormick on Damages and recent scholarly dissertations on the subject are not without impact. Defendant suggests that the jury in the Joachim case heard a full account of the misconduct and therefore its punitive award should be determinative of the total punitive assessment for all 76 cases. This assertion, however, begs the question of who, judge or jury, is to determine whether a prior punitive award is determinative of similar awards in subsequent cases. We hold that it is not for the court to determine on an ad hoc, case by case basis whether *1274 prior exemplary damages are sufficient to cut off the potential for such awards in the future. The question of damages is an issue of fact for the trier of fact. Van Lom v. Schneiderman, supra, addressed this issue in the context of a civil action for punitive damages where the defendant had already been criminally punished. In determining whether a judge could take the issue of punitive damages from the jury where the defendant had already been once punished criminally, this court said, Under the present state of the law, because punitive damages are to be determined by the trier of fact, the court may neither reexamine nor withhold from the jury such an issue unless there is no evidence to support a finding of malicious or wanton conduct.[5] The role of the judge in actions for punitive damages is clearly set out in Van Lom. Nor does the sharing agreement entered into by plaintiffs dictate adoption of the one bite/first comer theory. The issue in determining punitive damages is not who will share what with whom, but the sufficiency of the deterrent effect of punitive damages on the defendant. Roshak v. Leathers, 277 Or. 207, 560 P.2d 275 (1977); Noe v. Kaiser Foundation Hospitals, 248 Or. 420, 435 P.2d 306 (1967). The finder of fact must determine what punitive damages, if any, to award based on the proper premise of deterring future similar misconduct by the defendant or others. To this end, a number of factors may be relevant, including the seriousness of the hazard to the public, the attitude and conduct of the wrongdoer upon learning of the hazard, the number and position of employees involved in causing or covering up the misconduct, the duration of the misconduct and/or its cover-up, the financial condition of the wrongdoer, and prior and potential punishment from similarly situated plaintiffs or other sources. This court appreciates the theoretically onerous effect of multiple punitive damages on a defendant. However, like every other court that has considered it, we reject the one bite/first comer solution as an inappropriate remedy. Other alternatives remain available to mitigate the potential effect of multiple punitive damages. The Restatement view and that in ORS 30.925(3)(g) provide for jury consideration of the effect of multiple punitive damages; class actions, in appropriate cases, provide for unitary consideration of such damages. Still other creative and applicable approaches, as yet unsurmised by legal commentators, may be devised by the attorneys and judges of this state, but, for the purpose of decision in the case at bar, we need nothing further than to hold that the one bite/first comer theory is not an appropriate solution. For the foregoing reasons a peremptory writ of mandamus shall issue commanding the defendant to vacate his order allowing defendants' motion for a summary judgment on the issue of punitive damages. TANZER, J., filed a concurring opinion. TANZER, Justice, concurring. I concur entirely with the majority opinion, but I write separately to clarify my understanding of it. *1275 It is critical to this opinion that the plaintiffs made every reasonable effort to obtain an overall adjudication of punitive damages and that defendant successfully resisted those efforts. We should not be understood as deciding that multiple plaintiffs are necessarily entitled to successive, individual adjudications of punitive damages in situations where they do not attempt to avail themselves of some form of combined litigation or where the defendant does not resist it. As I understand it, no opinion is expressed in that regard. [*] Denecke, C.J., did not participate in this decision. [1] 76 cases were originally filed. One of these has been tried to judgment and affirmed on appeal. Joachim v. Crater Lake Lodge, 48 Or. App. 379, 617 P.2d 632 (1980). 75 cases remain awaiting trial. [2] The agreement between the 76 original plaintiffs reads, in relevant part, "I agree that those expenses which benefit the entire group and punitive damage recovery, if any, in the claims that you are handling for me and others against Crater Lake Lodge and its owners may be prorated by you approximately in accordance with the value of each claim notwithstanding whether such costs or punitive damages are incurred or recovered pursuant to any particular case." [3] The case was decided on the finding of the court that the evidence presented at trial was insufficient to meet the standard of proof for punitive damages under New York law. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir.1961). [4] As originally proposed, SB 422 would have provided for total elimination of punitive damages in civil actions. This provision was deleted and the present ORS 30.925(3)(g) inserted before enactment into law. [5] We need not now decide what restrictions the legislature may place on the recovery of punitive damages by plaintiffs in multiple litigation situations.

0464a1a62e6d0cc676f039b17ccec4121f7a1b757b33c5a4568cfe4187b21cfb

1980-11-04T00:00:00Z

9b2c93f7-1660-44a7-9ff0-2c5f329be6f5

Portland Police Ass'n v. Civil Service Bd.

292 Or. 433, 639 P.2d 619

oregon

Oregon Supreme Court

639 P.2d 619 (1982) 292 Or. 433 PORTLAND POLICE ASSOCIATION, Petitioner On Review, v. CIVIL SERVICE BOARD OF PORTLAND, Linda Rasmussen, Kenneth Gunther, and Rudolph Westerband, Respondents On Review. No. A8004-02027; CA 18732; SC 27970. Supreme Court of Oregon, In Banc. Argued and Submitted October 6, 1981. Decided January 26, 1982. Susan P. Graber and Pamela L. Jacklin, Portland, filed a brief as amicus curiae for American Civil Liberties Union of Oregon, Inc. Henry K. Drummonds, of Kulongoski, Heid, Durham & Drummonds, Eugene, argued the cause and filed a petition for petitioner. On the brief were Terry DeSylvia, Myron Schreck, and Black, Kendall, Tremaine, Boothe & Higgins, Portland. Richard A. Braman, Portland, argued the cause and filed briefs for respondents. *620 James M. Brown, Atty. Gen., Salem, John R. McCulloch, Jr., Sol. Gen., Michael J. Tedesco, Asst. Atty. Gen., and Judith L. Miller, Certified Law Student, Salem, filed a brief as amicus curiae for Governor of the State of Oregon. PETERSON, Justice. This is a proceeding for declaratory and injunctive relief in which plaintiff Portland Police Association (Association) seeks to have a rule adopted by the defendant City of Portland Civil Service Board (Board) declared void and its implementation enjoined. The Association contends that the challenged rule is in conflict with the Portland charter and is outside the Board's rulemaking authority. The trial court agreed with the Association and granted the relief prayed for. The Court of Appeals reversed, holding that there was no charter conflict and that the rule was within the Board's rulemaking powers. 52 Or. App. 285, 628 P.2d 421 (1981). We affirm the Court of Appeals. Association is the certified bargaining representative for police officers employed by the City of Portland. Board is the agency responsible, under the city charter, for certifying eligible candidates for appointment to vacant civil service positions, including those within the Police Bureau. In 1903, by charter amendment, the City of Portland enacted its present civil service system. The purpose of the system is to ensure that all appointments to, and promotions within, the city's subordinate administrative service are made solely on the basis of merit and fitness and not on the basis of political affiliation or patronage, nepotism, or other extraneous grounds irrelevant to an applicant's ability. Charter section 4-101 provides, in relevant part: The Civil Service Board is the entity empowered by the charter to administer the civil service system and to devise and conduct the qualification examinations. See generally, Drake v. City of Portland, 172 Or. 558, 567-569, 143 P.2d 213 (1943). Under the charter the Board has responsibility to: 1. Classify offices, places and employments within the public service based upon their functions and compensations. City of Portland Charter, § 4-104.[1] 2. Devise and administer periodic competitive examinations to ascertain the relative fitness and merit of applicants. § 4-106.[2] 3. Prepare and maintain a register for each grade or class of positions in the civil service, ranking applicants upon the basis of their examination score. § 4-107.[3] *621 4. Certify, in the event of a vacancy within the civil service, the names of the three eligible candidates standing highest on the applicable register (the so-called "rule of three"). § 4-108. This section provides, in part: 5. "[M]ake rules to carry out the purpose and provisions of this article" from time to time, including those relating to examinations and appointments. § 4-105. Purportedly pursuant to its section 4-105 rulemaking powers, the Board adopted Rule 3740 relating to affirmative action certification. This rule is the one challenged by the Association in this suit. Rule 3740 provides: Rule 3740, in substance, requires the Board to certify, upon an agency's written request, a second and alternative list of eligible applicants. This second list will be composed of the three eligible applicants standing highest on the applicable register who are members of the relevant protected minority group. The appointing authority is then apparently given the option to choose an applicant to fill the vacancy from either of the certified lists. The Association contends that Rule 3740 is in direct conflict with charter § 4-108, is outside the Board's authority, and is thus void. It contends that charter sections 4-108 and 4-101 require that all certification and hiring for available positions be done strictly on the basis of register placement, as determined by examination score, and that the second and alternative "protected group" list is in direct and irreconcilable conflict with this requirement. To the contrary, the Board and the amici curiae contend: (1) that the challenged rule is not in conflict with the charter and is within the Board's rulemaking power, and (2) that even if the rule is in conflict with the charter, the Board has the power to implement an affirmative action program to bring the city into compliance with overriding federal, state and local equal employment opportunity laws and regulations (the so-called "preemption argument" that these laws and regulations preempt the charter provisions which conflict with Rule 3740). The trial court held that however laudatory the Board's motivation, the rule was outside the Board's rulemaking authority. The Court of Appeals, in reversing, did not reach the preemption question, holding that the rule was not in conflict with the charter but was within the Board's rulemaking powers. At the outset we note that the wisdom of the challenged rule is not in issue. Rather, the sequence of potential issues in determining the validity of a rule designed to accord special consideration to one or another sex, members of ethnic minorities, or other groups, is as follows: (1) Does the source of the agency's authority (here the city charter) either (a) authorize the agency to accord or (b) preclude the agency (here the Civil Service Board or the hiring agency) from according special consideration for the purpose for which the agency proposes to accord it? (2) If the agency's intended purpose is within its authority, and nothing in the charter precludes its choice of action, is its action either compelled or precluded by some other state law? (3) Specifically, in the context of according special consideration to gender or other innate personal characteristics, do the reasons for the agency's action avoid "granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens," Or.Const.Art. I, § 20? (4) Is the action either compelled or precluded by state or federal law, including the fourteenth amendment? The record presented by the parties in this proceeding does not call for decision of most of these potential issues. We reach only the questions of compliance with the city charter and the possible effect of compliance with obligations imposed on the city by state or federal nondiscrimination laws. The first issue to be resolved is whether Rule 3740 is in conflict with the charter. A city's charter is, in effect, the city constitution. Any city ordinance, rule, or regulation in conflict with its provisions is void. Harder v. City of Springfield, 192 Or. 676, 683, 236 P.2d 432 (1951);[4]Joplin v. Ten Brook, 124 Or. 36, 38-39, 263 P. 893 (1928); Pioneer Real Estate Co. v. City of Portland, 119 Or. 1, 8, 247 P. 319 (1926). The Board does not contend that it is explicitly required by the charter, or by state or federal law, to adopt this particular affirmative action program. The Board contends that the following language appearing in charter section 4-108 allowed it to adopt the Rule 3740 dual-list scheme: The Board's basic argument is that, affirmative action considerations aside, if for "* * * valid reasons assigned in writing * * *," the appointing authority is dissatisfied with the original list of three candidates and sufficiently justifies its dissatisfaction to the Board, the Board is authorized to make up and certify a second and alternative list of eligible candidates which would be more to the appointing authority's liking, regardless of the standing upon the register of the second group of candidates. Thus, for example, if the police bureau had a particular need for women or ethnic minority officers, but the original certified list contained only white male applicants, it could reject this list and request an alternative list consisting only of women and minority applicants who have qualified and are on the register. The Association contends that that clause comes into play only when none of the three candidates certified on the original list are qualified, available, or acceptable to the appointing authority. In addition, it contends that the second list certified must be comprised of the next three eligibles standing highest on the register. The Board and the amici contend that the purpose behind the charter provisions relating to merit-based selection will not be compromised by the dual-list scheme. They argue: First, all "protected group" members on the second alternative list will have been certified "fit" by their passage of the entrance exam. Second, the policy underlying the civil service system is to prevent the abuses of an earlier day when public employment positions were regularly filled through political patronage and nepotism rather than merit; that the open competitive examinations, ranked register, and limited certification measures were adopted to prevent family and political ties from being the criteria for public employment. Thus, remedial affirmative action is not an evil sought to be suppressed through the merit-based hiring system and the charter should not be construed so as to prevent its implementation. Third, that although the charter clearly envisions that merit will be the primary consideration in the hiring process, the individual's raw examination score is not the only factor the prospective employer may permissibly consider; that by requiring three candidates to be certified and allowing the employer to pick one of the three or to request a second list, the charter clearly contemplates that other relevant factors may be weighed. They conclude that Rule 3740, which allows the prospective employer to take into consideration race *624 and sex factors, in choosing between eligible candidates if compelling justification is demonstrated, is therefore not in conflict with the charter provisions. The Court of Appeals, terming the rule "innocuous," agreed with this argument and noted that, under the second list provision already included in section 4-108, The contention that raw examination scores alone are not conclusive for every civil service position depends on whether the appointing authority and the Board have identified other valid qualifications of "fitness" to be met in determining who is "otherwise eligible" within the meaning of section 4-107. There is no doubt that sections 4-101 and 4-106 emphasize competitively testable characteristics of "fitness"; yet even the "physical qualifications" mentioned in section 4-106 cannot always be equally acquired by every ambitious and conscientious applicant. Although sex or ethnic background ordinarily should be irrelevant to any single position, we cannot say in the abstract that the Board under no circumstances could find the presence of a number or proportion of persons of a given background relevant to the composition of a collective body of agency personnel.[5] That, however, is not the premise of Rule 3740, for the rule does not purport to serve departmental needs. The object of the rule is to correct "underutilization" of members of "protected groups," defined as women or members of ethnic minorities, irrespective of any need intrinsic to the particular role and tasks of the employing agency. Whatever its merits as social policy, this objective does not comport with the Portland city charter as it stands. The purpose of the charter's merit-based hiring system is to ensure that one of the group of the most qualified applicants will be hired for each vacancy in the civil service, as qualifications are defined by the classifications set by the Board. The charter restricts hiring to those fittest when measured by the stated criteria; the rule allows hiring of the merely fit. The charter does not permit the appointing authority, by continually asking for alternative lists, to work its way down the register to find a candidate it prefers for reasons irrelevant to the job's requirements. Such a practice would make the plan a charade. As we view the charter system, the appointing authority can only request a second list if the three certified candidates are unavailable, unqualified, or, for some job-related reason, unacceptable. It is implicit in the charter that if an alternative list is requested, this second certified list must be comprised of the three highest remaining candidates on the register. The Board may not, given such a request, go down the register and certify candidates for reasons other than merit, as defined by their examination scores.[6] *625 However laudatory and salutary be the goal underlying the rule adopted by the Board, it is in conflict with the charter and beyond the Board's delegated powers to promulgate and implement. In sum, unless the Board validly finds that sex or minority status are job-related characteristics in the composition of particular groups of agency personnel, a rule which invites agencies to depart from the sequence of scores on the designated examination is in conflict with the charter. Unless the charter is amended or departure from its terms is mandated by overriding state or federal law, Rule 3470 cannot legally be put into effect. We therefore turn to the second issue, whether the Board has the power to implement, by rule, a city affirmative action program which is believed to be necessary to bring the city into compliance with federal, state and local equal opportunity laws and regulations. The Board and the amici argue that, if the rule is in conflict with the charter, overriding federal, state, and local affirmative action and anti-discrimination policies preempt the conflicting charter provisions.[7] They urge that strict compliance with the charter's "rule of three" should not be required by this court where to do so would be to bar this voluntary affirmative action program and subject the city to inevitable discrimination lawsuits, court-imposed affirmative action, and potential monetary liabilities. The Board and amici contend that the Board can voluntarily adopt an affirmative action plan which conflicts with the charter without a prior adjudication of past or present discriminatory practices if the Board determines that such a program is necessary both to rectify racial and sexual imbalance in the city's civil service and to avoid potential lawsuits and civil liability. They cite recent cases from other jurisdictions in which voluntary affirmative action programs, adopted by public employers, were upheld against challenges based on "reverse discrimination" and merit-hiring conflict grounds. The Board relies upon the recent Pennsylvania Supreme Court case of Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860 (1980).[8] In Chmill, the court upheld a dual-list affirmative action plan, similar to the one here, adopted by the City of Pittsburgh Civil Service Commission. The challengers, disappointed white male applicants for firefighter positions, contended that the certification of the second list, composed of lowerscoring minority applicants, was invalid as "reverse discrimination" and contrary to the Pennsylvania civil service statute which set up a strict merit-based hiring system. With regard to the latter issue, the majority *626 of the court, in reasoning very similar to that adopted by the Court of Appeals in this case, held that that incidental statutory conflict was outweighed by the public purpose served by the affirmative action plan adopted. 412 A.2d at 874-875. First, the majority held that the policy behind the civil service act "to alleviate the problem of patronage hiring and promotion in public employment" was not compromised by the dual-list scheme. Second, they noted that all candidates who passed the examination were "equally qualified" for the jobs despite the disparity in test scores.[9] Third, they concluded that a clause in the civil service act allowing the employer to pass over the certified applicants for "just cause in writing" was sufficient authority to validate the alternative list. Finally, and most significantly, the court relied upon the fact that the city had been found guilty in a prior federal case of past and present discriminatory hiring practices and had been ordered to remedy the situation forthwith.[10] The court then held: Justice Larsen dissented, saying: It is clear that there is a fundamental distinction between Chmill and the case at bar viz., the presence in Chmill of a prior judicial determination of discriminatory hiring practices. The Chmill court noted this when it framed the issue of that case: In Lindsay v. City of Seattle, 86 Wash. 2d 698, 548 P.2d 320, cert. den. 429 U.S. 886, 97 S. Ct. 237, 50 L. Ed. 2d 167 (1976),[11] the court upheld a voluntarily implemented affirmative action program despite a direct conflict with City of Seattle charter provisions relating to merit hiring, holding that any conflict "is excused because of the overriding *627 provisions of Title VII of the Civil Rights Act of 1964." 548 P.2d at 327. Although there was no prior judicial finding of discriminatory hiring practices, the Civil Service Commission, faced with formal charges of Title VII violations filed by the Equal Employment Opportunity Commission, had adopted a resolution admitting that its employment tests and procedures had had a discriminatory effect. The factual basis of this resolution was stipulated to by the parties to the action and the court held that this evidence, consisting of statistical information of gross minority under-representation in the city's civil service, was sufficient to establish a prima facie case of discrimination under Title VII. 548 P.2d at 324-325. Thus, Lindsay, like Chmill, dealt with a civil service system judicially determined to be operating in violation of federal anti-discrimination law. In both cases the courts concluded that the overriding need to remedy the federal law violations justified the waiver of strict compliance with the civil service system's merit-hiring scheme. Most of the cases cited by the Board involve either employers who had been found in violation of federal or state anti-discrimination laws in their hiring practices, or voluntary affirmative action plans which were attacked on "reverse discrimination" grounds alone.[12] We have found no case in which a civil service commission was allowed to adopt and implement an affirmative action plan contrary to an organic act or city charter in the absence of an adjudication of past or present discriminatory hiring practices. Even so, we cannot say that Rule 3740 is invalid on its face, even though it is inconsistent with the charter. In November, 1977, the Portland City Council adopted a comprehensive ordinance designed to comply with existing state and federal law[13] by increasing the "utilization of minorities and women in all levels and all classifications of the City's work force." Each city office was required to establish goals and timetables to achieve full utilization of women and minorities "based on a factual assessment of the number of women and minorities available in the work force who can be expected to possess the skills required to perform the job." Before any person can be placed in a classified position pursuant to Rule 3740 there must be a showing, by the department requesting affirmative action certifications in entry level classifications, as follows: We read the rule to require a showing similar to the showing made in Chmill, supra, or in Lindsay, supra. The burden imposed by Rule 3740 is substantial. The second element requires (1) a documented showing (2) that past practices have resulted in an underutilization of the protected group (3) in the specific job category of the requesting agency. "Underutilization" is defined in the city's affirmative action ordinance as "* * * employing fewer minorities or women in a particular job category than would reasonably be expected by their presence in the relevant labor market." Even though Rule 3740 is inconsistent with the charter, we cannot say, on the meager record before us,[14] that the rule is invalid. The validity of Rule 3740, in its application, is not before us, and must await the case in which a city department or bureau seeks to invoke its provisions. In such a case the sufficiency of the showing by the appointing authority can be challenged. A local governmental body need not await suit in order to comply in good faith with existing law.[15] Moreover, it has been held that the United States Constitution may require local governments to eliminate the effects of past discrimination. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). We emphasize the narrowness of our holding. The application of Rule 3740 to a specific case involving the placement of specific persons must await further developments. We do not invalidate Rule 3740 in this proceeding. Affirmed. [1] The full text of section 4-104 is as follows: "The board shall classify, with reference to the examinations hereinafter provided for, all the offices, places and employments in the public service of the city to which the provisions of this article are applicable. Such classifications shall be based upon the respective functions of said offices, places and employments, and the compensation attached thereto, and shall be arranged so as to permit the grading of offices, places and employments of like character in groups and subdivisions. The offices, places and employments so classified shall constitute the classified civil service of the city; and after the taking effect of this charter, no appointment or promotion to any such office, place or position shall be made except in the manner provided in this article." [2] Section 4-106: "The board shall, from time to time, hold public competitive examinations to ascertain the fitness of applicants for all offices, places and employments in the classified civil service. * * *. Such examinations shall be practical in their character, and shall relate only to those matters which may fairly test the relative fitness of the persons examined to discharge the duties of the positions for which they are applicants and shall include, when appropriate, tests of health and physical qualifications and of manual, clerical or professional skill. No question in any examination shall relate to political or religious opinion, affiliations or services. * * *" [3] Section 4-107: "The board shall prepare and keep a register for each grade or class of positions in the classified civil service of the persons whose general average standing upon examination for such grade or class is not less than the minimum fixed by the rules of the board, and who are otherwise eligible. Such persons shall take rank upon such register as candidates in the order of their relative excellence, as determined by examination, without reference to priority of time of examination. Candidates of equal standing shall take rank upon the register according to the order in which their applications were filed. * * *" [4] "A city charter constitutes the organic law of a municipality. It must be first consulted to determine the rights, powers and privileges and the limitations of the authority of the city's legislative body. The municipality's action must find its support therein and everything to the contrary must give way to the mandate of that body of the city's organic law, unless the charter itself is in conflict with the constitution of the state. It cannot, by enacting a general ordinance * * * enlarge, restrict or repeal the express substantive provisions of its charter. This proposition is so elementary that no citations of authority are necessary to demonstrate the truth of its assertion." Harder v. City of Springfield, 192 Or. 676, 683, 236 P.2d 432 (1951). [5] If, for instance, the city were to sponsor a municipal theatrical or dance troupe, it presumably might need to maintain a proportion of men and women members. We decline to hold in this purely declaratory challenge to the Board's rule that there may not be valid reasons why the composition of a collective force like the police should include a proportion of members of the city's major ethnic groups aside from the needs of specific job assignments, for Rule 3740 is based on no such reason. [6] This is not to say that candidates qualified by reason of their test results cannot be passed over for legitimate job-related reasons, nor is this holding intended to bar so-called "selective certification." If, for example, the police bureau has a legitimate need for an officer who speaks Spanish or for a woman officer to work on a rape crisis team, it may be consistent with the charter for the Board to selectively certify a list of the three highest standing candidates having this particular attribute; or to revise the competitive examination. Charter section 4-106 (a partial text of which is set forth above in footnote 2) provides for "* * * tests of health and physical qualifications and of manual, clerical or professional skill. * * *"; or to revise the job classification under charter section 4-104 (see footnote 1). The validity of Board Rule 3730, titled "Selective Certification," is not before us. It provides: "The appointing authority may request, in writing, that selective certification be authorized. Such authorization will be made only on the basis that a position to be filled requires specialized knowledge and skill which cannot be acquired through a brief period of on-the-job training. The request must be approved by the Board. Following approval, the Board will either announce and conduct the examination to provide for selective certification, or if an eligible register exists, the Board will review the register to determine which eligibles possess the requisite knowledges and skills. When names of eligibles are certified on a selective basis at the request of the appointing authority, the Board shall pass over the eligibles who do not possess the knowledge and skills necessary for that specific position. "Selective certification will not be authorized on the basis of employment or experience in a specific bureau or department; but will be authorized only on the basis of specific knowledges and skills necessary to perform the assigned duties." [7] The Board and amici cite, inter alia, the following authorities in support of their preemption argument: U.S.Const., XIV Amend.; Oregon Const., Art. I, § 20; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.; ORS 659.010 et seq.; 28 CFR § 50.4 (1979); 29 CFR § 1604-1608, (1979); 31 CFR § 51, (1979); 41 CFR § 60-3 (1979); Executive Order 11246; and Revised Order 4, Office of Federal Contract Compliance Programs, United States Department of Labor; Portland City Ordinance No. 144724. [8] This case is noted in Recent Developments, Civil Rights Public Employer May Voluntarily Adopt an Affirmative Action Program to Remedy Judicially Determined Racial Discrimination, 26 Vill.L.Rev. 167 (Nov. 1980). [9] Specifically, the court noted: "The trial court's findings of fact, supported by uncontradicted substantial evidence, are that all of the candidates who passed the Commission's 1975 examination were equally qualified for jobs as firefighters. * * * Because of these findings we need not decide what discretion the Commission might have had to certify minority applicants who were less qualified than appellees." 412 A.2d at 874-875. (Emphasis added.) [10] Regarding the third point, by reference to the "just cause" clause in the statute to justify the certification of the second list, the court seemed to imply that compliance with a federal court's remedial order gave rise to sufficient "just cause" to allow the hiring authority to request the second list. 412 A.2d at 875. Such an order does not exist in this case. [11] The holding of this case was recently affirmed and elaborated upon in Maehren v. City of Seattle, 92 Wash. 2d 480, 599 P.2d 1255 (1979), cert. denied, ___ U.S. ___, 101 S. Ct. 3079, 69 L. Ed. 2d 951 (1981). [12] See, e.g., United States v. City of Miami, Fla., 614 F.2d 1322, rehearing granted 625 F.2d 1310 (5th Cir.1980) (consent decree mandating affirmative action); Zaslawsky v. Brd. of Ed. of Los Angeles Unified Sch. Dist., 610 F.2d 661 (9th Cir.1979) (voluntary affirmative action program upheld against "reverse discrimination" challenge despite lack of adjudication of past discrimination no statutory, charter, or contractual conflict evident); Detroit Police Officers' Ass'n.v. Young, 608 F.2d 671 (6th Cir.1979) cert. denied ___ U.S. ___, 101 S. Ct. 3079, 69 L. Ed. 2d 951 (1981) (finding of past discrimination, no charter or statutory conflict); Baker v. City of Detroit, 483 F. Supp. 930 (ED Mich 1979) (past de facto discrimination found, no charter/statute conflict); Doores v. McNamara, 476 F. Supp. 987 (WD Mo 1979) (voluntary affirmative action program upheld despite lack of discrimination adjudication no charter/statute conflict); Price v. Civil Service Comm'n of Sacramento Cty., 26 Cal. 3d 257, 161 Cal. Rptr. 475, 604 P.2d 1365, cert. dismissed as moot, 449 U.S. 811, 101 S. Ct. 57, 66 L. Ed. 2d 13 (1980) (see fn 15, infra). Compare Rand v. Civil Service Comm'n, 71 Mich. App. 583, 248 N.W.2d 624 (1976) (where no Title VII violation shown, commission not free to disregard civil service rules in affirmative action hiring. For similar reasons, the recent Supreme Court decisions of United Steelworkers v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979), and Regents of the U. of Calif. v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), are not directly applicable here. Those cases dealt with "reverse discrimination" challenges to voluntarily implemented affirmative action programs. Neither case involved any attack upon the underlying legal authority of the entity adopting the plan. [13] Section 3.100.011(c) of the ordinance refers to "* * * the Civil Rights Act of 1964 (Title VII) and as amended in 1972, the Age Discrimination Act of 1967, the Equal Pay Act of 1963, the Rehabilitation Act of 1973, Revised Order No. 4 of Executive Order 11246, Sections 60-2.10 through 60-2.32, and the Enforcement of Civil Rights and Fraudulent Employment Practices, Chapter 659, of the Oregon Revised Statutes." [14] The entire record in the trial court consisted of a complaint, answer, one exhibit, briefs, opinion and judgment. There is no transcript of the proceedings. [15] In this respect, compare Price v. Civil Service Comm'n of Sacramento Cty., supra n 12. In Price a voluntarily imposed affirmative action program, adopted and implemented by the civil service commission, was upheld despite an apparent conflict with the charter. The court pointed to special charter provisions proscribing discriminatory employment practices and investing the commission with authority to enforce the provision through appropriate regulation, and held that the Commission's administrative finding, after extensive investigation and hearings of discriminatory employment practices within the system, was sufficient to justify the affirmative action program adopted. 604 P.2d at 1369-1372.

869bc0d5f4d13b1f918422c549ee47de5d96bd18c555c2f63ea4d4a778e8102e

1982-01-26T00:00:00Z

272acb73-0e11-429b-994f-48a5ff1d0154

Matter of Bell

289 Or. 447, 615 P.2d 314

oregon

Oregon Supreme Court

615 P.2d 314 (1980) 289 Or. 447 In the matter of the Compensation of Aldwyn C. Bell, and the Complying Status of Don R. Hartman, Jr., Dale C. Hartman, Sr., and Ernest S. Gruenberg. Aldwyn C. Bell, Respondent, v. GAYLE HARTMAN, Donald G. Hartman, Don R. Hartman, Jr., Dale C. Hartman, Sr., Ernest S. Gruenberg, State Accident Insurance Fund, and Wineberg Racing Association, Inc., Dba Portland Meadows Racetrack, Petitioners. WCB 76-6895; CA 14475 and SC 26802. Supreme Court of Oregon, In Banc. Argued and Submitted May 6, 1980. Decided July 23, 1980. Howard Cliff, Portland, argued the cause for petitioner Wineberg Racing Association, Inc., dba Portland Meadows Racetrack. On the brief were Bruce A. Bottini, Portland, and John E. Snarskis, Certified Law Student. Richard A. Sly, of Bloom, Ruben, Marandas & Sly, Portland, argued the cause and filed a brief for respondent Bell. John S. Folawn, Portland, argued the cause for petitioners Gayle Hartman, Donald G. Hartman, Don R. Hartman, Jr., Dale C. Hartman, Sr., and Ernest S. Gruenberg. With him on the brief were Jensen, DeFrancq, Holmes & Schulte. Darrell E. Bewley, Associate Counsel, State Accident Insurance Fund, Salem, argued the cause for petitioner SAIF. With him on the brief were K.R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, Salem. LINDE, Justice. Claimant, a licensed jockey, was injured in a fall during a race at Portland Meadows Race Track. Pursuing a possible *315 recovery under the Workers' Compensation Law, ORS 656.001-656.794, he made claims against a number of alleged employers and the State Accident Insurance Fund, including the registered and the actual owners of the horse, its trainer, the owner of the track, and the Oregon Racing Commission, on the theory that one or more of them were his employers for purposes of coverage under the act. After a hearing, a referee found that claimant was an independent contractor and not an employee of any of the employers, and this conclusion was reaffirmed by the Workers' Compensation Board and the Court of Appeals.[1] However, Bell also claimed compensation, and statutory penalties and attorney fees for failure to pay it, for the interim period preceding the denials of his claim. This claim was also rejected by the Board.[2] The Court of Appeals, by a divided vote, reversed this part of the decision and remanded the case to the Board for a determination of the amounts due. 44 Or. App. 21, 604 P.2d 1273 (1980). We allowed review to determine whether the statute requires these payments to a claimant who proves not to be an employee covered by the compensation law. We decide that it does not. The obligation to pay compensation pending the determination of a claim is stated in ORS 656.262, relevant parts of which are set out in the margin.[3] In brief, processing of claims and providing compensation is the responsibility of the State Accident Insurance Fund Corporation (before 1979, the State Accident Insurance Fund) *316 and of those employers who retain direct responsibility for compensation. Compensation "due" shall be paid promptly upon notice or knowledge of a claim unless the employer or the corporation denies the claim, the first instalment being payable no later than the 14th day after notice or knowledge. Within 60 days the employer or corporation must give the claimant notice of acceptance or denial of the claim and of the claimant's right to a Board hearing on a denial. If either the acceptance or denial or the payment of the claim is unreasonably delayed, the corporation or employer is liable for a 25 percent penalty and attorney fees. From the difference between the 60 days allowed to accept or deny a claim and the 14 days when the first instalment must be paid, it results that the employer or the corporation often must begin payments before deciding to admit or deny that compensation is due. See Jones v. Emanuel Hospital, 280 Or. 147, 570 P.2d 70 (1977). The question is whether this obligation applies when the enterprise and SAIF successfully maintain that the claimant is not a "subject worker" and that they therefore are not liable either as, or in lieu of, his "employer" under the act. In Jones v. Emanuel Hospital, supra, this court held that compensation in advance of acceptance or denial of a claim, called "interim compensation" for convenience, was payable no later than the 14th day after notice or knowledge of the claim even if the claimant's injury ultimately proved noncompensable. This was held to follow from the scheme of ORS 656.262 even though ORS 656.005(9) appeared to limit "compensation" to benefits provided for a "compensable injury." The majority of the Court of Appeals in the present case read Jones to require the same result when the issue is whether the claimant is an employee rather than whether his injury is compensable. The dissent considered that these two issues of coverage call for different results because the Workers' Compensation Law is designed solely to cover the responsibility of employers toward their employees. Perhaps this distinction is not wholly logical, since the act also is designed to provide compensation only for job-related injuries and Jones read the "interim" obligation of ORS 656.262 to extend beyond that. Nevertheless, we agree with the distinction. That the law means to anchor the compensation scheme to the employment relation is evident throughout the statute. The key term in the statutory scheme is "subject worker." An employer is bound to assure payment of compensation only for "subject workers," ORS 656.017, cf. ORS 656.052. In return for the right to compensation, the subject worker and his beneficiaries are deprived of the legal remedies for injuries which they might otherwise have against his employer. ORS 656.018. The statute's coverage of an employer is derivative of its coverage of a worker: A "subject employer" is one who employs one or more subject workers. ORS 656.005(28), ORS 656.023, cf. 656.035. The definitions of the employment relationship, ORS 656.005(16) and (31), and inclusions in and exclusions from coverage, ORS 656.027, 656.029 have been central issues in the evolution of the law. See, e.g., Louvring v. Excel Logging Co., 280 Or. 463, 573 P.2d 266 (1977); Woody v. Waibel, 276 Or. 189, 554 P.2d 492 (1976); Bowsen v. State Indus. Accident Comm., 182 Or. 42, 185 P.2d 891 (1947). ORS 656.262 itself begins by describing the responsibility for processing claims and providing compensation "for a worker in the employ of a contributing employer" or a "direct responsibility employer," and its subsequent provisions spell out that responsibility. In the light of the statute as a whole, therefore, we conclude that one who is not a "worker" within the definition of ORS 656.005(31) also is not entitled to "interim" compensation pending denial of his claim under ORS 656.262.[4] It is true, as *317 mentioned above, that the Workers' Compensation Law in principle also provides compensation only for "compensable," i.e., job-related, injuries and that "interim" compensation under ORS 656.262 is an exception to that principle. But that exception arises in a situation in which a covered employer concededly would be responsible for compensation to the employee if the employee's injury in fact is compensable, and we concluded in Jones v. Emanuel Hospital, supra, that in this situation the legislature intended the worker to have to wait no more than 14 days for compensation to begin. We are not prepared to attribute to the legislature the same policy choice when the putative employee claiming "interim" compensation in fact is not a "worker" covered by the statute at all. The words "compensation due under this chapter from the corporation or direct responsibility employer" in ORS 656.262, supra note 3, do not stretch that far. Accordingly, since the Court of Appeals affirmed the Board's finding that claimant was not a covered worker, the court's decision remanding his claim for interim compensation plus penalty and attorney fees must be reversed. Reversed. [1] We do not review that decision, because it is not asserted that the Court of Appeals applied a legally erroneous test and we do not review the facts anew. See Woodman v. Georgia-Pacific Corp., 289 Or. 551, 614 P.2d 1162 (1980); Weller v. Union Carbide, 288 Or. 27, 29, 602 P.2d 259 (1979); Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971). [2] The Board concluded that SAIF was not liable under ORS 656.054 in lieu of any noncomplying employer because ORS 656.054(1) provides that the time for paying the first instalment of compensation does not begin until the Workers' Compensation Department refers the claim to SAIF, and the department had not done this. The Court of Appeals agreed with this ruling. [3] ORS 656.262: "(1) Processing of claims and providing compensation for a worker in the employ of a contributing employer shall be the responsibility of the State Accident Insurance Fund Corporation, and when the worker is injured while in the employ of a direct responsibility employer, such employer shall be responsible.... "(2) The compensation due under this chapter from the corporation or direct responsibility employer shall be paid periodically, promptly and directly to the person entitled thereto upon the employer's receiving notice or knowledge of a claim, except where the right to compensation is denied by the direct responsibility employer or corporation. "(3) Contributing employers and carrier-insured employers shall, immediately and not later than five days after notice or knowledge of any claims or accidents which may result in a compensable injury claim, report the same to the corporation or other insurer.... "(4) The first instalment of compensation shall be paid no later than the 14th day after the subject employer has notice or knowledge of the claim. Thereafter, compensation shall be paid at least once each two weeks, ... "(5) Written notice of acceptance or denial of the claim shall be furnished to the claimant by the corporation or direct responsibility employer within 60 days after the employer has notice or knowledge of the claim... "(6) If the State Accident Insurance Fund Corporation, the direct responsibility employer itself or its guaranty contract insurer or any other duly authorized agent of such employer for such purpose on record with the Director of the Workers' Compensation Department denies a claim for compensation, written notice of such denial, stating the reason for the denial, and informing the worker of hearing rights under ORS 656.283, shall be given to the claimant. A copy of the notice of denial shall be mailed to the director and to the contributing employer by the corporation. The worker may request a hearing on the denial at any time within 60 days after the mailing of the notice of denial. ..... "(8) If the corporation or direct responsibility employer or its insurer unreasonably delays or unreasonably refuses to pay compensation, or unreasonably delays acceptance or denial of a claim, the corporation or direct responsibility employer shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees which may be assessed under ORS 656.382....." [4] ORS 656.005(31) defines worker as follows: "`Worker' means any person including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, but does not include any person whose services are performed as an inmate or ward of a state institution." In the present case the claimant was found not to be a "worker" within the coverage of the law at all. This case does not present the question of "interim" compensation for a subject worker when the alleged employer disputes being his or her employer, which is governed by ORS 656.307.

f4f5b191c247d542ecc47ca114b81b36def56e9cb4c5143ce10973b8cec7936d

1980-07-23T00:00:00Z

633532a9-83b7-4263-81ac-3328beb93f19

In Re Sidman

289 Or. 495, 614 P.2d 1135

oregon

Oregon Supreme Court

614 P.2d 1135 (1980) 289 Or. 495 In re Complaint As to the Conduct of John R. SIDMAN, Accused. OSB 78-12; SC 26816. Supreme Court of Oregon, In Banc. Argued and Submitted June 25, 1980. Decided July 23, 1980. Jack H. Cairns, Portland, argued the cause and filed the brief for the accused. Warner E. Allen, Portland, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar charging the accused with conduct involving an improper conflict of interest. It is a companion case to In re Smith, 289 Or. 501, 614 P.2d 1136 (1980), decided this day and involves the same facts as set forth in our opinion in that case. The Trial Board found the accused not guilty. The Disciplinary Review Board, however, found that there was an appearance of impropriety in the conduct of the accused for which it recommended a public reprimand. One member of that Board dissented from that finding and recommendation and agreed with the finding by the Trial Board. The complaint alleged that the accused and Brice Smith were partners through June 1977 and de facto partners "for a period of time thereafter"; that in 1977 the accused gave legal advice to Mrs. Baker; that "on or about June 15, 1978" (sic) she "retained the firm of Sidman & Smith to represent her"; that Smith undertook that responsibility; that in July 1977 the accused purchased her interest in real property "at a price substantially below that he had offered other interest holders"; that in doing so the accused "had a substantial conflict of interest that precluded impartial and vigorous representation" of Mrs. Baker, and that by failing to disclose the higher offers the accused "took unfair advantage" of her to her detriment and to his gain. It appears from our examination of the record, however, that although the partnership continued for accounting purposes until July 1, 1977, it was terminated on June 1, 1977, subject to such an accounting; that the accused did not give legal advice to Mrs. *1136 Baker; that Mrs. Baker did not retain the partnership to represent her in a divorce proceeding and was not a client of the partnership, but on or about June 15, 1977, retained Mr. Smith to represent her; that the negotiations with her through Mr. Smith, as her attorney, for purchase of her interest in the real property did not take place until after July 1, 1977; that although the price at which the accused purchased her interest in the property was based upon a valuation lower than that used as the basis for offers by the accused to other interest holders, the nature of her interest was such that it cannot be said that the price offered to her was less than the fair value of her interest and, in fact, her interest was worth nothing because it was awarded to her husband in the divorce proceeding; that before selling her purported interest in the property the previous relationship between Mr. Smith and the accused was explained to her, and that she has made no complaint of the conduct of either the accused or Mr. Smith. Faced with these facts of record, including the fact that the partnership was dissolved prior to negotiations by the accused with Mrs. Baker, the Oregon State Bar does not contend by its brief in this court that the conduct of the accused involved an actual conflict of interest in violation of DR 5-105, except to the extent that "a lawyer has a duty both to his own former clients and to those former clients of the law firm of which he is a member." In this case, however, Mrs. Baker was never a client of either the accused or the partnership of Sidman & Smith. In its brief to this court the contention by the Bar, in accordance with the recommendation by the Disciplinary Review Board, is that "the accused's conduct violated Canon 9" of the Code of Professional Responsibility, which provides that: It is not contended that the conduct of the accused was proscribed by the more specific provisions of DR 9-101(A), (B) or (C). For the reasons stated in our opinions in In re Smith, supra, and In re Ainsworth, 289 Or. 479, 614 P.2d 1127 (1980), also decided this day, a charge of an "appearance of impropriety," in violation of Canon 9, does not provide a proper or sufficient basis for a disciplinary proceeding against a lawyer by the Oregon State Bar. It follows that the complaint against the accused must be dismissed.

08c04cb6b2066be2d51294d5a9e181cb566a1998e5a260a0f93cf76ab3b5ba6f

1980-07-23T00:00:00Z

c4168116-3c5e-4fb6-a930-6b42e0cf40cc

Cenci v. Ellison Co.

289 Or. 603, 617 P.2d 254

oregon

Oregon Supreme Court

617 P.2d 254 (1980) 289 Or. 603 Carl F. CENCI, Plaintiff, v. THE ELLISON COMPANY, an Oregon Corporation, Petitioner, and Lee R. Schermerhorn, Respondent. CA 16255; SC 26824. Supreme Court of Oregon. Argued and Submitted June 3, 1980. Decided September 10, 1980. George Gregores, Portland, argued the cause and filed a brief for petitioner. Elizabeth K. Reeve, Portland, argued the cause for respondent. Before DENECKE, C.J., and HOWELL, LENT, LINDE, PETERSON and TANZER, JJ. HOWELL, Justice. The defendant The Ellison Company's appeal to the Court of Appeals was dismissed on motion of its co-defendant Schermerhorn. We granted review. The parties to this appeal, The Ellison Company (hereinafter "Ellison") and Schermerhorn, were co-defendants in an action which resulted in a directed verdict for defendants. A remaining issue, however, was Ellison's cross-claim against Schermerhorn for attorney fees incurred in defending the action. Schermerhorn's motion for summary judgment on the cross-claim was allowed. Ellison's appeal to the Court of Appeals was dismissed for the reason that the order allowing the motion was not an appealable order. We granted review to determine whether an order allowing a motion for summary judgment is an appealable order. The order of the trial judge, entered on November 9, 1979, stated in pertinent part:[1] The order of November 9 which simply allowed a motion for summary judgment was not an appealable order. A "motion" is defined as "an application for an order." Oregon Rules of Civil Procedure Rule 14A. A "judgment" is the final determination of the rights of the parties in an action or proceeding, ORS 18.010(1).[2] Other determinations in an action that are intermediate in nature are called orders, ORS 18.010(2).[3] For purposes of appeals from orders, judgments or decrees, ORS 19.010 states: Ellison contends that the order allowing the motion for summary judgment is appealable because it affected a substantial right and, in effect, determined the action so as to prevent a judgment. ORS 19.010(2)(a). We have recently discussed ORS 19.010 in Ragnone v. Portland School Dist. No. 1, 289 Or. 339, 613 P.2d 1052 (1980). We pointed out that ORS 19.010 specifies that it is a judgment or decree which may be reviewed on appeal, and that certain kinds of orders are "deemed" to be judgments or decrees for purposes of review on appeal, i.e., orders affecting a substantial right and which have the effect of determining the action or suit "so as to prevent a judgment or decree therein." We stated that the order in Ragnone, which allowed a motion for judgment notwithstanding the verdict, did not prevent a judgment, "but rather paves the way for one." The same reasoning applies in the instant case. When the court by order granted the defendant's motion for a summary judgment, the order did not prevent the entry of a judgment; it "paved" the way for one. Until an actual judgment was entered the action was not concluded. Moreover, an execution could not have been issued upon the order because a writ of execution is issued to "the party in whose favor a judgment is given," ORS 23.030, and the writ must "substantially describe the judgment," ORS 23.050. Ellison does not contend that the order allowing the motion for summary judgment is a "judgment," but contends that distinguishing between the order allowing the motion for summary judgment and the "judgment order" later entered by the trial court is "unrealistic and hypertechnical." The distinction between an "order" and a "judgment" is one of finality. Union Oil Co. v. Linn-Benton Dist. Co., 270 Or. 588, 591-92, 528 P.2d 520 (1974); Cockrum v. Graham, 143 Or. 233, 242-47, 21 P.2d 1084 (1933). In the instant case, the order allowing a motion for summary judgment cannot be considered a "judgment" because it did not contain "all of the necessary recitals which, with finality, disposes of the cause." Cockrum v. Graham, supra at 246-47, 21 P.2d at 1009. The "order" Ellison appeals from only allowed Schermerhorn's motion for summary judgment on Ellison's cross-claim. The "judgment order" entered by *256 the trial court several days later contained the necessary recitals of a judgment, i.e., that Ellison take nothing from its cross-claim against Schermerhorn and that execution issue on the judgment in favor of Schermerhorn. Because the Ellison appeal was neither from a judgment nor from an order determining the action "so as to prevent a judgment or decree therein," the appeal was properly dismissed.[4] Affirmed. [1] After the November 9, 1979 order was entered, the trial court entered a "judgment order" on November 23, 1979, which ordered that Ellison take nothing on its cross-claim against Schermerhorn and that "execution issue on the judgment in favor of defendant Lee Schermerhorn." Ellison also filed a notice of appeal from that order. The Court of Appeals dismissed both appeals as untimely. Schermerhorn does not seek review of the dismissal of the appeal from the November 23, 1979 "judgment order." [2] "Judgments" and "decrees" were distinguished and defined in Hall et ux v. Pettibone et al, 182 Or. 334, 337, 187 P.2d 166 (1947), as: "* * * the jural instrument which terminates an action is deemed a judgment and that which ends a suit is a decree." [3] An "order" is generally a direction of the court preliminary and incidental to final determination. [4] Ellison's additional argument is that to dismiss the appeal would be a "hypertechnical" construction of a notice of appeal. The majority of this court held to the contrary in Stahl v. Krasowski, 281 Or. 33, 573 P.2d 309 (1978).

44192efcddc7d5a4416c0cdf6c969496be034ec7871e7ce6033ea59097726d1f

1980-09-10T00:00:00Z

ba6c84d5-47cb-4c53-bd40-1dd533e31f25

In Re Galton

289 Or. 565, 615 P.2d 317

oregon

Oregon Supreme Court

615 P.2d 317 (1980) 289 Or. 565 In re Complaint As to the Conduct of Herbert B. GALTON, Accused. OSB 1332; SC 26691. Supreme Court of Oregon. Argued and Submitted May 5, 1980. Decided July 24, 1980. *318 Carrell F. Bradley, of Schwenn, Bradley, Batchelor & Brisbee, Hillsboro, argued the cause and filed the briefs for accused. Eugene E. Feltz, of Casey, Palmer, Feltz & Sherry, Portland, argued the cause and filed the brief for the Oregon State Bar. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and TANZER, JJ. PER CURIAM. This is a disciplinary proceeding originating from an anonymous letter to the Oregon State Bar. The letter was as follows: Following its investigation the Bar instituted this disciplinary proceeding in which the accused was originally charged with unethical conduct in seven specifics and with an eighth charge that accused's course of conduct, in the aggregate, was such as to render him unfit to practice law. Upon motion of the Bar, the fifth and seventh charges were dismissed at the Trial Board level. The Trial Board found the accused not guilty on the remaining charges. In its statement in partial opposition to the report of the Trial Board,[1] the Bar affirmatively stated that it did not oppose the Trial Board's finding of not guilty on the sixth charge. Pursuant to Section 46.2, Rules of Procedure Relative to: Admission, Discipline, Resignation and Reinstatement (hereinafter "Rules"), the matter was transmitted to the Review Board, which rendered and filed its written decision. ORS 9.535(2)[2] and Section *319 46.6, Rules. The Review Board agreed with the Trial Board on the disposition of all charges except the third and found the accused guilty of that charge. The Review Board recommended that the accused be reprimanded. ORS 9.535(1) and (2) and Section 46.6, Rules. The matter is now before this court pursuant to ORS 9.535(3) and Sections 47 and 48, Rules, for disposal pursuant to ORS 9.535(4). In this court the Bar urges that the accused be found guilty of the first, second, third and fourth specific charges and of the eighth charge (the aggregate conduct charge). Our disposition of the specific charges establishes that the accused is not guilty of the eighth charge. The remaining four charges are based upon a contention that the accused from May, 1969, to November, 1974, had an attorney-client relationship with Great Western Mortgage Company (hereinafter "GWM")[3] and that he was guilty of misconduct with respect to his representation of four other separate clients, whose interests were adverse to those of GWM. In early 1969 GWM formulated a program whereby unions and health and welfare and pension trusts, which were jointly managed by employer and labor trustees and established pursuant to collective bargaining agreements, would invest trust funds with GWM. GWM was to use the monies to purchase from banks interests in mortgages. The banks would loan the monies for various construction projects,[4] taking mortgages as security. The bank would then sell a participating interest in the loans and security to GWM, and out of the return upon the investment GWM was to pay principal and interest (at attractive rates) to the trusts. The banks were to guarantee payment to GWM. The record discloses that GWM failed to perform according to the formulated program and was eventually placed in some sort of receivership. The failure to perform left Carpenters' Local Union No. 226, the Floor Covering Union and Industry Welfare Fund, the Office and Professional Employees Union, Local 11, Health and Welfare and Dental Trust Fund, and the Oregon and Southwest Washington Painters Pension *320 Trust with several hundred thousand dollars of unsecured claims for monies invested with GWM. The first charge is that the accused, while having an attorney-client relationship with GWM and thereby being privy to the confidences of that client, also represented Carpenters' Local Union No. 226 and gave that Local advice as to the legality and safety of investing with GWM under the program described above. The Bar concedes that the accused did not represent the Local, as such. The accused admits that he represented the Northwestern Oregon District Council of Carpenters (hereinafter "Council"), of which Local 226 was a member along with 10 or 11 other local unions. There was evidence from which it could be found that the Local felt accused's relationship with the Council was such that he would have the Local's interests in mind with respect to investments with GWM. Witness Wickstrand, who was involved with decisions as to the investment of the Local's funds, testified in part: The losing investments were not made by the District Council but by the Local. There is nothing to indicate that the accused was aware that because he represented both the Council and GWM, the Local, as a member of the Council, would consider his attorney-client relationship with GWM as a representation to the Local that an investment with GWM would be prudent. The services performed by the Accused for the Council had nothing to do with such investments. We agree with the Review Board: Accordingly, we find the accused not guilty of the first charge. The second charge is that the accused, while having an attorney-client relationship with GWM and thereby being privy to the confidences of that client, also represented the Floor Covering Union and Industry Welfare Fund and gave the trustees of that Fund advice as to the legality and safety of investing with GWM without disclosing to those trustees his relationship with GWM. This charge concerns an investment with GWM made by the trustees for the Fund sometime between two meetings of the trustees held, respectively, on May 11, 1970, and October 13, 1970. One of the labor trustees testified that the accused was present at the meeting of May 11, that he was specifically asked for advice about the contemplated investment with GWM, that he opined it to be "wise and prudent," that he did not disclose his relationship with GWM, and that the trustees relied upon his advice in making the investment. The witness also testified that the accused was at the October 13 meeting where the investment was ratified. The witness purported to have some vague recollection of an intervening meeting of the trustees concerning this investment, at which the accused was present. Opposed to this evidence was the testimony of an employer trustee of the Fund that the accused was at neither the May 11 nor the October 13 meeting. This witness could recall no intervening meeting. Neither the minutes of May 11 nor October 13 show the accused as being present, although other persons than the trustees who were present were identified by name. The minutes of October 13 disclose approval of the minutes of May 11 and make no mention of any intervening meeting. The accused testified that he was not present at either meeting. *321 We find this charge has not been proven and find the accused not guilty thereof. The amended[5] fourth charge is that the accused, in connection with the liquidation of GWM, participated in the preparation and filing of a claim against GWM's receiver on behalf of accused's other client, the Oregon and Southwest Washington Painters Pension Trust. It is charged that this constituted accepting employment in which there existed a likelihood of the use of confidential information gleaned from GWM for the benefit of the Trust. It is further alleged that this placed the accused in a position which could result in the appearance of impropriety. The claim was filed in June, 1975. We find that the accused did not represent GWM after November, 1974. We agree with the Trial Board that it is difficult to see how any information the accused might have gained as attorney for GWM could have any effect upon the filing of the claim with the receiver. Insofar as the preparation of the claim is concerned, the uncontradicted evidence is that Paul Hybertsen, the lawyer retained as co-counsel for the Trust by the employer members, prepared the form of claim and submitted it to the accused for approval more as a matter of courtesy than anything else. The accused's participation in the preparation of this claim was scant indeed. We agree with the Review Board: We find the accused not guilty of this charge. The third charge is that the accused had an attorney-client relationship with GWM from 1969 through the time with which this charge is concerned and that as attorney for GWM he prepared documents and opinions for GWM and was privy to confidential information from that client. It is charged that in the same time period he was employed as attorney and performing the same kind of services for the Office and Professional Employees Union No. 11 Health and Welfare Trust and Dental Trust and was thereby privy to confidential information from the Trusts. He is charged with advising the Trusts and failing to disclose to the Trusts his representation of GWM. The Bar charges that this concurrent representation In addition, the Bar charges that this concurrent representation placed the accused in a position "which could result in an appearance of impropriety." Moreover, it is charged that this concurrent representation placed the accused in a position The Bar further charges that this concurrent representation of GWM and the Trusts deprived the latter of the The accused does not deny that in May of 1971 he had been employed to perform legal services for the Trusts. A copy of the minutes of the meeting of the trustees held on May 3, 1971, shows that Willard Mayfield was one of the employer trustees present and that Walt Engelbert was one of the employee trustees present. Item 9 of the minutes is pertinent: In evidence is a copy of the minutes of a meeting of the trustees held May 11, 1971. The minutes show that Donald Balsiger and Willard Mayfield were two of the employer trustees present. Walt Engelbert is shown as being one of the employee trustees present. Also being shown as present were Joseph H. Herrle as an administrator, James B. Nibley as a consultant and "Herb Galton, Attorney" as a guest. In pertinent part the minutes show: Mr. Herrle testified that he was employed by a company that had administered these Trusts from their inception until the latter part of 1971. He testified that he was present throughout the entire meeting of May 11, 1971, in his capacity as employee of the administrator and that the accused was present and gave the trustees "his opinion" concerning the combining of the two trust funds. Mr. Herrle further testified that the trustees had some concern with respect to "depositing health and welfare funds into Great Western Mortgage. * * * So an explanation of it was given by Mr. Galton." The witness testified that the "explanation" was of the "workings of participation with" GWM. The witness swore that the trustees were then considering a specific investment in Lakeway Apartments in Washington. He testified that the accused made the statements attributed to him in the minutes. Concerning the matter of whether the accused disclosed to the trustees his representation of GWM, Mr. Herrle testified: The same witness testified that his company had no independent authority to invest monies of the Trusts, but were told what investments to make by the trustees. The accused testified that he had never performed legal services for the Trusts prior to the matter of the proposed merger and that he had never written any opinions for them with reference to any investment with GWM. He explained his being at the May 11, 1971, meeting: His testimony continued: The accused went on to agree that he made the statements attributed to him in the minutes quoted, supra, in item 4 down to, but not including, "(3) A guarantee by Northwest Mortgage, Inc." While testifying as to the accuracy of the first part of the minutes under item 4, he interrupted to return to his claim of disclosure as follows: He denied that the minutes were accurate from the reference to Northwest Mortgage, Inc., on and denied specifically making the rest of the statements attributed to him in the minutes under item 4; moreover, he denied ever hearing of Lakewood Apartments and denied recollection of any discussion whatsoever of liens.[6] It now becomes necessary for us to exercise our fact finding responsibility and to determine on the record before us what did take place at the meeting of May 11, 1971. In doing so we make our own independent review of the evidence. In re J. Kelley Farris, 229 Or. 209, 219, 367 P.2d 387 (1961). We have in mind that although the proceedings are neither civil nor criminal, but rather are sui generis, ORS 9.535(6), this court has followed the rule that the accused is entitled to the presumption that he is innocent of the charges made in disciplinary proceedings. In re Alan Ruben, 228 Or. 5, 7, 363 P.2d 773 (1961). Moreover, it is well established that the charges may be established only by evidence that is "clear and convincing." In re J. Kelley Farris, supra, 229 Or. at 219, 367 P.2d 387. We have been able to discern no reason from the record to doubt the testimony of Mr. Herrle as to what transpired. That testimony is buttressed by the minutes of the meeting,[7] and there is nothing in the record to imply that there was any reason to falsify the minutes. Neither is there anything which would indicate that the difference in the events described by the keeper of the minutes and that described by the accused is due to carelessness of the keeper. On the other hand, the record shows that the accused was a busy lawyer with numerous clients whose business often required the presence of the accused at meetings of the kind here involved. It is easy to understand how the details of this particular meeting could have escaped him in the seven and one-half years between the meeting in May, 1971, and the giving of his testimony in November, 1978. We do not attribute his testimony to falsification; we simply believe it to be inaccurate. In summary we find that the accused did advise the Trusts that investment with GWM was safe and prudent in the particulars shown by the minutes quoted, supra, and that he did fail on this particular occasion to make clear to the trustees the nature of his relationship with GWM. *325 In disposing of the first, second and fourth charges, we assumed without deciding that the accused had an attorney-client relationship with GWM, because those charges were not established even assuming the relationship. We now turn to evidence that bears upon the accused's relationship with GWM for the time in question. GWM commenced operating in Oregon in early 1969. The company employed the accused to examine and review all documents it proposed to use in implementing the plan of operation described near the outset of this opinion. Under date May 8, 1969, the accused rendered his written opinion: In November, 1969, a Seattle lawyer, who was on a first name basis with the accused, sought from the accused information concerning GWM to enable the lawyer to advise "a number of trusts" represented by the Seattle lawyer. The accused answered the inquiry by letter dated November 28, 1969: The accused testified that the principals of GWM called him from time to time for advice from the inception of their relationship until the last legal work he did for them in late 1974. His own testimony quoted, supra, shows that he was aware that his relationship with GWM was that of attorney and client. It is true that he was not on a retainer and that GWM did employ other counsel from time to time, but there is nothing that prevents one from having an attorney-client relationship with more than one lawyer at a time. Neither must a lawyer be on retainer or engaged for a specific purpose to be considered an attorney for a client who, from time to time, calls that lawyer seeking legal advice and receives such advice as a matter of course. Oddly enough, the accused seems to have refused or failed to charge for the legal work he described as having performed for this client, except for a charge for specific litigation in 1973 and for one other time in late 1973 for a general claim for legal services. There is no record that he charged for, or was paid for, the many telephone calls or his initial work which culminated in the letter of May 8, 1969, quoted above. Throughout his testimony when his attention was focused on whether he, at any given time, had the relationship of attorney-client with GWM, he tended to describe his representation of that client as "spasmodic," but when his attention was focused on whether he disclosed his relationship with GWM to other clients, he tended to describe it in words which gave the impression of an ongoing thing. We are satisfied that the accused was in an ongoing relationship of attorney to client with GWM at the time of the May 11, 1971, meeting. The Bar has not specifically cited us to any statute or rule governing professional conduct other than Canon 5 and Canon 9. The accused has not directed our attention to any other statute or rule. We believe the accused's position in his defense to this third charge is not that the conduct described *326 is not unethical, but rather that he simply did not engage in the conduct described in the Bar's complaint. Nevertheless, it is incumbent upon us to identify the statute or rule which specifies that the conduct established by the evidence is proscribed. We have recognized that professional ethics for members of the Bar are codified in ORS 9.460 to 9.580. Sadler v. Oregon State Bar, 275 Or. 279, 294, 550 P.2d 1218 (1976). More accurately they are codified in ORS 9.460, 9.480 and 9.500 to 9.520. There are additional provisions governing professional conduct. In 1935 the legislature provided by what is now codified ORS as 9.490: Pursuant to that statute, "Rules of Professional Conduct of the Oregon State Bar" were adopted, and approved and became effective in December, 1935. Those were the rules which were in effect at the time with which this third charge is concerned.[8] Rule 1 provides with respect to the Canons: There are other Rules which conceivably bear upon the conduct alleged in this third charge: Those rules bear generally on the matters of conflict of interests and maintaining the confidences of clients. *327 Relevant also are some statutory provisions: Assuming that the Canons of Ethics are applicable, we find those cited to us provide: As to the specific charges in this third cause of the Bar's complaint, we find that the accused without revealing his relationship with GWM did advise his client, the Trusts, that investments with his client, GWM, were safe and prudent and that such conduct was a violation of Rules 6 and 7, Rules of Professional Conduct of the Oregon State Bar. Since we find that conduct to be a violation of Rules 6 and 7, we do not reach whether other rules may have been violated. We find that the accused's dual representation of these clients did not result in his using any confidential information gained from one client for the advantage of himself or the other client. We find that the accused's conduct did place him in a position where his professional judgment for his client, the Trusts, could not be exercised free of compromising interests and loyalties. This conduct was a violation of Canon 5 and of at least the spirit of Rule 7, Rules of Professional Conduct of the Oregon State Bar. We find that the accused is not guilty by this conduct of depriving the Trusts of an opportunity to secure independent advice. The Trusts did not invest in Lakewood Apartments insofar as the record discloses and made no investment with GWM until 20 months after receiving the accused's advice. There remains the matter of the charge that the accused's concurrent representation placed him in a position which could result in an appearance of impropriety. We are not sure that the language chosen for the complaint charges any violation of Canon 9. In any event, it is unnecessary to reach that question or whether there was any appearance of impropriety. If there were such an appearance, it would not add to the severity of discipline in the circumstances of this case. The Bar's complaint alleges that this conduct on the part of the accused was willful misconduct in his profession. See, ORS 9.480(4). We agree; therefore under ORS 9.480 we hereby reprimand the accused. Accused reprimanded by these presents. The Oregon State Bar shall recover of and from the accused its costs and disbursements incurred in these proceedings. [1] Section 46.2, Rules of Procedure Relative to: Admission, Discipline, Resignation and Reinstatement. [2] ORS 9.535 provides in part: "(1) The board of governors shall appoint a review board, under the rules of procedure of the state bar, which shall review the transcript, report and recommendation of the trial board. At least one member of the review board shall be a representative of the general public, not a member of the state bar. The review board may adopt, modify or reject the report and any recommendation of a trial board, may take additional evidence or rerefer the matter to a trial board for further proceedings. "(2) The review board shall render, and file with the executive director of the state bar, a written decision on the proceedings. Notice and a copy of the decision and recommendation of the review board, certified by the executive director, immediately shall be transmitted by the executive director by registered or certified mail to such member or applicant, as the case may be, at his last-known post-office address; and the executive director shall file with the State Court Administrator a copy of the decision and recommendation, certified by the executive director, with the transcript and findings, and the entire record of the proceeding. "(3) Counsel for the state bar or the accused or applicant may, within 30 days after the filing with the State Court Administrator of the decision and recommendation of the review board in a disciplinary, admission or reinstatement matter, petition the Supreme Court to adopt, modify or reject the same. On review by the Supreme Court of the decision and recommendation, the Supreme Court after due notice and such hearing as it shall determine, may adopt, modify or reject the same, in whole or in part, and thereupon shall make an appropriate order. "(4) When the Supreme Court issues its order after review of any decision or recommendation of the review board, it may award judgment for the prevailing party for the party's actual and necessary costs and disbursements incurred in the disciplinary, admission or reinstatement proceeding. The procedures for recovery of such costs and disbursements shall be the same as in civil cases. "* * *" [3] It was also charged that accused was attorney for GWM's principals, Robert Garner and Garland Bramble. We find no evidence that accused's representation of either principal personally is the source of any unethical conduct charged; therefore, we do not further deal with that relationship. [4] It was considered that this kind of investment would help to provide jobs for those workers who were the beneficiaries of the various trusts and members of the various unions which would be making the investments. [5] The Trial Board allowed amendments to both the third and fourth charges. The amendments to the fourth charge were substantial. The original complaint does not show by interlineation or obliteration any of those amendments. There was no amended complaint filed. The text of the amendments must be gleaned from a search of the transcript. We realize that a group of lawyers serving as a Trial Board is contributing its time "for the good of the order," but the failure to cause the amendments to be reflected in the pleadings themselves results in false starts for the Review Board and this court. Where amendment to the pleadings is allowed by interlineation or obliteration, the chairman of the Trial Board should take care that this is physically performed forthwith. If amendment is otherwise allowed, counsel should be required to submit an amended pleading. Having said that, we would note that the Trial Board in this case submitted an excellently organized written decision and appended thereto a list of exhibits received. In this respect the work of the Trial Board was of uncommon aid to this court in its review. [6] The accused points out that apparently the trustees never acted in reliance upon whatever he said at the May 11, 1971, meeting. He rightly points to the evidence that the trustees had made substantial investments with GWM in the period from November 24, 1969, to as late as April 8, 1971, when they invested $238,500, and that the trustees did not again invest with GWM until some 21 months later in January, 1973. We are not dealing with a charge of fraud, however, and we do not believe the establishment of this charge of unethical conduct requires a showing of detrimental reliance. We do not understand that the accused really contends to the contrary. We really mention this only because the accused has drawn our attention to this evidence, and we desire that he understand we have noted it. [7] The minutes of four meetings of these trustees are in evidence. Two sets were offered by the Bar and two by the accused. We are impressed by the fact that these minutes, in all four instances, are not just "action" minutes. Rather, they are quite detailed. [8] The American Bar Association Code of Professional Responsibility had not yet been adopted on May 11, 1971.

ba85c829ca98760c04fe259d93f71810e0c35b6d61ad75f0dca7aa8e59e5428b

1980-07-24T00:00:00Z

11a3db3e-9c49-4cd6-a9b4-9c580e9ca082

In Re Scannell

289 Or. 689, 617 P.2d 256

oregon

Oregon Supreme Court

617 P.2d 256 (1980) 289 Or. 689 In re Gerald J. SCANNELL, Jr., Accused. OSB 79-23; SC 27093. Supreme Court of Oregon, In Banc.[*] Argued and Submitted September 9, 1980. Decided October 7, 1980. W.V. Deatherage, of Frohnmayer, Deatherage, deSchweinitz & Eads, Medford, argued the cause and filed a brief for the accused. William L. Lasswell, Roseburg, argued the cause for the Oregon State Bar. With him on the brief was Peter Nilsen, of Geddes, Walton, Richmond, Nilsen & Smith, Roseburg. PER CURIAM. In disciplinary proceedings initiated by the Oregon State Bar, a trial board found the accused guilty of violating Disciplinary Rule 5-104(A), which provides: There is no dispute about the facts constituting the violation, as set out below. The only issue is the determination of the penalty appropriate to the circumstances of this case. Mr. Scannell, who is 53 years of age, has been a member of the Oregon Bar since 1957 and entered the private practice in Jackson County in 1960. During the following years a Mr. and Mrs. Higgins were clients of Mr. Scannell as well as friends of his family. After Mr. Higgins's death in 1973, Mrs. Higgins remained Scannell's client and relied on him in various financial investments. In May, 1976, Scannell obtained a loan of $75,000 from Mrs. Higgins. The proceeds were used in part to pay off the balance due on a land sale contract for Scannell's office building. As a form of security for the loan, Scannell prepared a deed for this property to Mrs. Higgins and a contract to sell the property back to him. He did not suggest that she obtain independent legal advice, and she did not do so. It does not clearly appear from the record or the trial board findings whether the documents purporting to secure the loan were given to Mrs. Higgins or placed in her file in Scannell's office; however, they were not recorded. Scannell sold the office building, to which he still held record title, in 1977 and used the proceeds to buy another office building. A deed conveying the new building to Mrs. Higgins and a land sale contract back to Scannell were again prepared but not signed or recorded. The bar does not claim that Mrs. Higgins did not know or consent to these transactions, but again she had no independent legal advice and was not encouraged to seek it. None of the proceeds of the sale were applied to repaying Mrs. Higgins. The Bar stated this as a second charge against the accused.[1] In the course of a disagreement over other matters in the summer of 1978, Mrs. Higgins demanded repayment of the loan and interest. The debt was eventually paid in a settlement in which both parties were represented by counsel. Scannell sold his home and the office building for this purpose. Following these events, he gave up his practice in Ashland and took a state position as an assistant attorney general in Grants Pass, which is his present employment. In responding to the Bar's complaint, the accused did not contest the foregoing facts or that they constitute a violation of the professional obligation encompassed in DR 5-104(A) supra. He testified that he simply did not think of the question but did not offer this as an excuse, which of course it is not. The trial board recommended a penalty of three months' suspension with reinstatement conditioned on an affirmative showing of fitness to resume the practice of law. The Disciplinary Review Board recommended that the period of suspension be six months. The accused urges that the sanction be limited to probation rather than suspension. He cites a number of considerations in mitigation of the penalty, but his chief emphasis is on relating the object to be served by the sanction to the circumstances of the accused, specifically that he has left the private practice and entered government service. We agree that this is a fact to be considered in deciding what sanction will best serve the purpose of professional discipline. Addressed as it is to the practice of a licensed profession, the disciplinary system does not exist for the purpose of punishment for wrongdoing but to protect the public and the administration of justice. It does so directly by temporarily or permanently disqualifying unethical or careless attorneys from the practice and indirectly by the deterrent effect of enforcement *258 in maintaining the Bar's sensitivity to questions of professional responsibility. We have not often found "probation" to be a practical disciplinary sanction, because neither the Court nor the Bar has effective machinery for supervising stringent conditions, and without conditions and supervision "probation" is largely meaningless. Moreover, the importance of the second, deterrent, effect of discipline, as well as the demands of evenhanded enforcement preclude a sanction of mere probation for a serious departure from professional responsibility. On the other hand, it is not apparent how the interests of the public or the administration of justice will be furthered by a penalty which will disqualify the accused from his present government employment, where he is not representing private clients, and leave him to search for a new opportunity to practice law in three or six months. We believe that some period of suspension is called for, but we think it is appropriate to the violation in this case that the accused not deal with private clients for an extended period more than that he be disqualified from any legal work whatsoever. We have no reason to believe that his present employment in the Department of Justice will not continue for the indefinite future. Accordingly, we conclude that a suitable sanction in this case is to suspend the accused from the practice of law for a period of 60 days, followed by a period of probation of two years during which the accused may not engage in the representation of private clients. At the end of that period, this condition will be terminated upon the accused's showing that he is in all respects fit to resume the private practice of law. Accused suspended and placed on probation. [*] Lent, J., did not participate in this decision. [1] The trial board found the accused guilty of both charges but not guilty of a third charge alleging a failure to advise Mrs. Higgins of delinquent payments under the land sale contract. The Disciplinary Review Board treated the substance of the charges as a single violation of the duty stated in DR 5-104(A).

bb0e27c915ec6b9f0429f63a7b2a63ecc283f0c8a99ac5e001c196ca46a3a565

1980-10-07T00:00:00Z

19ea0ea4-f893-41a1-b23b-9a29fe67d863

State v. Kessler

289 Or. 359, 614 P.2d 94

oregon

Oregon Supreme Court

614 P.2d 94 (1980) 289 Or. 359 STATE of Oregon, Respondent, v. Randy KESSLER, Petitioner. TC DA 160004-7811; CA 14296 and SC 26705. Supreme Court of Oregon. Argued and Submitted March 4, 1980. Decided July 15, 1980. David L. Slader, Portland, argued the cause and filed the brief, for petitioner. W. Benny Won, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief was James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Before DENECKE, C.J., and TONGUE, HOWELL, LENT and PETERSON, JJ. *95 LENT, Justice. The defendant in this case was convicted of "possession of a slugging weapon," ORS 166.510(1).[1] We allowed review to consider his claim that the legislative prohibition of the possession of a "billy"[2] in ORS 166.510(1) violates Article I, section 27, of the Oregon Constitution. That provision states: The language of this provision raises several questions in this case, including: The scope of Article I, section 27, has not previously been analyzed by Oregon courts.[3] The decisions construing the second amendment to the United States Constitution are not particularly helpful because the wording of the second amendment differs substantially from our state provision. The second amendment has not yet been held to apply to state limitations on the bearing of arms.[4] The wording of Oregon's right to bear arms provision also differs from many other state constitutional provisions.[5] Despite the many variations in wording, the states' constitutional provisions guaranteeing the right to bear arms share a common historical background. We begin first with an examination of this historical background and then with an examination of the meaning and purpose of the particular words chosen by the Oregon drafters. We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision might not seem compelling if debated as a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment. The first article of Oregon's constitution of 1859 contains the state's bill of rights. *96 Article I, section 27, regarding the right to bear arms was taken verbatim from sections 32 and 33 of the Indiana Constitution of 1851. C. Carey, A History of the Oregon Constitution 469 (1926); Palmer, The Sources of the Oregon Constitution, 5 Or.L. Rev. 200, 202 (1926). The original Indiana constitution was adopted in 1816 at Indiana's first statehood convention. Indiana's constitution was revised in 1851, but the 1816 version of the right to bear arms provision remained unchanged. See W. Swindler, Sources and Documents of U.S. Constitutions, Vol. 3, p. 345-400 (1974). The drafters of Indiana's bill of rights of 1816 borrowed freely from the wording of other state constitutions, most notably the constitutions of Kentucky, Ohio, Tennessee, and Pennsylvania. Twomley, The Indiana Bill of Rights, 20 Ind.L.J. 211, 212-213 (1945). These state constitutions were drafted between 1776 and 1802. Oregon's right to bear arms provision therefore can be traced to state provisions drafted in the revolutionary and post-revolutionary war era. The constitutions adopted by the original colonies generally included a bill or declaration of rights. Many of the declarations of rights were patterned largely upon the English Bill of Rights of 1689.[6] The background of the English Bill of Rights sheds some light upon the meaning of the right to bear arms provisions in the colonial constitutions. James II, a Catholic king, ascended the English throne in 1685 amidst domestic religious controversy between the Catholics and Protestants. James II established a strong standing army which he quartered in private homes. He sought to repeal certain laws of Parliament which barred Catholics from public offices. The Protestants revolted in the "Glorious Revolution" of 1688 and succeeded in deposing James II and bringing to power the king's Protestant daughter, Mary, and her husband, William of Orange. William and Mary were offered the crown in 1689 on condition that they sign the Declaration of Rights. The Declaration was later enacted as a statute, which was divided into two parts, first listing the allegedly illegal actions of James II, then declaring the rights of the people. The first part stated that James II: The parallel provisions of the declaration of rights provided: Historians have noted that the early colonial legislatures perceived themselves as descendants of the House of Commons who shared many of the same political experiences of their 17th century English counterparts. See B. Schwartz, The Great Rights of Mankind 15, 31-32 (1977). The French and Indian War ending in 1763 brought large numbers of British soldiers to the colonies. King George III maintained and increased these standing armies following that war, and ordered the troops to be quartered in private homes. The colonists who were accustomed to relying on their *97 own citizen militias viewed the standing armies as an unlawful instrument of oppression. See Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Const.L.Q. 961, 975-978 (1975). The state constitutions drafted in the revolutionary war era therefore included provisions guaranteeing the right to bear arms and prohibiting standing armies in time of peace. The relevant provisions of the English Bill of Rights of 1689 provided a useful model for the colonial drafters. We have noted that Oregon's constitutional right to bear arms provision, Or. Const. Art. I, § 27, was taken verbatim from the Indiana constitutional provision drafted in 1816. The phrase "for defense of themselves and the state" in Indiana's provision was most likely taken from the Kentucky provision in its 1799 constitution, or the Ohio provision in its 1802 constitution.[8] The phrase "for defense of themselves and the state" appears in the present day constitutions of Oregon, Indiana, and six other states.[9] The language is subject to varying interpretations. It has been suggested that the language includes three separate justifications for a state constitutional right to bear arms: (a) The preference for a militia over a standing army; (b) the deterrence of governmental oppression; and (c) the right of personal defense.[10] The language "the right to bear arms * * * for defense of * * * the state" more likely refers to the historical preference for a citizen militia rather than a standing army as outlined above.[11]See People v. Brown, 253 Mich. 537, 235 N.W. 245, 246 (1931): The phrase "the right to bear arms in defense of themselves" has a suggested purpose which is closely related to the preference *98 for citizen militias. That suggested purpose is the deterrence of government from oppressing unarmed segments of the population. For example, King James II attempted to disarm the Protestants while allowing Catholics to bear arms, thus prompting the guarantee in the 1689 Bill of Rights that Protestants could have "arms for their defense."[12] Joseph Story wrote that, J. Story, Commentaries on the Constitution, Vol. 3, p. 746 (1833). Cf., Carlton v. State, 63 Fla. 1, 58 So. 486, 488 (1912) (state provision was "intended to give the people the means of protecting themselves against oppression and public outrage"). "Defense of themselves" has also been said to include an individual's right to bear arms to protect his person and home. Schubert v. DeBard, Ind. App., 398 N.E.2d 1339, 1341 (1980) (Indiana constitution provides citizenry the right to bear arms for their personal self-defense). Self-defense has been recognized as a privilege in both civil and criminal law since about 1400 in England and at all times in the United States.[13] Although the right to bear arms for self protection does not appear to have been an important development in England, the justification for a right to bear arms in defense of person and home probably reflects the exigencies of the rural American experience. See People v. Brown, supra. Cf., Matthews v. State, 237 Ind. 677, 689-692, 148 N.E.2d 334, 339-341 (1958) (Emmert, C.J., dissenting) (constitutional guarantee based on historical necessity for personal defense.)[14] The term "arms" is also subject to several interpretations. In the colonial and revolutionary war era, weapons used by militiamen and weapons used in defense of person and home were one and the same. A colonist usually had only one gun which was used for hunting, protection, and militia duty, plus a hatchet, sword, and knife. G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973). When the revolutionary war began, the colonists came equipped with their hunting muskets or rifles, hatchets, swords, and knives. The colonists suffered a severe shortage of firearms in the early years of the war, so many soldiers had to rely primarily on swords, hatchets, knives, and pikes (long staffs with a spear head). W. Moore, Weapons of the American Revolution 8 (1967). Therefore, the term "arms" as used by the drafters of the constitutions probably was intended to include those weapons used by settlers for both personal and military defense. The term "arms" was not limited to firearms, but included several handcarried weapons commonly used for defense. The term "arms" would not have included cannon or other heavy ordnance not kept by militiamen or private citizens. *99 The revolutionary war era ended at a time when the rapid social and economic changes of the so-called Industrial Revolution began. The technology of weapons and warfare entered an unprecedented era of change. P. Cleator, Weapons of War 143-152 (1967). Firearms and other hand-carried weapons remained the weapons of personal defense, but the arrival of steam power, mechanization, and chemical discoveries completely changed the weapons of military warfare. The development of powerful explosives in the mid-nineteenth century, combined with the development of mass-produced metal parts, made possible the automatic weapons, explosives, and chemicals of modern warfare. P. Cleator, Weapons of War 153-177 (1967). These advanced weapons of modern warfare have never been intended for personal possession and protection. When the constitutional drafters referred to an individual's "right to bear arms," the arms used by the militia and for personal protection were basically the same weapons. Modern weapons used exclusively by the military are not "arms" which are commonly possessed by individuals for defense, therefore, the term "arms" in the constitution does not include such weapons. If the text and purpose of the constitutional guarantee relied exclusively on the preference for a militia "for defense of the State," then the term "arms" most likely would include only the modern day equivalents of the weapons used by colonial militiamen. The Oregon provision, however, guarantees a right to bear arms "for defense of themselves, and the State." The term "arms" in our constitution therefore would include weapons commonly used for either purpose, even if a particular weapon is unlikely to be used as a militia weapon. The constitutional guarantee that persons have the right to "bear arms" does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances. For example, the danger of firearms was recognized shortly after the development of gunpowder. The English Statute of Northampton in 1327 forbade persons to ride at night carrying a firearm for the purpose of terrifying the the people.[15] A 1678 Massachusetts law forbade shooting near any house, barn, garden, or highway in any town where a person may be "killed, wounded, or otherwise damaged."[16] The courts of many states have upheld statutes which restrict the possession or manner of carrying personal weapons. The reasoning of the courts is generally that a regulation is valid if the aim of public safety does not frustrate the guarantees of the state constitution. For example many courts have upheld statutes prohibiting the carrying of concealed weapons, see, e.g., State v. Hart, 66 Idaho 217, 157 P.2d 72 (1945); and statutes prohibiting possession of firearms by felons, see, e.g., State v. Cartwright, 246 Or. 120, 418 P.2d 822 (1966). We now turn to the facts of the present case. The defendant was involved in an off and on verbal argument with his apartment manager in the course of the day on November 13, 1978. The dispute escalated into name calling, colorful words, and object throwing. At one point the defendant kicked the elevator door in the apartment building. The police were called and arrested the defendant. The defendant asked the police to get his coat from his apartment. The officers found two "billy clubs" in the defendant's apartment. The defendant was charged with disorderly conduct, ORS 166.025, and possession of a slugging weapon, ORS 166.510. The matter went to trial without a jury. The defendant at trial demurred to and moved to dismiss the second charge on the grounds that it failed to state a crime. The motion was denied and the defendant was found guilty as charged on both counts. *100 The defendant appealed to the Court of Appeals, contending first that his acts did not amount to the crime of disorderly conduct, and second that the statute prohibiting possession of billy clubs, ORS 166.510(1), violates Article I, section 27, of the Oregon Constitution. The Court of Appeals did not consider defendant's first contention because it was not raised at trial.[17] The Court of Appeals held that ORS 166.510(1) was within the reasonable exercise of the "police power" of the state to curb crime. 43 Or. App. 303, 307, 602 P.2d 1096 (1979). The defendant contends that his conviction for possession of a billy club violates his right to possess arms in his home for personal defense. Pursuant to our previous discussion regarding the purpose and scope of the right to bear arms provision, we hold that Article I, section 27, of the Oregon Constitution includes a right to possess certain arms for defense of person and property. The remaining question is whether the defendant's possession of a billy club in this case is protected by Article I, section 27. The club is considered the first personal weapon fashioned by humans. O. Hogg, Clubs to Cannon 19 (1968). The club is still used today as a personal weapon, commonly carried by the police. ORS 166.510 prohibits possession of a "billy;" however, ORS 166.520 states that peace officers are not prohibited from carrying or possessing a weapon commonly known as a "blackjack"[18] or "billy." The statute in this case, ORS 166.510, prohibits the mere possession of a club. The defendant concedes that the legislature could prohibit carrying a club in a public place in a concealed manner, but the defendant maintains that the legislature cannot prohibit all persons from possessing a club in the home. The defendant argued that a person may prefer to keep in his home a billy club rather than a firearm to defend against intruders. Our historical analysis of Article I, section 27, indicates that the drafters intended "arms" to include the hand-carried weapons commonly used by individuals for personal defense. The club is an effective, hand-carried weapon which cannot logically be excluded from this term. We hold that the defendant's possession of a billy club in his home is protected by Article I, section 27, of the Oregon Constitution. The defendant's conviction for disorderly conduct is affirmed, and his conviction for possession of a slugging weapon is reversed. [1] ORS 166.510(1) provides: "(1) Except as provided in ORS 166.515 or 166.520, any person who manufactures, causes to be manufactured, sells, keeps for sale, offers, gives, loans, carries or possesses an instrument or weapon having a blade which projects or swings into position by force of a spring or other device and commonly known as a switch-blade knife or an instrument or weapon commonly known as a blackjack, slung shot, billy, sandclub, sandbag, sap glove or metal knuckles or who carries a dirk, dagger or stiletto commits a Class A misdemeanor." Although the words "slugging weapon" are not used in ORS 166.510, this term was used in the complaint filed in this case. [2] Webster's Third International Dictionary defines a "billy" as "a heavy usually wooden weapon for delivering blows; club, especially a policeman's club." [3] In State v. Robinson, 217 Or. 612, 619, 343 P.2d 886 (1959) this court held that ORS 166.270 which prohibits ex-convicts from possessing concealed weapons did not violate Article I, section 27, of the Oregon Constitution. Accord, State v. Cartwright, 246 Or. 120, 134-137, 418 P.2d 822 (1967). [4] The second amendment to the United States Constitution provides: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." In early cases the United States Supreme Court held that the second amendment proscription applies only to Congress. Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876). The second amendment has not yet been held applicable to the states, either directly or through selective incorporation in the fourteenth amendment. See Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 Catholic U.L.Rev. 53 (1966). [5] For a helpful categorization of various state constitutional right to bear arms provisions see Note, The Impact of State Constitutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U.Chi.L.Rev. 185 (1970). [6] See generally, B. Schwartz, The Great Rights of Mankind 1-36 (1977); Feller and Gotting, The Second Amendment: A Second Look, 61 Northwestern U.L.Rev. 46, 47-56 (1966). [7] Bill of Rights, I W. & M., sess. 2, c. 2 (1689), reprinted in Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Const.L.Q. 961, 973 (1975). [8] Art. X, §§ 23 and 24, of the 1799 Kentucky constitution provided: "Sec. 23. That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned. "Sec. 24. That no standing army shall, in time of peace, be kept up, without the consent of the legislature; and the military shall, in all cases and at all times, be in strict subordination to the civil power." W. Swindler, Sources and Documents of U.S. Constitutions, Vol. 4, p. 163 (1975). Art. VIII, § 20, of the 1802 Ohio constitution provided: "Sec. 20. That the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power." W. Swindler, Sources and Documents of U.S. Constitutions, Vol. 7, p. 555 (1978). Ohio's constitutional provision was most likely taken from Art. XIII of Pennsylvania's constitutional Bill of Rights of 1776 which provided: "That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power." W. Swindler, Sources and Documents of U.S. Constitutions, Vol. 8, p. 279 (1979). [9] The phrase "for defense of themselves and the state" appears in the constitutions of Florida, Declaration of Rights § 20; Kentucky Bill of Rights § 1; Pennsylvania, art. I, § 21; South Dakota, art. VI, § 24; Vermont, ch. 1, art. 16; and Wyoming, art. I, § 24. [10] See Note, The Impact of State Constitutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U.Chi.L.Rev. 185, 190-198 (1970). [11] Despite the early Americans' objection to standing armies and their preference for citizen militias, our society today apparently prefers the maintenance of federally controlled standing armies. The federal government has assumed total responsibility for training and supplying the "state militias," i.e., the National Guard. See, e.g., 32 U.S.C., §§ 101, 102, 501, 502, 701 (1976); Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 Cath.U.L.Rev. 53, 72 (1966). [12] See text accompanying note 7 supra. [13] "The privilege of self-defense rests upon the necessity of permitting a man who is attacked to take reasonable steps to prevent harm to himself, where there is no time to resort to the law. The early English law, with its views of strict liability, did not recognize such a privilege; * * *. But since about 1400 the privilege has been recognized, and it is now undisputed, in the law of torts as well as in the criminal law." (citations omitted) W. Prosser, Law of Torts 108 (4th ed. 1971). [14] Compare the provisions in several state constitutions which guarantee that a person has the right to bear arms "in defense of his home, person and property." Colo.Const., Art. II, § 13; Miss.Const., Art. III, § 12; Mo.Const., Art. I, § 23; Mont.Const., Art. III, § 13; Okla. Const., Art. II, § 26; State v. Nickerson, 126 Mont. 157, 247 P.2d 188 (1952) (defendant cannot be convicted of assault if he pointed a loaded gun at a trespasser in his home); accord, State v. Plassard, 355 Mo. 90, 195 S.W.2d 495 (1946). [15] 2 Edward III, ch. 3 (1328), reprinted in J. Bishop, Statutory Crimes, § 783 (3d ed. 1901). [16] Council held in Boston, March 28, 1678; referred to in Levin, The Right to Bear Arms: The Development of the American Experience, 48 Chi.-Kent.L.Rev. 148, 150, n. 18 (1971). [17] The general rule in both civil and criminal cases is that a question not raised and preserved in the trial court will not be considered on appeal. State v. Abel, 241 Or. 465, 467, 406 P.2d 902 (1965). Failure to raise an objection in trial court does not automatically preclude appellate review. The defendant's contention that his acts did not constitute the crime of disorderly conduct, however, does not present the exceptional circumstance or manifest error which justifies this court's consideration of such a claim. It follows that defendant's conviction of disorderly conduct is affirmed. Note that this case is not concerned with that aspect of the statute prohibiting disorderly conduct which we held to be unconstitutional in State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980). [18] Webster's Third International Dictionary defines a "blackjack" as "* * * 4. a small striking weapon typically consisting at the striking end of a leather enclosed piece of lead or other heavy metal and at the handle end of a strap or springy shaft that increases the force of impact."

7ee958066d6b06e3c63cad6b26cd4694550866c9c64b049e30f8d481fd6fa63e

1980-07-15T00:00:00Z

f5ad3252-6f42-4e0e-b47a-4a4264451002

Blanton v. Union Pac. R. Co.

289 Or. 617, 616 P.2d 477

oregon

Oregon Supreme Court

616 P.2d 477 (1980) 289 Or. 617 George E. BLANTON, Petitioner, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Respondent. No. A7606-08132; CA 11120; SC 26503. Supreme Court of Oregon. Argued and Submitted March 5, 1980. Decided September 10, 1980. *478 John R. Faust, Jr., Portland, argued the cause for petitioner. On the brief was Jeffrey M. Batchelor, Zig I. Zakovics, and Reiter, Bricker, Zakovics & Querin, PC, Portland. Walter J. Cosgrave, Portland, argued the cause for respondent. On the briefs were Walter J. Cosgrave and Randall B. Kester, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. PETERSON, Justice. We granted review in this personal injury case to consider the scope of a trial judge's discretion. The defendant railroad appealed from a verdict and a judgment for plaintiff, a brakeman, in an action for personal injuries under the Employers' Liability Act, 45 U.S.C. § 51 et seq. (1976), and related statutes. The railroad admitted liability. On trial, the jury found for the plaintiff, and judgment was entered in his favor. Defendant appealed to the Court of Appeals, claiming that the trial court erred in these respects, among others: A. In failing to grant defendant's motion for mistrial because of prejudicial statements made by plaintiff's attorney in his opening statement. B. In granting the plaintiff's motion to amend his complaint to include a claim of a herniated disc, and in permitting plaintiff's doctor to testify respecting such injury. C. In refusal of the presiding judge of the Multnomah County Circuit Court, in the absence of the trial judge, to consider and rule upon defendant's motion for reconsideration of its motion for a new trial and for other relief. The Court of Appeals held that the trial court erred in failing to grant the defendant's motion for a mistrial and reversed,[1] and plaintiff appealed to this court. Defendant, at the beginning of trial, admitted liability for the accident, but denied that the plaintiff sustained injury as alleged. The trial court, before either lawyer began to examine the jury panel, told the jury panel: The defendant claims that statements made by the plaintiff's attorney to the jury, during opening statement, were so prejudicial that the defendant's motion for a mistrial should have been granted. These are the statements which, according to the defendant, prejudiced its right to a fair trial: At the conclusion of the plaintiff's opening statement, the defendant's lawyer moved for a mistrial: The trial judge denied the motion. In its opinion, the Court of Appeals listed the twelve statements set forth above and concluded: The Court of Appeals either considered the matter of the trial discretion and opted not to discuss it, or failed to consider the applicability of trial court discretion. In either event, we believe the trial judge was clearly within the permissible limits of judicial discretion. In Oregon, as in most states, questions regularly arise in the course of trial which call for procedural rulings by the trial court. Often such questions arise, as here, when inadmissible evidence is brought before a jury, and a party requests a mistrial, claiming that the evidence is so prejudicial that it prevents the party from having a fair trial. In our previous cases, we have steadfastly adhered to the proposition that the trial judge is in the best position to determine whether inadmissible evidence or improper conduct has such a prejudicial effect upon the jury that it impairs one's rights to a fair trial.[2] The opening statements of the plaintiff's attorney were unquestionably prejudicial, but only in the sense that much unfavorable evidence is prejudicial to the party against whom it is offered. In that sense the defendant's own admission of liability was no less prejudicial. We are unconvinced that the trial judge abused his discretion in denying the mistrial motion. The trial judge could have reasonably concluded that the comments were not inflammatory, that they had no effect upon the trial or upon the verdict, and that the likelihood of creating sympathy was not great. He was in the best position to determine the effect of the improper statements. The trial judge had the power to make a choice from two or more valid solutions, if supported by the facts. Yundt v. D & D Bowl, Inc., 259 Or. 247, 256, 486 P.2d 553 (1971). His decision is amply supported by facts, and we cannot say that there was any abuse of discretion.[3] Moreover, the motion for mistrial was not timely. Normally, if improper evidence is offered, objection must be made at the time of the offer or it is deemed waived. An objection generally should be made as soon as its applicability is, or should have been, known to the opponent. Defendant's counsel made no objection to the comments of plaintiff's lawyer until after the opening statement had been completed. We have no doubt that had objection been made to the first allegedly improper statement, the objection would have been sustained and plaintiff's counsel would have been instructed to forbear referring to evidence of defendant's fault. Instead, defendant's counsel opted to wait until the completion of plaintiff's opening statement, and then move for a mistrial. In circumstances such as this, timely objection is required. Failure to promptly object, under the facts of this case, waives the objection.[4] In his complaint, the plaintiff alleged that he "sustained fractures of his lumbar *481 spine requiring surgical fusing * * *." At trial, over defendant's objection, the plaintiff offered evidence of a herniated intervertebral disc.[5] The defendant assigns this error: The issue arose during the testimony of an orthopedic surgeon, Dr. Cherry: Two questions arise from the foregoing record. First, did the court err in permitting the witness to "make his own decision concerning what was within the pleadings"? Second, did the court err in receiving evidence respecting a herniated disc and permitting an amendment consistent with such evidence? It is the responsibility of the trial judge to rule on questions relating to the admissibility of evidence. A judge abdicates that responsibility if such determination is left to a witness. The defendant claims that the trial judge effectively delegated his responsibility to the witness when he said, "[Y]ou may proceed with the doctor, if he's of the opinion that's encompassed in the allegations." Even in the most complex and technical case, the responsibility for determining whether evidence is admissible is always a judicial function. If the trial judge is unsure whether the evidence is within the pleadings, the preferred course is to make appropriate inquiry, outside the presence of the jury, and then rule. Admissibility should never be determined by the witness. A witness's explanation of the meaning of a technical term may well determine its admissibility and relevance to the issues in the case indeed, it may be conclusive on the question of the admissibility *482 of the evidence but the threshold decision of admissibility remains a judicial one. Therefore, if the trial judge permitted the witness to determine whether a claim of a herniated disc was "encompassed in the allegations," the trial court erred. But we are unpersuaded that prejudicial error resulted from the receipt of the evidence, for the record clearly shows that long before trial the defendant was on notice of possible herniation of the plaintiff's disc, the disc claim is arguably included within the allegation that a fusion was required, and the trial court, in a real sense, was merely postponing the ruling on the evidence. ORS 16.390 (1977), which was in effect at the time of the trial of this case,[6] provided: The defendant relies on Wood v. Southern Pacific Co., 216 Or. 61, 337 P.2d 779 (1959). There we reversed a judgment for the plaintiff when the trial court permitted evidence to be received of a claimed arm injury which had not been pleaded and of which, prior to trial, the defendant was unaware. We stated: In the case at bar the defendant was on notice that two of the plaintiff's doctors were of the opinion that the plaintiff had a herniated disc and the disc was located in the same area as the plaintiff's fusion. The plaintiff's complaint contained an allegation of a "twisting, tearing and wrenching of the nerves, muscles, ligaments of his lumbar spine; plaintiff sustained fractures of his lumbar spine requiring surgical fusing." Nearly two years before trial the plaintiff's treating physician made a report to the defendant which referred to the plaintiff's "degenerative disc disease with herniation." Also, the deposition of a Dr. Johnson was taken prior to trial. Dr. Johnson testified to the plaintiff's "degenerative disc disease with nerve root impingement" and that a *483 myelogram revealed "a question of a disc protrusion." The final diagnosis, on the first page of the hospital chart, which was also in evidence without objection, was "herniated L4-5 disc." We cannot say that the herniated disc claim was necessarily "an entire new element of damage." See italicized language from Wood, supra. After Dr. Cherry left the stand, the trial judge stated: There is ample evidence from the medical reports, the operative record, and the hospital records, to support the trial court's finding that the "testimony relative to the herniated disc * * * is inextricably woven with the fusion * * *," and therefore did not substantially change the cause of action and inject an entire new element of damage. By contrast, in Wood the complaint alleged injuries to the abdomen, ribs, back and shoulders; the amendment pertained to an injury to a different body area, the left arm.[7] After judgment, the defendant moved for a new trial, claiming that the trial judge erred in his conduct of the trial. The trial judge denied the motion. Thereafter, one of the jurors wrote a letter to the trial judge, suggesting the possibility that the jury may have reached a quotient verdict. Copies of the letter were forthwith sent to the attorneys for the parties. The defendant promptly filed a motion for (a) reconsideration of the order denying a new trial, (b) an order permitting defendant to amend its motion for a new trial to include "misconduct of the jury," and (c) an order summoning the trial jury for questioning. The defendant's final assignment of error in the Court of Appeals was that the Multnomah County presiding judge "erred in refusing to consider and rule upon defendant's motion for reconsideration of its motion for new trial, and for the questioning of jurors concerning the alleged quotient verdict; and for inclusion of misconduct of the jury and illegality of the verdict as additional grounds for a new trial." The defendant contends that ORS 3.314(2)[8]requires a judge of the circuit court for Multnomah County to act when a judge in any department is absent or disabled, and that in the absence of the trial judge, the decision of the presiding judge that he was "not going to tinker with another judge's case" constituted a failure to "act" pursuant to the statute. We need not construe ORS 3.314(2). For purposes of this opinion we will treat the presiding judge's ruling as a denial of the defendant's motion. The defendant sought to have jurors questioned regarding the purportedly illegal verdict and eventually to have the court consider this testimony in determining whether the juror misconduct resulted in an illegal verdict requiring a new trial under ORS 17.610 (1977). The juror's letter, in part, read: The defendant contends that the letter reveals that the jury reached a quotient verdict, which is illegal under Oregon law. A quotient verdict is a verdict reached pursuant to a jury's agreement to be bound by the figure derived by adding each juror's assessment of damages and then dividing that sum by the number of jurors. See Hendricks v. P.E.P. Co., 134 Or. 366, 372, 289 P. 369, 292 P. 1094 (1930); Annot., 8 A.L.R.3d 335, § 1(a) (1966). This court and a majority of other courts have held that such verdicts are invalid and constitute misconduct on the part of jurors for which a new trial may be granted. E.g., Hendricks at 134 Or. 371-372, 289 P. 369, 292 P. 1094; Annot., 8 A.L.R.3d 335, § 3 (1966). It is equally well established that, with but a few exceptions, "`[a]ffidavit[s] of jurors will not be received to impeach their verdict.'" Carson v. Brauer, 234 Or. 333, 343, 382 P.2d 79, 84 (1963), quoting from Cline v. Broy, 1 Or. 89, 90 (1854). In State v. Gardner, 230 Or. 569, 371 P.2d 558 (1962), we stated the rule "in its accurate form": "* * * [A] verdict is impeachable if justice demands that it be set aside. * * *" Id. at 573-574, 371 P.2d at 560. The defendant contends that the present case falls within the language of Gardner. We do not agree. We explained our holding in Gardner in Carson v. Brauer, supra, as follows: Neither Gardner nor Carson v. Brauer, supra, changed the law of this state with respect to quotient verdicts: juror affidavits may not be used to impeach such a verdict. E.g., Fuller v. Blanc, 160 Or. 50, 58-59, 77 P.2d 440, 83 P.2d 434 (1938); Hendricks v. P.E.P. Co., supra.[9] The competing judicial principles which must be considered were set out and discussed by Justice Holman in this court's decision in Schmitz v. Yant, 242 Or. 308, 312-316, 409 P.2d 346 (1965). We see no reason to reiterate that analysis here. Suffice it to say that "as between the conflicting principles of allowing the trial judge wide discretion in granting new trials and of protecting the jury system as an effective method of deciding disputes this court believes the latter to be of the greater consequence." Id. at 314, 409 P.2d at 350. Whether the defendant's motion was addressed to the trial judge or to the presiding judge, its purpose was the same to obtain an order permitting examination of the jurors with a view toward consideration of their testimony, by affidavit or otherwise, to impeach their verdict. The motion was properly denied. We have considered all of defendant's assignments of error. Reversed. TANZER, Justice, concurring. I concur in the opinion of the majority in all respects except one. In regard to the motion for mistrial, I do not reach the question of discretion. Rather, I concur in the last paragraph of that portion of the opinion which holds that the motion for mistrial was properly denied because there was no timely objection to the statements which were the bases of the subsequent motion for mistrial. A purpose of prompt objection is to preclude the necessity of a mistrial. One who waits to object accepts the objectionable and a tardy motion for a mistrial may properly be denied regardless of whether the objectionable matter is prejudicial. [1] Blanton v. Union Pacific Railroad Co., 41 Or. App. 637, 598 P.2d 1244, modified, 43 Or. App. 741, 604 P.2d 883 (1979). [2] City of Portland v. Holmes, 232 Or. 505, 512, 376 P.2d 120 (1962). Other cases consistent with Holmes include: Plourd v. Southern Pac. Transp. Co., 272 Or. 35, 44, 534 P.2d 965 (1975); Brigham v. Southern Pacific Co., 237 Or. 120, 122, 390 P.2d 669 (1964); Johnson v. Hansen, 237 Or. 1, 6-8, 389 P.2d 330, 390 P.2d 611 (1964) ("Judicial discretion, in its very nature, admits of considerable breadth in its application."); Martin v. Dretsch, 234 Or. 138, 140, 380 P.2d 788 (1963); and Denton v. Arnstein, 197 Or. 28, 55-56, 250 P.2d 407 (1952). [3] The trial court denied the defendant's motion without setting forth the reasons for his ruling. We express no opinion as to the necessity for the trial court to reveal the reasons for the discretionary ruling. [4] This does not appear to be the type of case in which a party may prefer not to make an objection at the time in the belief that the objection would leave a more damaging impression in the minds of the jury. Compare State v. Ellis, 243 Or. 190, 194, 412 P.2d 518 (1966). [5] A word of explanation regarding some medical terms used herein: An intervertebral disc is a fibrous material interposed between the vertebrae in the back. It operates as a shock absorber. A herniated disc is a protruding or ruptured disc which may compress a nerve root, and may cause back or leg pain, weakness, numbness or loss of strength. A spinal fusion is a surgical procedure by which bone from elsewhere in the body is inserted between two or more vertebrae to eliminate movement in the fused space. A myelogram is a diagnostic procedure in which radiopaque fluid is inserted into the spinal arachnoid space, thus permitting visualization or photography of the spinal cord area. Source: Transcript and Stedman's Medical Dictionary (4th ed 1976). [6] The gist of ORS 16.390 is now found in ORCP 23B. [7] The trial judge was undoubtedly aware of the Wood rule, as he was one of the attorneys involved in that case. 216 Or. at 62, 337 P.2d 779. [8] ORS 3.314(2): "Any judge of the circuit court of a judicial district described in ORS 3.310 may act in any department of the circuit court. In case of the absence or disability of a judge in any department, the judges in the other departments, in so far as practicable, shall act in such department." [9] It is not clear from the letter presented in this case that there was a quotient verdict. A key element to a quotient verdict is that the jurors agree to be bound by their computations before making them. See, e.g., Hendricks v. P.E.P. Co., 134 Or. 366, 372, 289 P. 369, 292 P. 1094 (1930); State ex rel. Highway Comm. v. Center, 23 Or. App. 693, 696, 543 P.2d 1084 (1975). The juror letter in this case does not indicate one way or the other whether the jury bound itself to its computed figure before or after the computation.

7eadf072208b8377500c4df8e3631fd2b0aac98bf0ea0faee2c94d58b91dff17

1980-09-10T00:00:00Z

4430e8f6-4a79-4935-a7ba-636c74f2dd82

Wright v. State Acc. Ins. Fund

289 Or. 323, 613 P.2d 755

oregon

Oregon Supreme Court

613 P.2d 755 (1980) 289 Or. 323 In the matter of the Compensation of Charles R. WRIGHT, Petitioner, v. STATE Accident Insurance Fund, Respondent. WCB 77-657; CA 14540; SC 26685. Supreme Court of Oregon. Argued and Submitted April 8, 1980. Decided July 1, 1980. *756 David R. Vandenberg, Jr., Klamath Falls, argued the cause and filed the brief for petitioner. With him on the brief was Bradford J. Aspell, of Boivin, Boivin & Aspell, Klamath Falls. Darrell E. Bewley, Associate Counsel, Salem, argued the cause for respondent. With him on the brief were K.R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, Salem. Before DENECKE, C.J., and HOWELL, LENT and PETERSON, JJ. LENT, Justice. The issues presented in this case involve the presumption created for the benefit of firefighters in Oregon's occupational disease law, ORS 656.802. We allowed review to consider the following questions: ORS 656.802 states in relevant part: The claimant, a former fireman, filed his claim in November, 1976. The insurer, State Accident Insurance Fund (SAIF), denied the claim in January, 1977. The claimant requested a hearing which was held on August 31, 1978. The referee on November 13, 1978, issued his opinion and order finding the claim to be compensable. SAIF requested review by the Workers' Compensation Board, and on May 4, 1979, the Board affirmed and adopted the opinion and order of the referee. SAIF requested judicial review, ORS 656.298, and the Court of Appeals reversed the Board, finding the claim not to be compensable. Wright v. SAIF, 43 Or. App. 279, 602 P.2d 1086 (1979). We allowed the claimant's petition for review, ORS 2.520, 288 Or. 527 (1979). We reverse the Court of Appeals. We are bound by the Court of Appeals' findings of fact, insofar as resolution of conflicts in the evidence are concerned. Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971). Our reading of the Court of Appeals' opinion reveals that the court found that the evidence established the facts necessary to give rise to the presumption. That court found: That court further found that claimant first experienced the pleuritic pain shortly after a "serious fire" at which he had breathed super-heated smoke. The court then turned to a discussion of evidence bearing upon the relationship of claimant's employment to the cause of his condition or impairment: The Court of Appeals held that the firefighters' presumption in ORS 656.802 disappeared when evidence was introduced to dispute the presumption. That court then weighed the evidence, according the presumption no consideration, and concluded the claimant's condition was not caused by the claimant's occupation. The court also concluded that although the evidence showed that firefighting stimulated the claimant's pain, there was no evidence that the firefighting aggravated the claimant's underlying condition, therefore, under this court's holding in Weller v. Union Carbide, 288 Or. 27, 602 P.2d 259 (1979) the claim was not compensable. The firefighters' presumption was added to ORS 656.802 in 1961. Or. Laws 1961, ch. 583, § 1. The proponents intended to give relief to firefighters because statistical studies indicated firefighters were much more likely to suffer from heart and lung diseases due to exposure to smoke and gases under strenuous conditions. Minutes, Senate Labor and Industries Committee, HB 1018, March 8, 1961. The presumption was drafted as a "disputable presumption" with the intent that the presumption not be conclusive. Minutes, House Labor and Industries Committee, February 2, 1961, p. 2. In 1977, the firefighters' lobby proposed amendments to ORS 656.802 because they felt that "the legislative intent was not carried out" in case law. Minutes, Senate Labor, Consumer and Business Affairs Committee, SB 701, April 13, 1977, pp. 2-3. The amended statute deleted the word "disputable" and added the sentence that a claim could be denied only on the basis of medical or other evidence that the cause of the condition or impairment is unrelated to the fireman's employment. Or. Laws 1977, ch. 734, § 1. We agree with the conclusion of the Court of Appeals that the 1977 amendment was intended to clarify rather than modify the preexisting statute. 43 Or. App. at 283, 602 P.2d 1086. The presumption remains disputable, as evidenced by the last sentence of the amended statute. The operation of a disputable presumption is described in ORS 41.310, 41.340, and 41.360: *759 The parties agree that these statutes describe the operation of the disputable presumption for firefighters in ORS 656.802(2). In Wyckoff v. Mutual Life Ins. Co., 173 Or. 592, 147 P.2d 227 (1944), this court examined the procedural operation of a disputable presumption. The court noted that Professor Thayer and Professor Wigmore had been exponents of the theory that when any evidence is introduced to rebut the presumption, the presumption disappears. 173 Or. at 596-597, 147 P.2d 227. The court rejected that theory and concluded that the plaintiff was entitled to have the court instruct the jury as to the existence of the presumption against suicide. 173 Or. at 598, 607-608, 147 P.2d 227. The Thayer-Wigmore theory has been called the "bursting bubble" theory of presumptions. This theory has been soundly criticized because it gives presumptions an effect that is too "slight and evanescent" in light of the policy reasons for creation of presumptions.[3] Morgan and Maguire, Looking Backward and Forward at Evidence, 50 Harv.L.Rev. 909, 913 (1937). McCormick on Evidence 822 (2nd Ed. 1972). Professor Morgan advanced a theory of presumptions which challenged the Thayer-Wigmore theory. Morgan maintained that once a party established the basic facts giving rise to a presumption, the burden of persuasion on that issue shifted to the opponent of the presumption. Morgan, Some Observations Concerning Presumptions, 44 Harv.L.Rev. 906, 927 (1931); Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv.L.Rev. 59 (1933). In line with his theory, Professor Morgan in 23 Or.L.Rev. 269 (1944) criticized that aspect of the Wyckoff decision in which the court approved the jury instruction that the plaintiff had the burden of proof of death by accident and not suicide. He rightly argued that instruction contradicted the instruction that the presumption against suicide required a finding of death by accident unless the evidence of suicide has overcome the presumption. In U.S. Nat'l Bank v. Lloyd's, 239 Or. 298, 307, 382 P.2d 851, 396 P.2d 765 (1964), this court acknowledged the soundness of Professor Morgan's criticism; however, the court did not adopt the Morgan approach. The court concluded that ORS 41.360 binds the jury to find according to the presumption only when no evidence opposing the presumption has been introduced. 239 Or. at 324-325, 396 P.2d 765. That conclusion was based upon a discussion of the legislative history of ORS 41.360. The court found that the forerunner statute was extracted by Deady from Greenleaf's Treatise on the Law of Evidence. The court quoted from Greenleaf Greenleaf's full sentence from which that quotation was taken follows: What may have been meant by Deady and the legislature in relying upon Greenleaf is not at all clear when one looks at the full sentence rather than the last clause. We hold that in a civil case[4] the statutory scheme concerning disputable presumptions requires that when the basic facts giving rise to the presumption are established, the presumption binds the jury if there is no opposing evidence. If there is opposing evidence, the trier of fact must weigh the evidence, giving the presumption *760 the value of evidence, and determine upon which side the evidence preponderates.[5] As noted, supra, the Court of Appeals found that the claimant established the basic facts which give rise to the presumption in ORS 656.802(2). This means that the presumption "disappears" only if there is evidence which establishes the nonexistence of one or more of the basic facts giving rise to the presumption. For example, if in this case the evidence established that the claimant had not been employed by a political subdivision or had not been so employed for the requisite period of five or more years, the presumption would "disappear." In this case there was no evidence to challenge any of those basic facts which give rise to the presumption and it cannot be held to disappear. The presumption is established as to each disease listed in ORS 656.802(1)(b) from which the claimant suffers. In this case the Court of Appeals found that the claimant had both heart related and lung related conditions or impairments of the kind described in the statutes; therefore, to the extent that each impairment can be segregated, the presumption operates as to each. The presumption then imposes on the opponent SAIF the burden of producing opposing evidence that the cause of both claimant's lung condition and heart condition is unrelated to the fireman's employment. ORS 656.802(2) prescribes what kind of opposing evidence is required. The statute directs that "denial of a claim for any condition or impairment * * * must be on the basis of medical or other evidence that the cause of the condition or impairment is unrelated to the fireman's employment." Most of the evidence discussed by the Court of Appeals states or implies only that claimant's condition is "idiopathic," or of unknown origin. These diagnoses are simply a confession of an inability to identify a cause of claimant's impairments rather than evidence that claimant's condition or impairment is unrelated to his employment.[6] *761 There is evidence, however, that the cause of claimant's impairments is unrelated to his employment. As noted by the Court of Appeals, a treating doctor in a letter in 1976 opined that the disease was not caused by the work.[7] The Court of Appeals held that this evidence was sufficient to "eliminate" the presumption. We conclude that the word "eliminate" in the context of the opinion was used because of that court's conclusion of law that the statutory presumption "falls with the introduction of opposing evidence." (our emphasis) 43 Or. App. at 283, 602 P.2d at 1088. We do not believe that the Court of Appeals used "eliminate" to mean "overcome" as is required by the statute. The erroneous premise that the presumption, in effect, disappears completely with the "introduction" of opposing evidence served to misdirect the thrust of that court's inquiry as to the effect to be afforded the presumption. It will be necessary, consequently, to remand this case to the Court of Appeals for further factual determinations that court is required to make, ORS 656.298, which cannot be made by this court. Sahnow v. Fireman's Fund Ins. Co., supra. The Court of Appeals stated that there was no evidence that firefighting aggravated the claimant's underlying condition, and, therefore, under the standards established in Weller v. Union Carbide, 288 Or. 27, 602 P.2d 259 (1979), the claimant's symptoms were noncompensable.[8] The statutes relevant to the decision in Weller v. Union Carbide, supra, were ORS 656.005(8), 656.802(1)(a), and 656.804, which make an "injury," "disease or infection" compensable if it either requires medical services or results in disability.[9] The code provisions concerning firefighters, ORS 656.802(1)(b) and (2), were not considered in the Weller opinion. ORS 656.802(1)(b) provides that an "occupational disease" means "death, disability or impairment of health of firemen * * *." (emphasis added) The language in ORS 656.802(2) provides that "any condition or impairment of health," arising under 656.802(1)(b) is presumed to result from a fireman's employment. This language is markedly different from the terms "injury, disease, or infection," and includes in the *762 presumption of compensability a worsening of symptoms as well as a worsening of the underlying disease. To read the words "impairment of health" to exclude symptomatology would ignore the all-inclusive phrase chosen by the legislature. The condition of worsening of pain, if it requires medical services or results in disability, is compensable in the case of a firefighter if the other requirements of the statute are met. The holding in Weller v. Union Carbide, supra, is inapplicable to the firefighters' presumption in ORS 656.802(1)(b) and (2). The Court of Appeals' holding on this issue is reversed. Reversed and remanded to the Court of Appeals for factual determination of the compensability of claimant's heart-related and lung-related disabilities or impairments of health in light of our holding as to the effect of the statutory presumption. [1] The language quoted from the Court of Appeals' opinion, while not in the exact terms of the statute, is equivalent to the statutory language which requires that the fireman shall have undergone a physical examination upon becoming a fireman which failed to reveal any evidence of a preexisting condition or impairment of the kind described. [2] The connotations of the use of the word "satisfactory" are not clear. A line of reasoning is suggested by the grouping of the sections of the code concerning evidence. These groupings have been substantially consistent since the 1862 compilation of Deady. From that time to the present we have had a section in the various compilations of our statutes on evidence describing that evidence which is "satisfactory." See, L. 1862, D. § 666; H. § 676; B. & C. § 688; L.O.L. § 697; O.L. § 697; O.C. 1930, § 9-112; § 2-111, O.C.L.A.; ORS 41.110. There are minor variations in the wording of those sections but none which appear to espouse a change in meaning. ORS 41.110 provides: "Satisfactory evidence is that which ordinarily produces moral certainty or conviction in an unprejudiced mind. It alone will justify a verdict. Evidence less than this is insufficient evidence." It may fairly and logically be argued that the legislature of this state has always intended a presumption to suffice to establish a fact to a moral certainty, a degree of persuasion which this court has found to be beyond that required in a civil case in Cook v. Michael, 214 Or. 513, 330 P.2d 1026 (1958). [3] The policy considerations for creation of presumptions include, e.g., procedural fairness, probabilities, and promotion of certain social policies. See, McCormick on Evidence, 806-807 (2d Ed. 1972). [4] A presumption in criminal cases has different consequences due to constitutional requirements. See, State v. Stilling, 285 Or. 293, 297, 590 P.2d 1223 (1979). [5] This obviously does not answer the question as to which party prevails if the evidence is in equipoise. This case is before only four members of the court, and the four are not in agreement as to the result if the evidence is equally balanced. Some believe that the theory advanced by Professor Morgan is compelled by Oregon statutes. Others believe that the burden of proof must remain throughout on the party having the affirmative of the issue, despite the presence of the word "overcome" in ORS 41.360, and therefore if the evidence is equally balanced, the presumption does not bind the trier of fact and the party having the affirmative of the issue must lose. As a matter of judicial policy we believe the resolution of the question discussed in this footnote should await a case in which a majority of the full court is agreed upon the effect of the statute. The matter is presently being considered by the legislature's Advisory Committee on Evidence Law Revision and, therefore, the question may be clearly resolved by the next legislative assembly. [6] We have not overlooked that the Court of Appeals stated: "We acknowledge that the physicians cannot affirmatively state the cause of the disease, but we also note that they consider the cause to be organic, or in other words, to be not work related." 43 Or. App. at 284, 602 P.2d at 1089. We find this last conclusion as to the meaning of "organic" puzzling. If it is one drawn by the court from a peculiar use of the word by one or more of the medical witnesses it is within the power of the trier of fact to ascribe the same meaning. We find no dictionary definition, however, containing any hint of such a meaning for the word "organic." Dorland's Illustrated Medical Dictionary, Twenty-Fifth Edition (1974) defines "organic": "1. Pertaining to an organ or the organs. 2. having an organized structure. 3. arising from an organism. 4. pertaining to substances derived from living organisms. 5. denoting chemical substances containing carbon. 6. pertaining to or cultivated by the use of animal or vegetable fertilizers, rather than synthetic chemicals." The literature contains many examples of the use of the word "organic" to distinguish a condition from one which is "psychic." For instance, impotence is often characterized as being either "organic" or "psychic." In this sense the diagnostician on the one hand has identified a pathological condition as the cause of the impotence, and, on the other hand, has failed to find any pathology but has identified a psychological element as the cause of the impotence. If the record or some proper source of judicial notice, ORS 41.410 to 41.480, ascribes the meaning "not work related" to the word "organic," we can have no basis to quarrel with the trier of fact in so using the word; otherwise, we cannot believe that use is justified. [7] That court does not mention a later (May 16, 1978) contradictory opinion by the same doctor, in which he expresses the opinion that claimant's conditions do amount to an occupational disease when the presumption is applied. [8] In Weller we held that in order to prevail a claimant would have to prove by a preponderance of evidence that (1) his work activity or conditions (2) caused a worsening of his underlying disease (3) resulting in an increase in his pain (4) to the extent that it produces disability or requires medical services. 288 Or. at 35, 602 P.2d 259. In Weller our attention was focused upon a claim for compensation for medical services and disability necessitated by symptomatology, namely, pain. The described four elements must necessarily be established to make such a claim compensable. If the disability or need for medical services is not dependent upon the presence of pain, it would be unnecessary to establish element number (3). [9] ORS 656.005(8) provides: "(8)(a) A `compensable injury' is an accidental injury' or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means. "(b) A `disabling compensable injury' is an injury which entitles the worker to compensation for disability or death. "(c) A `nondisabling compensable injury' is any injury which requires medical services only." ORS 656.802(1) provides: "(1) As used in ORS 656.802 to 656.824, `occupational disease' means: "(a) Any disease or infection which arises out of and in the scope of the employment, and to which an employe is not ordinarily subjected or exposed other than during a period of regular actual employment therein. "* * *." ORS 656.804 provides: "An occupational disease, as defined in ORS 656.802, is considered an injury for employes of employers who have come under ORS 656.001 to 656.794, except as otherwise provided in ORS 656.802 to 656.824."

384d23b062028800ba1f9bb1ed90810c044344609007f4b3281bbe7107f8b997

1980-07-01T00:00:00Z

f9389801-cfe7-4bcf-a775-878025426420

State Ex Rel. Oregonian Pub. Co. v. Deiz

289 Or. 277, 613 P.2d 23

oregon

Oregon Supreme Court

613 P.2d 23 (1980) 289 Or. 277 STATE ex rel. Oregonian Publishing Company and David Leroy Whitney, Plaintiffs-Relators, v. The Honorable Mercedes F. DEIZ, Judge of the Circuit Court of the State of Oregon for Multnomah County, Defendant. No. SC 26832. Supreme Court of Oregon. Argued and Submitted March 26, 1980. Decided June 18, 1980. *24 James T. Marquoit, of Saxon & Marquoit, Portland, argued the cause and filed the brief for defendant. James H. Clarke, of Spears, Lubersky, Campbell & Bledsoe, Portland, argued the cause for plaintiffs-relators. With him on the briefs were Michael G. Holmes and Frank M. Parisi, Portland. James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Karen H. Green, Asst. Atty. Gen., Salem, filed the brief amicus curiae on behalf of the State of Oregon. Charles F. Hinkle and E. Walter Van Valkenburg, Portland, filed the brief amicus curiae on behalf of American Civil Liberties Union of Oregon, Inc. Before DENECKE, C.J., and HOWELL, LENT, LINDE, PETERSON and TANZER, JJ. DENECKE, Chief Justice. The issue in this mandamus proceeding is the right of the press to attend all hearings in a juvenile court proceeding in which a 13-year-old girl was in custody in connection with the drowning of a younger child. *25 The plaintiff, Oregonian Publishing Company, is a newspaper publisher; the plaintiff Whitney is a reporter employed by the Oregonian; the defendant is a circuit court judge. Another judge started the juvenile proceeding and barred the press from the courtroom. The Oregonian nevertheless learned the identity of the 13-year-old juvenile and her identity was published in several newspapers. Subsequently, the Oregonian filed a motion to be permitted to attend the hearings involving the juvenile. In support, the managing editor of the Oregonian filed an affidavit stating that there was strong public interest in this juvenile proceeding. The juvenile opposed the motion. The defendant denied this motion and subsequently barred Whitney, the reporter, from a hearing in the same case and the court reaffirmed its intention to exclude the press from all future hearings in the case. The Oregonian and Whitney petitioned for a writ of mandamus and we issued an alternative writ, to which defendant demurred. The plaintiffs first contend that they are entitled to attend the hearings under the provisions of ORS 419.498(1). That statute provides: The plaintiffs contend that the press should be found to have a "proper interest" in the case because it is important for the public to be informed about the workings of the juvenile justice system and the press informs the public. The statute in point was enacted in 1959 as part of a thorough revision of the Oregon Juvenile Code. Or. Laws 1959, ch. 432, § 14. The legislation was adopted upon the recommendation of a legislative interim committee consisting of legislators, judges, lawyers and other interested parties. The interim committee borrowed freely from the provisions of the Standard Juvenile Court Act, including much of the text of ORS 419.498(1).[1] The interim committee report evinces a strong commitment to the parens patriae theory of juvenile justice. This theory contemplates a nonadversary, quiet and relatively private proceeding. The interim committee reported: "The publicity, excitement and tension of a criminal trial often has a serious adverse effect on a child, particularly a young child." Report of the Legislative Interim Committee on Judicial Administration, Part II at p. 11 (1959). The authors of the Standard Act made like statements and added: "The hearing should have the character of a conference, not of a trial." National Council on Crime and Delinquency, Standard Juvenile Court Act, comment on § 19 (6th ed. 1959), reprinted in 5 National Probation and Parole Assn. Journal, 323, 368 (1959). The exponents of the parens patriae approach also favored privacy because of their belief that exposing a child's misdeeds to the community would reinforce the delinquent's negative self-image and, therefore, impede rehabilitation. Howard, Grisso and Neems, Publicity and Juvenile Court Proceedings, 11 Clearinghouse Rev. 203 (1977). The defendant judge in this case is of the same opinion. For these reasons the statute grants broad authority to the juvenile court judge to control access to the courtroom. The statute authorizes the judge to admit only *26 persons the court finds have a proper interest in the case or the work of the court. The statute offers no guidance on the issue of what constitutes a "proper interest." That omission persuades us that the legislature intended that the juvenile judge have wide latitude in determining when a person seeking admission to the proceedings has a "proper interest." ORS 419.498(1) does not single out the press for special treatment. With the interim committee's concern with the potential adverse impact of publicity, we conclude that the press are members of the public and may be excluded when the juvenile court is of the opinion that privacy would promote the goals of juvenile justice. The plaintiffs cite decisions from other jurisdictions and from the Oregon Court of Appeals in which it was held that ORS 419.498(1) or its equivalent permitted the admission of the press to a juvenile hearing despite the opposition of the child. See for example State ex rel. Juvenile Dept. v. L., 24 Or. App. 257, 546 P.2d 153, rev.den. (1976). In all of these cases, however, the juvenile court had admitted members of the press and the juvenile sought higher court assistance in reversing such order. The decision did not hold the juvenile judge was required to admit the press. These cases unanimously support our conclusion that ORS 419.498(1) and like statutes entrust the decision to admit or exclude reporters to the discretion of the juvenile court. The defendant judge acted within her statutory powers in excluding the press in this case. Having concluded the judge acted within her statutory authority, we must consider the plaintiffs' contention that the application of the statute in this case is invalid as it is contrary to Art. I, § 10 of the Oregon Constitution. Art. I, § 10 of the Oregon Constitution states: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay * * *." Although this language was enacted as part of the Constitution of 1859, it has not been authoritatively construed. The plaintiffs contend it means what it literally states; that is, all proceedings before Oregon courts are required to be open to the public, including representatives of the news media. The defendant responds that Art. I, § 10 grants the right to an open trial solely to the litigants and not to the public. The defendant points out that the Sixth Amendment to the United States Constitution, as interpreted by Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979), provides a right solely for the accused and not for the public or the press. According to this view, under Art. I, § 10, the juvenile court could close the courtroom if the child did not object or requested that it be closed. One weakness in defendant's contention is that the language of the Oregon constitutional provision, Art. I, § 10, and the Sixth Amendment are substantially different. The Sixth Amendment provides: "the accused shall enjoy the right to a speedy and public trial * * *." The court said in Gannett, 443 U.S. at 380, 99 S.Ct. at 2905: "Our cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant." Art. I, § 10, on the other hand, does not provide that the accused or anyone else has the right to a public trial. It provides flatly that no court shall be secret and justice shall be administered openly. This prohibition can inure to the benefit of individuals but the sweeping language with which the prohibition is written makes it unreasonable to interpret it to be merely a grant of a right to an individual that can be waived or which would vanish if not affirmatively raised by the individual. This interpretation of Art. I, § 10 is buttressed by the presence of the next section of the Bill of Rights in the Oregon Constitution, Art. I, § 11. The first sentence of § 11 is a paraphrase of the Sixth Amendment. The sentence states: "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been commited; * * *." This section is a guarantee of individual rights. The enumeration *27 of these individual rights accentuates that the previous section with its provision that "no court shall be secret" must concern more than rights guaranteed to individuals. The defendant further contends: "In theory, the public has no interest in [juvenile] proceedings, as the role of judicial monitor is assumed by each parent." But Art. I, § 10 does not recognize distinctions between various kinds of judicial proceedings; it applies to all. The Attorney General, appearing as amicus curiae, argues that we should not enforce the express terms of Art. I, § 10 because the generation that adopted it did not intend the prohibition to be literally applied. He supports that argument by pointing out that section 898 of the original Code of Civil Procedure, enacted in 1862 and retained in the current code as ORS 1.040, provides: The state believes the contemporaneous enactment of this statute creates an inference that the framers of the Constitution, many of whom were legislators in 1862, would not have enacted § 898 if they had intended Art. I, § 10 to require that all civil proceedings be open to the public. This is a dubious inference. Contemporaneous legislative actions should not necessarily be given much weight when construing constitutional principles. Constitutional draftsmen are concerned with broad principles of long-range significance; legislators are more likely to be concerned with the immediate. We have observed a political temptation to adopt an ideal as an abstract principle and then substantially undercut the ideal in order to accommodate an immediate concern. For example, the political generation that adopted the first amendment also attempted to suppress political criticism by enacting the Alien and Sedition Acts. We hold the order of the defendant judge barring plaintiffs from the hearings is invalid as contrary to Art. I, § 10. Our holding, however, should not be interpreted as guaranteeing the right of public access to all judicial proceedings. One obvious limitation is that jury deliberations and court conferences have been and are held in private. We are of the opinion that despite the absence of any language in Art. I, § 10 expressly excluding jury deliberation from the prohibition against secret deliberations, the tradition that such proceedings be held in private was so long and so well established in 1859 that the tradition should be read into the section. See Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993 (1933); State v. Lehnherr, 30 Or. App. 1033, 1039, 569 P.2d 54 (1977), construing Art. I, §§ 10 and 11. The same is true of conferences of collegial courts. If there is a question of whether access to court proceedings can be limited by the Fourteenth Amendment guarantee of a fair trial, it has not been raised and, therefore, we do not address it. Likewise, we do not address the question of whether certain persons can be excluded from certain court proceedings. We limit our holding to directing the defendant to permit the "press" to attend because that is what the alternative writ orders. However, the public has a right of access co-extensive with the press. On the other hand, the trial court retains the right to control access by members of the press or public who would overcrowd the courtroom, attempt to interfere in the proceedings or otherwise obstruct the proceedings. A peremptory writ shall issue directing the defendant to permit the press to attend subsequent proceedings in the underlying juvenile proceeding. *28 LENT and LINDE, JJ., filed concurring opinions. HOWELL, J., filed a dissenting opinion. LENT, Justice, concurring. I agree with what the majority has to say about the effect of both Article I, section 10, of the Oregon Constitution and O.R.S. 419.498(1). I understand the desire to reach and decide those issues. I do not agree, however, that it was necessary to do so in the case at bar. ORS 419.498(1), in pertinent part, provides: It appears to me that the statute requires that if the judge finds that a person has a "proper interest" in the case or the work of the court, that person must be admitted, subject to the possible exception that such person may yet be excluded if that person's presence might embarrass a witness or party or otherwise prejudice the reception of trustworthy evidence. In this case, the writ alleges that plaintiffs-relators have a proper interest in the underlying case and in the work of the court with respect thereto. The demurrer by the defendant admits that allegation. True, there is no allegation that "the judge" has found such a "proper interest," but the demurrer by the defendant judge admits the allegation that relators have such an interest and, in my opinion, is equivalent to the necessary finding. I concur that a peremptory writ must issue. LINDE, Justice, concurring. I join in the Chief Justice's opinion for the Court. Because of the contemporary prominence of issues concerning secrecy in court proceedings, it seems worthwhile in a few words to draw attention to the significance of points that in the public discussion of these issues are easily overlooked or misunderstood. One is the extent to which some aspects of constitutional liberty in this federal nation rest on the independent importance of state constitutional guarantees. Another is that issues of secrecy in court proceedings are confined neither to criminal proceedings nor to some special aspect of freedom of the press. In modern times the impression probably has become widespread that a question of constitutional law is not settled until the United States Supreme Court settles it, and that it cannot be settled differently from that Court's decision. That is half true. It is true only when a state denies someone a right guaranteed by the United States Constitution. It is not true when a state's constitution provides more or stronger guarantees than the national minimum. This is such a case. As the Court's opinion sets forth, Oregon's Constitution guarantees the open and visible administration of justice, not only honest and complete and timely justice, but justice that can be seen to be so during and after the event. In the words of article I, section 10: Since the beginning of statehood in 1859, this guarantee has appeared in the Bill of Rights between the guarantees of freedom of expression, article I, section 8, and the special rights of persons accused of crime, article I, section 11. Freedom of expression, in Oregon, does not single out the professional press. In article I, section 8, it is phrased as follows: It assures reporters and editors, along with any other observer or interested citizen, the freedom to discuss what they know, or think they know, or surmise, or advocate, without fear of sanctions beyond civil damages for private harm. See Wheeler v. Green, 286 Or. 99, 117-119, 593 P.2d 777 (1979). But this unrestrained freedom to speak, write, print, and express opinions "on any subject whatever" is not itself an "Open, Sesame" to public offices, or records, or other information. It does not give journalists a constitutional claim to the information which it gives them the freedom to publish. That they are left to get for themselves. It would do freedom of inquiry, of reporting, and of comment a great disservice to equate it with a general or public right to information, for there is much that government may legally keep undisclosed but that it nonetheless may not suppress. If the press claimed a right to demand whatever information it has a right to publish, it would soon have a right to publish only that which it has a right to demand. But the constitutional freedom to speak and write is far wider than "the public's right to know," and no one who cares about the one would want it measured by the other. In short, a guarantee against censorship does not itself serve as a public meeting or public records act.[2] The rights of the press and others under article I, section 8, like the rights of an accused under article I, section 11, are guarantees of personal freedom against oppressive governmental power. Article I, section 10, plays a different role. It is one of those provisions of the constitution that prescribe how the functions of government shall be conducted. One somewhat parallel provision is the command of article IV, section 14, that the deliberations of the legislative houses and all their committees shall be open, a provision which also guarantees a public process rather than private rights. There it concerns openness in making law for the future. Here it is the judicial function, that function which brings the law to bear on individuals and puts the generalities of policy to the test of the concrete case. How this is done, and whether it is done according to law, "without purchase, completely and without delay," in the words of article I, section 10, has public importance beyond the preferences of the parties to the case. This, at least, is the view that shaped our constitution. Thus the command that "justice shall be administered openly" is not one within the disposal of the parties or the court.[3] Nor is the public importance of *30 visibility in the administration of justice confined to the administration of criminal justice. There it serves to assure accountability for the charge not prosecuted, the reduced plea accepted, the evidence used or not used, and particularly to forestall suspicion that political considerations entered a case behind closed doors. See, e.g., United States v. Cianfrani, 573 F.2d 835 (3d Cir.1978) (on defendant's motion to close proceedings in a prosecution for misuse of public office); Welch v. United States, 371 F.2d 287, 290 (10th Cir.), cert. den. 385 U.S. 957, 87 S. Ct. 395, 17 L. Ed. 2d 303 (1966) (referring to defendant's motion to hear witnesses in chambers).[4] However, we need few reminders that the public importance of openess is not so limited. In recent memory, the efforts to censor the New York Times, the Washington Post, and the Progressive magazine were civil cases. In the Pentagon Papers case, the government went to extraordinary lengths to involve the courts in issuing judicial orders on secret evidence.[5] That would not be possible in an Oregon Court. In retrospect James Madison might perhaps regret that he did not think it necessary to include in the United States Constitution a text on open courts as well as a First Amendment. It is obvious, for reasons of space alone, that a guarantee of open courts does not guarantee any one person a "right" to be present. Justice is nonetheless openly administered when one or another person is for good cause prevented from attending. Of course, those admitted or excluded may not be selected for their view of the case at issue, as is reported about trials in some other countries. Nor could it be consistent with this guarantee to exclude anyone who may later disclose that which is being "openly administered." In any event, if the constitutional freedom to speak and write adds anything to article I, section 10, it is the right not to be selectively excluded on the ground that one may intend to exercise that freedom. With these additional comments, I concur in the opinion of the Court. HOWELL, Justice, dissenting. I agree with that portion of the majority opinion which holds that O.R.S. 419.498(1) grants wide latitude to the juvenile judge to admit or exclude the press from juvenile hearings. I also agree with the majority's reasoning that privacy would promote the goals of juvenile justice and that publicity could have an adverse affect on the child's rehabilitation. I do not agree with the remainder of the decision that ORS 419.498(1) is unconstitutional because it violates article I, section 10, of the Oregon Constitution. Our task is to determine the intention of the framers of our constitution in enacting article I, section 10, and I do not believe that they intended to prohibit the legislature from closing certain trials or hearings to the press and public in the interest of justice. The majority concludes that article I, section 10, applies to all judicial proceedings, guarantees individuals the right to a public trial, and also guarantees the public that all trials be "public" trials, by conferring upon the press and the public an absolute and unrestricted right to attend juvenile hearings and civil trials. I do not believe that either the language or the history of article I, section 10, supports the majority's position. *31 Article I, section 10, is concerned with the administration of justice in all cases both civil and criminal when it states that "no court shall be secret but justice shall be administered, openly and without purchase * * *." The very next constitutional provision, article I, section 11, refers to criminal prosecutions and guarantees the accused the right to a "public trial." Although the drafters could have explicitly stated that the public shall be admitted to all civil and criminal judicial proceedings, they did not use such language in article I, section 10. In article I, section 11, however, the drafters specifically said: "In all criminal prosecutions, the accused shall have the right to public trial * * *." If the majority is correct, that the drafters intended article I, section 10, to contain a constitutional right of public attendance at all civil and criminal court proceedings, then the constitutional right of an accused to a public trial contained in article I, section 11, is redundant and unnecessary. On the contrary, I believe that the reason the drafters provided an accused with a right to a public trial in article I, section 11, is because they did not mandate that all trials be public trials in article I, section 10. Furthermore, I do not believe that constitutional and statutory history supports the position of the majority. In 1862, just five years after the constitutional convention of 1857 adopted article I, section 10, the Oregon Legislature Assembly adopted Oregon's first Code of Civil Procedure, which contained the following statute: This provisions has been retained, virtually unchanged, in the Oregon statutes. See ORS 1.040. If the drafters of article I, section 10, intended that provision to contain an absolute right of public attendance, then it seems unlikely that some of them would have enacted the above statute with the memory of the debates of the constitutional convention still fresh in their minds. The majority dismisses this argument by saying that The majority, however, ignores the fact that this court has considered legislative action in construing constitutional principles. For example, in State v. Finch, 54 Or. 482, 103 P. 505 (1909), this court held that article I, section 15, of the Oregon Constitution, declaring that laws for the punishment of crimes shall be founded on principles of reformation and not vindictive justice, does not prohibit the infliction of the death penalty as punishment for murder in the first degree. Mr. Justice McBride, delivering the opinion for a unanimous court, explained that there are three canons of interpretation that may be applied to article I, section 15, and tested by any one of the canons, article I, section 15, does not prohibit imposition of the death penalty. The fact that article I, section 10, which states that no court shall be secret, was followed almost immediately by a legislative enactment providing for nonpublic trials in civil cases indicates, I believe, that the drafters of the constitution did not intend "secret" to mean that the court should always be open to the press and public in all cases. Since the adoption of article I, section 10, and the enactment of the 1862 statute providing for private court proceedings, the legislature has enacted other statutes allowing for private proceedings in the interests of justice. For example, in 1937 the legislature provided that the issue of paternity in bastardy-filiation proceedings be determined in a private hearing. Or. Laws 1937, ch. 324, § 1; ORS 109.155(1). The legislature also permits private guardianship proceedings for those alleged to be incapacitated. ORS 126.103(5). And, because of the sensitive nature of a rape trial, the legislature permits a private court hearing to determine the admissibility of evidence of the sexual character of the rape victim. ORS 163.475(4). These are just a few examples of court proceedings where, in the interests of justice, the legislature has determined the press and public may or should be excluded. The majority holds, and I agree, that the legislature believed that privacy in juvenile hearings would promote the ends of justice. I would hold that the legislature may therefore provide for the closing of juvenile hearings to the press and public without violating article I, section 10. I would dismiss the writ. [1] The Standard Act, § 19, stated as follows: "* * * The general public shall be excluded, and only such persons shall be admitted who are found by the judge to have a direct interest in the case or in the work of the court. * * *" National Council On Crime and Delinquency, Standard Juvenile Court Act, Sixth Ed. (1959), reprinted in 5 National Probation and Parole Assn. Journal 323, 367 (1959). [1] Compare U.S.Const.Amend. I: "Congress shall make no law ... abridging the freedom of speech, or of the press ...," and see Stewart, "Or of the Press," 26 Hast.L.J. 631 (1975); Nimmer, Introduction Is Freedom of the Press a Redundancy: What does it Add to Freedom of Speech? 26 Hast.L.J. 639 (1975); Lange, The Speech and Press Clauses, 23 U.C.L.A.L. Rev. 77 (1975). This court has repeatedly held that article I, section 8, applies before and independently of any issue under the first amendment, so as to invalidate spending limits on political campaigning, Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975), punitive damages in defamation cases, Wheeler v. Green, 286 Or. 99, 117-119, 593 P.2d 777 (1979), and laws which as written are directed against speech or expression that may under any circumstances be constitutionally privileged, State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980). [2] See ORS 192.410 192.690. [3] Some states have reached similar results under other provisions of state law, e.g., State v. Coston, ___ Ark. ___ (1979); Keene Publishing Corp. v. Cheshire County Superior Court, N.H., 406 A.2d 137 (1979); State v. Coifman, Minn. (1979). The Supreme Court of Pennsylvania recently reached a different conclusion under that state's constitution, which provides that "all courts shall be open." Commonwealth v. Hayes, ___ Pa. ___, 414 A.2d 318 (1980). Whether or not a provision so phrased should be construed to mean no more than that the courts will be open to litigants, such a construction is impossible for our provision that "justice shall be administered openly." A Virginia decision allowing a closed trial is currently on review in the United States Supreme Court, presumably because the Virginia courts found nothing in the law of that state to the contrary. Richmond Newspapers, Inc. v. Virginia, 444 U.S. 896, 100 S. Ct. 204, 62 L. Ed. 2d 132 (1979), appeal docketed 48 LW 3178 (No. 79-243, 1979 Term), jurisdiction pending oral argument 48 LW 3241, oral argument 48 LW 3553 (1979). [4] There has also been speculation that the Watergate scandal might not have been uncovered if reporters had not been able to attend the bail hearing for the suspects initially caught in the Watergate burglary, see Zion, High Court vs. The Press, NY Times, Nov. 18, 1979 (Magazine) at 145. [5] See United States v. New York Times Co., 328 F. Supp. 324, 326, aff'd, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971); S. Ungar, The Papers & The Papers 164-203.

fbf929fab3a81b29b5ce6a06ffc8bc33f0ea02172dfedfc4202d5a3d05721bc9

1980-06-18T00:00:00Z

32aa4774-01a5-4a09-92e5-5c57ad52fc47

State v. Reynolds

289 Or. 533, 614 P.2d 1158

oregon

Oregon Supreme Court

614 P.2d 1158 (1980) 289 Or. 533 STATE of Oregon, Respondent, v. Jake Clarence REYNOLDS, a/k/a Kenneth Eugene Moss, Petitioner. CA 12621; SC 26739. Supreme Court of Oregon. Argued and Submitted April 9, 1980. Decided July 24, 1980. *1159 John K. Lowe, of Crist, Stewart & Lowe, Lake Oswego, argued the cause and filed a brief for petitioner. Also on briefs were Marianne Bottini, Deputy Public Defender, and Gary D. Babcock, Public Defender, Salem. Also on a supplemental brief was Jake C. Reynolds, Salem, pro per. Robert C. Cannon, Asst. Atty. Gen., argued the cause for respondent. With him on the briefs were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Before DENECKE, C.J., and HOWELL, LENT, PETERSON, and TANZER, JJ. HOWELL, Justice. Defendant petitions for review of a decision by the Court of Appeals affirming his convictions of aggravated murder, manslaughter in the first degree, and robbery in the first degree. We limited our review to defendant's contention that his conviction and sentence for aggravated felony murder violates his constitutional rights to equal protection. On the evening of June 9, 1978, two men entered a tavern in Sandy to commit robbery. Both men wore white masks and one man carried a rifle. The men told everyone in the tavern to get on the floor. When a patron moved from his seat and made a comment, the man with the rifle shot him in the chest and the patron died. Defendant was indicted by the Clackamas County Grand Jury for the crimes of robbery in the first degree, murder, and aggravated felony murder.[1] After a jury trial, *1160 defendant was convicted of aggravated murder, manslaughter and robbery in the first degree. The trial court then sentenced defendant to a term of life imprisonment without leave for parole or release for a minimum of 20 years. The Court of Appeals affirmed. 43 Or. App. 619, 603 P.2d 1223 (1979). Defendant contends that the aggravated felony murder statute, ORS 163.095(2)(d),[2] is unconstitutional because the same conduct prohibited by that statute is also prohibited by the felony murder statute, ORS 163.115(1)(b).[3] The defendant argues that the State is therefore permitted an arbitrary choice as to which maximum punishment to pursue for persons committing the same act. Thus, defendant contends, the State violated his constitutional guarantees of equal protection under article I, section 20, of the Oregon Constitution and under the Equal Protection Clause of the fourteenth amendment to the United States Constitution.[4] Defendant cites to State of Oregon v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955). In that case we held that 1949 Or. Laws, ch. 129 § 1, making it a crime to draw a bank check with insufficient funds, was unconstitutional. That statute provided that a person accused of the specified crime may be proceeded against either as for a misdemeanor or as for a felony in the discretion of the grand jury or the magistrate to whom the complaint is made or before whom the action is tried. We said: In cases since State of Oregon v. Pirkey, supra, we have explained that where two statutes were intended to punish two different crimes, both statutes are constitutional although they overlap in certain particular elements. See, e.g., Rose v. Gladden, 241 Or. 202, 405 P.2d 543 (1965); State v. Gordineer, 229 Or. 105, 366 P.2d 161 (1961); State v. Powell, 212 Or. 684, 321 P.2d 333 (1958). In Rose v. Gladden, supra, 241 Or. at 205, 405 P.2d at 544, we said: "The rule in the Pirkey case is limited in this state to the statutory situation in which there is no basis for a distinction between two offenses." The instant case does not fall within the rule of the Pirkey case because the two statutes which the defendant refers to, ORS 163.095(2)(d) (aggravated felony murder) and ORS 163.115(1)(b) (felony murder) are distinct offenses. This court held in State v. Cohen, 289 Or. 525, 614 P.2d 1156, decided this date, that although the elements of ORS 163.095(2)(d) and ORS 163.115(1)(b) overlap, the statutes are different because ORS 163.095(2)(d) requires one additional element: personal commission of the homicide. Felony murder under the 1971 Criminal Code remained unchanged until the enactment in 1977 of the aggravated murder statute (ORS 163.095(2)(d). Or. Laws 1977, ch. 370, § 1. Under the 1971 Criminal Code, all participants in a felony were culpable for felony murder regardless of who may have caused the death. For example, if two armed men rob a store and one robber kills the store clerk, then under the 1971 Criminal Code and ORS 163.115, both robbers would be guilty of the felony murder. However, ORS 163.095(2)(d), enacted in 1977, now differentiates between the robber who personally committed the homicide and the robber who merely participated in the felony. ORS 163.095(2)(d) enhances the penalty for the participant who personally committed the homicide by requiring 20 years' imprisonment before parole may be considered. The defendant argues that, as applied to all persons who are alleged to have personally committed a homicide in the course of the felonies specified in ORS 163.115(1)(b) and ORS 163.095(2)(d), the State has an arbitrary choice of which crime to charge and which punishment to pursue. Although the State may choose to prosecute a defendant who personally commits a homicide during a felony under either ORS 163.095(2)(d) or under ORS 163.115(1)(b), that fact alone does not establish a violation of either article I, section 20, of the Oregon Constitution or the Equal Protection Clause of the Fourteenth Amendment. See Black v. Gladden, 237 Or. 631, 393 P.2d 190 (1964);[5]State v. Gordineer, supra. The role of a prosecutor includes responsibility for evaluating the available evidence in any particular criminal case and deciding which criminal charge may be successfully prosecuted. The prosecutor's discretion is not unfettered, nor does he lack criteria for his decision. In the present case, because evidence indicated that defendant had personally committed the homicide, the prosecutor sought, and the grand jury returned, an indictment charging *1162 defendant with aggravated felony murder. We note in particular the recent decision of the United States Supreme Court in United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979). In that case the United States Court of Appeals for the Seventh Circuit had held that where two federal statutes provide different penalties for identical conduct and the federal prosecutor has unfettered discretion as to which statute to charge, such prosecutorial discretion could produce unequal justice and would be unconstitutional. The Seventh Circuit therefore remanded the case for resentencing under the statute providing the lesser penalty. The United States Supreme Court reversed in an unanimous opinion in which the court said: Defendant does not allege that his prosecution under ORS 163.095(2)(d) was a result of selective enforcement based upon race, religion or other arbitrary classification. He merely alleges that prosecutorial discretion is patently a violation of equal protection. We disagree. A prosecutor's decision as to which distinct offense to charge a defendant with does not alone constitute a grant of unequal privileges or immunities or a denial of equal protection. Affirmed. [1] The indictment reads in pertinent part: "Indictment ORS 164.415 (COUNT I) ORS 163.115 (COUNT II) ORS 163.095 (COUNT III) "The above-named defendant is accused by the Grand Jury of the County of Clackamas, State of Oregon, by this indictment of the crime of ROBBERY IN THE FIRST DEGREE, MURDER and AGGRAVATED FELONY MURDER committed as follows: "COUNT I "The said defendant on or about the 10th day of June, 1978, in the county of Clackamas, State of Oregon, then and there being, did then and there unlawfully and knowingly use and threaten the immediate use of physical force upon Lorraine Marie Urnaut, by brandishing a rifle and demanding money, and was armed with a deadly weapon, to-wit: a rifle, while in the course of committing theft of property, to-wit: money, with the intent of preventing and overcoming resistance to the said defendant's taking of the said property, said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon. "COUNT II "And as part of the same act and transaction, the said defendant, on or about the 10th day of June, 1978, in the County of Clackamas, State of Oregon, then and there being, did then and there unlawfully and intentionally cause the death of another human being, to-wit: Kermit Thorten Carney, by shooting the said Kermit Thorten Carney with a rifle, said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon. "COUNT III "And as a part of the same act and transaction, the said defendant, on or about the 10th day of June, 1978, in the County of Clackamas, State of Oregon, then and there being, did then and there unlawfully and knowingly commit the crime of ROBBERY IN THE FIRST DEGREE and in the course of and in the furtherance of the said crime which the said defendant was committing, the said defendant did personally cause the death of another human being, to-wit: Kermit Thorten Carney, not a participant in the crime, by shooting the said Kermit Thorten Carney with a rifle, said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon." [2] "ORS 163.095 `Aggravated murder' defined. "As used in ORS 163.105 and this section, `aggravated murder' means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances: "* * *. "(2) * * *. "(d) The defendant personally committed the homicide in the course or in the furtherance of the crime of robbery in any degree, kidnapping or arson in the first degree, any sexual offense specified in this chapter, or in immediate flight therefrom. "* * *." ORS 163.095(2)(d) is commonly referred to as aggravated felony murder. [3] 163.115 Murder; emotional disturbance described; sentence required. "(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when: "* * *. "(b) It is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit arson in the first degree, burglary in the first degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree or sodomy in the first degree and in the course of and in furtherance of the crime he is committing or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of a person other than one of the participants; or "* * *." ORS 163.115(1)(b) is commonly referred to as felony murder. [4] 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: "No State shall * * * deny to any person within its jurisdiction the equal protection of the laws." For practical purposes the concepts of equal protection contained in the above provisions are usually the same. A court will rarely have occasion to hold that a law does not grant unequal privileges under article I, section 20, and yet denies equal protection under the Fourteenth Amendment, although the opposite may well occur. See Tharalson v. State Dept. of Rev., 281 Or. 9, 15, 573 P.2d 298 (1978). [5] * * The fact that a person may be charged with either ORS 164.310 [larceny statute] or ORS 164.390 [shoplifting statute] at the discretion of the district attorney, magistrate or grand jury does not rise to a constitutional objection." Black v. Gladden, 237 Or. 631, 633, 393 P.2d 190, 191 (1964). ORS 164.310 and ORS 164.390 were repealed by Or. Laws 1971, ch. 743, § 432. [6] The Court included the following footnote 9: "The Equal Protection Clause prohibits selective enforcement `based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501 [505], 7 L. Ed. 2d 446 (1962). Respondent does not allege that his prosecution was motivated by improper considerations." United States v. Batchelder, 442 U.S. 114, 124-25, 99 S. Ct. 2198, 2204, 60 L. Ed. 2d 755 (1979).

9cca1ec3c3305e5e80000e432f461ea1c64e2895a247903b087a1776b2d64245

1980-07-24T00:00:00Z

ff3d64af-1efb-449d-a644-2df923dcd83f

Rogers v. State Acc. Ins. Fund

289 Or. 633, 616 P.2d 485

oregon

Oregon Supreme Court

616 P.2d 485 (1980) 289 Or. 633 In the Matter of the Compensation of the Beneficiaries of David M. ROGERS, Deceased, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Respondent. WCB 76-3717; CA 14541; SC 26745. Supreme Court of Oregon. Argued and Submitted June 2, 1980. Decided September 10, 1980. *486 Martin Sharp, Gresham, argued the cause for petitioner. With him on the brief and petition was Larson & Sharp, Gresham. Thomas E. McDermott, Portland, argued the cause for respondent. With him on the briefs were Lindsay, Nahstoll, Hart, Neil & Weigler, Portland, and Darrell E. Bewley, Associate Counsel, State Accident Insurance Fund, Salem. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. TANZER, Justice. We accepted review of this workers' compensation case to examine the question of liability of the employer for a worker's death resulting from activities which occur after work hours but while the worker is away from home as a requirement of his employment. The Court of Appeals reversed an award to the worker's beneficiary. Because we review for errors of law and are bound by the facts as found by the Court of Appeals, Sahnow v. Firemen's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971), it is necessary to determine the findings made by the Court of Appeals. Its opinion consisted solely of a citation to Hackney v. Tillamook Growers, 39 Or. App. 655, 593 P.2d 1195 (1979). The Court of Appeals has published an explanation of the reasons by which it decides cases either with or without opinion.[1] Consistent with that policy, it deems it to be both necessary and desirable to decide cases involving only factual issues without opinion, Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978). The Court of Appeals has also explained why, as in this case, it issues opinions with a bare citation: Following that practice in this case, the Court of Appeals identified the basis of its decision by citation of the Hackney opinion without reference to any other ground of decision. Because Hackney involved one issue of law, simple citation of that case informs us, although cryptically, that the reason for reversal was disagreement with the Workers' Compensation Board on the law, not on the facts. Therefore, we take the opinion to mean that the Court of Appeals has made the same findings as the Workers' Compensation Board, cf. Gettman v. SAIF, 289 Or. 609, 616 P.2d 473, and we look to the administrative orders for express findings. The Workers' Compensation Board affirmed the decision of the referee and adopted his opinion as its own. The referee's opinion suffers from imprecision in its findings and conclusions which make the review function difficult to perform. The opinion begins with express findings. The referee found that the decedent died in the early hours of the morning from an acute myocardial infarction. His employer was engaged in projects which modify riverbeds or channels. The decedent had operated equipment for the employer for a number of years and was at the time of his death on his second assignment for them as a project superintendent. Through the decedent's arrangements, the crew of 28 or 29 men stayed at a certain motel in Umatilla and they generally ate their meals at a certain restaurant nearby. Some of the machinery on the project was worked on a 12-hour shift, two-shifts-per-day basis and some of the equipment was worked on a three-shift-per-day basis. Although the work area could be seen from the decedent's motel room, it was a mile-and-a-half drive to the work area. The decedent generally was on hand for shift changes. At this point, the opinion discontinues setting out findings and instead states that certain evidence was given.[2] The difficulty on review is that a recital of evidence is not the same as a finding of fact. We cannot determine with certainty from the recitals whether the evidence recited by the factfinder was found as fact. Marbet v. PGE, 277 Or. 447 at 469, 561 P.2d 154 (1977). Cf. Graham v. OLCC, 20 Or. App. 97, 530 P.2d 858 (1975). The opinion recites the existence of evidence that the conditions of decedent's employment were unusually stressful, that decedent's non-employment life was not stressful, and that general stress was a material contributing factor to decedent's death. The opinion does not state whether this evidence is accepted. The opinion then notes claimant's alternative theory for recovery: that the events of the evening preceding the fatal infarct were a material contributing cause of death. The opinion accepts this theory and predicates the award on it. We take the following facts from a melange of additional express findings and recitals of that evidence which was necessarily believed in order to reach the conclusions. The decedent was on 24 hour call. At 6 or 7 o'clock on the evening of decedent's death, the project was closed down because of unfavorable weather. Because the crew was away from home and families, they tended to be together during off hours. That evening, they were at the bar of the restaurant at which they usually congregated. The decedent *488 ate and drank in undetermined quantities. He was called away from the bar in order to arrange for some men to move one of the rigs on the river. Upon his return, he pulled a chair out from under a worker named Fox. This led to some pushing and shoving between him and Fox. Shortly thereafter, decedent spoke with Fox at the bar regarding Fox's difficulties in working harmoniously with the crew. Consistent with his responsibility as supervisor, decedent's comments to Fox were in the nature of counseling rather than off-hand observations or complaints. Later in the evening, a fight occurred between Fox and another worker. The decedent helped break it up. Twenty or thirty minutes later, the decedent developed "chest symptomatology" and returned to his room. His pain increased, he called for help, and within an hour he was taken to the hospital. Two or three hours later he died from a myocardial infarction. Based upon the opinion of decedent's physician, it was expressly found that the incidents of the evening preceding death were a substantial, material contributing cause of death. The issue, then, is whether the events of the evening were sufficiently work-related that the death was compensable. By citation of the Hackney case, the Court of Appeals indicated its conclusion, under the rule of that case, that it was not compensable. In Hackney, the Court of Appeals reaffirmed their adoption of the following proposition which now appears in 1A Larson, Workmen's Compensation Law 5-200, § 25.00 (1980). In Hackney, claimant and another truck driver, on a layover, by arm wrestling, broke claimant's arm. The majority of the court held, apparently as a matter of law, that the arm wrestling during the layover time "had no business benefit to his employer" and therefore did not occur while claimant was acting in the "course and scope" of his employment. 39 Or. App. at 659, 593 P.2d at 1196. In this manner, the Court of Appeals held that the events of the evening which caused decedent's death were not in the course of his employment. ORS 656.005(8)(a) contains the usual American-British formulation of the relationship between employment and disability upon which compensability is founded: Early cases of this court treat the two elements, "arising out of" and "in the course of" employment, as distinct tests, each of which must be met for compensability to exist: In practice, the distinction is of dubious significance because the "in the course of" prong of the test is seldom decisive. An injury not incurred in the course of employment *489 does not arise out of it, as those terms have been construed over the years. If the injury is in the course of employment, the case is ultimately decided on the basis of the "arising out of" prong, i.e., causation. A recent case illustrates the point. In Clark v. U.S. Plywood, 288 Or. 255, 605 P.2d 265 (1980), a worker died on premises during the lunch hour as a result of retrieving his lunch from some dangerous equipment. We concluded that the worker was acting in the course of his employment, but that determination was not dispositive. We remanded for a finding on the dispositive issue of the "other prerequisite of recovery": whether the conduct was approved by the employer and hence arose out of the employment. 288 Or. at 267-268, 605 P.2d 265. Conversely, in the Hackney case, the injury was held not to be incurred in the course of employment because the claimant, although away from home due to employment, was engaged in "a distinct departure on a personal errand," i.e., the injury arose out of something other than the employment. The injury was not in the course of employment for the sole reason that it arose from a personal rather than employment activity. The Hackney case and the quote from Professor Larson upon which it relies demonstrate that close questions under the "in the course of" prong are answered by applying the "arising out of" prong of the test. Boiled down, the two tests are ultimately one test; "in the course of" is merely one aspect of "arising out of." Professor Larson suggests that the distinction, although rooted in history, is not useful conceptually. He argues that the fundamental inquiry is whether the injury is work-related and that the two statutory phrases, although helpful in making that determination, are not to be mechanically applied: This court has not had occasion to examine the validity of the distinction in recent years, but the Court of Appeals has. The difference of approach between Larsen and Larson is reflected in Otto v. Moak Chevrolet, 36 Or. App. 149, 583 P.2d 594 (1978) which involved the so-called "personal comfort" doctrine. The claimant hurt her back while getting up from a company toilet during a work break. The majority, properly following the dictate of this court in Larsen v. State Ind. Acc. Com., applied the test in two distinct steps. It concluded that the injury was not compensable because it occurred in the course of employment, but did not arise out of it. Judge Johnson specially concurred but noted that the trend of the law is to treat the two phrases as elements of one test rather than as distinct tests: The essence of the Workers' Compensation Act is that financial consequences flow from the existence of the employment relationship itself. Liability and compensability are predicated on employment. Fifty years ago, in Lamm v. Silver Falls Tbr. Co., 133 Or. 468, 277 P. 91, 286 P. 527, 291 P. 375 (1930), this court held that an injury sustained by a lumber camp worker while returning to work on the company-owned train was compensable. In doing so, the court adopted as its own a statement of the basic concept of the Workers' Compensation *490 Act which is consistent with and would be advanced by an inquiry into the nature and extent of the connection of the injury and the employment: Although the relationship may be measured in different factual situations by the application of one test or another, the ultimate inquiry is the same: is the relationship between the injury and the employment sufficient that the injury should be compensable? Any question of sufficiency must be answered in light of the policy for which the determination is to be made. Accordingly, in another case, the Court of Appeals looked to the two statutory phrases as analytical tools by which to determine whether there is "sufficient connection * * * with the employment to justify a holding that [the injury] arose out of the employment." Allen v. SAIF, 29 Or. App. 631, 635, 564 P.2d 1086 (1977). In taking a more unitary "work-connection" approach, the court made this observation, in which we concur: In adopting a unitary "work-connection" approach in place of the customary mechanistic two-stage method of analysis, it is not our intention to substantially change fundamental Workers' Compensation law.[3] If the injury has sufficient work relationship, then it arises out of and in the course of employment and the statute is satisfied. Existing law regarding proximity, causation, risk, economic benefit, and all other concepts which are useful in determining work relationship remain applicable. Employment of a unitary test, more closely aligned with the purpose of the Act, will facilitate a simpler, cleaner, more direct inquiry into compensability. *491 Applying that approach to this case, it is unnecessary to determine whether decedent's evening activities could be characterized as horseplay of a nature which obviates the conclusion that he was acting in the course of employment by virtue of his travel status. Rather, accepting the findings implicit in the Court of Appeals' decision, we conclude that the conditions and events which caused decedent's death were causally related to his work. He was under stress; he was working extended hours; being on call, he was called away from his evening's activities to arrange for personnel for the project; the recreational and social choices open to him were limited due to his employment travel status; although there was negligible connection between his pulling Fox's chair and the dredging project, his difficulties with Fox flowed generally from Fox's inability to get along with his fellow workers and, when he counseled Fox between the two altercations, he was acting within his responsibility as supervisor. Because the events of the evening were found to be a material contributing cause of decedent's death and because those events were work-related, we conclude that his death was compensable. Accordingly, we reinstate the order of the Workers' Compensation Board. Reversed. [1] WITHOUT OPINION "A case may be decided without opinion * * * by action taken at any post-submission departmental or full conference * *. Cases are not decided without opinion unless all judges in the decisional majority * * * agree on the result and that an opinion would have no precedential value. Most commonly that occurs in cases involving direct application of established principles of law or which turn solely on their facts. * * * "* * * "SIGNED OPINIONS "The court decides cases by signed opinion only where there is reason to do so. Generally, such reason exists when: "1. an opinion would have precedential value because the decision involves a hitherto unstated or undecided issue of law; or "2. an opinion would have precedential value because the decision requires an application of established principles of law to new, novel or exceptionally illustrative facts; or "3. a reversal or modification may have instructional value; or "4. issues of unusual public concern are presented. "* * *." Internal Practices, Court of Appeals, pp. 13-15 (January 2, 1979). [2] The sentences begin with such phrases as: "There was a lot of time taken up with establishing * * *." "Some of the workers on the job testified * * *." "There was also testimony * * *." "There is some medical evidence to support this theory." "Dr. Kloster testified * * *." "Dr. Kloster even testified * * *." "SAIF did not refute this expert medical evidence." [3] Neither does Larson advocate fundamental change in the law. Rather, he is "almost tempted to formulate a sort of quantum theory of work-connection" which describes the results of judicial decisions, even if it would not serve as a theoretical basis for them. 1A Larson, Workmen's Compensation Law § 29.10 at 5-355. His black letter statement is: "In practice, the `course of employment' and `arising out of employment' tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other." Id., § 29.00 at 5-354. He gives an example of a weak "course," strong "arising" situation, the going and coming cases; as an example of the reverse, he gives the positional risk (e.g., stray bullet) cases. Id., § 29.10 at X-XXX-X-XXX.

1a6ad5ebb8dc1524c512a57300c82263ad269fc008bcde02a282f584460a29bf

1980-09-10T00:00:00Z

baf60e20-a242-4ebe-ae44-c355c1edeef4

Blackledge v. Harrington

289 Or. 139, 611 P.2d 292

oregon

Oregon Supreme Court

611 P.2d 292 (1980) 289 Or. 139 Evelyn BLACKLEDGE, Petitioner, v. Norma V. HARRINGTON and Robert E. Harrington, dba Nendel's Inn, Respondents, and Tom Decker, Respondent. Nos. TC 38-388; CA 15518; SC 26666. Supreme Court of Oregon. Argued and Submitted March 5, 1980. Decided May 20, 1980. *293 James R. Cartwright, Portland, argued the cause for the petitioner. Peter R. Chamberlain, Portland, argued the cause and filed a response for respondents Norma V. Harrington and Robert E. Harrington, dba Nendel's Inn. Larry A. Brisbee, Hillsboro, argued the cause for respondent Tom Decker. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. TANZER, Justice. This is a review of a dismissal by the Court of Appeals of the plaintiff's appeal. The basis of the dismissal was that the notice of appeal was not filed within the 30-day time period allowed by ORS 19.026(1). A chronology of the case follows: August 8, 1979, a judgment order for defendants was signed and filed with the clerk of the circuit court. August 9, the clerk mailed a card to plaintiff's attorney incorrectly notifying him that the judgment order had been filed on August 9, 1979. September 10, plaintiff filed a notice of appeal. September 17, defendants filed a notice of cross-appeal. October 5, the Court of Appeals, on its own motion, dismissed the appeal and the cross-appeal. October 19, plaintiff moved in the Court of Appeals to reinstate the appeal. With the motion was a certificate of the county clerk certifying that the notice to counsel was incorrect.[1] November 7, the motion to reinstate the appeal was denied. December 7, the petition for review was filed together with a Motion for Leave to Present Additional Evidence to which was attached a second certificate of the clerk.[2] Pursuant to Rule 10.10, the Court of Appeals denied reconsideration, apparently on the ground that error in the clerk's notification to counsel does not extend the time for filing the notice of appeal. Far West Landscaping v. Modern Merchandising, 287 Or. 653, 601 P.2d 1237 (1979). The Court of *294 Appeals did not rule on the motion to present additional evidence and it did not consider the second certificate. We allowed the petition for review. ORS 19.026(1) provides: The pivotal fact in this case is the date from which the date from which the time for notice of appeal commenced running. If it ran from August 8, the date of filing, then the notice of appeal was not timely. If from August 9 or thereafter, then the notice of appeal filed on Monday, September 10, was timely. The terms "filing" and "entry" are often used interchangeably, not only in lawyers' parlance, but also in statutes and the opinions of this court. They are, however, distinct acts with distinct legal significance. Charco, Inc. v. Cohn, 242 Or. 566, 570-71, 411 P.2d 264 (1966). The difference is in the very nature of the acts: "filing" is an act done by another to the clerk, whereas "entry" is an act performed by the clerk. Filing occurs when a document is given to a clerk with the intention that it be filed. If a statute requires an act to be done within a number of days after an order is "filed," the time is measured from the date when the order is given to the clerk for filing, regardless of the date of entry. Highway Commission v. Fisch-Or, 241 Or. 412, 415-16, 399 P.2d 1011, 406 P.2d 539 (1965). ORS 19.026(1), however, does not refer to filing; it refers to "entry." Entry is what the clerk does after filing. It is a separate act required by statute. ORS 18.030 prescribes that the clerk shall enter judgments in the journal and notify the parties of that act: The reference to "the journal" has a specific meaning. The journal is one of several records of judicial documents the clerk must keep, either individually, ORS 7.010, or consolidated with other records, ORS 7.015. After entry in the journal, the clerk must enter judgments in the judgment docket. Because the legislature requires notice of the date of entry in the journal, we infer a legislative purpose that the entry in the journal is an act of high procedural significance and that it is the entry referred to in ORS 19.026(1) after which the time for the filing of notice of appeal is to be computed. A problem in this case is that the date of entry in the journal does not appear in the record which was before the Court of Appeals at the time it acted. The file reflects only the date of filing of the judgment order, not the date of its entry.[3] The evidence proffered by plaintiff's motion, if considered and if not contradicted, would have established that the date of entry was August 9 or thereafter, but the motion was not ruled on. Because there was no basis upon which the Court of Appeals could determine the date of entry, there was no factual basis for its determination that the notice of appeal had not been filed within 30 days after the entry. The dismissal was therefore erroneous and we reinstate the appeal and remand to the Court of Appeals.[4] *295 Reversed. Appeal reinstated. Remanded to the Court of Appeals for proceedings consistent with this opinion. [1] The certificate states: "I, ROGER THOMSSEN, COUNTY CLERK and ex-officio Clerk of the Circuit Court of the State of Oregon for the County of Washington, do hereby certify that on August 8, 1979 @ 4:15 p.m. we filed a judgment order in the above mentioned case. The next morning, August 9, 1979 @ 9:21 a.m., when the deputy clerk was putting away the file & correspondence she inadvertently file marked the card that was to be returned to the attorneys showing the date of filing of the Judgment. * * *" [2] The proffered evidence is the subsequent certification by the clerk, which states: "I. ROGER THOMSSEN, County Clerk and ex-officio Clerk of the Circuit Court of the State of Oregon for the County of Washington, do hereby certify the following: 1. That a judgment order in the above entitled cause was signed by the Hon. Albert Musick on August 7, 1979. 2. That on August 8, 1979 at 4:15 p.m. this judgment order was file-stamped in the Clerk's office. 3. All other mechanical actions concerning this judgment order were performed by the Clerk on or after August 9, 1979. These include the docketing of the judgment order in the judgment docket book, the entry in the `fee book', and microfilming. (Microfilming of these documents is performed routinely each Monday.) 4. The notice that the judgment order had been signed and filed (commonly referred to as the `confirmation card') was sent on August 9, 1979. A copy of this notice is attached hereto and by this reference incorporated herein." [3] The dates of filing and entry may often be the same, but they are not necessarily so. In Highway Commission v. Fisch-Or, supra, the entry date was established, but the filing date was not. Because filing precedes entry, we assumed that a ten-day period after filing must have expired by the tenth day after entry. Where, as here, the date of filing is known, but the date of entry is not, such an assumption is not warranted. [4] Plaintiff asks us to allow the motion for leave to present additional evidence and to consider the proffered second certification by the county clerk. We decline to do so. Rule 10.15 provides: "The record on review shall consist of the record before the Court of Appeals." Absent extraordinary circumstances, it is preferable as a matter of deference and of procedural orderliness to apply the rule strictly. The Court of Appeals did not rule on the motion. Upon remand of this case to the Court of Appeals, it is not foreclosed from a further determination as to the timeliness of the notice of appeal. It may allow the motion and it may also allow a response. We leave further disposition to the Court of Appeals.

2a28419adb92857f7b7ca1c92282484ae1da474c70aaad936c4f701157624f28

1980-05-20T00:00:00Z

0c14e5c0-7476-4492-934d-6272a9041835

Roberts v. Mitchell Bros. Truck Lines

289 Or. 119, 611 P.2d 297

oregon

Oregon Supreme Court

611 P.2d 297 (1980) 289 Or. 119 Rex ROBERTS, Petitioner, v. MITCHELL BROS. TRUCK LINES, an Oregon Corporation, Respondent. No. A7704 05325; CA 10789; SC 26658. Supreme Court of Oregon. Argued and Submitted March 3, 1980. Decided May 20, 1980. *298 Alfred A. Hampson, Portland, argued the cause for petitioner. With him on the briefs were Douglas B. Gordon and Hampson & Bayless, Portland. Edward H. Warren, Portland, argued the cause for respondent. With him on the briefs was Acker, Underwood, Beers, Smith & Warren, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. TONGUE, Justice. This case is an action at law for damages for breach of a bailment contract by failure of defendant-bailee to return a portion of the bailed property to plaintiff-bailor. The jury returned a verdict for plaintiff in the amount of $65,000. Defendant appealed to the Court of Appeals by two assignments of error which related solely to the failure of the trial court to instruct the jury that a finding of negligence on the part of defendant was a necessary prerequisite to defendant's liability for the property lost. The Court of Appeals held that the instructions requested by defendant were proper and that the trial court erred when it instructed the jury that it should find for plaintiff if it determined that some of the bailed property had not been returned to plaintiff by defendant. 43 Or. App. 161, 602 P.2d 343 (1979). The Court of Appeals further held that although defendant had not taken exception to the instructions given by the trial court, defendant nevertheless had preserved the error for consideration on appeal by requesting instructions on negligence that "clearly and directly called the trial court's attention to the fact that the instructions given were inconsistent with the defendant's theory of the case." (43 Or. App. at 165, 602 P.2d at 346) In his petition for review to this court plaintiff contends that "the trial court did not err in refusing to give defendant's requested instructions," and that "defendant failed to preserve at trial the error asserted on appeal."[1] Plaintiff was a dealer in used sawmill equipment, with considerable experience in the purchase of used equipment for export to foreign countries. Defendant was a trucking company which also maintained a warehouse and an outside storage yard, protected by a chain link fence. In 1972 plaintiff *299 purchased several items of used sawmill equipment for resale in the Philippine Islands. Because he could not immediately arrange for export of the equipment, plaintiff contracted with defendant to store the equipment in a portion of defendant's outside storage yard. Plaintiff, in his amended complaint, alleged that: Defendant's answer admitted the existence of the bailment, but alleged that on or about October 1, 1975, plaintiff Defendant denied all other allegations of plaintiff's complaint. At trial plaintiff testified that upon returning to defendant's storage yard in October 1975 to obtain a portion of the equipment, he found that "it was disarranged completely as compared to what it had been in '74 when I last saw it," and that he "immediately recognized that there were eight or 10 things that were missing," including some motors, a cylinder and an air compressor. Plaintiff further testified that "several of the crates had obviously been opened up and some of them were completely empty and there was merchandise scattered around that had been taken from the crates." Defendant offered the testimony that under normal conditions "we have a guard on our gate. We have one main gate which is open, which is the only gate we use basically. We have a guard on that gate all hours except normal working hours we do not keep a guard." That witness further testified that a "strike occurred between November 15, 1973 to about the middle of May 1974," and that during that time "we generally had two guards on 24 hours a day." Defendant also called plaintiff as an adverse witness and plaintiff agreed that "it would take, say, four men working strenuously with a lift truck or crane about a half a day to move that amount" (15 to 20 percent of the total weight was claimed to be missing). The instructions given the jury by the trial court stated in part: Defendant did not take exception to those instructions. It had, however, previously submitted to the court the following requested instructions: Plaintiff contends that the trial court did not err in refusing to give defendant's requested instructions because negligence was not an issue before the court. Rather, according to plaintiff, "the only issue before the trial court was whether plaintiff did or did not get back all of his property." Plaintiff also contends that defendant was not entitled to have the court give the instructions requested because: (1) "All of defendant's evidence went to the issue that plaintiff had gotten back all of his property" and that for the first time on appeal defendant "is seeking to inject into the case an element * * * it did not raise in the pleadings," and (2) The exercise of due care should have been raised by the defendant "as an affirmative defense in order to notify plaintiff." This court, in Hines Lumber Co. v. Purvine Logging Co., 240 Or. 60, 63, 399 P.2d 893, 894, (1965), held that: See also Brown on Personal Property, § 11.2 at 259 (3d ed. 1975). In Carte v. Flury Buick-Jeep, Inc., 264 Or. 479, 490-91, 506 P.2d 701 (1973), this court held that: See also Shepherd v. Hub Lumber Co., 273 Or. 331, 342, 541 P.2d 439 (1975), and Willamette Tug & Barge Co. v. Commercial Dispatching Corp., 180 Or. 657, 178 P.2d 698 (1947). It is equally established, as held in National Fire Insurance Co. v. Mogan et al., 186 Or. 285, 290, 206 P.2d 963 (1949), that when, as in this case, the plaintiff-bailor elects to maintain an action of assumpsit for breach of contract This disputable presumption of negligence places a burden upon the bailee-defendant to come forward with evidence to refute the presumption. The ultimate burden of proof, however, remains with the bailor-plaintiff to show negligence on the part of the bailee-defendant. Liberty Mutual Fire Ins. v. Hubbard, 275 Or. 567, 571, 551 P.2d 1288 (1976); National Fire Insurance Co. v. Mogan et al., supra, at 291-92, *301 206 P.2d 963; Hines Lumber Co. v. Purvine Logging Co., supra, at 63, 399 P.2d 893.[2] We also disagree with the further contention by plaintiff (bailor) that if defendant (bailee) had wished to raise the issue of its own exercise of due care in order to avoid liability for loss, it must raise lack of negligence as an affirmative defense. As held in Elston v. Wagner et al., 216 Or. 386, 390, 337 P.2d 326 (1959): As previously stated, it is plaintiff-bailor's burden to prove that defendant-bailee's negligence caused the loss of the goods. While he does have the benefit of a presumption of negligence on the part of the defendant-bailee, it remains a "fact necessary to be proved by plaintiff" and as such defendant may controvert that fact under a general denial.[3] We hold that although plaintiff had the benefit of a disputable presumption of negligence on the part of defendant, requiring defendant to come forward with evidence to refute that presumption, the ultimate burden of proof on the issue of negligence remained with plaintiff, and that when, as in this case, defendant has offered evidence to refute that presumption, the question of whether defendant was negligent and whether that negligence caused the loss of the bailed goods is a question for the jury to decide. Plaintiff also contends that defendant's requested instructions and those given by the trial court were "mutually exclusive instructions," and that defendant waived its right to assign as error the court's failure to give the requested instructions because it failed to except to the instructions given by *302 the court on the subject of defendant's liability. Thus, according to plaintiff, "assuming arguendo that the trial court should have given the requested instruction as contended by defendant, defendant, nonetheless, waived its right to assign this omission as error upon this appeal because it failed to except to the instructions given by the court on the subject of defendant's liability." ORS 17.510, which was in effect when this case was tried provides, in part, that: That statute clearly requires exceptions in all cases in which parties seek review of instructions given by trial courts. We have held, however, that exceptions are not required under that statute in cases in which trial courts refuse to give requested instructions. Crow v. Junior Bootshops, 241 Or. 135, 141, 404 P.2d 789 (1965); Robbins v. Cons. Freightways, 276 Or. 127, 130, 554 P.2d 149 (1976). We note that ORS 17.510 has been repealed (1979 Or. Laws c. 284, § 199) and replaced by ORCP 59(H) which states: In Holland v. Srs. of St. Joseph, Seeley, 270 Or. 129, 142, 522 P.2d 208, 526 P.2d 577 (1974), this court said that: In Crow v. Junior Bootshops, supra, we also held, however, (at 141, 404 P.2d at 792) that: *303 Thus, in Crow v. Junior Bootshops, supra, this court held that no exception was required to the failure to give a requested instruction which was directly contrary to an instruction given, so as to give the trial court an adequate opportunity to rule on the issue. Later, in Holland v. Srs. of St. Joseph, Seeley, supra, in referring to our previous decision in Crow we said: See also, Porter v. Headings, 270 Or. 281, 527 P.2d 403 (1974). The rule of Crow, as delineated in Holland, is a rule which should be carefully applied. We believe, however, that this is an appropriate case for application of that rule. In this case both defendant and plaintiff requested instructions upon the question of negligence.[5] We also note that prior to instructing the jury the trial court expressly noted that this issue had been raised. The court explained to both counsel: Because defendant preserved this error by requesting an instruction that "clearly and directly" called to the attention of the trial court its error in failing to instruct the jury on the question of negligence, thus *304 giving him an opportunity to correct that error, and because the trial court appeared to recognize that the question of the negligence had been raised by both parties and chose not to so instruct the jury on that question, we hold that the defendant, by requesting such an instruction under such circumstances, was entitled to appeal from the failure to give that instruction. It follows that the Court of Appeals was correct in reversing the judgment of the trial court and that this case must be remanded for a new trial. DENECKE, C.J., specially concurred and filed opinion. PETERSON, J., specially concurred and filed opinion in which LENT, J., joined. DENECKE, Chief Justice, specially concurring. I am in accord with the decision in this case. I specially concur to state that in my opinion the form of one of the requested instructions is faulty and, therefore, the failure of the trial court to give that particular instruction would not be reversible error. Woosley v. Dunning, 268 Or. 233, 255, 520 P.2d 340 (1974); Gintner v. Handy, 244 Or. 449, 451, 419 P.2d 21 (1966). Requested instruction V stated: The requested instruction is faulty in form because it unnecessarily was couched in technical legal terms. There is no necessity to define or use legal words or terms in instructing a jury. The practice of instructing in legal terms is extremely confusing to jurors. In the present case it was unnecessary to define "bailee" or distinguish a "bailee" from an "insurer." The trial court's instructions to the jury are the weakest link in the jury system. This weakness is compounded when the lawyers request instructions in "legalese" and the trial courts give instructions in the same. I commend, Woleslagel, The "Kiss" Principle of Jury Communication, 14 Washburn L.J. 252 (1957). PETERSON, Justice, specially concurring. The majority states that "this is not an appropriate case * * * to decide whether a determination of negligence in a bailor-bailee case involves an inference of negligence, as opposed to a disputable presumption of negligence" because the defendant-bailee did come forward with evidence to refute the "presumption of negligence." 289 Or. at 126, 611 P.2d at 301 n. 2. At the same time, however, the majority states that the "disputable presumption of negligence places a burden upon the bailee-defendant to come forward with evidence to refute the presumption." 289 Or. at 125, 611 P.2d at 300. I concur with the majority, with this caveat. The rule that proof by the bailor of (1) a bailment and (2) a failure to return or return in damaged condition, creates a disputable presumption, with the "burden of going forward" shifting to the bailee, is consistent with our earlier cases, but has created confusion within the bench and bar. I favor a rule that proof of a bailment and a failure to return, or return in damaged condition, creates a permissive inference, which the trier of fact can accept or reject. No "burden of going forward" is created; no "risk of nonpersuasion" is imposed on the bailee. It is not necessary to decide that question in this case, but I want to disassociate myself from that portion of the majority opinion which states the rule in terms of a disputable presumption. 289 Or. at 125-127, 611 P.2d at 300-301. LENT, J., joins in this specially concurring opinion. [1] Plaintiff also cross-appealed, assigning as error the trial court's grant of defendant's motion to strike from plaintiff's complaint the claim for prejudgment interest. The Court of Appeals did not decide this question and plaintiff does not raise it in his petition to this court. [2] The Court of Appeals noted that "[t]he Oregon cases on this subject use the terms `inference,' `disputable presumption' and `prima facie case' interchangeably." (43 Or. App. at 166, 602 P.2d at 346). They chose to refer to an "inference" of negligence while we have referred to a "disputable presumption" of negligence. Defendant-bailee also argues in favor of "inference" rather than "disputable presumption," contending that "inference" is preferable because it merely allows the jury to find for the bailor whereas a "disputable presumption" would require that the jury find for the bailor unless the bailee has come forward with evidence to refute the presumption. We note, however, that in this case, as previously stated, defendant-bailee did, in fact, come forward with evidence to refute the presumption of negligence. Under these facts this is not an appropriate case, in our opinion, to decide whether a determination of negligence in a bailor-bailee case involves an inference of negligence, as opposed to a disputable presumption of negligence as would be the case had defendant-bailee failed to offer any evidence to refute the presumption of negligence. It is also of interest to note that ORS 77.4030(1) provides: "The bailee must deliver the goods to a person entitled under the document who complies with subsections (2) and (3) of this section unless and to the extent that the bailee establishes any of the following: "* * * "(b) Damage to or delay, loss or destruction of the goods for which the bailee is not liable, but the burden of establishing negligence in such cases is on the person entitled under the document." (Emphasis added) [3] Plaintiff-bailor also contends that if defendant-bailee is to be permitted to present evidence of its exercise of due care it must necessarily admit that it failed to redeliver the bailed goods; and conversely, where the defendant-bailee claims, as in this case, that all the bailed goods were in fact redelivered, that defendant-bailee cannot then seek to avoid liability by making the inconsistent claim that even though the goods were lost or destroyed, the loss was not the result of its negligence. This argument is likewise without merit. It is true that a defendant may not, in some circumstances, allege contradictory affirmative defenses, see Pruett v. Lininger et al., 224 Or. 614, 620, 356 P.2d 547 (1960). In this case, however, plaintiff had the burden of proving both that defendant failed to redeliver the goods and that the loss of the goods was caused by defendant's negligence. No reason exists why defendant, under a general denial, may not offer evidence that refutes either or both of these elements of plaintiff's cause of action. Also, inconsistent pleadings are now permitted under new Oregon Rules of Civil Procedure not in effect for purposes of this case. See ORCP 16 C. [4] The comments to this rule state as follows: "Section 59(H) is based upon ORS 17.505 through 17.515. The section is included as it does describe conduct in the trial court. It also provides a basis for a new trial in ORCP 64(B)(7). The council cannot make rules of appellate procedure, and the question of preserving error on appeal is one determined by the appellate courts. On the question of whether failure to give a requested instruction preserves error in instructions given, see Holland v. Sisters of St. Joseph, 270 Or. 129, 522 P.2d 208 (1974), and Becker v. Beaverton School District, 25 Or. App. 879, 551 P.2d 498 (1976)." [5] Plaintiff requested the following instructions pertaining to the negligence issue: Instruction No. 5: "I instruct you that whenever anyone takes custody or possession of something which belongs to another, he owes a duty of care to the other. "When the person assuming the custody and control of the property in this case, the defendant is compensated by being paid for its storage services, the duty of care is that of exercising ordinary care and control of the property." Instruction No. 6: "If you find that at the time the plaintiff requested the defendant to redeliver the equipment and supplies that were stored for the plaintiff by the defendant, that some of the items of equipment and supplies were missing and not returned to the plaintiff, then the burden of proof is upon the defendant to establish by a preponderance of the evidence that the loss of such items was not caused by the fault or want of care of the defendant." Instruction No. 7: "The defendant in this case had a duty to exercise the same degree of care and skill as is exercised by men of ordinary prudence and skill in a like situation. As the defendant was engaged in the business of storing property for others, the degree of care and skill required by the defendant in this case is the same degree of care and skill as one would expect to be exercised by men of ordinary prudence in a similar business of storing property for others."

e6b0799c704aa24e6bcca55dc3b863776b272b4f0a90439d3322e35f6da30390

1980-05-20T00:00:00Z

4b2ce76e-6843-41b3-be78-cba65b9ac0a8

In Re Smith

289 Or. 501, 614 P.2d 1136

oregon

Oregon Supreme Court

614 P.2d 1136 (1980) 289 Or. 501 In re Complaint As to the Conduct of Brice L. SMITH, Accused. OSB 78-14; SC 26815. Supreme Court of Oregon, In Banc. Argued and Submitted June 25, 1980. Decided July 23, 1980. *1137 Albert J. Bannon, Portland, argued the cause for the accused. With him on the briefs was Black, Helterline, Beck & Rappleyea, Portland. Warner E. Allen, Portland, argued the cause for the Oregon State Bar. On the brief was George O. Tamblyn, Portland. PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar, charging the accused with (1) not adequately representing a client in the sale of property, (2) conduct involving a conflict of interest, and (3) selling property in violation of the terms of a restraining order.[1] The Trial Board found the accused not guilty of the first two charges. It also found that he sold the property in violation of the restraining order, but had no knowledge of the existence of that order, and concluded that this mistake was "not of sufficient severity or magnitude to warrant any reprimand." The Disciplinary Review Board, based upon its own findings of fact, found that the accused undertook to represent a client while he was still a partner of John R. Sidman; that although this partnership was dissolved on July 1, 1977, a de-facto partnership continued and that during this period there was a transmittal of information from the accused to Mr. Sidman and a sale of real property in which the client had an interest to Mr. Sidman. The Disciplinary Review Board concluded that under these facts there was an "appearance of impropriety" in violation of Canon 9 of the Code of Professional Responsibility and recommended a public reprimand. One member of the Board dissented by an opinion in which he agreed with the findings and recommendations of the Trial Board. The accused and John Sidman were engaged in the practice of law as a partnership in 1976 and until at least June 1, 1977. During that time Mr. Sidman, on behalf of a client, Foster Auto Parts, had been trying, without success, to acquire an interest in lands adjacent to its property, referred to as the Slemp property. During that same period of time Mrs. Carlotta Baker who, with her husband, owned a one-fourth interest in the Slemp *1138 property, came to the law office of Sidman and Smith and requested a conference with the accused with reference to a suit for the dissolution of her marriage then being handled by another attorney. Since the accused was out of the office, she was interviewed by Mr. Sidman. That meeting, however, did not result in an attorney-client relationship between Mrs. Baker and Mr. Sidman or the partnership. Thereafter, apparently on May 23, 1977, Mrs. Baker again came to the partnership law office and consulted with the accused. Again, no attorney-client relationship was established because of the fact that she was then represented by another attorney. On June 15, 1977, that attorney resigned as attorney for Mrs. Baker and the accused then undertook to represent her. Meanwhile, as of June 1, 1977, Mr. Sidman and the accused terminated their partnership, subject to winding up of assets and liabilities. Mrs. Baker was never shown on the books of the partnership as a client of the partnership. The answer by the accused to the complaint of the Oregon State Bar admitted, however, that the partnership was dissolved on July 1, 1977, the date found by the Disciplinary Review Board to be the date of its dissolution. Mrs. Baker was in need of funds to support herself and her child. When the accused discovered that she had an interest in the Slemp property he informed Sidman that she was interested in selling her approximately 13% interest in that property. On July 7, 1977, Mr. Sidman wrote a letter to the accused, offering $17,500 for Mrs. Baker's interest in that property. By letter dated July 14, 1977, the accused informed her that she would be selling this property to Mr. Sidman, "an attorney who shares office space with me," and who represents Foster Auto Parts, owner of the adjacent property, and that "you are selling this property to Mr. Sidman, knowing of his relationship with me and are satisfied that this is a reasonable price for the property." On July 15, 1977, such a contract of sale was signed. It also appears that by letters July 5 and July 11, 1977, Mr. Sidman had made offers to other tenants in common, offering to purchase their interest in that property based on an evaluation higher than that which provided the basis for his offer to Mrs. Baker. The other tenants in common, however, did not accept those offers by Mr. Sidman and the accused denied any knowledge of such offers. In addition, it appears that prior to the time when the accused undertook the representation of Mrs. Baker a restraining order had been entered in the suit for dissolution between her and her husband, restraining the sale of that property. The accused denied knowledge of that restraining order, although a copy of it appeared in the file turned over to him by her former attorney. Later, however, the interest that Mrs. Baker had in that property was awarded to her husband in the suit for dissolution of that marriage. As a result, Mr. Sidman was unable to acquire her interest in that property on behalf of his client, Foster Auto Parts. No complaint was made by Mrs. Baker against the accused. A complaint was made to the Oregon State Bar, however, against both the accused and Mr. Sidman by Mr. Larry S. Slemp, one of the original owners of that property. The complaint of the Oregon State Bar alleges that the accused did not adequately represent Mrs. Baker in the sale of the real property in that he (a) failed to advise her that the purchaser of the property, a partner of the accused, had offered a higher price for it to other co-tenants; (b) that he failed to advise her that she could possibly get a higher price from the other co-tenants, and (c) that he failed to contact other co-tenants with the offer or to attempt to negotiate a higher price for his client. When the offer was made by Mr. Sidman to purchase the interest of Mrs. Baker in the property, the partnership had already been dissolved. Also, the accused denied *1139 any knowledge of the offers made by Mr. Sidman to the other co-tenants. In addition, it appears from the evidence that the higher price offered by Mr. Sidman to the other co-tenants may well have reflected an assessment of market and bargaining conditions, and the evidence does not establish that the price offered by him for the interest of Mrs. Baker was less than the true value of her interest. Neither does it establish that the accused might possibly have been able to get a higher price for her interest in that property. In any event, it is our opinion that the accused, in the performance of his duty as an attorney, was under no legal or ethical duty to contact other co-tenants in an effort to negotiate a higher price for her interest in that property. Based upon our examination of the record, it does not appear that Mrs. Baker was poorly represented by the accused in the sale of her interest in that property. It follows that we agree with the finding by the Trial Board that the accused is not guilty of the first cause of action of the complaint. Indeed, the Disciplinary Review Board made neither a finding of fact nor a conclusion of law on this cause of action, but concluded only that there was an "appearance of impropriety" in the conduct by the accused, as subsequently discussed. The second cause of action of the complaint alleged that the accused, in his representation of Mrs. Baker, "was in fact representing conflicting interests in that his relationship with John R. Sidman precluded impartial and vigorous representation of Carlotta Baker." It is contended by the Oregon State Bar that the conduct of the accused violated DR 5-105, which provides: Strictly speaking, upon the dissolution of the partnership, even as late as July 1, 1977, as found by the Disciplinary Review Board, there was no actual conflict of interest by the accused in his subsequent representation of Mrs. Baker in the sale of her interest in that property to Mr. Sidman. Also, it must be noted again that by letter dated July 14, 1977, the accused specifically informed Mrs. Baker of his relationship with Mr. Sidman. On the other hand, even though a partnership between lawyers may have been terminated, or even if there had been no previous partnership, when two lawyers share office space it may well be that their relationship is such that representing clients with opposing interests, either in actual litigation or in business transactions, would preclude impartial and vigorous representation of such clients.[2] *1140 Ethics Opinion Number 44, cited by the Disciplinary Review Board in its opinion, involved a lawyer who had been the partner of another lawyer and who, after dissolution of the partnership, undertook to represent a client in litigation with a client of his former partner. Under those facts, the opinion was expressed that it was improper for the lawyer to do so because he "must avoid not only impropriety but the appearance thereof." Thus, that opinion was based not upon the finding of an actual conflict of interest, but upon a finding of conduct constituting an "appearance of impropriety," as discussed later. In this case, however, after reviewing the relationship between the accused and Mr. Sidman and the conduct complained of by the Oregon State Bar, we are unable to find that such conduct violated the terms of DR 5-105. First, there was no violation of DR 5-105(A) relating to "proffered employment." When Mrs. Baker became a client of the accused in June, there was nothing to indicate to him that his independent professional judgment was likely to be adversely affected by accepting such employment. Second, there was no "multiple employment" by the accused, as proscribed by DR 5-105(B) and (C). Finally, the terms of DR 5-105(D) relating to the disqualification of a partner or associate applied, if at all, to Mr. Sidman, rather than to the accused. Under these circumstances and under the facts of this case, we agree with the finding by the Trial Board that the accused was not guilty of this charge. It is clear that the accused participated in the sale of property in violation of the terms of the restraining order. The Trial Board found, however, that he did not know of the existence of that order at the time of his participation in the sale of the interest of his client in that property. His failure to discover the existence of that order was due to his own negligence. However, we agree with the Trial Board in its conclusion that such a mistake by him was "not of sufficient severity or magnitude to warrant a reprimand." The sole basis for the recommendation of a public reprimand by the Disciplinary Review Board is that there was an "appearance of impropriety" by the conduct of the accused, in violation of Canon 9 of the Code of Professional Responsibility. Canon 9 provides: We note, however, that DR 9-101 of the Code of Professional Responsibility of the Oregon State Bar provides as follows: As held by this court in In re Ainsworth, 289 Or. 479, 614 P.2d 1127 (1980) (decided today): *1141 It is clear from the record that the conduct of the accused does not come within terms of DR 9-101(A), (B) or (C). It follows that we must reject the finding and conclusion by the Disciplinary Review Board that the accused is guilty of conduct which violated Canon 9 and that he should be reprimanded for that reason. For these reasons, the complaint of the Oregon State Bar in this case is dismissed. [1] The complaint also included a "cumulative" or "catch-all" charge. We find it unnecessary to consider that charge. [2] Cf. Note and Comment, Outside the Courtroom: Conflicts of Interest in Nonlitigious Situations, 37 Washington and Lee Law Review 161 (1980).

6a120032f25554ce6dfaabeea0121a5226a71edafc0cc4237b05d9dd565c7633

1980-07-23T00:00:00Z

e859df2a-8fb6-43e2-b27c-0995032ad62a

Department of Revenue v. Greaves

289 Or. 511, 614 P.2d 100

oregon

Oregon Supreme Court

614 P.2d 100 (1980) 289 Or. 511 DEPARTMENT OF REVENUE, State of Oregon, Respondent, v. Donald W. GREAVES and Norma P. Greaves, Appellants. TC 1378; SC 26873. Supreme Court of Oregon, In Banc. Argued and Submitted June 24, 1980. Decided July 23, 1980. *101 Donald W. Greaves, argued the cause pro se. Walter J. Apley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was James M. Brown, Atty. Gen. PER CURIAM. The Department of Revenue petitioned the Oregon Tax Court for a writ of mandamus, pursuant to ORS 314.365,[1] commanding appellants to file individual income tax returns for the years 1977 and 1978. Defendants resisted issuance of the writ on various constitutional grounds.[2] The tax court rejected these contentions. Finding from the evidence that there were reasonable grounds to believe that defendants had taxable income in those years, the court issued a peremptory writ, and defendants appeal. Appellants' main contention pressed in this court is that a writ of mandamus commanding a taxpayer to file a tax return compels him to incriminate himself contrary to the federal fifth amendment.[3] Although the mandamus proceeding is not itself a criminal prosecution, it is true, as defendant argues, that the claim against compelled testimony may be raised in a civil proceeding if the answer demanded might subsequently be used against the witness in a criminal case. Theoretically *102 this could apply to a disclosure compelled by a writ of mandamus as to any other compelled statement. However, appellants did not below and do not here claim that the answer to any particular question asked on the tax return would incriminate them. They do not go so far as to decline to admit to their identities as a reason not to file a return. But they maintain that the requirement of filing a return at all violates their constitutional privilege because possibly the information might later be used in a criminal case. Whatever might be true of a refusal to answer specific questions, at this point and as stated by appellants the claim is too broad and premature. Even if a person claiming the privilege cannot be expected to explain just how his answer to a question might help to convict him in a criminal case, he does at least have to invoke the privilege with respect to any and each particular question that he fears on that score. Appellants never proceeded that far. Perhaps they acted under a misapprehension that possible prosecution for a false answer can itself give rise to the privilege not to answer at all, but that is not so. See United States v. Bryan, 339 U.S. 323, 342, 70 S. Ct. 724, 94 L. Ed. 884 (1949); Glickstein v. United States, 222 U.S. 139, 32 S. Ct. 71, 56 L. Ed. 128 (1911). We cannot proceed to provide appellants with a guide to hypothetical questions about the privilege against self-incrimination; it must suffice to state that their constitutional objections to the tax court's order are not well taken. Affirmed. [1] ORS 314.365: "If a taxpayer fails to file a return within 60 days of the time prescribed by any law imposing a tax upon or measured by net income, the judge of the Oregon Tax Court, upon petition of the department, or of any 10 taxable residents of the state, shall issue a writ of mandamus requiring the person to file a return. The order of notice upon the petition shall be returnable not later than 10 days after the filing of the petition. The petition shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the case, consistent with the rights of the parties. The judgment shall include costs in favor of the prevailing party. An appeal may be taken from the judgment by the taxpayer or the department to the Supreme Court in the manner that appeals are taken in suits in equity, irrespective of the amounts involved. All writs and processes may be issued from the office of the clerk of the tax court, and, except as otherwise provided in this section, shall be returnable as the court shall order." [2] Petitioner Donald W. Greaves, appearing pro se, argued that the alternative writ should be dismissed because the state can proceed against individuals only by criminal prosecutions and not by civil proceedings. As a general proposition, this is an obvious misunderstanding. As applied to the present case, the state has not accused defendants of an offense or proposed to have them punished; it invoked the statutory procedure for commanding a future action, the filing of tax returns. [3] U.S.Const. amend. V provides: "... nor shall any person ... be compelled in any criminal case to be a witness against himself, ..." In advance of a question under the fifth amendment, Or. Const. Art. I, § 12 guarantees that "[n]o person shall ... be compelled in any criminal prosecution to testify against himself."

754323f01e4e5a88bbad7486213c883870eeda5766c7d8791ee89eaccd207bb6

1980-07-23T00:00:00Z

f786e383-5e2c-4f13-9ae4-72d64ae90d09

Western Fire Ins. Co. v. Wallis

289 Or. 303, 613 P.2d 36

oregon

Oregon Supreme Court

613 P.2d 36 (1980) 289 Or. 303 WESTERN FIRE INSURANCE COMPANY, a Corporation, Respondent, v. Robert S. WALLIS, Guardian of the Estate of Tara L. Wallis, a Minor, Sherry S. Wallis and Wendy E. Wallis, and Robert S. Wallis, Administrator of the Estate of Rachelle Gerhold, Petitioners. No. A7706-07917; CA 12981; SC 26668. Supreme Court of Oregon. Argued and Submitted March 3, 1980. Decided June 24, 1980. *37 Raymond J. Conboy, Portland, argued the cause for petitioners. On the brief were Raymond J. Conboy, and Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland. Edward H. Warren, Portland, argued the cause for respondent. On the briefs were Edward H. Warren, Timothy N. Brittle, and Acker, Underwood, Beers, Smith & Warren, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. PETERSON, Justice. The issue in this case is whether the no-fault personal injury protection coverage (PIP coverage) of a motor vehicle insurance policy includes loss of income benefits to the survivors of a person who was killed while driving an automobile covered by the policy. The insurer sought a declaratory judgment to resolve the disputed issue of coverage. On motions for summary judgment filed by both parties, the trial court ruled that defendants were entitled to receive those benefits. The Court of Appeals reversed per curiam, 43 Or. App. 476, 602 P.2d 1170 (1979), citing its decision in Perez v. State Farm Mutual Auto. Ins. Co., 43 Or. App. 19, 602 P.2d 284 (1979). We granted petitions for review in both cases. Defendants are the personal representative and heirs of Rachelle Gerhold, who was killed in an accident while she was driving the insured vehicle. Defendants claim benefits for loss of income resulting from Ms. Gerhold's death, basing that claim on two alternative arguments. They first contend that under ORS 743.800, which requires PIP coverage in every motor vehicle policy, benefits exist for loss of income resulting from death. We rejected that construction of the statute in Perez v. State Farm Mutual Auto. Ins. Co., 289 Or. 295, 613 P.2d 32 (1980), decided this day. We need here consider only defendants' other contention that even if the statute does not require that coverage, the plaintiff drafted its policy using broader language than the statute required and therefore coverage exists under the policy. ORS 743.820.[1] The relevant policy provisions, somewhat different from those involved in Perez, are: Defendants point out that the policy defines "income continuation expenses" to cover loss of income caused by "bodily injury" and that "bodily injury" is defined to include death. In essence, they claim that the policy should be construed to read as follows: If the policy contained only this language, defendants might well be right. However, the phrase "caused by [bodily injury, sickness or disease, including death at any time resulting therefrom]," is preceded by the clause "during a period of disability." The bracketed language quoted above modifies the phrase "during a period of disability." Defendants have concentrated their argument on the policy definition of "bodily injury" and have not addressed the significance of the fact that the policy defines income continuation expenses as a percentage of "loss of income from work during a period of disability caused by bodily injury * * *." (Emphasis added.) We find the emphasized phrase significant. As we said in Perez, "disability" is not usually used to mean death. We find nothing in the policy which suggests that the word was used there with any different meaning than we concluded it has in ORS 743.800: inability, while living, to perform one's usual activities. Perez v. State Farm Mutual Auto. Ins. Co., supra, at 299-300, 613 P.2d at 34-35. The policy definition of "bodily injury" to include death does not itself create an ambiguity. It clarifies the provision that the company will pay funeral expenses "incurred with respect to bodily injury." Funeral expenses are not payable for every bodily injury within the policy definition but only when the injury is in fact a death. Similarly, the policy makes it clear that income continuation benefits are not payable on account of every bodily injury, but only those injuries which result in a period of disability. Death, although it is a bodily injury within the policy definition, does not cause a period of disability within the ordinary meaning of those words. Accord: Griffin v. Travelers Indemnity Company, 328 So. 2d 207 (Fla.App. 1976). See also, Benton v. State Farm Mutual Automobile Ins. Co., 295 So. 2d 344 (Fla.App. 1974); Svec v. Allstate Insurance Co., 53 Ill. App.3d 1033, 11 Ill.Dec. 751, 369 N.E.2d 205 (1977); Hamrick v. State Farm Mut. Auto. Ins. Co, 270 S.C. 176, 241 S.E.2d 548 (1978); Marriot v. Pacific National Life Insurance Company, 24 Utah 2d 182, 467 P.2d 981 (1970). Finally, the defendants argue that the policy language is at least ambiguous and the ambiguity should be resolved against the insurer and in favor of extending coverage, citing Shadbolt v. Farmers Insur. Exchange, 275 Or. 407, 411, 551 P.2d 478 (1976). That well-established rule is not applicable in this case. The policy before us can be read to provide the coverage for which defendants contend only if an unusual meaning is assigned to the phrase "period of disability." There is no independent basis in the policy provisions for giving those words anything other than their usual meaning. The rule of construction upon which defendants rely is applicable when a policy provision, because of the insurer's choice of language, is reasonably susceptible of more than one meaning. It is not a device for creating insurance coverage by attributing possible but unlikely meanings to the terms employed without some basis in the policy for doing so. See I-L Logging *39 Co. v. Mfgrs. & Whlse. Ind. Exc., 202 Or. 277, 318-336, 273 P.2d 212, 275 P.2d 226 (1954) and Jarrard v. Continental Casualty, 250 Or. 119, 127, 440 P.2d 858 (1968). In the policy before us, there is no reason to believe that "disability" would be understood by an insured to have other than its ordinary meaning. When it is given that meaning, the policy is not ambiguous in the sense we have described above. The decision of the Court of Appeals, reversing that of the trial court, is affirmed. TONGUE, J., filed a dissenting opinion. TONGUE, Justice, dissenting. I must respectfully dissent from the opinion by the majority because it would ignore the rule well established by a long line of decisions by this court which have held that if the terms of an insurance policy are clear and unambiguous the insurance company is entitled to have it enforced as written, but that if the terms of an insurance policy are ambiguous "any reasonable doubt" will be resolved against the insurance company that wrote the policy and in favor of the insured. See, e.g., Allen v. Continental Casualty Co., 280 Or. 631, 633, 572 P.2d 617 (1977); Shadbolt v. Farmers Insur. Exch., 275 Or. 407, 411, 551 P.2d 478 (1976); Gowans v. N.W. Pac. Indem. Co., 260 Or. 618, 620, 489 P.2d 947, 491 P.2d 1178 (1971); Farmers Mut. Ins. Co. v. Un. Pac. Ins., 206 Or. 298, 305, 292 P.2d 492 (1956); Clark Motor Co. v. United Pac. Ins. Co., 172 Or. 145, 149, 139 P.2d 570 (1943); Rossier v. Union Automobile Ins. Co., 134 Or. 211, 214, 291 P. 498 (1930), and Zurich Ins. Co. v. Carlton & C.R. Co., 133 Or. 398, 406, 291 P. 349 (1930). This is a companion case to Perez v. State Farm Mutual Auto. Ins. Co., 289 Or. 295, 613 P.2d 32 (1980), also decided this day, in which this court properly held, "based on the language of ORS 743.800," that the provisions of that statute, in which the term "injured person" is not defined, do not provide for payment of "income continuation expenses" in the event of the death of the insured in an automobile accident. It is expressly provided by ORS 743.820, however, that insurance companies may issue policies with provisions of "more favorable benefits" than those required by ORS 743.800 and 743.805. The insurance policy issued by this insurance company provides for the payment of "income continuation payments" to "injured persons" for "loss of income from work during a period of disability caused by bodily injury sustained by such person in the accident." Had the term "bodily injury" not been defined, as in Perez, the same result might well follow in this case, as in Perez. The insurance company that wrote this insurance policy, however, expressly defined the term "bodily injury" to include death. Defendants, as the survivors of the insured in this case, contend that: The majority opinion reaches a contrary conclusion based upon the fact that "the phrase `caused by [bodily injury, sickness or disease, including death at any time resulting therefrom]' is preceded by the clause `during a period of disability.'" The majority finds this clause to be "significant" because "disability" is not usually used to mean death. As stated in Perez, however, "death is undeniably the ultimate disability." *40 It may be that the term "disability" is not "usually" used to mean death, but usually is used with reference to "injured persons." The express terms of this insurance policy provide for the payment of "income continuation expenses" to "injured persons," i.e., a person who has suffered "bodily injury," which is defined as "including death." It is also to be noted that the policy provides, in the alternative, that such payments shall continue until "such person is able to return to his usual occupation or upon the expiration of not more than 52 weeks * * *," thus providing for a termination of such benefits for "bodily injury" when applied to "bodily injury" constituting "death," as that term is defined in this insurance policy. It is obvious that at least one of the reasons why an insured may desire to purchase an insurance policy providing for disability payments one of his "reasonable expectations" is to provide continuing income to support his family while he is unable to work because of injury suffered in an automobile accident, subject to some terminal period as provided by the terms of the policy. According to the majority, however, if the injury suffered by the insured is such as to disable him for 50 weeks, his family would receive such payments for that entire period, but if the injury to the insured is so serious that he died on the way to the hospital, his family would receive no such payments. This, in my opinion, would defeat one of the reasons why a person would purchase such a policy when the term "injured person" has been defined by the insurance company to include "death" thus offering coverage broader than that required by the statute as an inducement to the purchase of such a policy. A person purchasing such a policy is entitled to a "reasonable expectation" that such a policy will, in fact, provide such broader coverage, and that benefits payable will be payable in the event of the death of the insured in an automobile accident. Indeed, we have said that an insurance policy should be construed, if not in accordance with the "reasonable expectations" of its purchaser, at least "according to its character and its beneficent purposes." See Borglund v. World Ins. Co., 211 Or. 175, 181, 315 P.2d 158, 161 (1957), and Shadbolt v. Farmers Insur. Exch., supra, 275 Or. at 411, 551 P.2d 478. It may be conceded that an insurance company may write an insurance policy which, in clear and unambiguous terms, requires the harsh result contended by this insurance company. This insurance policy does not do so, at least by clear and unambiguous terms. On the contrary, by defining the term "bodily injury" to include death, this insurance company has sold an insurance policy that, at the least, is ambiguous. It may even be conceded, for purposes of argument, that the interpretation of this policy by the majority is fully as reasonable as that contended for by the survivors of the insured. In Shadbolt v. Farmers Insur. Exch., supra, however, this court rejected the contention by an insurance company that an "ambiguity" in an insurance policy can be construed in favor of the insured only when the interpretation contended for by him is "equally as reasonable as the interpretation favorable to the insurer." On the contrary, this court held in Shadbolt (at 411, 551 P.2d at 480), as in many previous cases, that: In my opinion, the least that can be said of this insurance policy is that there is a "reasonable doubt" whether the interpretation of the policy by the insurance company, as adopted by the majority, is the correct interpretation of this ambiguous policy, or whether the interpretation proposed by the survivors of the insured is the correct interpretation of those provisions of that policy. It is also my opinion that such an interpretation of the policy is a reasonable interpretation of its provisions, in view of the express *41 definition of the term "bodily injury" to include death. It follows, in my opinion, that upon the application of the rule long recognized by this court, this ambiguity must be resolved in favor of extending coverage to the survivors of the insured in this case. At the least, it was error by the trial court to allow the motion for summary judgment by the plaintiff insurance company, thus deciding the ambiguity in this insurance policy in favor of the insurance company as a matter of law. The majority appears to concede that this insurance policy was ambiguous. This court has previously held that when the terms of an insurance policy are ambiguous, the intention of the parties is a question of fact which should be submitted to and decided by the jury as trier of the facts. See, e.g., May v. Chicago Insurance Co., 260 Or. 285, 292-93, 490 P.2d 150 (1971). It follows that, at the least, the decision by the Court of Appeals in this case should be reversed and the case should be remanded to the trial court for trial. LENT, J., joins in this dissent. [1] ORS 743.820 provides: "Nothing in ORS 731.418, 743.786 to 743.795 and 743.800 to 743.835 is intended to prevent an insurer from providing more favorable benefits than those required by ORS 743.800 and 743.805." [2] The italicized words are in the policy. Normally, such words are italicized only to indicate that the words are expressly defined elsewhere in the policy.

2381cf4d0910f52fc61019c90d960111bf1e14217eee660bd58d85f42ab6c42c

1980-06-24T00:00:00Z

a30fa802-62c9-438b-b206-8178f874fe78

State v. Beason

289 Or. 215, 611 P.2d 1150

oregon

Oregon Supreme Court

611 P.2d 1150 (1980) 289 Or. 215 STATE of Oregon, Respondent, v. Allen Gene BEASON, Petitioner. TC 78-7263; CA 14345; SC 26661. Supreme Court of Oregon, In Banc. Argued and Submitted February 6, 1980. Decided June 3, 1980. Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem. Christian W. Van Dyke, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. PER CURIAM. We allowed defendant's petition for review in this case to consider an aspect of a question left open in our decision in State v. Carter/Dawson, 287 Or. 479, 600 P.2d 873 (1979). That aspect was the extent, if any, to which police could properly detain the driver or owner of a motor vehicle to make a license or registration check after the police have determined there was no basis in fact to charge the driver with the violation of traffic laws for which the "traffic stop" had been made. We have discovered that the record of this case make it an inappropriate one to explore that aspect of the law; therefore, we now view the petition for review as having been improvidently allowed. It follows that we order the petition dismissed on that basis. Day v. SAIF, 288 Or. 77, 602 P.2d 258 (1979); Fitch v. Public Welfare Div., 279 Or. 297, 567 P.2d 117 (1977). TONGUE, J., dissented and filed an opinion. TONGUE, Justice, dissenting. The majority has dismissed the petition for review in this case as having been "improvidently allowed" for the reason that "[t]he record of this case makes it an inappropriate one to explore" the question whether, and to what extent, the police may properly "detain the driver or owner of a motor vehicle to make a license or registration check after the police have determined that there was no basis in fact to charge the driver with the violation of traffic laws for which the traffic stop was made." There may be cases in which petitions for review which have been allowed should be dismissed as having been "improvidently allowed," but this is not such a case, in my opinion. The petition for review in this case was allowed by this court on December 27, 1979. At that time it was clear from the record that the defendant was not the driver or owner of the motor vehicle involved, but was a passenger in a motor vehicle which had been stopped by a police officer who had observed it "weaving" erratically and believed that the driver may have been intoxicated. After checking the driver and finding that he was not intoxicated, the officer returned to his patrol car with the *1151 driver's operator's license and the registration card of the motor vehicle to make a radio check of its registration. Before he could do so, however, he heard a broadcast on his radio with descriptions of two persons suspected of having just robbed a filling station. Because those descriptions matched occupants of the motor vehicle, the officer investigated further, found evidence of the robbery in the motor vehicle and arrested the occupants, including defendant, a passenger. Upon being charged with robbery, defendant filed a motion to suppress the evidence of the robbery found in the motor vehicle. At that time no contention was made by the state that defendant, as a passenger, had no right or "standing" to file such a motion. Upon denial of that motion and conviction of the defendant, he appealed to the Court of Appeals, contending that the officer, upon finding that the driver of the vehicle was not intoxicated, had no right to detain the vehicle to make a motor vehicle registration check, with the result that the trial court erred in denying his motion to suppress. Again, no contention was made by the state that defendant, as a passenger, had no right to file such a motion. Instead, the state contended that defendant's motion was properly denied on the ground that the officer had the right to detain the motor vehicle for the purpose of making a motor vehicle registration check. The Court of Appeals affirmed defendant's conviction from the bench without opinion. (43 Or. App. 3, 603 P.2d 371 (1979)). This court then allowed defendant's petition for review to consider defendant's contention that when the police stop a motor vehicle for a suspected traffic violation and then determine that no such infraction had been committed, they may not detain the motor vehicle to "run a license check absent articulable facts that there is either an outstanding warrant for the defendant or the likelihood of [a] license violation." On February 6, 1980, oral argument was presented by both parties before this court. Again, no contention was made by the state that defendant, as a passenger, had no right or "standing" to make such a contention. Instead, the state maintained that the officer had the right to detain the motor vehicle for the purpose of making a motor vehicle license check. After oral argument the case was assigned to this member of the court for preparation of a proposed opinion to decide that question. On March 14, 1980, a proposed opinion was submitted which, if approved by the court, would have held that under the facts of this case the officer had the right to detain the motor vehicle for the purpose of making a motor vehicle registration check, citing the recent opinion by the Supreme Court of the United States in Delaware v. Prouse, 440 U.S. 648, 659, 99 S. Ct. 1391, 1399, 59 L. Ed. 2d 660 (1979), among other cases and authorities. Now, several weeks later, the majority of this court has apparently decided that defendant, as a passenger, might not have the right or "standing" to complain of the detention of the motor vehicle. Instead of calling for supplemental briefs or further oral argument on that question, however, as well as the related question whether such an objection had been waived by the state, the majority has chosen to dismiss the petition for review in this case as having been "improvidently allowed." With all due respect to the majority, I submit that in doing so the majority of this court is being inconsistent, if not somewhat schizophrenic. The majority of this court has not hesitated in deciding cases sua sponte upon grounds which had not been urged, much less argued, by either party. See, e.g., McPherson v. Employment Division, 285 Or. 541, 591 P.2d 1381 (1979) (see dissenting opinion at 557, 591 P.2d at 1390), and LaGrande/Astoria v. PERB, 281 Or. 137, 576 P.2d 1204 (1978) (see dissenting opinion at 157, 576 P.2d at 1215). In doing so the majority of this court has decided important questions which had not been presented by the parties for decision by this court. Also, in some previous cases this court has decided questions after allowing petitions for review when such questions were of public importance in need of decision, *1152 even though it subsequently developed that there were impediments to the proper raising of such questions by the appealing party. See State v. Koennecke, 274 Or. 169, 175, 545 P.2d 127 (1976). Having done so in such cases, this court should not refuse to decide a case such as this in which a question of considerable public importance has been submitted for decision on the ground that "the record in this case makes it an inappropriate one to explore" that question. It is a common practice for police officers, after stopping motor vehicles for suspected traffic infractions, to briefly detain such vehicles for the purpose of making radio checks on the validity of the driver's license and the motor vehicle registration. If this common practice is invalid, either by reason of the provisions of existing Oregon statutes or by reason of requirements of the Constitution of Oregon or of the United States, it is of public importance that the police be so informed and that the drivers, owners, and occupants of motor vehicles also be so informed. As previously stated, it was clear from the record in this case at the time that defendant's petition for review was originally allowed by this court that defendant was a passenger in the motor vehicle. As also previously stated, the State of Oregon has never challenged the right of "standing" of this defendant to challenge the validity of this common police practice. If the majority is concerned over defendant's right or "standing" to do so, supplemental briefs or further oral argument on that question can be easily arranged, as has been done on occasion in other cases. For the majority to instead dismiss this petition for review as having been "improvidently allowed" can only convey the impression that the majority of this court is reluctant to face up to a decision on the important question presented by this case involving the validity of a common police practice and, as a result, to cast doubt upon the validity of that practice. Of equal concern is the question of how well and how responsibly the present members of this court are performing their function as a court of review of decisions by the Court of Appeals as exemplified by the manner in which the majority has treated this case. In 1968, this court's last year as a court of direct appeal, prior to the establishment in 1969 of the Court of Appeals, with partial jurisdiction over direct appeals, this court decided 271 cases by written opinions by the seven regular members of the court (plus 74 opinions by pro-tem judges), or an average of 38.7 opinions per regular member of the court. In 1976, after the establishment of the Court of Appeals, with partial jurisdiction over direct appeals, but prior to the extension of its jurisdiction to all direct appeals (with few exceptions), this court received 467 petitions for review. In that year this court decided 288 cases by written opinions (plus 17 opinions by pro-tem judges), including both petitions for review and cases on direct appeal, or an average of 41 per regular member of the court. In 1979, after the Court of Appeals had been granted jurisdiction over all direct appeals, this court received 552 petitions for review and allowed 104 petitions for review. In that year, however, this court decided only 195 cases by written opinion, including both petitions for review, "holdover" direct appeals and other cases, or an average of 28 per member of the court.[1] During the first five months of 1980 this court received 285 petitions for review and allowed 56 petitions for review, or an average of 11 per month. During the first five months of 1980 this court also heard 60 cases on oral argument, including petitions for review, ballot title and mandamus cases, or an average of 12 per month, as compared with 70 cases heard during the first five months of 1979, or an average of 14 per month.[2]*1153 At this rate, projected on an eleven-month basis (the court does not hear cases during August), the court would hear 132 cases during 1980. If all of such cases were decided during 1980, this would result in 12 opinions, or an average of 19 per member of the court. As of the end of 1978 this court was far behind both in its handling of petitions for review by the allowance or denial of such petitions and also in its decision of cases on which petitions for review had been allowed. (For statistics see dissenting opinion in State v. Classen, 285 Or. 221, 238-242, 590 P.2d 1198 (1979)). Since then this court has made progress both in the handling of petitions for review and in the number of cases "assigned but unwritten for over 90 days" one of the primary indices of its promptness in the decision of cases after oral argument.[3] As stated, however, by the dissenting opinion in State v. Classen, supra, 243, n. 12, 590 P.2d 1209: The small number of cases decided during 1979 and heard during the first five months of 1980 suggests that this problem remains. The handling of this case by the majority of this court would also appear to be symptomatic of this problem. In my view, the petition for review in this case was properly allowed by this court and presents a question of public importance which should be decided by this court and which this court has ample time to consider and decide. For these reasons I dissent from the decision by the majority of this court to dismiss this petition for review as "improvidently allowed." [1] For more detailed statistics for 1976, 1977 and 1978, see dissenting opinion in State v. Classen, 285 Or. 221, 241, 590 P.2d 1198 (1979). [2] During the first five months of 1980 only 43 cases were decided by written opinion, or an average of 8.6 per month, compared with 98 cases decided by written opinion during the first five months of 1979, or an average of 14 per month. This comparison is misleading for various reasons, however, including the illness of another member of the court. [3] See dissent in State v. Classen, supra, n. 1 at 238, 590 P.2d 1198.

469d84b61a16daa3bef0ee870556fbacd7f4ee3d6b3486bcd23ecb41a00cad24

1980-06-03T00:00:00Z