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607a1875-98b4-48b0-a0d6-26daacb54bcf

In Re Ainsworth

289 Or. 479, 614 P.2d 1127

oregon

Oregon Supreme Court

614 P.2d 1127 (1980) 289 Or. 479 In re Complaint As to the Conduct of Sidney E. AINSWORTH, Accused. OSB 1430; SC 26817. Supreme Court of Oregon, In Banc. Argued and Submitted June 3, 1980. Decided July 23, 1980. *1128 Stanley C. Jones, Klamath Falls, argued the cause for the accused. With him on the brief was Giacomini, Jones & Associates, Klamath Falls. James R. Uerlings, Klamath Falls, argued the cause for the Oregon State Bar. On the brief was Donald R. Crane, Klamath Falls. PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar charging the accused with (1) conduct involving a conflict of interest, (2) acquiring a proprietary interest in the subject matter of a legal controversy, (3) entering into a business transaction with a client with differing interests without full disclosure to the client, and (4) accepting employment when the exercise of his independent judgment on behalf of a client was, or was likely to be, adversely affected.[1] The Trial Board found the accused not guilty of the first three charges, but guilty of the fourth charge, and recommended a public reprimand because of "the appearance of impropriety." The Disciplinary Review Board, based upon its own findings of fact, agreed with those conclusions and with that recommendation. In a petition to this court to reject that recommendation the accused states that he "accepts the facts as stated by the Disciplinary Review Board and by the Trial Board," but contends that those facts do not support such conclusions and recommendation; that he should be found not guilty, and that this proceeding should be dismissed. *1129 The Oregon State Bar, in its brief and on oral argument, contends that there was evidence to support all four charges and that "a public reprimand may not be sufficient." The facts as stated in the opinion by the Disciplinary Review Board are as follows: The "Supplemental Facts" as set forth in the Findings of Fact, Conclusions of Law and Recommendation of the Trial Board are as follows: Among the findings of fact by the Trial Board which the accused "accepted," as previously stated, was a finding that: As stated by the Trial Board, DR 5-105 provides: For a discussion of this disciplinary rule, see In re Hershberger, 288 Or. 559, 606 P.2d 623 (1980), and cases and authorities cited therein. We note, however, that although the brief of the Oregon State Bar relies upon and sets forth verbatim the provisions of other disciplinary rules, it does not set forth, cite or appear to rely upon DR 5-105. Instead, the Bar, in its brief, contends that the representation of Herzman violated DR 7-104(A), which provides as follows: We also note that both the Trial Board and the Disciplinary Review Board found that the accused was not guilty of the first charge of the complaint of the Oregon State Bar, in which facts constituting a conflict of interest, among other things, is alleged, but found him guilty only of the "appearance of impropriety" under DR 9-101, as later discussed. The apparent reason for these findings, as stated by the Disciplinary Review Board, was that "We do not believe that the evidence is clear and convincing (if any there be at all) that defendant was guilty" of the charge of a conflict of interest, as alleged in the first charge of the complaint. It may be that the Disciplinary Review Board and the Trial Board reached this conclusion because DR 5-105 was not expressly relied upon by the Oregon State Bar. It is more likely, however, that they reached this conclusion based upon a finding that in representing Herzman in a matter not related to the underlying transaction, it was not "likely," within the meaning of DR 5-105(A), that the "independent professional judgment" in behalf of the accused on behalf of either Lamb or Herzman would be "adversely affected" by the proffered employment by Herzman. Based upon our review of the record, we agree with that conclusion. *1132 It also appears from an examination of the first charge of the complaint that it does not very clearly charge the accused with a conflict of interest in violation of either DR 5-105 or DR 7-104(A), so as to give him a fair opportunity to defend himself against a charge of violating the terms of those disciplinary rules. Instead, the first charge of the complaint alleges all of the facts, including those realleged by reference in the second, third and fourth charges of the complaint, which more clearly allege violations of other specific disciplinary rules. For these reasons, we agree with the findings by the Trial Board and the Disciplinary Review Board that the accused was not guilty of a conflict of interest in violation of the terms of DR 5-105 or DR 7-104(A). Since the filing of the complaint in this case, and also since the findings and opinion by the Trial Board and the Disciplinary Review Board in this case, Section 15 of the Rules of Procedure for disciplinary cases has been amended to provide that complaints in such cases shall not only set forth "the acts or omissions of the accused," but also "the statutes, the canons, or the Disciplinary Rules violated," so as to enable the accused "to know the nature of the charge or charges against him."[3] The second charge of the complaint alleges that "[i]n reference to the transactions described in the first cause of complaint, the accused acquired a proprietary interest in the subject matter in question." Both the Trial Board and the Disciplinary Review Board found the accused to be not guilty of this charge. DR 5-103(A) provides: It is clear from the facts found by the Trial Board and by the Disciplinary Review Board, as "accepted by the accused," that Mr. Lamb, the client of the accused, had at least a potential "cause of action" to enforce a lien against the property which was the subject of this controversy and that the accused purchased that property in his own name. It also appears to be true, as found by the Disciplinary Review Board, that the accused was then having an extremely difficult problem in collecting an attorneys fee from an obstreperous client; that he had previously "discussed with Lamb the matter of the accused purchasing the property from Rosenbaum; that after purchasing the property he offered to sell it to Herzman on the same terms as purchased by him; that his client, Mr. Lamb, never complained of his purchase of the property, and that no one was harmed by what he did. In addition, it appears from the record (although not referred to by the Trial Board or the Disciplinary Review Board) that the accused testified, without contradiction, that before purchasing the property he not only discussed the matter with Mr. Lamb, but that two or three days later Mr. Lamb called him and "said he had been thinking *1133 about it and wanted me, if I would, to go ahead and buy the property." The accused also testified, again without contradiction, that before doing so he also called Mr. Hebert, General Counsel for the Oregon State Bar, and had the following conversation with him: This testimony was not controverted or otherwise questioned by the Oregon State Bar. Both the Trial Board and the Disciplinary Review Board, apparently on the basis of these facts, found that the accused was not guilty of the second charge of the complaint and that the conduct of the accused constituted no more than "the appearance of impropriety." It may be that the provisions of DR 5-103(A) (relating to the acquisition of an interest in litigation), which do not provide an exception in the event of consent by the client, as does DR 5-104 (relating to business relations with a client), prohibit the acquisition of such an interest even though consented to by the client because of the potential for conflict of interest and abuse of fiduciary responsibility. Cf. In re Boivin, 271 Or. 419, 428, 533 P.2d 171 (1975), and In re Sandblast, 210 Or. 65, 307 P.2d 532 (1957). We need not decide that question in this case. Neither need we decide whether consent by a client would be a defense to such a charge in the absence of independent legal advice. In this case the accused not only sought and secured the express consent of his client, but also consulted with the general counsel of the Oregon State Bar and the chairman of the local ethics committee, and secured their apparent approval before proceeding to purchase the property. We do not mean to encourage consultation with the general counsel of the Oregon State Bar by suggesting that his or her advice can provide a defense to disciplinary violations. It cannot. We believe, however, if there was any violation of DR 5-103(A) or DR 5-104 by the accused in this case, it was not of any great severity or magnitude, and that under the circumstances of this case, including the fact that the accused sought the advice of the general counsel of the Oregon State Bar, he should not be disciplined by this court for any such violations. The third charge of the complaint alleges that: Both the Trial Board and the Disciplinary Review Board also found the accused to be not guilty of this charge. DR 5-104(A) provides: *1134 It is contended by the Oregon State Bar that by his purchase of the real property which was the subject matter of the controversy, the accused violated DR 5-104(A), as well as DR 5-103(A), as previously discussed. We agree with the Trial Board and the Disciplinary Review Board, however, in their finding, in effect, that by the purchase of such property by the accused, under the facts and circumstances of this case, the accused did not "enter into a business transaction with a client," within the meaning of DR 5-104(A). As also previously stated, we believe that after securing apparent approval of his purchase of the property from the general counsel of the Oregon State Bar, the accused should not be reprimanded for doing so. The Disciplinary Review Board found that the evidence was not clear and convincing evidence that the defendant was guilty of violating DR 5-104(A), as charged in the complaint. We agree with that finding. The fourth charge of the complaint is that: DR 5-101(A) provides: On their face, these allegations appear to charge substantially the same conflict of interest as charged in the first charge of the complaint, as previously discussed. Both the Trial Board and the Disciplinary Review Board, however, apparently construed and considered this allegation to be a charge of violating Canon 9, rather than DR 5-101(A). Canon 9 provides: DR 9-101 provides: In our opinion, the effect of this disciplinary rule is to define the more general terms of Canon 9 and to limit its application to the three specific situations described in DR 9-101(A), (B) and (C), none of which are applicable to the facts of this case. Indeed, the validity of Canon 9 as the basis of a complaint in a disciplinary proceeding might otherwise well be subject to question. See Megdal v. Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980).[4] We note that the brief submitted on behalf of the Oregon State Bar, although citing other disciplinary rules and Canon 9, makes no reference whatever to DR 9-101. We also note that the brief of the Oregon State Bar, although setting forth in a final *1135 footnote the provisions of DR 5-101(A), together with those of DR 5-103(A), 5-104(A), 7-104(A), and Canon 9, and although contending that specific conduct by the accused violated the provisions of DR 5-103(A), 5-104(A), and 7-104(A), makes no contention that any conduct by the accused violated the provisions of either DR 5-101, DR 9-101 or of Canon 9. Under these circumstances, we find the accused to be not guilty of violating either DR 5-101 or DR 9-101. For these reasons and under these circumstances, the complaint of the Oregon State Bar is dismissed, with costs to neither party. [1] The complaint also included a "cumulative" or "catch-all" charge. We find it unnecessary to consider that charge. [2] Herzman also instituted a suit against the accused in the Jackson County Circuit Court to force the sale to Herzman. This suit terminated with a decree for the accused which is now on appeal. [3] Section 15 of Rules of Procedure relating to admission, discipline, resignation and reinstatement now provides: "If it shall appear to the board, from the report of a professional responsibility committee or otherwise, that grounds for public reprimand, suspension or disbarment exist against a member, the president or the board shall appoint counsel for the bar and a trial board, and shall cause to be prepared and filed by counsel with the executive director an original and three copies of a formal complaint against the accused in the name of the bar; and proceedings shall then be had thereon as hereafter provided. A formal complaint shall be signed by the executive director, or his designee, and shall set forth succinctly the acts or omissions of the accused, including specifically the statutes, the canons, or the Disciplinary Rules violated, so as to enable him to know the nature of the charge or charges against him. When more than one act or transaction is relied on, the allegations shall be separately stated and numbered. The complaint need not be verified." (Emphasis added) [4] The term "appearance of impropriety" is not only quite a general term, but it is not clear from the use of that term in Canon 9 whether that canon is intended to proscribe only conduct which has the appearance of impropriety because it may appear to constitute conduct proscribed by some other canon or disciplinary rule (such as conduct constituting an improper conflict of interest) or whether it is intended to proscribe conduct which may appear to be improper without reference to conduct proscribed by any other canon or disciplinary rule (such as being intoxicated in a public place).

5792b9d8e9e30a22f159bd0b5fe251c87ad952e2fc9fd6f5aef52bb999b52934

1980-07-23T00:00:00Z

7bcaf021-a6ad-444f-ad95-5e57bd1b14b8

State v. Moroney

289 Or. 597, 616 P.2d 471

oregon

Oregon Supreme Court

616 P.2d 471 (1980) 289 Or. 597 STATE of Oregon, Respondent, v. Joe MORONEY, Petitioner. CA 14755; SC 26879. Supreme Court of Oregon. Argued and Submitted June 3, 1980. Decided September 10, 1980. Robert M. Johnstone, of Cushing, Johnstone & Peterson, P.C., McMinnville, argued *472 the cause and filed briefs for petitioner. Thomas H. Denney, 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. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE, and PETERSON, JJ. HOWELL, Justice. Defendant was indicted for the crime of assault in the second degree, ORS 163.175. In a trial before the court the defendant was found not guilty of assault in the second degree but guilty of menacing under ORS 163.190. In the Court of Appeals defendant argued that the trial court erred in finding that menacing was a lesser included offense of assault in the second degree. The Court of Appeals affirmed the trial court, 44 Or. App. 513, 606 P.2d 212 (1980). We granted review. On June 3, 1978, defendant joined a party at the Sheridan airport. The party was very noisy and much liquor was consumed. Around midnight a fight broke out between two individuals which immediately involved others at the party, including defendant. There was evidence that defendant struck another participant with his fist. The grand jury of Yamhill County indicted defendant for the crime of assault in the second degree, charging that defendant "did unlawfully and intentionally cause serious physical injury to [another person] by striking [that person] in face and head with his hands and feet * * *." The trial court found the defendant not guilty of assault in the second degree because defendant's conduct did not rise to the level of a felonious assault. The trial court, however, decided that defendant had engaged in criminal conduct and therefore found defendant guilty of menacing.[1] Defendant contends that menacing is not a lesser included offense of assault in the second degree. According to ORS 136.465: This court discussed ORS 136.465 in State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975). We explained: The question before this court, therefore, is whether the crime of menacing, ORS 163.190, is either (1) necessarily included in the statutory definition of the crime of assault in the second degree, ORS 163.175, or (2) expressly included in the crime as charged in the indictment. The crime of menacing, ORS 163.190, is defined as follows: A key element in the crime of menacing, therefore, is that the accused intended to place another person in fear of imminent serious physical injury. Assault in the second degree, ORS 163.175, is defined as follows: Comparing the statutory definitions of the two crimes, we find that the crime of assault in the second degree does not necessarily contain the element of placing another person in fear of imminent physical injury. Neither was the crime of menacing included in the indictment. The indictment alleged that defendant had intentionally caused serious physical injury. The indictment did not allege, however, that defendant had attempted to place another in fear of imminent serious physical injury. We therefore conclude that in the instant case menacing was not a lesser included offense of assault in the second degree. Reversed. [1] The trial court surmised that the prosecutor had "overcharged" defendant in the indictment in order to strengthen the state's position in plea bargaining. Because the facts of the case were "remarkably similar to the typical misdemeanor tavern brawl * * * minus the tavern," the trial court believed that defendant had engaged in criminal conduct that "should not be allowed to escape the scrutiny of the criminal justice system."

5c9b5f5586dfdde5b4fd1da00f1df2708d8aa64e131343ce85669c2c6966f75d

1980-09-10T00:00:00Z

07719922-921e-406b-b9f1-972e6ae13da3

Bartels v. Paulus

293 Or. 47, 645 P.2d 1059

oregon

Oregon Supreme Court

645 P.2d 1059 (1982) 293 Or. 47 John BARTELS, Petitioner, v. The Honorable Norma PAULUS, Secretary of State of the State of Oregon, Respondent. SC 28587. Supreme Court of Oregon. Argued and Submitted April 27, 1982. Decided April 30, 1982. *1060 John Bartels, pro se. Stanton Long, Deputy Atty. Gen., for respondent. With him on the memorandum were David Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., John A. Reuling, Jr., Chief Counsel, Opinion Section, Salem, and Max Rae, Law Clerk. Before DENECKE, C.J., and LENT, LINDE, PETERSON and ROBERTS, JJ. PER CURIAM. A petition to initiate a state measure was filed with the respondent, Secretary of State, pursuant to ORS 250.045. Copies of the prospective petition were sent to the Attorney General, ORS 250.065(2), and that official provided a ballot title for the measure, ORS 250.065(3). In preparing that title, the Attorney General was governed by ORS 250.035, which provides: Pursuant to ORS 250.085, John Bartels ("Petitioner") petitioned this court, seeking a different ballot title and alleging that the title provided by the Attorney General was insufficient and unfair for certain alleged reasons.[1] Petitioner happens to be coordinator of a drive to obtain signatures for another initiative measure concerning similar subject matter. We recently certified to the Secretary of State a title for that other measure.[2]See Pacific Power & Light Co. v. Paulus, 292 Or. 826, 643 P.2d 871 (1982). The Attorney General provided the following title: Petitioner contends that that title is insufficient because it does not state that further legislation would be required to achieve the purposes of the measure. ORS 250.035(1)(b) and (c) command the Attorney General to state in the question and the explanation, respectively, the "purpose" and the "chief purpose" of the measure. That the measure may require further implementing legislation is not a purpose of the measure; therefore, the provided title is not insufficient or unfair in this respect. Petitioner asserts that the provided title is defective for failure to state that some purposes of the measure are not achievable as the measure is drafted by its sponsors. This assertion is directed to a claim of lack of consequence to the measure. As we said in Kegg v. Paulus, 282 Or. 47, 50, 576 P.2d 1255, 1256 (1978), in rejecting a ballot title challenger's contention that certain language must be added to show that the effect of the measure would be prohibition of some apparently desirable conduct: The Attorney General is not required to speculate as to the consequences of passage of a measure in order to provide a title that is concise, impartial, and sufficient to state the measure's purpose. Petitioner avers that the provided title fails to mention that the measure would transfer control over the Oregon Independent Energy Forecast from the Department of Energy to the commission to be created by the measure. The measure would transfer to the new commission all of the functions, powers and obligations of the Department of Energy. The final sentence of the explanation so states. Responsibility for the Forecast is but one of the Department of Energy's important functions. The title cannot be faulted for failure to single out one at the expense of the others. Petitioner complains that the provided title twice mentions lending of money by the new commission. His argument seems to be that the measure, by its own terms, does not speak to authority to make loans. The power to make loans presently residing in the Department of Energy would be transferred to the new commission. To that extent, it would appear that a purpose of the measure is to provide for lending authority by means of the purchase by the commission of revenue bonds of public bodies and cooperatives for the purposes specified in the measure. The purchase of bonds is the lending of money. Petitioner contends that the provided title is flawed in failing to note that only one type of energy conservation program is possible under the measure without further legislation. This is partly a "lack of consequences" argument, which we reject for the same reasons we noted in Kegg v. Paulus, supra. The measure does provide that the *1062 commission is to utilize its authority to accomplish conservation of energy. Certainly, that is a purpose of the measure, and the provided title so states. Finally, the petitioner correctly asserts that many of the words of the provided title are the same as those in the title we certified for the other measure to which we referred, supra, at footnote 2 and accompanying text. Petitioner contends this violates ORS 250.035(2), which provides that the ballot title for one measure shall not resemble the title of another measure "so far as probably to create confusion." Although the apparent purpose of this statutory proscription is to prevent "confusion," it is not so clear what it is that should not be "confused." Obviously, when two or more similar measures are being promoted, a voter who is aware that there are distinct measures should be able to tell, by reading the ballot title, which is which. If a voter is unaware of that fact, a ballot title accurately explaining one measure will not avoid that the voter may be "confused" into signing a petition in the belief that he is supporting the other one. If both measures receive enough signatures to appear on the same ballot, their common elements may require such similar explanations that it may be difficult fully to bring out their differences in the space allowed for a ballot title. In such a situation, all that the ballot title can do is to differ sufficiently in wording to draw the voter's attention to the fact that the voter is being offered two distinct measures on the same subject and with similarly stated purposes. Moreover, we note that this requirement of ORS 250.035(2), although binding on the Attorney General, is not itself a standard for this court's judicial review of the title, unless the probability of misidentification and "confusion" is great enough to make the title "insufficient" or "unfair." We conclude that the difference between the Attorney General's captions for these measures avoids that result to the extent possible. The petitioner has submitted a proposed title; however, since our task is not to find or write a better title than that provided by the Attorney General, but only to test the provided title for insufficiency or unfairness, and we have found neither in this case, there is no need for us to discuss the merits of petitioner's proposed substitute. We certify to the Secretary of State the title provided by the Attorney General. ORS 250.085(3). [1] ORS 250.085(1) provides: "Any person dissatisfied with a ballot title for an initiated * * * measure filed with the Secretary of State by the Attorney General * * * may petition the Supreme Court seeking a different title and stating the reasons the title filed with the court is insufficient or unfair." (Emphasis added) Actually, the title is not "filed with the court" and under a strict reading of the statute there would be nothing for the court to consider; however, we have considered petitions under ORS 250.085(1) in the past and will consider this one. It would seem to be a simple house-keeping matter for the legislature to amend this statute to conform to reality. [2] The title we certified for the other measure was: "RENEWABLE ENERGY DEVELOPMENT AND CONSERVATION ACT "QUESTION: Shall elected commission be created to sell bonds, lend for and develop renewable energy and conservation projects, and wholesale electricity? "EXPLANATION: Creates elected commission authorized to sell bonds, develop renewable energy and conservation projects, operate energy projects, make secured loans for projects, wholesale electricity to consumer-owned utilities, and conduct related activities. Qualified projects of individuals, small businesses, and consumer-owned utilities preferred. Major projects require voter approval. Commission could not develop coal or nuclear plants, lend to investor-owned utilities. Requires protection of environment. Commission property subject to taxation. Appropriates startup funds, repayable with interest."

a58811ab87ac2d0fc5e436b89730bfeedc0e3627796b3e08dcab83baab7dd8f0

1982-04-30T00:00:00Z

526f7524-304c-44d6-894a-8298091c3632

State v. Carsner

289 Or. 645, 616 P.2d 491

oregon

Oregon Supreme Court

616 P.2d 491 (1980) 289 Or. 645 STATE of Oregon, Respondent, v. Edward J. CARSNER, Petitioner. TC J79-0816; CA 14826 and SC 26931. Supreme Court of Oregon, In Banc. Argued and Submitted June 24, 1980. Decided September 10, 1980. Richard A. Cremer, Roseburg, argued the cause for petitioner. On the brief was Joan Glawe Seitz, Asst. Public Defender, Roseburg; on the petition was Thomas C. Bernier, Asst. Public Defender, Roseburg. Robert C. Cannon, 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. *492 TANZER, Justice. The defendant's conviction for driving while his operator's license was revoked and two counts of driving under the influence of intoxicants[1] was affirmed by the Court of Appeals.[2] He contends that the sentence is invalid because the trial court failed to provide him with a copy of the presentence report, and we allowed review to examine that contention. Defendant waived counsel and pleaded guilty to all three charges. The court ordered a presentence report. At sentencing, the court did not make a copy of the presentence report available to the defendant. Instead, the court stated: This court has held that strict compliance with statutes regulating sentencing procedures is mandatory unless literal application of the statutes would produce absurd results. As we said in State v. Biles, 287 Or. 63, 597 P.2d 808 (1979): The controlling statute in this case is ORS 137.079 which directs that a copy of the presentence report be made available to the defendant and provides specific procedures for the protection of confidential portions of the report.[3] Instead of providing a copy to the defendant, the court read, paraphrased, summarized and explained the report to the defendant and allowed him to respond or ask questions. The court did so in a full and impartial manner that was obviously designed to make the process meaningful to the defendant. There is no suggestion that the court acted in a misleading manner. Because the defendant is illiterate and of limited intelligence, the Court of Appeals concluded that the trial court had adopted "an acceptable alternative" to statutory compliance. We disagree with that conclusion for two reasons. First, the introductory statement by the trial court indicated that it would not furnish a copy because of the confidential nature of the report. Subsections (2) and (3) of ORS 137.079 provide a means for the protection of confidential portions of the report. It does not allow for withholding of the entire report. To have done so for that reason was error. Second, the special circumstances of the defendant's limited understanding did not excuse the court from compliance with the statutory requirement that defendant be furnished a copy. The court's oral review of the report with the defendant is a commendable device for imparting understanding to the defendant. It is particularly *493 appropriate where, as here, the defendant's ability to understand is limited, and it is our intention to encourage rather than to discourage such practices. The desirability of oral discussion with the defendant, however, does not relieve the court of the statutory necessity of providing a copy to him prior to the hearing. An illiterate defendant who has waived counsel may prefer, for example, to have the report read to him by a friend or relative and the procedure established by the statute would enable him to do so. Compliance with the statutory procedure is mandatory. Other informative procedures can complement the statutory procedure, but they cannot substitute for it. In summary, absent a waiver, there is no acceptable alternative to compliance with ORS 137.079. When the legislature has specified a procedure by enacting it into law, then, unless literal application of the statute would be absurd due to exceptional circumstances, we shall require that the statutory procedure rather than judicially created alternative procedures be followed. Reversed and remanded for resentencing. [1] ORS 487.560(6) and 487.540(1), respectively. [2] State v. Carsner, 45 Or. App. 115, 608 P.2d 560 (1980). [3] ORS 137.079: "(1) A copy of the presentence report and all other written information concerning the defendant that the court considers in the imposition of sentence shall be made available to the district attorney, the defendant or his counsel a reasonable time before the sentencing of the defendant. All other written information, when received by the court outside the presence of counsel, shall either be summarized by the court in a memorandum available for inspection or summarized by the court on the record before sentence is imposed. "(2) The court may except from disclosure parts of the presentence report or other written information described in subsection (1) of this section which are not relevant to a proper sentence, diagnostic opinions which might seriously disrupt a program of rehabilitation if known by the defendant, or sources of information which were obtainable with an expectation of confidentiality. "(3) If parts of the presentence report or other written information described in subsection (1) of this section are not disclosed under subsection (2) of this section, the court shall inform the parties that information has not been disclosed and shall state for the record the reasons for the court's action. The action of the court in excepting information shall be reviewable on appeal."

1a373f106f7655cc21cdd9a285ec592dda33ea7f66aab5b9e0bca102505f2794

1980-09-10T00:00:00Z

2ef0efda-14b1-482b-b7d5-c103c884208e

Gettman v. State Acc. Ins. Fund

289 Or. 609, 616 P.2d 473

oregon

Oregon Supreme Court

616 P.2d 473 (1980) 289 Or. 609 In the Matter of the Compensation of Harry GETTMAN, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Respondent. WCB Nos. 78-4221 & 78-4222; CA 15318; SC 26853. Supreme Court of Oregon, In Banc. Argued and Submitted June 26, 1980. Decided September 10, 1980. *474 Richard A. Sly, of Bloom, Ruben, Marandas & Sly, Portland, argued the cause and filed the brief for petitioner. Darrell E. Bewley, Associate Counsel of Attorneys, SAIF, Salem, argued the cause for respondent. With him on the brief were K.R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, SAIF, Salem. Steven C. Yates, Evohl F. Malagon, and Malagon & Yates, Eugene, filed a brief amicus curiae for the Oregon Trial Lawyers Association. LENT, Justice. The issue in this workers' compensation case is whether a claimant's potential for retraining justifies denying him an award of compensation for permanent total disability. The record discloses the following undisputed facts. The claimant is a 59 year old man who worked as a laborer and park attendant for the Portland Parks Bureau for 27 years. On March 16, 1977, claimant suffered a back injury in a fall at work. The claimant could not return to his former job. On April 21, 1978, the Workers' Compensation Department (Department) ordered State Accident Insurance Fund (SAIF) to pay claimant compensation equal to 35% permanent partial disability for the unscheduled back injury. Claimant did not immediately request a hearing; rather he applied for vocational rehabilitation assistance, but the Department in August, 1978, refused to grant a referral to the Vocational Rehabilitation Division. Such a referral is necessary for a claimant to receive authorized vocational rehabilitation services. See ORS 656.728; OAR 436-61-015. The Department instead referred the claimant to a Service Coordinator in the Field Services Division, who assists persons through direct job placement and on-the-job training. The Service Coordinator told the claimant that considering his age, it would be foolish to seek training of any kind. In November 1978, the claimant requested a hearing before the Workers' Compensation Board's (Board) Hearings Division to consider, among other issues, the refusal to refer him for vocational training and the determination of the extent of his disability. A referee held a hearing on January 16, 1979, and issued an order that claimant was permanently totally disabled. SAIF requested Board review and on July 24, 1979, the Board reduced the permanent total disability award to a 60% permanent partial disability award for the unscheduled back injury. The Board's action was at least partly because the Board found claimant to have a "potential for retraining." The Court of Appeals affirmed without opinion. 44 Or. App. 295, 607 P.2d 231 (1980). This court allowed review ORS 2.520, 289 Or. 209 (1980), to consider the issue posed at the outset of this opinion and a seeming departure by the Court of Appeals from the sense of its opinion in Leedy v. Knox, 34 Or. App. 911, 581 P.2d 530 (1978). Before turning to direct consideration of the issue posed, however, we should make clear what it is that we are doing. We do not review the evidence to arrive at independent findings of fact. Weller v. Union Carbide, 288 Or. 27, 602 P.2d 259 (1979); Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971). The Court of Appeals, on the other hand, not only reviews Board orders for errors of law but, also, exercises a fact finding function. ORS 656.298. We would not have allowed review if we believed that the Court of Appeals had affirmed the Board in this case by exercise of the fact finding function, that is, that the court had evaluated the evidence under the correct rule of law and *475 found claimant not to be permanently totally disabled. The circumstances suggest to us, however, that the Court of Appeals may have affirmed the Board as the result of an erroneous interpretation of the law. In Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978) the Court of Appeals explained that it believed that little was to be gained by extended opinions in workers' compensation cases where the record presented only questions of fact. In Hoag v. Duraflake, 37 Or. App. 103, 585 P.2d 1149 (1978) the Court of Appeals reaffirmed that it would not publish extended opinions in such cases. Since that time the Court of Appeals has often indicated that it had exercised only its fact finding function in workers' compensation cases by deciding a given case without opinion but citing Bowman or Hoag, or both. In the case at bar the Court of Appeals affirmed without opinion and did not cite any authority which would justify us in assuming that the court had merely exercised its fact finding function. We are aware that lawyers practicing in the field of workers' compensation often resort to the Board's Orders on Review for guidance in representing clients at the administrative level. Those Orders are collected in an unofficial service, Van Natta's Workers' Compensation Reporter, and the Order on Review in the case at bar may be found at 27 Van Natta 524. It could well appear to the bench, bar, public and Board that the Court of Appeals has approved the Board's erroneous concept of the law with respect to the place "potential for retraining" is to occupy in determining whether a worker is permanently totally disabled.[1] For that reason we find allowing review is justified. The relevant statute in this case is 656.206(1)(a) which defines "permanent total disability" and "suitable occupation": The claimant argues that the Board reduced his award based on an erroneous interpretation of ORS 656.206(1)(a) regarding a "suitable occupation." The Board's opinion stated in part: The Court of Appeals in Leedy v. Knox, 34 Or. App. 911, 581 P.2d 530 (1978) addressed a related issue. In that case the claimant was found to be eligible for vocational rehabilitation. The Board affirmed the referee's decision to defer permanent disability benefits until claimant had completed or abandoned vocational rehabilitation efforts. The Court of Appeals reversed, holding that the legislative scheme required an award to be made based upon "then existing conditions." 34 Or. App. at 921, 581 P.2d 530. The court noted that an award would be subject to review and adjustment when the claimant completed or abandoned the rehabilitation program. In this case the claimant was found ineligible for vocational rehabilitation services, yet the Board reduced his award considering his "potential" for retraining. ORS 656.206(1)(a) as quoted above provides that a "suitable occupation" includes one which the claimant "is able to perform after rehabilitation." We conclude that the language of this statute, which speaks in the present tense, precludes cancellation of a permanent total disability *476 award based upon a speculative future change in employment status. In other words, whether this claimant is permanently totally disabled must be decided upon conditions existing at the time of decision, and his award of compensation for permanent total disability can be reduced only upon a specific finding that the claimant presently is able to perform a gainful and suitable occupation. The legislative provision in ORS 656.206(5)[2] for periodic reexamination of each permanent total disability award further indicates that a permanent total disability award is based upon existing occupational abilities. That award can be adjusted if the claimant is no longer permanently incapacitated from regularly performing work at a gainful and suitable occupation.[3] As we have had occasion to note in the past, Inkley v. Forest Fiber Products Co., 288 Or. 337, 345, 605 P.2d 1175, 1179 (1980), the Board's misinterpretation of law may prejudice its findings of fact. Because we cannot ascertain from the Board's order whether it would have reached the same result, in the exercise of its fact finding function, had it applied the correct rule of law, we believe, as we did in Inkley, that the matter must be remanded to the Board to consider the evidence in light of this opinion.[4] Reversed and remanded to the Court of Appeals with instructions to remand to the Workers' Compensation Board. LINDE, Justice, concurring. In this case and in Rogers v. SAIF, also decided today, the court begins by dealing with the problem of review when the decision below could rest on one of several grounds and the Court of Appeals has written no opinion. Workers' compensation cases are a common but not the only kind of cases in which this question can be decisive of the case and therefore of whether a petition for review should be allowed or even attempted. As I understand it, the court reads explanations offered by the Court of Appeals in its published opinions and its statement of internal practices to mean that when that court only cites Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978), its decision rests solely on its de novo review of the facts, and when it only cites a statute or another prior decision, this signals a decision based on an issue of law which this court may then wish to consider for possible review. While the use of such citations can be deciphered even by the uninitiated, it leaves in doubt the basis of decision in a case such as the present, which was decided without any citation whatever. This leaves parties contemplating a possible petition for review and this court to speculate whether the decision hinged on a disputed legal question. Moreover, while the bare presence or absence of a citation may convey to specialists in a given field the implication that we draw from it here, cases are not tried or appealed only by specialists. Others need to be able to know whether a petition for *477 review to this court would be a wasted gesture because the decision rests on a factual determination beyond review here, independent of any disputed legal issue. For these reasons it would be helpful, and perhaps not incompatible with the need to forego opinions in purely factual disputes, to indicate by some brief formula beyond the mere omission of a citation that a legal issue raised by the losing party was not material to the decision. The opening and closing sentences of the brief notation in Hoag v. Duraflake, 37 Or. App. 103, 585 P.2d 1149 (1978), cited by the court, shows how short such a formula can be. [1] See, also, Rogers v. SAIF, 289 Or. 633, 616 P.2d 485 (1980) (decided this date) for further discussion of the effects of Court of Appeals' decisions without opinion or merely with citation. [2] 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 prescribe. 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." [3] We have no occasion in this case to express any opinion as to the effect upon an award of compensation for permanent total disability which might arise from a claimant's unreasonable refusal to undertake or complete an offered course of vocational rehabilitation. [4] The procedural posture of this case is not that which obtained in Hutcheson v. Weyerhaeuser, 288 Or. 51, 602 P.2d 268 (1979), in which we could ascertain the result which had to follow in light of our reversal of the decision of the Court of Appeals. In Hutcheson the findings by the Board established compensability of the claim under the rule of law which this court there expounded.

f7bd054db98969e150caf071cf9791e4876dd3179f7bd05f2a7a1561893d5137

1980-09-10T00:00:00Z

8bb251ea-8196-44d2-b8f4-91dfc223c3bf

Dowers Farms, Inc. v. Lake County

288 Or. 669, 607 P.2d 1361

oregon

Oregon Supreme Court

607 P.2d 1361 (1980) 288 Or. 669 DOWERS FARMS, INC., an Oregon Corporation, Petitioner, v. LAKE COUNTY, Oregon, Respondent. CA 11232; SC 26249. Supreme Court of Oregon. Argued and Submitted December 4, 1979. Decided March 18, 1980. *1362 John P. Conley, Portland, argued the cause for petitioner. On the brief was James H. Phelps, Madras. G. Kenneth Shiroishi, Portland, argued the cause for respondent. On the brief was Howard K. Beebe, Portland. Before DENECKE, C.J., and HOLMAN,[*] HOWELL, LENT, LINDE,[**] and PETERSON, JJ. LENT, Justice. This case arises under the statutes providing for tort actions against public bodies (herein the Tort Claims Act). ORS 30.260 to 30.300. Two issues are presented. The first is whether the two year period of limitations, ORS 30.275(3), runs from the date of the incident precipitating plaintiff's injury[1] or from the date when the plaintiff discovers the injury.[2] We hold that it runs from the date of the discovery. The second issue is whether there is evidence from which it could be found that plaintiff complied with the notice requirements of ORS 30.275(1). We hold there was not and therefore affirm the Court of Appeals' reversal of the trial court judgment for plaintiff. Prior to answering in the trial court, defendant demurred to the amended complaint on the ground that "[i]t appears from the face of the Amended Complaint that the action was not commenced within the time limited by statute."[3] The demurrer was overruled. Upon trial, after both parties had rested defendant timely moved for a directed verdict on the ground The motion was denied. Plaintiff had judgment upon a jury verdict. On appeal defendant assigned as error the overruling of its demurrer and the denial of its motion. The Court of Appeals reversed, holding that the statute of limitations begins to run from the date of the incident precipitating the injury rather than the date upon which the resulting injury is discovered.[5]Dowers Farms, Inc., 39 Or. App. 685, 593 P.2d 1207, reconsid. den. with opinion, 40 Or. App. 647, 595 P.2d 1385 (1979). We allowed review, ORS 2.520, to consider that holding. In its amended complaint plaintiff alleges that on March 11, 1975, defendant sprayed herbicide upon a country road bordering upon plaintiff's land, that the spray drifted onto plaintiff's land and destroyed plaintiff's potato crop, and that plaintiff first discovered the injury on July 15, 1975. This action was commenced on June 14, 1977, which is more than two years from the date of defendant's spraying but less than two years from the date of plaintiff's discovery of the resulting injury. As pertinent to the statute of limitations issue, ORS 30.275(3) provided at the time this case was filed: The first order of inquiry is whether the meaning intended by the legislature for the words "accident or occurrence" is "not ambiguous" as the Court of Appeals held, 39 Or. App. at 689, 593 P.2d at 1209.[6] We note that the definitions section, ORS 30.260, does not include the term "accident or occurrence." When the Tort Claims Act was enacted in 1967, Or. Laws 1967, ch. 627, the word "accident" did not appear at all. The word "occurrence" appeared twice in Section 4 (codified as ORS 30.270) which limited liability to "$300,000 for any number of claims arising out of a single occurrence" and provided for apportionment of awards and settlements among claimants "for all claims arising out of the occurrence." Section 5 (codified as ORS 30.275) did not employ either word: It is plain that the limitation for commencing action was pegged to the giving of notice, in turn pegged to the date of "loss or injury." At the very next general session the legislature made changes with respect to the language concerning the period of limitation, Or. Laws 1969, ch. 429, § 3, by amending ORS 30.275 to the form applicable to this case. The amendments to subsections (1) and (3) follow (with deleted matter in brackets and new matter in italics):[7] Plaintiff contends that the 1969 amendments to ORS 30.275 were intended to "liberalize" the statute with respect to the period of limitations because the original notice period was extended from 45 to 180 days and a two-year period of limitations was provided in place of the assertedly maximum period of one year and 45 days in the 1967 version. Defendant argues, however, that exactly the opposite was the legislative concern in that action could be commenced at any time up until one year from giving of notice and, since the time for giving of the notice did not commence to run until discovery of a "latent" or "undiscovered" loss or injury, there was prior to the 1969 amendments "an unlimited time liability." Defendant further argues that the two-year period was intended to provide a "statute of ultimate repose." While each argument has merit neither really addresses the meaning of "accident or occurrence." Our own examination of the statutory scheme, however, brings us to the conclusion that the meaning of the term "accident or occurrence" is not plain on its face and therefore requires judicial construction. *1365 The parties have not referred us to any legislative history which squarely points to the intent of the legislature in injecting the term "accident or occurrence" into ORS 30.275. Neither has our own research been of avail in this respect. As noted above the word "occurrence" had been used in the 1967 Act. The 1969 amendments for the first time injected the word "accident" into the Tort Claims Act in amendments to ORS 30.270 as well as to 30.275(3) as set forth above. In each place where the word "accident" was added it was done so as a part of the term "accident or occurrence." The 1969 amendment to ORS 30.275(3) provides the modifier "such" immediately preceding "accident or occurrence." That would indicate that the term is used in the same sense as a previous usage. As noted above there is no previous usage of the term in ORS 30.275, but there is a usage of the term in ORS 30.270 as simultaneously amended in 1969 (deleted matter in brackets and new matter in italics): The apparent concern of the amendments is to shift the pegging of the monetary limitations to a total limitation for each "accident or occurrence" rather than to the claim or claims arising out of an accident or occurrence. In enacting those amendments, however, the legislature first introduced the term "accident or occurence," which occurs four times in Or. Laws 1969, ch. 429. We find it most logical to conclude that the word "such" modifying the term in the fourth use, now codified in ORS 30.275(3), refers back to the first three uses of the term in the preceding section of the amendments, now codified in ORS 30.270. Did the legislature intend any different meaning to be assigned to "accident" than to "occurrence"? The amendments to ORS 30.270 deleted the word "occurrence" in one of the two places in which it appeared in the original version but left the other, which is the last word in the section. Since the legislature did not insert "accident or" immediately prior to "occurrence" in that place but allowed "occurrence" to be used in the same sense that "accident or occurrence" was used in the amendments to subsection (1), we hold that the two words are used as having a single referent. The next inquiry is whether there is anything in the section (ORS 30.270) where the term is first used three times to indicate what the legislature intended by the term. We find there is. Each subsection in that code section is concerned with the monetary limit on a claim or claims arising out of some event. Subparagraphs (a), (b) and (c) *1366 of subsection (1) describe that event as being a "single accident or occurrence." Subsection (3) describes that event as being "the occurrence," which we have decided means the same as "accident or occurrence" in subsection (1). Subsection (2) describes that event as being "the same tort." The context in which each descriptive term is used makes it appear to us that the legislature has simply used various terms to describe the same event. It follows that the terms may be used interchangeably and the statute may be read as if in each subsection the term "the same tort" were used. Accordingly the term "such accident or occurrence" used in ORS 30.275(3) may be read as if it said "the tort." As Prosser tells us in the first sentence of his handbook on the Law of Torts, "A really satisfactory definition of a tort has yet to be found." W. Prosser, Law of Torts, p. 1 (4th Ed. 1971).[8] Certain characteristics common to tort actions, however, are a breach of a legal duty, and a resulting injury to the victim in his person, property, reputation or other protected interest that will support recovery in an action at law for damages. Cf., W. Prosser, supra at pp. 4-5. We have concluded that the term "such accident or occurrence" used in ORS 30.275(3) may be read as if it said "the tort." It follows that there is no "accident or occurrence" unless the result is injury capable of compensation in an action for damages. It remains then to determine at what point in time the "accident or occurrence" occurred under the allegations of this amended complaint for purposes of the two-year statute of limitations in ORS 30.275(3). The defendant maintains that the statute of limitations should start to run from the date of the spraying. The plaintiff maintains that the statute of limitations should start to run when the injury was discovered. The defendant argues that this court has stated that statutes which waive governmental immunity and impose liability on public bodies should be narrowly construed. The cases which defendant cites for this proposition, however,[9] were decided before the enactment in 1967 of Oregon's Tort Claims Act, ORS 30.260 to 30.300. The Oregon Constitution, Art. IV, sec. 24,[10] protects the state from "suit" unless the legislature provides a cause of action. The courts construed the immunity of the state in Art. IV, sec. 24, to include immunity for the political subdivisions of the state. See, e.g., Hale v. Smith, 254 Or. 300, 308, 460 P.2d 351 (1969); Rapp v. Multnomah County, 77 Or. 607, 610, 152 P. 243 (1915). Because public bodies were generally immune from "suit," specific statutes which provided a cause of action against public bodies in limited situations were narrowly construed by the courts. See, e.g., Clary v. Polk County, 231 Or. 148, 150-153, 372 P.2d 524 (1962). The courts could not judicially abolish the unpopular and often harsh doctrine of governmental tort immunity. Cf., State v. Shinkle, 231 Or. 528, 373 P.2d 674 (1962). In 1967, the Oregon legislature followed the modern trend and passed the Tort Claims Act, thus partially abolishing tort immunity for all public bodies. The drafters of Oregon's Tort Claims Act chose an "open-end" approach, making the government generally liable with exceptions, as opposed to a "closedend" approach, making the government *1367 generally immune with exceptions.[11] ORS 30.265(1) provides: We believe that the Tort Claims Act was intended to be remedial legislation, allowing all citizens to seek redress for any tort committed by their governments, except for the specific immunities listed in the statutes. Cf., W. Prosser, Law of Torts, § 131, pp. 984-987 (4th Ed. 1971). A narrow statutory construction of the provisions of the Tort Claims Act would be contrary to its general remedial purposes. We have in mind that before us is a cause allegedly arising from negligence of the defendant. See n. 1, supra. There is no legislative history to tell us that the legislature intended the courts to apply different rules with respect to fixing the point in time when the limitation period commences to run in causes of action for damages for negligence under the Tort Claims Act than in such causes outside the Act.[12] We had occasion to discuss in some detail the time from which the period of limitations should commence to run in such a cause in U.S. Nat'l Bank v. Davies, 274 Or. 663, 666-668, 548 P.2d 966 (1976) and concluded that "in a negligence case the statute of limitations should never start to run until the occurrence of the harm." 274 Or. at 668. We went on to hold that the harm occurred when the plaintiff was aware, or should have been aware, that the harm was caused by the defendant. Similarly, in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), we held that a cause of action for medical malpractice does not accrue until the patient becomes aware or should have become aware of the injury. Cf., Frohs v. Greene, 253 Or. 1, 452 P.2d 564 (1969).[13] In Schiele v. Hobart Corporation, 284 Or. 483, 587 P.2d 1010 (1978), this court concluded that the statute of limitations on claims involving negligent infliction of occupational disease begins to run when a reasonably prudent person associates the symptoms with serious damage and at the same time perceives the defendant's role in inducing the injury. The logic of those cases requiring injury and a reasonable opportunity for discovery of the cause of the injury before the statute of limitations begins to run is equally applicable to the two year limitation period in ORS 30.275(3). To hold otherwise would impose an unreasonably narrow construction on the limitation period of the Tort Claims Act that would contravene both the policy of our case law on limitations periods and the legislative policy in Oregon allowing citizens to seek redress for torts committed by their governments. We therefore hold that the statute of limitations in ORS 30.275(3) did not begin to run in this case until the plaintiff discovered that the young potato plants were deformed. Our holding on the statute of limitations issue revives defendant's claim of error for denial of its motion for directed verdict. This requires us to determine whether we can affirmatively say there is no evidence to support a finding that plaintiff complied with the 180 day notice requirement *1368 of ORS 30.275(1). Or.Const. Art. VII (Amend.), § 3. At the time applicable to this case that subsection required that a person claiming damages against a county under the Tort Claims Act "shall cause to be presented" written notice of his claim to the county within 180 days after the alleged loss or injury.[14] The claimant was required to cause notice to be presented to the person upon whom "process" could be served under then ORS 15.080(2).[15] That subsection required that "summons" was to be served in an action There is evidence from which the jury could find the following facts most favorable to the plaintiff, and we are, therefore, bound by such facts. Shepler v. Weyerhaeuser Company, 279 Or. 477, 484, 569 P.2d 1040 (1977). On approximately July 15, 1977, Mr. Lanier, plaintiff's manager, first noticed that the potatoes planted in May, 1975, were producing deformed plants. Lanier reported this to a Mr. Dowers and then contacted a Mr. Humphrey,[16] who came out and inspected the field. In the first part of August Lanier went to the county seat and talked to "Paul McCormick at the Extension Office."[17] McCormick referred Lanier to a Mr. Steward,[18] who was apparently the administrative assistant to the board of county commissioners. Steward told Lanier that the county road department had affirmed that the department had conducted the spraying. Lanier did not talk to anyone else "in the County" about the matter. Steward informed Lanier that Steward would take care of the problem. Later, on or about August 18, Lanier mailed a written report[19] of the matter to "the road department" at Humphrey's recommendation. Mr. Lawson, roadmaster of the county road department was notified of the "spray claim" by Steward. Lawson notified the "Extension Agent."[20] The extension *1369 agent investigated the matter. Lawson testified that it was up to the extension agent "to check it and see if any damage and what damage there was done." Quite obviously plaintiff did not comply with the statutory requirement of causing written notice to be presented to the party specified in ORS 15.080. The pertinent parts of ORS 30.275(1) and 15.080 required that a claimant should cause the notice to be presented to the county clerk and to no one else. Plaintiff has presented this case to us as if it were against the board of county commissioners or the road department of the county. It is not. It is against the county, and the statutes are clear. Notice should have been caused to be presented to the county clerk.[21] Prior to the 1969 amendments to the Tort Claims Act, ORS 30.275(1) required that notice in a claim against the county was to be caused to be presented to the "governing body of" the county. For the sake of argument we shall assume that oral notice here was caused to be presented to the governing body, i.e., the board of county commissioners, by presentation to Mr. Steward in his capacity as administrative assistant to that board, but there is no evidence that written notice was presented even to him. The written notice relied upon by plaintiff to satisfy the statute was presented to the county road department, an agency never specified by the legislature to be a proper recipient. Not only was no written notice ever caused to be presented to the board, but the legislature had apparently made a conscious choice in the 1969 amendments to require a claimant to cause notice to be presented to the county clerk when the claim is against a county.[22] We are not aware of the precise reasons for that legislative change, but it may well have been that the legislature was aware that many counties had procured liability insurance, Or. Laws 1967, ch. 627, § 6, against such claims and that the county clerk was the choice of the legislature to maintain liaison with the county's insurer with respect to such claims.[23] Whatever the reason, it is clear that the legislature chose that particular county officer and rejected its earlier choice of the board of county commissioners. We are mindful of the contention that the Court of Appeals and this court have held substantial compliance to suffice when strict compliance did not occur. For this, plaintiff cites Croft v. Gulf & West. Highway Comm., 12 Or. App. 507, 506 P.2d 541 (1973) and Urban Renewal Agency v. Lackey, supra. In Croft the claim was urged against the "State Highway Commission," and claimant's written notice was presented to the regional engineer of the State Highway Department, who in turn forwarded the information to the chief counsel of the Department. That worthy referred it to the Department's liability insurer, which was, by its contract, the party which would have financial responsibility. The Court of Appeals noted in holding that there was compliance with the statute, that claimant was not asserting liability against the members of the Highway Commission personally but against the "public agency." The Court of Appeals noted an apparent split of authority among other jurisdictions concerning the matter but was apparently content with the fact that in Croft the ultimately, financially responsible party had written notice. In Urban Renewal Agency we held that a counterclaim asserting liability against the *1370 public agency was sufficient to comply with the statutes. The case is one in which the notice was presented quite directly to the responsible agency through the agent (the plaintiff's counsel) selected by the public agency to deal with the matter. Here the record is completely devoid of evidence that the legislatively designated agent of the county, i.e., the county clerk was ever given any notice of the claim. Likewise there is no evidence that anyone responsible for deciding whether, or how much, to pay, or even for payment, was given the required notice. The legislative requirement that written notice be caused to be given to the county clerk in a claim against the county is not a difficult one with which to comply. We can affirmatively say there is no evidence to support a jury finding of compliance, Or. Const. Art. VII (Amend.), § 3, with this rather straightforward, necessary requirement. Affirmed. [*] Holman, J. retired January 21, 1980, and did not participate in this opinion. [**] Linde, J. did not participate in this opinion. [1] The amended complaint was in two counts. The first count asserted the right to recover on the ground that the spraying of herbicides is an ultra hazardous activity. The second count asserted that defendant was negligent in allowing the herbicide spray to enter upon plaintiff's land and thereby injure the potato crop. In the course of argument and decision in the trial court on both the demurrer to the complaint and to the amended complaint, the parties and the court treated the case as being one in nonintentional trespass. Compare, Loe et ux. v. Lenhardt et al., 227 Or. 242, 362 P.2d 312 (1961). On appeal defendant referred to the alleged wrong as being trespass. All concerned at each stage of this case have treated the case as one seeking damages for injury to the potato crop and not for breaking the close as such. For the purpose of deciding whether the demurrer was properly overruled, therefore, we treat the amended complaint as asserting a negligent trespass. Compare, Loe et ux. v. Lenhardt et al., supra; Prosser, Torts (4th Ed.), § 7, pp. 28-29. [2] The facts alleged in the amended complaint and admitted by demurrer, U.S. Nat'l Bank v. Davies, 274 Or. 663, 665, 548 P.2d 966 (1976), do not show that plaintiff, in the exercise of reasonable care, should have discovered the injury to its potato crop earlier than it actually made such discovery. [3] At the time of pleading in this case ORS 16.260 provided: "The defendant may demur to the complaint * * * when it appears upon the face thereof: "* * * "(6) That the complaint does not state facts sufficient to constitute a cause of action; or "(7) That the action has not been commenced within the time limited by statute." Defendant also demurred upon the basis of ORS 16.260(6) and that demurrer was overruled, but defendant does not assign that ruling as error. ORS 16.260 has since been repealed, Or. Laws 1979, ch. 284, § 199. Demurrers are no longer to be used to raise such legal issues, ORCP 13 C. ORCP 21 A provides for raising such issues by motion to dismiss. In a proper case the statute of limitations may be raised as an affirmative defense, ORCP 19 B. Cf., ORS 12.010. [4] Defendant also moved for directed verdict upon the basis that the face of the amended complaint affirmatively showed that the action was not commenced within the time limited by statute. That motion was denied but defendant, having raised the legal issue by assigning error for overruling of its demurrer on that same ground, does not assign the denial of the motion on that basis as error. [5] Because that holding was dispositive the Court of Appeals had no occasion to consider the denial of the motion for directed verdict. [6] Plaintiff contends that the Court of Appeals necessarily found the term to be ambiguous by the very act of publishing an explanatory opinion, Dowers Farms, Inc. v. Lake County, 40 Or. App. 647, 595 P.2d 1385 (1979). In light of our independent conclusion concerning ambiguity, we do not reach that contention. [7] Subsection (2) continued in its original form until amended by Oregon Laws, 1979, chapter 284, section 64, in a particular not important to this case. [8] Cf., Urban Renewal Agency v. Lackey, 275 Or. 35, 38, 549 P.2d 657 (1976); State ex rel. McKenna v. Bennett, 28 Or. App. 155, 159, 558 P.2d 1281 (1977); and Restatement, Second, Torts, § 6. [9] Defendant cites Clary v. Polk County, 231 Or. 148, 152-153, 372 P.2d 524 (1962); Schrader v. Veatch et al., 216 Or. 105, 107, 337 P.2d 814 (1959); Hillman v. North Wasco Co. PUD, 213 Or. 264, 309-310, 232 P.2d 664 (1958). [10] Or.Const. Art. IV, § 24: "Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution; but no special act authorizeing [sic] such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed." [11] Lansing, The King Can Do Wrong! The Oregon Tort Claims Act, 47 Or.L.Rev. 357, 359 (1968). [12] There are, of course, many different rules not applicable to this case set forth in the Tort Claims Act. [13] United States Courts of Appeals have applied this approach to medical malpractice claims under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), which bars any tort claim against the United States unless written notice is given "within two years after such claim accrues." See, e.g., Quinton v. United States, 304 F.2d 234 (5th Cir.1962); Hungerford v. United States, 307 F.2d 99 (9th Cir.1962). Cf., United States v. Kubrick, ___ U.S. ___, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979), in which the Supreme Court recently held that a claim "accrues" under the Federal Tort Claims Act when the plaintiff is aware of the existence and probable cause of the injury. [14] We are not concerned in this case with the time for presenting the notice; our concern is with the manner of presentation. [15] In 1975 ORS 30.275(1) was amended to require that the notice was to be caused to be presented to a person upon whom process could be served in accordance with ORS 15.080(3), Or. Laws 1975, ch. 604, § 1a. See, also, Or. Laws 1975, ch. 609, § 14, and for the present requirement Or. Laws 1979, ch. 284, § 64, providing for causing presentation of the notice to the person upon whom process can be served under ORCP 7 D.(3)(d). The parties have raised no issue concerning the use of the word "process" in ORS 30.275 as if it included "summons," with which ORS 15.080 deals. The court has found summons to be apart from process because summons is not required to be issued by a court or officer thereof. Bailey v. Williams, 6 Or. 71 (1876). See, Whitney v. Blackburn, 17 Or. 564, 21 P. 874 (1889). Compare, Comment to ORCP 8. [16] Mr. Dowers' connection with the case is not otherwise identified in the record on appeal. A natural inference is that he had something to do with ownership or management of the plaintiff. Mr. Humphrey is not identified as to function by anything in the record on appeal. [17] As far as the record on appeal is concerned Mr. McCormick's role and function is not identified in the record on appeal. We suppose the jury could infer he had some official function in that office. [18] Lanier identified Steward as the "Administrative Assistant." The parties on appeal have treated Steward as being the administrative assistant to the board of county commissioners of the defendant county. We shall do the same. [19] The defendant concedes that the contents of the written report were sufficient to satisfy the statute if the report had been presented to the proper person. [20] It is not clear from the record on appeal whose officer, agent or employe was the extension agent. On cross-examination Lawson testified that the extension agent is "with the State," but it is not clear whether this testimony was given when the jury was present. We believe that this extension agent was probably an employee of the state. See, ORS, ch. 566. In this same respect plaintiff has drawn our attention to certain testimony of Steward in which he stated that he was "available" to "take complaints from citizens." From the transcript of proceedings it appears that all of Steward's testimony was taken out of the presence of the jury; therefore, we are puzzled as to its value but will assume, arguendo, that it is true insofar as it aids plaintiff. [21] The pertinent part of ORS 15.080 is not new. It is to be found in Deady's Code of 1862, § 54(2). It was carried forward to Lord's Oregon Laws, § 55, which this court noted required that summons was to be served in an action against the county upon the county clerk. Holland-Washington Co. v. County Court, 95 Or. 668, 678, 188 P. 199 (1920). [22] This case does not present any question concerning a "home rule" county. [23] There is no evidence in this case that the county had liability insurance against this claim, and our holding is not premised on such a state of facts. We mention the possibility only as a reason the legislature may have amended the Act as discussed.

58f2fbbd8dfbb73bb7eac302627f52c507612cfa585376c8c12d9db92529f59e

1980-03-18T00:00:00Z

20980702-1cab-4548-bbea-8d195bb11efd

South State Inv. Co. v. Brigum

289 Or. 109, 611 P.2d 305

oregon

Oregon Supreme Court

611 P.2d 305 (1980) 289 Or. 109 SOUTH STATE INVESTMENT COMPANY, Petitioner, v. Tomwillina BRIGUM, Respondent. No. 179143; CA 14553; SC 26698. Supreme Court of Oregon. Argued and Submitted March 4, 1980. Decided May 20, 1980. Rehearing Denied June 17, 1980. Donald H. Joyce, Portland, argued the cause and filed the brief for petitioner. Dana R. Taylor, Portland, argued the cause and filed the brief for respondent. Before DENECKE, C.J., and TONGUE, HOWELL, LENT and PETERSON, JJ. TONGUE, Justice. Plaintiff initiated an FED action in the District Court of Multnomah County on May 4, 1978, to recover possession of an apartment leased to defendant. (ORS 105.105 et seq.) Plaintiff also prayed for costs and disbursements as provided in ORS 105.145. The sheriff attempted to personally serve defendant at the apartment on May 5, 1978. Upon finding that defendant was not at home, the sheriff posted copies of the summons and complaint to the main entrance of the dwelling unit in accordance with ORS 105.135(2). The summons stated that defendant was "required to appear and answer the complaint filed against [her] in the above entitled action on the 12 day of May, 1978 * * *." On May 8, 1978, the clerk of the court mailed a copy of the summons and complaint to defendant by certified mail as also required by ORS 105.135(2). Defendant failed to appear on May 12, 1978. The trial court then entered its Default Order and Judgment of Restitution awarding plaintiff possession of the premises plus $28.25 for costs and disbursements. On April 4, 1979, nearly one year later, defendant moved to set aside the judgment *306 for costs and disbursements "on the grounds that the court lacked in personam jurisdiction to enter said judgment in that plaintiff never made personal service on defendant." The trial court denied defendant's motion. Defendant then appealed from that order.[1] As noted by the Court of Appeals, defendant then raised two issues on its appeal to that court: (1) "[T]hat only four days had elapsed between substituted service of the summons and the day appointed for trial, whereas ORS 105.135(4) requires that such service precede the trial date by `not less than seven nor more than 10 days.' * * *" and (2) "that the court could not constitutionally obtain personal jurisdiction over defendant through substituted service of summons under ORS 105.135(2)." 43 Or. App. 273, 276, 602 P.2d 1084 (1979). The Court of Appeals did not find it necessary to discuss or decide the constitutional issue because of its determination that ORS 105.135(2) established two requirements for substituted service in an FED action in which personal service could not be made upon the defendant: (1) Posting a copy of the summons and complaint to the main entrance of the dwelling unit, and (2) mailing a copy of the summons and complaint to the defendant. The Court of Appeals further held that both requirements must be completed within the time frame prescribed in ORS 105.135(4); that since that was not accomplished in this case the trial court did not have personal jurisdiction over defendant, and that, therefore, the judgment against defendant for costs and disbursements was void. At the time this action was filed, ORS 105.130 and 105.135 set out the requirements for the preparation and service of summons in FED actions as follows: *307 The Court of Appeals reasoned that: (1) An FED proceeding is a special proceeding that is not subject to the general statutory provisions relating to service of process (citing Lexton-Ancira, Inc. v. Kay, 269 Or. 1, 5-6, 522 P.2d 875 (1974)); (2) This court has consistently held that where a statute outlines procedures for substituted service, strict compliance with that statute is required (citing Heatherly v. Hadley, 4 Or. 1, 14 (1869); Lauderback et al v. Multnomah County, 111 Or. 681, 693, 226 P. 697 (1924), and Bay Plaza Management v. Estep, 269 Or. 275, 280, 525 P.2d 56 (1974)); (3) It follows that where one subsection of a statute outlines the requirements for substituted service to include both posting and mailing of the summons (ORS 105.135(2)), and another subsection of the same statute requires that such "service" be made within a specified time frame (ORS 105.135(4)), both the posting and the mailing must be completed within that period in order to comply with the statutory mode for service of summons. Indeed, were we to hold that only the posting need be completed within the time frame required by ORS 105.135(4), as urged by plaintiff, a copy of the summons could be mailed to a defendant at any time, often too late to provide any effective notice of the impending action.[3] We accepted review of this case because of our concern whether the opinion of the Court of Appeals, although well reasoned, could have the effect of placing unwarranted hardship on plaintiffs in FED actions by making it unduly difficult for them to secure service of summons on defendants in such actions. Although this case deals with the provisions for substituted service (subsections (2) and (4)), it is important to note that at the time the summons is prepared by the clerk in such a case, neither plaintiff nor the clerk of the court may know whether the defendant will be found at home when the summons is served. Subsection (3) required that in the event that personal service is made such service must be made "not less than three nor more than seven days before the day of trial appointed by the court." On the other hand, subsection (4) required that in the event that personal service is not made, substituted service by posting and mailing must be made "not less than seven nor more than 10 days before the day of trial appointed by the court." It follows that a possible hardship could result to the plaintiff in such a case if the sheriff, armed only with a summons for personal service requiring an appearance in "not less than three nor more than seven days," is unable to make personal service, leaving him with the only alternative of posting that summons on the door of the dwelling and then making a return to the clerk of that fact, leaving it to the clerk to then mail a copy of the summons to the defendant. This circumstance exists because in order for a single summons to be acceptable for both personal and substituted service, the sheriff must attempt to serve it on the seventh day prior to "the day of trial appointed by the court." This is because he cannot personally serve the summons after that date (per subsection (3)), and also cannot post the summons before that date (per subsection (4)). Also, if the clerk is unable to mail a copy of the summons on the same day it is posted, the substituted service by posting and mailing would not satisfy the requirements of ORS 105.135(4). It would then be necessary to issue a new summons[4] with a new trial date that is more than seven days in the future in order to provide the clerk with the additional time needed to mail a copy to the defendant. The sheriff would then return *308 to the dwelling unit to post the new summons. If, however, defendant was then at home, the sheriff could not post the summons; nor could he personally serve it since the trial date would then be more than seven days in advance, and ORS 105.135(3) prohibits personal service beyond seven days. As previously indicated, we were concerned that these circumstances could place unwarranted hardship on plaintiffs by creating undue delays in the prosecution of FED actions. Our concern was further aroused by the fact that FED proceedings are designed for the purpose of providing "speedy restitution of premises forcibly or unlawfully detained." Lexton-Ancira, Inc. v. Kay, 269 Or. 1, 6, 522 P.2d 875 (1974). Our investigation of the legislative history of ORS 105.135, including its most recent revision (1979 Or. Laws c. 854, § 2), reveals that in some, if not most counties of this state, the sheriffs themselves enter the date of trial on the summons.[5] Such a procedure would allow the sheriff, upon being unable to find the defendant at the "dwelling unit," to fill in the summons with a date for appearance that would accommodate any necessary delays between the posting of the summons and mailing of copies of the summons and complaint. Such a procedure would satisfy the requirement of ORS 105.135(4) to the effect that such service shall not be less than seven nor more than ten days before the "day of trial appointed by the court." We also note that subsections (3) and (4) of ORS 105.135 were amended by the 1979 legislature to delete the words "day of trial appointed by the court" and to substitute the words "appearance date contained in the summons." It may be suggested that this amendment further removes any possible obstacle to a procedure under which the sheriff completes the appearance date on the summons upon being unable to find the defendant at the "dwelling unit." The difficulty with such a procedure, however, is that although it may facilitate the service of summons in FED cases, we can find no authority by which either the court or the clerk of the court can delegate such a function. Indeed, ORS 105.130(2) provided that "the clerk shall * * * with the assistance of the plaintiff or his agent complete the applicable summons * * * for service by a person authorized to serve summons under ORS 15.060." It may be that because the summons in such a case need no longer state the "day of trial appointed by the court," but only that it state "the appearance date contained in the summons," a plaintiff in an FED case who is uncertain whether or not personal service can be made upon the defendant at the "dwelling" may have the clerk prepare two summons: (1) One for use in the event that such personal service can be made, and (2) an alternate summons for use in the event that such personal service cannot be made and which will then be posted and mailed not less than seven days nor more than ten days before the "appearance date contained in the summons," as required by ORS 105.135(4). In preparing the alternate summons for posting, the clerk can then provide for an additional one to three days following posting within which to mail a copy of the summons to the defendant. It may be that such a procedure would not solve all the problems arising under *309 ORS 105.135. In our view, however, any such remaining problems are best addressed to the legislature for correction, rather than by an attempt by this court to correct any such problems by "judicial construction," which may or may not have a proper basis in either the provisions of the statute or its legislative history. Under the facts of this case, however, we concur with the Court of Appeals in its conclusion that the summons in this case was not served within the time period prescribed by ORS 105.135(4) for the reason that the clerk mailed a copy of the summons to the defendant only four days prior to the day of trial, rather than seven days, as required by the statute. It follows that the trial court did not obtain personal jurisdiction of the defendant and that, as a result, the judgment of that court for costs and disbursements must be vacated. The decision of the Court of Appeals is affirmed. [1] Defendant also moved to quash the judgment for restitution, also on the ground that "the court lacked jurisdiction to enter said judgment," but did not appeal from the order denying that motion. Thus, on this appeal defendant does not challenge the in rem jurisdiction of the trial court. [2] The 1979 legislature amended ORS 105.135 after the initiation of this action. (See 1979 Or. Laws c. 854, § 2). Subsections (3) and (4) now provide as follows: "(3) If the service is made in accordance with subsection (1) of this section, the service shall be not less than three nor more than seven days before the court appearance date contained in the summons. "(4) If the service is made in accordance with subsection (2) of this section, the service shall be not less than seven nor more than 10 days before the court appearance date contained in the summons." (Emphasis added) [3] Oregon's new Rules of Civil Procedure specifically provide that in cases of substitute service "for the purpose of computing any period of time prescribed or allowed by these rules, substitute service would be completed upon such mailing." ORCP 7 D(2)(b). [4] Note that ORS 105.135(2) states that the clerk shall mail a true copy of the summons by certified mail "[u]pon receipt of the return by the sheriff indicating the posting * * *." [5] In 1977 the legislature considered amending ORS 105.135(3) to provide that personal service be made not less than three nor more than ten days prior to the trial date (See SB 854). Proponents of this change explained the need for a greater "cross over" period so that the officer could either post or serve the same summons. After noting that in most jurisdictions, including Multnomah County (the situs of this case), "it is the process server [i.e., the sheriff] in many cases who actually writes the date in himself once he's made contact with the person," the Senate Committee on the Judiciary refused to change the statute as requested. Rather, they adopted an amendment requiring the sheriff to immediately post the summons in those cases where the defendant is not at home: "The sheriff * * * shall make one service attempt. If during the service attempt the sheriff is unable to find the defendant, the sheriff shall attach the summons * * *." (1977 Or. Laws c. 327, § 1). See Minutes, Senate Committee on the Judiciary, March 16, 1977, p. 3; March 23, 1977, p. 4; June 3, 1977, pp. 10-12.

6b86a0171a30768ccb44545e2a7c362cec7ce4f5eb1f06c3e22b07cb487a249d

1980-05-20T00:00:00Z

cac7ee13-2f50-4a37-ba2d-f8681759381c

Department of Revenue v. Welch

293 Or. 530, 651 P.2d 721

oregon

Oregon Supreme Court

651 P.2d 721 (1982) 293 Or. 530 DEPARTMENT OF REVENUE, State of Oregon, Respondent, v. Gladys I. WELCH, Appellant. Department of Revenue, State of Oregon, Respondent, v. CLARENCE WELCH, Appellant. Department of Revenue, State of Oregon, Respondent, v. Clarence WELCH, Appellant. TC 1545, 1546 and 1547; SC 28119, 28140 and 28120. Supreme Court of Oregon, In Banc[*]. Argued and Submitted May 4, 1982. Decided September 28, 1982. *722 Barbara J. Rose, Portland, argued the cause and filed the brief for appellants. 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. Defendants appeal from the issuance of three peremptory writs of mandamus by the Oregon Tax Court commanding them to file personal and fiduciary income tax returns for the year 1978. They challenge the writs on Fifth Amendment grounds and by alleging that there was insufficient evidence to support them.[1] We try the cause "anew upon the record." ORS 305.445 and 19.125. Defendant Gladys Welch is the grantor and trustee for the "Gladys I. Welch Equity Trust," and defendant Clarence Welch is the grantor and trustee for the "Clarence and Gladys Welch Equity Trust." For the calendar year 1977 defendants filed fiduciary income tax returns on behalf of the trusts, declaring significant amounts of income and deductions for each. The Oregon Department of Revenue (department) reviewed the returns and disallowed the income and deductions with regard to the trusts, transferred the income and deductions to the grantors' personal returns, and taxed the amounts as income to the grantors rather than the trusts. Apparently, the defendants did not challenge this action. For the calendar year 1978, defendants filed fiduciary returns but refused to supply any information with regard to income. They put an asterisk in each blank and wrote on the returns: The department sent letters to the defendants, requesting that they file complete returns for the trusts. When defendants failed to comply, the department petitioned the tax court for writs of mandamus to compel compliance. The tax court issued three alternative writs, see ORS 314.365, directing Gladys Welch to file a fiduciary return and Clarence Welch to file a fiduciary and a personal return or to show cause why they need not do so. At the show cause hearing, the department adduced evidence that the trusts had filed returns and declared substantial income *723 in the previous year, and that in the opinion of its audit division the trusts or the defendants may have earned taxable income in 1978. It also produced a wage and tax statement showing significant income to Clarence Welch from the Oregon State Board of Higher Education. Defendants produced no witnesses or evidence of their own and in fact did not personally attend the hearing. The tax court concluded that the department had complied with all the necessary conditions to require the production of the requested returns and that defendants had not established any good cause to justify their refusal to comply. The court thereupon issued the three peremptory writs of mandamus challenged here. Where the department determines that a person or entity may have earned income taxable under ORS Chapter 316, it may require that person or entity to file an Oregon income tax return. ORS 314.370 and 314.365; Dept. of Rev. v. McCann, 293 Or. 522, 651 P.2d 717 (1982). The department need not, as a precondition to requesting or compelling the filing of a return, prove that the person or entity did in fact receive taxable income and the amount of any tax liability. Id., 293 Or. at 527, 651 P.2d at 719. The fact that the trusts reported substantial income on their 1977 returns and that Clarence Welch evidently received some income during 1978 is sufficient to justify the department's demand for the requested returns. Defendants argue that the department's decision with regard to the trusts' 1977 returns, i.e., that the trusts were not valid for tax purposes and that the income was taxable to the grantors, prevents the department from demanding 1978 returns from the trusts. Defendants, however, are in no position to make this argument inasmuch as they failed to file personal income tax returns and continue to adhere to their position that the trusts are valid and should be taxed as such. Moreover, the department's decision as to the 1977 returns does not preclude it from reevaluating the validity of the trusts under 1978 facts. Finally, defendants argue that their Fifth Amendment[2] rights would be infringed if they were compelled to file a more complete return. Broad and unspecific claims that the filing of a tax return "may possibly" be self-incriminatory do not justify a refusal to file. Dept. of Rev. v. McCann, supra. A return which supplies none of the requested financial information and asserts broad and unspecific Fifth Amendment claims is tantamount to a failure or refusal to file.[3] Appended to the tax returns defendants did file were a lengthy explanation of their action, correspondence from the department and their tax preparer, and reprints of articles discussing the taxpayer's plight. Nonetheless, the basis for defendants' Fifth Amendment assertions is unclear. Apparently, they believe that the department and the federal Internal Revenue Service are unfairly and illegally "cracking down" on "family" or equity trusts such as here involved, and that if they were to file the requested returns they may be criminally prosecuted for tax avoidance. See ORS 314.075, 314.991(1). *724 The purpose of the Fifth Amendment is to prevent the state from compelling a citizen to disclose evidence linking him to a crime already committed; it does not afford immunity for contemplated crimes. Rule v. United States, 362 F.2d 215, 217 (5th Cir.1966), cert. den. 385 U.S. 1018, 87 S. Ct. 737, 17 L. Ed. 2d 554 (1967). Just as a witness cannot refuse to testify on the ground that he will incriminate himself by committing perjury if he does, a taxpayer cannot refuse to file a return on the ground that he will be convicted for filing a criminally evasive or fraudulent one. If the defendants have a sincere good faith belief that their trusts are valid and should be taxed as such, they can file complete fiduciary returns as if the trusts were valid and fight the battle with the department;[4] otherwise, they can file complete individual returns. They cannot, however, refuse to file both fiduciary and individual returns and interpose the Fifth Amendment in justification. We agree with the tax court that the department has satisfied all the necessary conditions to its demand that defendants file the requested returns and that defendants have failed to show good cause for their continued refusal to comply with that demand. Accordingly, the judgments of the tax court and the issuances of the peremptory writs are affirmed. [*] Chief Justice Denecke retired June 30, 1982. [1] In addition, defendants contend that writs of mandamus are not an appropriate means to compel the filing of tax returns and that the tax court judge erred in failing to disqualify himself. The former contention is meritless for the reasons set out in Dept. of Rev. v. McCann, 293 Or. 522, 651 P.2d 717 (1982). On the latter point, defendants did not request the judge to disqualify himself (but see ORS 305.455(2)); nonetheless, they contend that he had an affirmative obligation to do so under Cannons 2 A and 3 C(1)(a) of the Code of Judicial Conduct and the Due Process Clause (United States Constitution, Amendment XIV) because of his alleged bias and prejudice toward defendants and their attorney. Suffice it to say, the evidence does not preponderate in support of defendants' contention. [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 * * *." Defendants make 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] The federal courts, in response to the recent spate of taxpayer "protest" filings, have held that the Fifth Amendment's privilege against self-incrimination does not generally constitute sufficient grounds to excuse a taxpayer's failure or refusal to file a tax return containing any of the required financial information. See, e.g., United States v. Pilcher, 672 F.2d 875, 877 (11th Cir.1982); United States v. Reed, 670 F.2d 622, 623 (5th Cir.) cert. den. (1982); Stuart v. Dept. of Finance and Administration, 598 F.2d 1115 (8th Cir.1979); United States v. Neff, 615 F.2d 1235, 1238-1241 (9th Cir.), cert. den. 447 U.S. 925, 100 S. Ct. 3018, 65 L. Ed. 2d 1117 (1980). [4] ORS 314.075 provides: "No 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, sign or verify any return or to supply any information required; * * *." (Emphasis added) See also ORS 314.400, which provides for civil penalties for failure to file a return or underpayment of taxes. Under subsection (3), a civil penalty of 100% of the delinquent tax may be assessed if the failure or underpayment was "with intent to evade the tax." That is an element the prosecution would have to establish.

3c3b44caa57b17d43094892efa67a3de3f70e059cba0193d32728de34e2b460d

1982-09-28T00:00:00Z

0af8f9fa-e811-4416-9d69-8f1f9f07d3db

State Ex Rel. Sweere v. Crookham

289 Or. 3, 609 P.2d 361

oregon

Oregon Supreme Court

609 P.2d 361 (1980) 289 Or. 3 STATE ex rel. Joseph Sweere, Plaintiff-Relator, v. Charles CROOKHAM, Judge of the Circuit Court of the State of Oregon for Multnomah County, Defendant. SC 26515. Supreme Court of Oregon, In Banc. Argued and Submitted January 8, 1980. Decided April 8, 1980. Frank M. Parisi, of Spears, Lubersky, Campbell & Bledsoe, Portland, argued the cause for plaintiff-relator. With him on the briefs was John M. Berman, Portland. Rodney H. Grafe, certified law student, argued the cause for defendant. With him on the brief was Chris L. Mullman, of Ragen, Roberts, O'Scannlain, Robertson & Neill, Portland. *362 DENECKE, Chief Justice. The issue in this mandamus proceeding is whether the Oregon long-arm statute, ORS 14.035, permits an Oregon court to acquire personal jurisdiction over plaintiff/relator Joseph Sweere. The underlying litigation involves a contractual dispute between Rusth Industries, an Oregon corporation, and W-P Distributors, a North Dakota corporation, with a principal place of business in Minnesota. The complaint alleges that Rusth appointed W-P as a distributor of Rusth products in a territory outside the State of Oregon. Pursuant to that agreement W-P purchased a quantity of Rusth products, which were shipped to W-P in Minnesota. A complaint filed by Rusth in Multnomah County Circuit Court seeks damages from W-P for W-P's alleged failure to either pay for or return some of the Rusth merchandise. The complaint states a separate cause of action against relator Sweere, based upon a personal guaranty executed by the relator. The guaranty states: The copy of the underlying agreement attached to the complaint names the relator as the general manager of W-P. Other than that, the record does not indicate that the relator had any financial interest in W-P. The relator was personally served in Minnesota. He made a special appearance in the circuit court and moved to quash service for lack of personal jurisdiction. In his supporting affidavit the relator stated: that the president of Rusth drafted the guaranty in Minnesota; that Sweere signed it in Minnesota and hand-delivered it to Rusth officers in Minnesota; that when the guaranty was signed the merchandise was in Minnesota; that the relator owned no real property in Oregon; and that he had been physically present in Oregon only once, "prior to and independent of" the execution of the guaranty. No counter-affidavits were filed. The court denied the motion to quash. Relator sought a writ of mandamus to compel Judge Crookham to quash service. We issued an alternative writ. Every challenge to the jurisdiction of a state court over a nonresident defendant presents two questions. First, does the long-arm statute provide that the court has jurisdiction? If so, would the assertion of jurisdiction over that defendant offend the due process rights guaranteed by the 14th Amendment? State ex rel. Academy Press v. Beckett, 282 Or. 701, 708, 581 P.2d 496 (1978). If the statute did not confer jurisdiction there would be no occasion to reach the constitutional issue. In this case the applicable statutory provision is ORS 14.035(1)(a), which provides: Previously, we have held that the transaction of business within this state includes actions taken elsewhere which cause important business consequences in this state. In Academy Press, supra, an Oregon author sued an Illinois publisher, contending that the publisher breached an agreement to publish the author's book. No representative of the publisher ever set foot in Oregon, and the contract was negotiated in Chicago. At the direct request of the publisher, however, the author invested 480 hours revising his manuscript while living *363 in Eugene. We held that the publisher's demands for revisions caused sufficient economic consequences in Oregon so that the publisher could be held to have transacted business in this state, within the meaning of ORS 14.035(1)(a). 282 Or. at 713, 581 P.2d 496. In State ex rel. White Lbr. v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968), a Florida lumber wholesaler contacted an Oregon supplier by telephone, and ordered twenty railroad cars of plywood to be manufactured to the buyer's specifications. The Oregon supplier instructed a mill in Grants Pass to begin work on the order. After receiving and paying for one carload of plywood the buyer suspended payment, complaining that the plywood did not conform to specifications. The supplier filed suit for damages in Oregon. We sustained jurisdiction over the buyer, on grounds that the telephone order produced significant economic consequences in Oregon. 252 Or. at 124, 126, 448 P.2d 571. In order to invoke the jurisdiction of any court a party must allege such facts as are necessary to establish that the court has jurisdiction to act. Parmele v. Mathews, 233 Or. 616, 620, 379 P.2d 869 (1963). The burden of coming forward with the "jurisdictional facts" lies upon the party asserting jurisdiction. McNutt v. General Motors Accept. Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936); Parmele, supra, 233 Or. at 620, 379 P.2d 869. In this case the jurisdictional fact which Rusth must establish is that the relator's execution of a personal guaranty in Minnesota produced important economic consequences in Oregon.[1] The guaranty could not have been the inducement for Rusth to sign a contract with W-P, because the signing of the contract and the shipment of the merchandise to Minnesota preceded the execution of the guaranty by several months. Rusth may have lost as much as $5,038 but there is no evidence this would not have occurred if Sweere had not executed the guaranty.[2] The respondent contends that even if the relator is not subject to jurisdiction on account of his own actions, the guarantor of a company that is transacting business in Oregon should also be deemed to be transacting business in Oregon. The respondent relies on dictum from our opinion in State ex rel. Ware v. Hieber, 267 Or. 124, 133, 515 P.2d 721, 725 (1973), where we said: "[W]hen the parties to the underlying transaction which was guarantied were transacting business in the forum state the guarantors also would be found to be transacting business within the forum state." Ware involved a franchise arrangement between Black Diamond, an Oregon motor home manufacturer, and Keller Enterprises, a Nevada corporation which sold motor homes in California. Jay and Dulcita Ware were officers and majority shareholders of Keller Enterprises. Mr. Ware came to Oregon to evaluate Black Diamond's operation and to negotiate a dealer franchise. After Black Diamond granted the franchise Mr. Ware drove a motor home back to California. Black Diamond became suspicious of Keller Enterprises and required a guaranty from the Wares as a condition to continuing business with Keller. In reliance upon the guaranty Black Diamond continued to sell motor homes to Keller. Keller defaulted in its payments for the motor homes and Black Diamond brought suit, in Oregon, on the guaranty. The Wares defended on the ground that Oregon courts lacked jurisdiction over them. We rejected this defense for a number of reasons. First, we held that Keller Enterprises was transacting business in Oregon, and that "the personal guaranty of the Wares must be considered as one aspect of the entire course of business between Keller *364 Enterprises and Black Diamond." 267 Or. at 132-33, 515 P.2d at 725. Second, the guaranty caused important business consequences in Oregon, because Black Diamond made the sale of vehicles to Keller conditional upon its execution. Id. at 133, 515 P.2d 721. We also noted that Mr. Ware came to Oregon to commence the transaction and that Oregon was a convenient place to try the issues arising out of the dispute. Id. The most important distinction between Ware and the present case is that here the record does not show that Rusth Industries relied on the guaranty in doing business with W-P. While the execution of the Guaranty in Ware caused an Oregon company to continue a franchise agreement which otherwise might have been terminated, there is no evidence that Sweere's guaranty caused any business consequences in Oregon. Another distinction is that the Wares were officers and majority shareholders of Keller Enterprises, whereas Sweere is merely an employe of W-P. Because Keller transacted business in Oregon, and because the Wares exercised complete control over the affairs of Keller, we held that it would be proper to "pierce the veil" by imputing the contacts between Oregon and the corporation to the Wares. 267 Or. at 132-33, 515 P.2d 721. In the case at bar, however, the record does not show that the relator had any control over, or interest in W-P, other than as an employe. In these circumstances it would be unfair to impute the contacts between Oregon and W-P to the relator. Our statement in Ware, to the effect that the contacts between the forum state and a foreign corporation may be attributed to the corporation's guarantors, must be limited to circumstances in which the guaranty plays a more integral part in causing or promoting significant economic consequences in Oregon than it did in this case. As a general proposition the statement is too broad, because it would sanction the assertion of jurisdiction by an Oregon court over a nonresident who never set foot in Oregon, and whose extra-territorial acts caused no important business consequences here. Decisions from other jurisdictions support our conclusion that Oregon lacks jurisdiction over the relator. Decisions construing the Illinois long-arm statute are particularly persuasive because ORS 14.035 was modeled after the Illinois statute. Academy Press, supra, 282 Or. at 708, 581 P.2d 496. In Liberty Leasing Co., Inc. v. Milky Way Stores, Inc., 352 F. Supp. 1210 (N.D.Ill. 1973), an Illinois corporation brought an action against several Utah defendants, including a debtor under a lease agreement and his guarantor. The court dismissed the complaint against the guarantor, noting that "The only contact it has had with Illinois is to have been guarantor on a lease agreement executed in Utah between a Utah company and an Illinois leasing company." 352 F. Supp. at 1211. The Minnesota Supreme Court, construing a long-arm statute substantially identical to ORS 14.035(1)(a), held in All Lease Company v. Betts, 294 Minn. 473, 199 N.W.2d 821 (1972), that a Pennsylvania resident whose only contact with Minnesota was as guarantor of a lease agreement would not be subject to jurisdiction in that state. Thus, if the positions of the parties in this litigation were reversed, a Minnesota court would have to decline jurisdiction over an Oregonian whose Minnesota contacts were no greater than the relator's connections in this state. The courts in Liberty Leasing and All Lease Company, supra, based their holdings on the Fourteenth Amendment, rather than on their respective long-arm statutes. Nevertheless, these decisions are relevant, because of the factual similarities, and because the constitutional limitations recognized by the Illinois and Minnesota decisions apply equally to Oregon courts. Plaintiff contends a change in the law created by the adoption of the Rules of Civil Procedure is applicable and if there was any doubt under the old statute about jurisdiction over the defendant, the change *365 conclusively provides jurisdiction. The rules were effective January 1, 1980, after the date of the hearing in the trial court and the filing of the mandamus in this court. The rules provide they are applicable "to all actions pending at the time of or filed after their effective date, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies." We do not determine whether the rules are applicable to this proceeding. Rather, we hold that because of the due process restrictions of the Fourteenth Amendment, the rule cannot be constitutionally applied to provide that the plaintiff can obtain jurisdiction over defendant. World-Wide Volkswagen Corp. v. Woodson, ___ U.S. ___, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). Rule 4 provides: The phrase, "to guarantee payment for such services" was probably intended to incorporate the statement in State ex rel. Ware v. Hieber, supra, 267 Or. 124, 515 P.2d 721, which we previously discussed and which we observed was, as a general proposition, too broad. As we just previously stated, the courts in Liberty Leasing Co., Inc. v. Milky Way Stores, Inc., supra, 352 F. Supp. 1210, and All Lease Company v. Betts, supra, 294 Minn. 473, 199 N.W.2d 821, held that if the only contact with the state seeking jurisdiction was the execution of a guaranty that state could not because of the due process clause of the ourteenth Amendment, gain jurisdiction. We likewise so hold. A peremptory writ shall issue, ordering the trial court to quash service on the relator. LINDE, J., did not participate in the decision in this matter. [1] We held in Academy Press, supra, that the measure of the importance of the local consequences of action taken elsewhere by a nonresident of this state is the importance of the consequences to the Oregon plaintiff. 282 Or. at 713, 581 P.2d 496. [2] The complaint in the underlying litigation alleges that Sweere owes $5,038.44 on the guaranty, an amount equivalent to the reasonable value of the merchandise not returned.

2a5004c37843cb8f30a8e6d4308e4dfb854a9052f5d675ad49701378126a5539

1980-04-08T00:00:00Z

9b28d96c-f84b-43d4-897d-1ddc2408ef74

In Re Kraus

289 Or. 661, 616 P.2d 1173

oregon

Oregon Supreme Court

616 P.2d 1173 (1980) 289 Or. 661 In re Complaint as to the Conduct of Harry R. KRAUS, Accused. OSB 78-41; SC 26690. Supreme Court of Oregon. Argued and Submitted September 9, 1980. Decided September 23, 1980. John D. Ryan, Portland, argued the cause and filed the brief for accused. William M. Keller, Portland, argued the cause for the Oregon State Bar. With him on the brief was Jarvis B. Black, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LINDE, PETERSON and TANZER, JJ. PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar charging the Accused with (1) neglecting a legal matter entrusted to him by permitting a case to be dismissed for want of prosecution and with subsequently telling his client that the case had been set for trial, and (2) notarizing signatures purported to be those of that same client upon pleadings when, in fact, that client did not sign such pleadings and was not present when such signatures were notarized by the Accused.[1] The Trial Board found the Accused not guilty of the first charge, but guilty of the second charge and recommended a public reprimand. The Disciplinary Review Board adopted the findings of fact and conclusions by the Trial Board with one exception, which will be discussed, and also recommended a public reprimand. This case was originally submitted on the record without briefs or oral argument. It was then noted by this court that in 1964 the Accused had been previously suspended from the practice of law for three years for conduct which also included neglect of a legal matter entrusted to him. In re Kraus, 238 Or. 482, 395 P.2d 446 (1964). Apparently the Trial Board and the Disciplinary Review Board were unaware of that previous disciplinary proceeding. *1174 This court then suggested that in view of that fact the parties consider filing briefs in this case. It was then stipulated by the parties that the record in that previous proceeding be submitted to this court for it consideration in this case. Both parties then submitted both briefs and oral argument. In December 1971 the Accused prepared and filed in Multnomah County a complaint in an action for breach of contract on behalf of Joe L. Wiese. The case was then transferred to Clackamas County. On January 8, 1974, in response to an order sustaining a motion to strike, the Accused prepared and filed an amended complaint, to which another motion to strike was made and allowed by order dated March 1, 1974. By that order plaintiff was granted 15 days in which to further plead. On September 16, 1974, no further pleading having been filed by the Accused, the defendant filed a motion to dismiss the case for want of prosecution. A hearing on that motion was held on October 14, 1974, with the Accused being present. The motion was then overruled by order dated November 14, 1974, but with the condition that "if this case is not at issue within 30 days, said case shall be dismissed." On that same day the Accused filed a second amended complaint. By letter dated November 13, 1974, the attorney for defendant wrote a letter to the Accused requesting information relating to plaintiff's claim for damages and stating that unless such information was received he would move again against one paragraph of the complaint. That letter also stated that the second amended complaint had realleged the same second cause of action as previously stricken and that unless the Accused responded within a reasonable time defendant would "prepare the necessary motions." The Accused did not respond to that letter and, when no motion, answer or pleading was filed by defendant, did nothing to force the defendant to file an answer and did not move for a judgment by default. Indeed, it was candidly admitted by defendant that the case was "completely neglected by me." On January 23, 1976, the case, together with a number of other cases, was dismissed by an order which recited that "each of the attorneys of record" had been "duly notified as provided by law by mailing a notice to his last known address more than 60 days prior to January 5, 1976, that unless some action was taken on or before said date, the same would be dismissed for want of prosecution." The Accused testified that he had "searched," but had never seen such a card and that he did not learn that the case had been dismissed until he later received a telephone call from another attorney to whom Mr. Wiese, his client, had gone for advice. Meanwhile, according to Mr. Wiese, on December 10, 1975, after being in Alaska for some time, he went to the office of the Accused "to find out what had happened, for him to bring me up to date on the matter," and was then "assured" by the Accused "that a trial date was imminent, he was just waiting for it to be assigned." Mr. Wiese also testified that in April 1976 he again talked with the Accused, who told him that "he had a trial date * * * on May 11th," and that shortly before that date he became concerned and, upon investigation, learned that the case had been dismissed. The Accused testified, however, that he "never gave (Mr. Wiese) a trial date," but told him prior to April that "we should be able to get the matter heard by May" and that "again, I simply neglected to (sic) file after that." The Accused was then sued for malpractice by Mr. Wiese and personally paid $5,123.97 for settlement of that case. In finding the Accused not guilty on the first charge, the Trial Board, by "supplemental findings," found that although the Accused "knew or should have known that the case * * * was in imminent danger of being dismissed," it did "not believe that the Accused knowingly or willfully misrepresented the status of the case to his client." *1175 The Trial Board also found that the Accused "did not properly handle the case for the client," and "readily admits that he was negligent * * *," but concluded that: The Disciplinary Review Board agreed with the findings by the Trial Board that the Accused did not "knowingly misrepresent the status of the case," but went on to state that in the first cause of action of the complaint there are two issues: (1) Whether the Accused knowingly misrepresented the status of the case and (2) whether the Accused was "guilty of a lack of diligence in the handling of the case." On that issue the Disciplinary Review Board found that although the Accused had been candid and "admitted and paid for the damages sustained * * * his lack of diligence in handling the matter entrusted to him remains." We agree. As noted by the Disciplinary Review Board, Canon 6 of the Code of Professional Responsibility requires that a lawyer represent his client competently. Disciplinary Rule 6-101(A)(3) provides: Neglect by an attorney of the affairs of a client, as distinguished from the competence of an attorney in handling the affairs of a client, has been held on numerous occasions by courts of other states to constitute grounds for disciplinary action against an attorney, either by suspension or reprimand, depending upon the particular facts and circumstances involved. See Anno. 96 A.L.R.2d 823 (1964). Recently this court suspended attorneys from the practice of law for neglecting, without reasonable excuse, the affairs of their clients. See In re Boland, 288 Or. 133, 602 P.2d 1078 (1979), and In re Holm, 285 Or. 189, 590 P.2d 223 (1979). The facts in those cases may have been somewhat more aggravated than those of this case, and there are some mitigating circumstances in this case in that the Accused admitted his negligence and has paid from his own pocket over $5,000 for damages suffered by his client as the result of his negligence. As held, however, in In re Pierson, 280 Or. 513, 518, 571 P.2d 907, 909 (1977): Also, as previously noted, this is the second time that the Accused has been the subject of disciplinary proceedings for neglect of legal matters entrusted to him as an attorney. See In re Kraus, 238 Or. 482, 395 P.2d 446 (1964). The charges of professional misconduct of which the Accused was then found guilty, according to the record in that proceeding, also included a charge of neglect of a legal matter entrusted to the Accused, of which the Accused was found guilty and was suspended from the practice of law for a period of three years. The charge of which the Accused was found guilty at that time, among others, was that the Accused had been employed to probate an estate and had been paid money for use in procuring a bond for the executrix and had later delivered to his client a copy of a purported order closing the estate when in fact no probate proceedings had been instituted, despite the fact that probate was necessary to permit the transfer of certain shares of stock which had been owned by the decedent. The second cause of action by the Oregon State Bar charges the Accused with filing an amended complaint and a second amended complaint in the action filed by the Accused on behalf of Joe L. Wiese and which purported to contain the verified signature *1176 of Mr. Wiese, the plaintiff, sworn to before the Accused as notary public when in fact those signatures were not those of Mr. Wiese, but "were subscribed to * * * by the Accused or by somebody else at the direction of the Accused, who then verified said purported signatures as a Notary Public." In support of this charge the Oregon State Bar offered in evidence a written report by Robert C. Phillips, an examiner of questioned documents, stating the opinion, based upon comparison with genuine signatures by Mr. Wiese, that "these signatures are forged, identification of the writer is not determined." That letter was received in evidence with the stipulation that Mr. Phillips was qualified as an expert witness and that he would so testify, if called as a witness. It was also stipulated that the signature of the notary public on these documents was that of the Accused. It was admitted by the Accused that on at least two or three occasions his wife, as his secretary, had put pleadings on his desk with signatures to be notarized; that he had done so, assuming that she had witnessed the signatures and that he knew that this was a bad practice, but that he did not know then that his wife had signed those documents, instead of the client. The Accused also testified that he later talked to a client who told the Accused that he had told the wife of the Accused to sign his name to a pleading, and that the Accused then stopped that practice and also stopped being a notary public. The wife of the Accused also testified that she once signed the "back" of a complaint with the name of Mr. Wiese, who had authorized her to do so; that she gave that document to the Accused to notarize without explanation, but that he had no knowledge that she had signed the complaint. She also testified that twice clients had signed complaint "backs" which were later notarized by the Accused. The Trial Board found that the signature on the first amended complaint was not that of the client, but had been placed there by the secretary of the Accused; that there was no evidence that he knew then that she had done so, but that he "admitted that (he) notarized the signature of a client not having seen the client sign the document and not having contacted the client to inquire whether or not that was in fact his signature." The Trial Board found that as to the second amended complaint the evidence was disputed, but that according to the written report by the examiner of questioned documents, "the signature was not that of the client"; that neither party disputed that evidence, and that the Trial Board "felt constrained to find in accord with the stipulated evidence." Based upon these findings the Trial Board concluded that the Accused was guilty on the second charge. The Disciplinary Review Board agreed with these findings. Again, we agree. The function of an attorney in acting as a notary public to notarize signatures on affidavits, including the verification of pleadings, is one which imposes a duty upon the attorney that should not be lightly undertaken. An affidavit is "a written declaration under oath." ORS 45.020. For a notary public to "willfully make any false certificate, acknowledgment or jurat" is not only prohibited by statute (ORS 194.310), but is a misdemeanor (ORS 194.990). As held long ago by this court in Ex parte Finn, 32 Or. 519, 525, 52 P. 756, 757 (1898): When an affidavit is submitted to a court by an attorney who has acted as the notary public, whether or not the affidavit in question is one which verifies the truthfulness of the allegations of a complaint, as in this case, and when, in fact, the document was not signed by the affiant in the presence of the notary and no oath was administered by the notary to the affiant, there is the following "two fold falsity" as stated in Ex parte Finn, supra, at 527-28, 52 P. at 758: As held more recently in In re Walter, 247 Or. 13, 14-15, 427 P.2d 96 (1967): This court has also held that an abuse by an attorney of his duties when acting as a notary public may be so serious as to require his suspension or disbarment from the practice of law. See Ex parte Finn, supra, and In re McAlear, 179 Or. 265, 272-73, 170 P.2d 763 (1946). It has also been held, however, that when an attorney who took an acknowledgment to a deed at the request of an associate when he never saw the grantor of the deed, but had no part in and was not aware of any fraud in the transaction, a reprimand would be considered "a minimum penalty." In re Walter, supra. See also In re Scott, 255 Or. 77, 464 P.2d 318 (1970). For these reasons, attorneys who undertake to exercise the functions of a notary public must constantly bear in mind the seriousness of the possible consequences of a failure to perform such a function in strict accordance with the requirements of the law. In this case the evidence of abuse by the Accused of his function as a notary public was limited to two or three instances in which he notarized signatures on pleadings without the presence of the affiant and, necessarily, without administering an oath to the affiant. Fortunately, there is no claim that anyone was misled as a result. As previously stated, we agree with the finding by the Disciplinary Review Board that the Accused was guilty of both a lack of diligence in the handling of a legal matter entrusted to him and of notarizing the purported signature of a client without having seen the client sign the document and without contacting the client to inquire whether or not it was his signature when, in fact, it was not his signature. We do not, however, agree with its recommendation that a reprimand, rather than suspension from the practice of law, is the appropriate penalty for such misconduct. Wholly aside from the fact that this is the second occasion in which the Accused has been found guilty of neglect of a legal matter entrusted to him as an attorney by a client, we believe that under the facts and circumstances of this case, including the serious, if not aggravated nature of the misconduct by the Accused, he should be, and he is therefore, suspended from the practice of law for a period of one year.[2] The Oregon State Bar is also awarded judgment against the Accused for its costs and disbursements. [1] The complaint also included the usual "cumulative" or "catch-all" charge. We find it unnecessary to consider that charge. [2] It appears from the record of the previous disciplinary proceeding involving the Accused that he not only neglected a legal matter entrusted to him, but deceived his client about that matter. In re Kraus, 238 Or. 482, 395 P.2d 446 (1964). In this disciplinary proceeding the Trial Board disbelieved the testimony by the client that the Accused had lied to him about the legal matter which had been neglected by the Accused.

40980d5ca8fe864f4c90193204a420ba0d1892c9a46e4695b02b982c3cc3e550

1980-09-23T00:00:00Z

08b5a4eb-d79b-4554-82e6-9aba40432862

Ragnone v. PORTLAND SCH. DIST. NO. 1J

289 Or. 339, 613 P.2d 1052

oregon

Oregon Supreme Court

613 P.2d 1052 (1980) 289 Or. 339 Rose RAGNONE, Petitioner, v. PORTLAND SCHOOL DISTRICT NO. 1J, Respondent. TC A7809 14371; CA 14807; SC 26870. Supreme Court of Oregon. Argued and Submitted June 3, 1980. Decided July 8, 1980. Elden M. Rosenthal, P.C., Portland, argued the cause and filed the briefs for petitioner. James N. Westwood, Portland, argued the cause and filed a brief for respondent. With him on the brief were Miller, Anderson, Nash, Yerke & Wiener, and William B. Crow, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. LENT, Justice. The issue is whether there is appellate jurisdiction. Plaintiff had judgment upon a jury verdict. The trial court allowed defendant's motion for judgment notwithstanding the verdict, and plaintiff appealed *1053 to the Court of Appeals, which affirmed. Ragnone v. Portland Sch. Dist. No. 1J, 44 Or. App. 347, 605 P.2d 1217 (1980). We allowed plaintiff's petition for review, ORS 2.520; 289 Or. 71 (1980). During oral argument in this court on June 3, 1980, we questioned whether there was appellate jurisdiction, ORS 2.516 and 19.010. Pursuant to this court's request a memorandum has been filed since the time of oral argument asserting that appellate jurisdiction does obtain. Both parties joined in that memorandum. We reluctantly have come to the conclusion that the Court of Appeals had no jurisdiction. Before a court may grant relief to a litigant, there must be some identifiable source of power to enter upon an inquiry of the merits of the claim, Abrahamson v. Northwestern P. & P. Co., 141 Or. 339, 343, 15 P.2d 472, 17 P.2d 1117 (1933). There is no common law appellate jurisdiction in the Court of Appeals, J. Gregcin, Inc. v. City of Dayton, 287 Or. 709, 601 P.2d 1254 (1979), or in this court, Longee v. Carter, 283 Or. 93, 582 P.2d 1 (1978).[1] After defendant filed its motion for judgment notwithstanding the verdict or, alternatively, for a new trial, the trial judge sent a letter dated June 14, 1979, to counsel for the respective parties: A photocopy of the letter was placed in the trial court file. On the same date the judge signed an "ORDER" as follows: It is conceded that prior to June 22, 1979, there was no document made and entered giving judgment in favor of defendant and against plaintiff. On June 22, 1979, plaintiff filed a notice of appeal On July 26, 1979,[3] defendant filed a notice of cross-appeal, in which defendant Plaintiff has correctly described the document from which she has attempted to appeal as being an order granting a motion. Defendant has not described any document *1054 to be found in the trial court file, for there is no "order of judgment notwithstanding the verdict." The dissent asserts that the order allowing the motion effectively terminated the case on its merits in favor of the defendant and forever precluded recovery by the plaintiff. We disagree. The order only put the case in a posture for the entry of a judgment which would have had that effect. Of course it is true that the resulting lack of an appealable judgment under the statute is a matter of "form," as the dissent says, though we would not describe it as a "triumph." In some areas of the law, particularly in matters of procedure, it has been thought desirable on balance that trial courts and counsel can rely on the predictable consequences of prescribed procedures. This advantage would be weakened if courts yielded to the frequently natural urge to sacrifice "form" for "substance." In any event, although rules of procedure might be written to leave this room for flexibility in the individual case, they do not now do so. There may be close questions as to whether a given document made and entered by a trial court judge is a judgment or decree, or is to be deemed a judgment or decree under ORS 19.010(2), but that closeness does not create a "gray area" of appellate jurisdiction delimited by our whim or the desires of the parties. We must decide whether the document is, or is to be deemed, a judgment or decree. If it is, there is jurisdiction; if it is not, there is no jurisdiction. Despite the fact that both parties have conceded there was no document made and entered giving judgment or judgment notwithstanding the verdict, they urge that the order appealed from is a judgment, for the purposes of appeal, under ORS 19.010, which in pertinent part provides: The statute specifies that it is a "judgment or decree" which may be reviewed upon appeal. The statute then provides that certain kinds of orders are "deemed" to be judgments or decrees for the purpose of review upon appeal. The parties have cited ORS 19.010(2)(a) as being relevant but do not really argue its efficaciousness. It is enough for us to point out that the order of June 14, 1979, does not prevent a judgment, but rather paves the way for one. The parties really assert the applicability of ORS 19.010(2)(c). They cite no case which has treated an order allowing a motion for judgment notwithstanding the verdict as coming within the statute. Our own research discloses no such case. That statute has been held applicable to the kinds of orders which may be entered after supplementary proceedings flowing from the judgment or decree upon the merits of the cause. Examples of that kind of order are to be found in the annotations compiled by the staff of Legislative Counsel Committee and printed in ORS volume 7 at pages 193-194. The order of June 14, 1979, is not such an order. Quite to the contrary, that order is one allowing a motion, the purpose of which is to render a nullity the only judgment entered in the cause. The parties cite Barr v. Linnton Plywood Ass'n, 223 Or. 541, 352 P.2d 596, 355 P.2d 256 (1960) as permitting an appeal from an order allowing a motion for judgment notwithstanding the verdict. We do not so read the case. There the trial court entered an order (in pertinent part) as follows: Initially this court considered that to be an order under then ORS 18.140(3),[4] which required that when a motion was for judgment notwithstanding the verdict or, alternatively, for a new trial, and the trial court allowed the motion for judgment notwithstanding the verdict, it should also rule on the motion for new trial. Both parties filed motions from which it appeared that the parties had considered the order of the trial court to be one setting aside the judgment and granting a new trial. It is to be remembered that an order setting aside a judgment and granting a new trial was an appealable order under ORS 19.010(2)(d). The decision in Barr is simply that the order was not one granting a new trial, but was rather an order granting judgment notwithstanding the verdict. There is nothing in that decision to suggest that either the court or the parties were concerned with jurisdiction. Until the decision of the court was rendered that the order was not one setting aside a judgment and granting a new trial, the appellant was in the position of prosecuting an appeal under ORS 19.010(2)(d). We order that this matter be remanded to the Court of Appeals to dismiss the instant appeal[5] for want of jurisdiction. TONGUE, J., filed a dissenting opinion. TONGUE, Justice, dissenting. I respectfully dissent because I believe that the technicality which provides the basis for the dismissal of this appeal by the majority, thus delaying, if not avoiding, the decision of a difficult and important question which needs to be decided by this court, represents a triumph of form over substance. This court allowed plaintiff's petition for review in this case because of the importance of the question whether not only the Court of Appeals, but the prior decisions by this court, were correct in holding that although a landowner owes a duty of reasonable care to a business guest or invitee who comes upon his property and is injured because of its defective condition, a landowner is not liable for injury to a social guest (licensee) who comes upon his property in the absence of "active or affirmative" negligence, as distinguished from "passive negligence." See Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967). Some other courts have abandoned that distinction. See, e.g., Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 (1968). As stated by the majority, after a verdict in favor of the plaintiff in this case, defendant filed a motion for a judgment notwithstanding the verdict and an order was entered allowing that motion. Plaintiff then appealed from that order. No question relating to the propriety of that appeal was raised by either the defendant (which cross-appealed) or by the Court of Appeals. It was not until after the allowance by this court of plaintiff's petition for review of the decision of the Court of Appeals, affirming that ruling by the trial court, and at the time of oral argument before this court, that a member of this court, sua sponte, raised the question of the appealability of that order. Supplemental memoranda were then submitted by the parties, both contending that the order was an appealable order and that this court has jurisdiction to decide this case. The majority lays emphasis upon the fact that the parties "cite no case which has treated an order allowing a motion for a judgment notwithstanding the verdict as coming within the statute" (ORS 19.010), and that Barr v. Linnton Plywood Ass'n, 223 Or. 541, 352 P.2d 596, 355 P.2d 256 (1960), as cited by them, is not directly in point. In recent years, however, the majority of this court has not felt restrained *1056 either by stare decisis or by lack of precedent in making new law on subjects not previously presented for decision. In deciding whether an order entered by a trial court is an appealable order, the primary consideration is not whether costs and disbursements have been awarded, but whether the order in question is a "final order" in the sense that it is an order which is a "final determination of the rights of the parties." See 1 Freeman on Judgments, 55, § 33 (1925) as quoted with approval by this court in David M. Scott Construction v. Farrell, 285 Or. 563, 568, 592 P.2d 551 (1979). Cf. Farmers Ins. Co. v. Lotches, 276 Or. 81, 84, 554 P.2d 169 (1976). The order in this case satisfied that basic requirement because it effectively terminated the case on its merits in favor of the defendant and forever precluded recovery by the plaintiff. It was also so regarded and acted upon not only by both of the parties, but also by the Court of Appeals. To now hold that under these facts and circumstances this order was not an appealable order because it did not bear the label "judgment" is simply to ignore reality in favor of technicality and to emphasize form over substance. In addition, since a member of this court raised the question of the appealability of this order at the time of oral argument of this case, both parties have joined in a motion by which, among other things, they request leave to supplement the record in this case by inclusion of a formal judgment in favor of defendant entered on June 6, 1980, together with a notice of appeal on June 10, 1980, from that judgment. The parties have also stipulated that the filing of further briefs be waived and have joined in a motion for an "expedited appeal." The majority has disposed of that motion by a footnote. Although it is true that jurisdiction cannot be conferred upon a court by stipulation of the parties, now that a formal judgment has been entered in the case, so as to satisfy the primary objection raised by the majority, I am of the opinion that this motion by the parties provides a proper and practical basis upon which this court may and should now proceed to decide the merits of this case, rather than force upon the parties the substantial delay that will necessarily result from the taking of a further futile appeal to the Court of Appeals. In its present capacity as a court of review, the primary function of this court is to review decisions by the Court of Appeals which may make or perpetuate "bad law." In my opinion, once this court has, for that reason, allowed a petition for review of a decision by the Court of Appeals, it should then proceed to decide the merits of the question which provided the reason for allowance of the petition for review, rather than "look under the bed" for "ghosts" of jurisdictional defects or other reasons to avoid or delay the decision of such a question. Cf. dissenting opinion in State v. Beason, 289 Or. 215, 217, 611 P.2d 1150 (1980). The dismissal by the majority of this petition for review will, at the least, result in a substantial delay in any recovery by the injured plaintiff in this case, in the event that she is ultimately held to be entitled to recovery, and will also delay a final resolution of the question of the liability of the school district in this and other similar cases, in the event that it is ultimately held not to be liable for the injury to the plaintiff in this case. Cf. specially concurring opinion in State v. Classen, 285 Or. 221, 238, 590 P.2d 1198 (1979). For these reasons I respectfully dissent. [1] See, also, Or.Const. Art. VII (Orig.), § 6: "The Supreme Court shall have jurisdiction only to revise the final decisions of the Circuit Courts * * *." (emphasis added) Further note Or. Const. Art. VII (Amend.), § 2: "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." In McGarger v. Moore, 89 Or. 597, 599, 175 P. 77 (1918), after noting these constitutional provisions we said: "This court, therefore, is one of limited jurisdiction aside from the instances just mentioned. It cannot acquire authority to act except in the manner provided by statute, in a case of the kind before us, and can exercise only power expressly conferred upon it by statute. Except in the stated instances of our original jurisdiction, authority of this court to hear and determine a case is derived from perfection of an appeal." That appellate jurisdiction has now been transferred by statute to the Court of Appeals. ORS 2.516. [2] No copy of the order appealed from was attached to the original of the Notice of Appeal as required by Rule 2.10, Rules of Appellate Procedure, but we do not reach the effect of that failure by reason of our finding of want of jurisdiction on other grounds. [3] It appears that the notice of cross-appeal may have been filed two days too late under ORS 19.026 since it was not filed within ten days after 30 days after the entry of the order of June 14, 1979. Also, no copy of the order appealed from was attached to the original of the Notice of Cross-Appeal. We do not reach the effect of those matters because of our finding want of appellate jurisdiction on another basis. [4] ORS 18.140 has been repealed, Or. Laws 1979, ch. 284, § 199. See ORCP 63 C. [5] The parties have informed us that a judgment has now been entered in the trial court on June 6, 1980, and an appeal taken therefrom to the Court of Appeals on June 10, 1980. Nothing concerning that appeal is now before us.

a0287ca0249d85819098ce465e14471b8bd513960f8ae82ef4418997ea5365a4

1980-07-08T00:00:00Z

8d093a27-02bf-4651-be01-03c187d714f9

Jarvill v. City of Eugene

289 Or. 157, 613 P.2d 1

oregon

Oregon Supreme Court

613 P.2d 1 (1980) 289 Or. 157 Michael F. JARVILL, Petitioner, v. The CITY OF EUGENE et al., Respondents. Kenneth Lichty, Petitioner, v. THE CITY OF EUGENE ET AL., Respondents. City of Eugene, a Municipal Corporation of the State of Oregon, Respondent, v. GREAT WESTERN SCHISM, Inc., an Oregon Corporation, Petitioner. CA 8516; SC 26299. Supreme Court of Oregon, In Banc.[*] Argued and Submitted October 1, 1979. Decided May 28, 1980. *2 Larry R. Roloff, Eugene, argued the cause and filed briefs for petitioners. Leslie M. Swanson, Jr., Eugene, argued the cause for respondents. With him on the briefs were Orval H. Etter and Johnson, Harrang & Mercer, Eugene. James A. Redden, Atty. Gen., and Ira W. Jones, Sr. Asst. Atty. Gen., Salem, filed an amicus curiae brief for the Dept. of Revenue. *3 HOWELL, Justice. These three cases, consolidated for trial and appeal, involve a comprehensive challenge to the validity of a charter amendment and various ordinances enacted by the City of Eugene ("City") to revitalize its downtown core area. Eugene, like many other cities, became concerned that its downtown business area was not economically competitive with outlying shopping areas for various reasons, including the lack of adequate parking facilities. In July, 1973, the voters approved an amendment to the charter conferring on the city council the power Pursuant to the charter amendment, the council enacted ordinances which provided free parking within the Downtown Development District ("District"), but which restricted parking by employers and employees of District businesses, by District residents, and by District hotel or motel guests. In order to finance and administer its economic development and its free parking programs, the City enacted ordinances for the levying of certain taxes. An ordinance allowed for an ad valorem real property tax by the City on real property in the District;[1] another ordinance provided for a tax of $2.50 per $1,000 of gross retail sales and receipts from nonprofessional businesses within the District; and a third imposed a tax of $40 on professional businesses within the District for each quarter of the year per each professional and each employee of a professional. In 1974 Jarvill and Lichty filed complaints for declaratory judgments in the Circuit Court of Lane County alleging that the City ordinances are unconstitutional. In 1975 the City sued Great Western Schism, owner of a retail store located within the District, to recover unpaid gross sales and receipts taxes levied in the District. Because Great Western Schism raised defenses identical to the complaints of Jarvill and Lichty, the circuit court consolidated the three cases.[2] In the trial court and in the Court of Appeals the plaintiffs have raised numerous contentions challenging the validity of the charter amendment and the City ordinances relating to the District taxes. Generally, plaintiffs contend that the taxes are unlawful or beyond the City's power. Plaintiffs also contend that the ad valorem property tax and the professional and nonprofessional business taxes violate the separate guarantees of equality found in Article I, sections 20 and 32, of the Oregon Constitution and in the fourteenth amendment to the United States Constitution in two general ways: (1) in that property and businesses within the District are taxed while similar property and businesses in other parts of the city are not subject to similar taxation; and (2) in that not all real property and not all businesses within the District are taxed equally. For these same reasons, and particularly because the taxes apply only to District property, plaintiffs contend that the District taxes violate the Uniformity of Taxation Clause of article I, section 32, of our state constitution. Finally, among a myriad of other less substantial challenges, plaintiffs contend that the restrictions on parking in the District violate art. I, § 20, of the Oregon Constitution and the fourteenth *4 amendment to the United States Constitution.[3] The trial court upheld the charter amendment and the taxing ordinances in all respects. The Court of Appeals affirmed the trial court except that the Court of Appeals sua sponte held that the tax court and not the circuit court had jurisdiction over plaintiffs' challenges to the validity of the ad valorem property taxes. 40 Or. App. 185, 594 P.2d 1261 (1979). We will first discuss the issue of whether the circuit court or the tax court had jurisdiction over the challenges to the ad valorem real property tax levied by the City on property within the District. The exclusive jurisdiction of the tax court extends to "all questions of law and fact arising under the tax laws of this state." ORS 305.410(1).[4] Furthermore, the state legislature has provided that no person may contest in a circuit court any matter within the jurisdiction of the Oregon Tax Court. ORS 305.410(3). The Court of Appeals reasoned that, because ad valorem property taxation in Oregon is comprehensively governed by state law, the City's property tax was levied under the tax laws of this state, and the challenges to the City's property tax presented questions of state tax law that are within the exclusive jurisdiction of the Oregon Tax Court.[5] Unfortunately the tax court jurisdiction statute has never been a picture of statutory clarity. Originally, ORS 305.410 provided that the tax court would be the "sole, exclusive and final authority for the hearing and determination of all questions of *5 law and fact arising under the tax laws of the state in cases within its jurisdiction." Or. Laws 1961, ch. 533, § 12 (emphasis supplied). In the same legislation that created the Oregon Tax Court and added ORS 305.410, the legislature amended sections of ORS chapters 306, 308, 311 (all concerned with county property taxation regulated by state law), chapter 314 (state income taxation), and chapters 321 and 528 (state forest taxation) to expressly provide for appellate review of determinations and assessments in the fields of property, income, and forest taxation. See Or. Laws 1961, ch. 533, §§ 41 to 56. The original legislation therefore established a tax court with limited jurisdiction over three fields of taxation. The first tax court jurisdictional problem encountered by this court involved the question whether the tax court had authority to issue a writ of mandamus to require a county assessor to extend a particular levy upon the county tax rolls. In Woodburn v. Domogalla, 238 Or. 401, 395 P.2d 150 (1964), we stated: We held that the tax court's original jurisdiction to hear tax questions was limited and that mandamus cases were not "cases within its jurisdiction" under ORS 305.410. The legislature responded to the Woodburn decision by amending the tax court statutes to provide the tax court with general (not limited) jurisdiction and the same powers as a circuit court to exercise all ordinary and extraordinary legal, equitable and provisional remedies. See, e.g., ORS 305.405, 305.435, 34.120; Or. Laws 1965, ch. 6, §§ 1, 6, 10. The legislature also amended the language of tax court jurisdiction to include jurisdiction over "proceedings" to set aside an order of the State Tax Commission, not just "appeals" from the State Tax Commission. See, e.g., ORS 305.425, 305.515, 321.470, 321.660, 321.765; Or. Laws 1965, ch. 6, §§ 3, 8, 13-15. Presumably to further clarify its expansion of tax court powers,[6] the legislature changed the language of ORS 305.410. The phrase, "in cases within its jurisdiction," was deleted, and the legislature added a list of state levied taxes and assessments that "are not tax laws of this state" and therefore not within the exclusive jurisdiction of the tax court. Thus, ORS 305.410 was amended to substantially its present form. Or. Laws 1965, ch. 6, § 2. Two concepts remained, however. First, the legislature separately provided for tax court jurisdiction over specific taxes: the county property tax, the state income tax, and the state forest tax.[7] Second, where the legislature did not provide for jurisdiction over a specific tax, it generally provided for tax court jurisdiction over "the tax laws of this state," in ORS 305.410(1). The City contends that tax laws enacted by a city government are "tax laws of this state," because a city's authority ultimately comes from the state. We do not agree. ORS 305.410(1) says "tax laws of this state." The plain and natural meaning of this phrase is that the tax law must be enacted by the state governmental authority. Cf. Girt et al v. Tri-Met et al, 4 OTR 92, 96-98 (1970). This conclusion is supported by the legislature's use of the term "tax laws of this state" in ORS 305.410(1) when it listed the several tax laws that "are not tax laws of this state." ORS 305.410(1)(a) to (o). These *6 tax laws are state enacted taxes, assessments, fees and contributions imposed by state statutes, for example, fire protection assessments (ORS ch. 477), liquor taxes (ORS ch. 473), and motor carrier taxes (ORS ch. 767). The exclusion of these specific taxes indicates that the legislature intended, by the phrase "tax laws of this state," to include all other state taxes imposed and administered by the state.[8] On the other hand, we find no evidence that the legislature intended that tax laws enacted by a city government are "tax laws of this state" subject to the exclusive jurisdiction of the tax court by virtue of ORS 305.410(1). On the contrary, when the legislature did intend to grant the tax court jurisdiction over a tax law enacted by a city government, it did so by separately providing for tax court jurisdiction over specific state-related aspects of the local taxation. For example, when a state agency enters into an agreement with a political subdivision to collect, administer and distribute local taxes imposed upon or measured by gross or net income or wages and local general sales and use taxes, then the Oregon Tax Court has exclusive jurisdiction to review the state agency's orders relating to its administration of the local taxes. See ORS 305.620. Also, when a local tax levy is made contrary to the state local budget law (ORS 294.305 to 294.520) or any other state law relating to tax levies, the local tax shall be voidable in the Oregon Tax Court by following a specific procedure. ORS 294.485. See Girt et al v. Tri-Met et al, supra. These statutes are separate jurisdictional provisions for tax court review when a local tax conflicts with state law or is administered by a state agency.[9] We therefore hold that, by the phrase "tax laws of this state," the legislature intended that the tax court have exclusive jurisdiction to decide questions that arise under tax laws enacted by the state government. Plaintiffs challenge the City charter amendment and City ordinances that impose the City property and business taxes. Because these tax laws were enacted by the City, they are not "tax laws of this state." The questions presented by these challenges were properly litigated in the circuit court. But the City contends that, because plaintiffs challenge the City property and business taxes as violative of article I, section 32, of the Oregon Constitution, and because that constitutional provision is a tax law of this state, plaintiffs' challenge based on article I, section 32, is a "question * * * arising under the tax laws of this state" which must be litigated in the tax court. Assuming but not deciding that article I, section 32, is a tax law of this state, the City's interpretation of ORS 305.410(1) reveals another problem with that statutory provision which we must now resolve. According to the City, the tax court has jurisdiction whenever a party, who may be challenging a tax levied by a city, raises a challenge based on, or a question relating to, a tax law of this state. If the same party in the same proceeding, however, raises a challenge not related to a tax law of this state, then presumably that challenge would be litigated in the circuit court. This result split jurisdiction is patently unreasonable because it would require a city taxpayer challenging a city tax to institute *7 two separate proceedings in two separate courts.[10] We do not believe that the legislature intended the application of ORS 305.410(1) to result in split jurisdiction or that the tax court have jurisdiction over a challenge to a city tax, which is not a tax law of the state, merely because the challenge includes a question regarding a tax law enacted by the state. In construing the application of ORS 305.410(1), we must seek to avoid absurd or unreasonable results. Hollinger v. Blair/Dickson, 270 Or. 46, 53-54, 526 P.2d 1015 (1974). In order to avoid split jurisdiction, and in order to litigate all of the challenges to a tax in only one court, jurisdiction under ORS 305.410(1) must be determined by whether the tax being challenged is itself a tax law of this state. In other words, when the legislature declared that the tax court has jurisdiction over "all questions * * * arising under" the state tax laws, the legislature intended that, under ORS 305.410(1), the tax court have jurisdiction only when the complaint challenges a state tax, that is, a tax imposed by the state government.[11] When the complaint challenges a tax imposed by a city (and not administered through the county property tax system), then no question arises under a state tax law, and the litigation may proceed in the circuit court, unless jurisdiction in the tax court is separately and specifically provided outside of ORS 305.410(1). In the instant case, plaintiffs challenge taxes imposed by the City pursuant to its home rule authority. All questions presented by their challenge are within the jurisdiction of the circuit court and were properly litigated therein. We therefore hold that the circuit court had jurisdiction over plaintiffs' challenges to the ad valorem property tax[12] and the other City taxes. Before we discuss plaintiffs' constitutional challenges to the City's property and business taxes, we should answer plaintiffs' contentions that the City was without authority to establish the District and to impose taxes within the District. Plaintiffs argue that no state statute or case exists which will support the City's charter amendment and the City's creation of the District. They also argue that no state statute authorizes a city to select a portion of its citizens for unique and special tax treatment. We agree with the Court of Appeals and the circuit court that the District was validly established. The Oregon Constitution, in article XI, section 2, provides that "[t]he legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon, * * *." Also, article IV, section 1(5), of the Oregon Constitution provides that the initiative and referendum powers are reserved "to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. * * *" These "home rule" provisions permit the people of a city or town to decide upon the organization of *8 their government and the scope of its powers under its charter, without the need to obtain statutory authorization from the legislature. See La Grande/Astoria v. PERB, 281 Or. 137, 142, 576 P.2d 1204, aff'd on rehearing 284 Or. 173, 586 P.2d 765 (1978). The charter amendment, passed by the voters of the City in 1973, validly conferred authority on the city council to establish the District and to impose taxes in the District. These charter powers are valid unless they contravene state or federal law. La Grande/Astoria v. PERB, supra 281 Or. at 142, 576 P.2d 1204. The courts below also correctly held that the City had authority to impose taxes within the District. A municipal corporation may assume powers to impose taxes and to select the kinds of taxes most appropriate in order to provide governmental services. See, e.g., Horner's Market v. Tri-County Trans., 256 Or. 124, 131, 471 P.2d 798 (1970); Davidson Banking Co. v. Jenkins et al, 216 Or. 51, 55-59, 337 P.2d 352 (1959). The power to impose taxes in the District is expressly provided in the following language of the charter amendment: "for the purposes of public parking * * *, of public transportation * * *, and of economic promotion and development for the district, to tax persons, property and economic enterprise in the District; * *." (Emphasis supplied.) We interpret the charter amendment to provide express, implicit and essential authority for the property tax, the professional business tax, and the nonprofessional gross sales and receipts tax levied by the City. Robertson v. Portland, 77 Or. 121, 126-28, 149 P. 545 (1915). The plaintiffs also contend that the City acted beyond its authority because the revenues from the District taxes which the Downtown Development Board budgets for a free parking program and for an advertising program partially administered by the Eugene Downtown Association are not used for a public purpose and are used to invest public funds in private enterprise, in violation of article XI, section 9, of the Oregon Constitution.[13] The City of Eugene established the District to finance and administer "a program of economic promotion and development" within the City's central business district. Eugene Code, §§ 2.380, 2.381 (1971). The City's objective is to revitalize the central business district by promoting business in the area, by increasing downtown property values, by encouraging downtown shopping, and by improving services within the downtown area.[14] We agree with the circuit court that the City has shown that there would be a general benefit to the economy of the City as a result of the economic improvement of the City's central business district. Thus the City's program of free parking and District advertising serves a legitimate public purpose. See Carruthers v. Port of Astoria, 249 Or. 329, 341, 438 P.2d 725 (1968). We also agree with the trial court's finding that the City's arrangements for the free parking and advertising programs do not expose the taxpayers to any of the risks contemplated by article XI, section 9. This finding, plus the finding that the public funds are expended for a public benefit, leads us to conclude that the District tax revenues are not being spent for private enterprise in violation of article XI, section 9, of the Oregon Constitution. See Carruthers v. Port of Astoria, supra at 333-40, 438 P.2d 725. We shall now discuss plaintiffs' contentions that the City's ad valorem property tax, professional business tax and gross sales and receipts tax on nonprofessionals *9 violate the Uniformity of Taxation Clause of the Oregon Constitution (art. I, § 32), the Privileges and Immunities Clause of the Oregon Constitution (art. I, § 20), and the Equal Protection Clause of the United States Constitution (amend. XIV). Article I, section 32, of the Oregon Constitution is the constitutional provision that most specifically addresses the issue of uniform taxation. That section provides: Plaintiffs argue that this constitutional provision requires that a city tax be uniform throughout the boundaries of the city levying the tax and that a city is prohibited from imposing a tax on an area within its boundaries smaller than the whole of its city limits.[15] Plaintiffs thus argue that the taxes levied exclusively within the District, which is only a portion of the city, violate the requirement of territorial uniformity found in article I, section 32. The Court of Appeals held that article I, section 32, which permits a municipality to classify for tax purposes, merely requires uniform tax treatment within each class throughout the territory, and that all the businesses subject to the District taxes are members of a constitutionally valid class. Plaintiffs contend, however, that the properties and businesses in the District cannot be considered a separate class from all other properties and businesses in the City because the only common characteristic shared by the properties and businesses in the District is their location. The instant case therefore presents us with the question whether article I, section 32, prohibits a governmental authority from territorially defining a class of subjects for the purpose of separate tax treatment. And, if a territorial classification is not absolutely prohibited, under what criteria is a territorial classification constitutionally valid? Resolution of these problems requires us to review the history of article I, section 32, as originally drafted, interpreted and applied. Then we will examine the intentions of the drafters of the 1917 amendment that changed article I, section 32 to its present form. Originally, in the Oregon Constitution of 1859, article I, section 32, provided: "* * * [A]ll taxation shall be equal and uniform." In addition, article IX, section 1, originally provided: The simple language of these provisions was intended to prevent anyone from escaping his just share of the tax burden, and these requirements of "equal and uniform" taxation can be traced to a public distrust of state legislatures who were likely and willing to aid railroads and other private economic enterprises by levying state and local taxes to assist private construction and by granting privileges and tax exemptions to vested interests. See Report of Board of State Tax Commissioners 15-16 *10 (1911). Cf. Township of Pine Grove v. Talcott, 86 U.S. (19 Wall) 666, 22 L. Ed. 227 (1873). The constitutional requirements of equal and uniform taxation, in Oregon as in other states, resulted in the general property tax the taxation of everything, tangible and intangible, by one uniform rule. See Judson on Taxation 562 (1903). See generally Standard Lumber Co. v. Pierce et al, 112 Or. 314, 333-334, 228 P. 812 (1924). Territorial uniformity was a judicial concept that appears to have developed from a strict interpretation of the requirements of uniformity and equality in taxation. Simply stated, the territorial uniformity concept required that the tax operate uniformly throughout the territorial limits of the government authority within and for which the tax was raised. In other words, it required that a tax levied by the state (for a state purpose) be uniform throughout the state, a tax levied by a county (for a county purpose) be uniform throughout the county, and so on. See, e.g., Yamhill County v. Foster, 53 Or. 124, 99 P. 286 (1909); Cook v. The Port of Portland, 20 Or. 580, 27 P. 263 (1891); City of East Portland v. County of Multnomah, 6 Or. 62 (1876); Board of Comm'rs of Jackson County v. State ex rel. Shields, 155 Ind. 604, 58 N.E. 1037 (1900); Watkins v. Barrow, 121 Va. 236, 92 S.E. 908 (1917); Day v. Roberts, 101 Va. 248, 249, 43 S.E. 362 (1903); The People v. Salem, 20 Mich. 452, 474, 4 Am.Rep. 400 (1870); Knowlton v. Supervisors of Rock County, 9 Wis. 410 (1859); Exchange Bank of Columbus v. Hines, 3 Ohio St. 1 (1853); Gray, Limitations of Taxing Power and Indebtedness 670, § 1351b (1906); Cooley, Constitutional Limitations 711, 726 (7th ed. Lane 1903). See also Township of Pine Grove v. Talcott, supra; Gilman v. City of Sheboygan, 67 U.S. (2 Black) 510, 17 L. Ed. 305 (1862). The concept was so widely accepted that, as one legal scholar observed, "[i]n some of the constitutions this rule is expressly stated, but where it is not thus expressly stated the constitutions are interpreted in conformity with it." Gray, supra at 670.[16] The requirement of territorial uniformity was altered when the Oregon Constitution was amended in 1917 to provide for classification in taxation. Dissatisfaction with the "uniform and equal" provisions of the Oregon Constitution had previously led to the appointment in 1905 of a commission for the purposes of examining and reporting upon matters of state assessment and taxation of property. The following portions of the commission's report are enlightening: The Commission then recommended that article I, section 32, be amended to read: And the Commission recommended that article IX, section 1, be amended to read: These recommendations appear to have been the first proposals in Oregon for amending article I, section 32, by using the phrase "upon the same class of subjects within the territorial limits of the authority levying the tax." Although different language was used in the amendments submitted to the Oregon voters in 1910,[17] in 1912,[18] and in *12 1914,[19] the purpose of the amendments never changed. They were intended to permit the reasonable classification of subjects of taxation, the exemption of certain property from taxation, and the imposition of different rates of taxation upon different classes of property. See, e.g., Standard Lumber Co. v. Pierce et al, supra, 112 Or. at 335, 228 P. 812; Reed, For Equal Distribution of Tax Burden, Oregon Voter 10-13 (May 19, 1917); Voters' Pamphlet, Special Election, June 4, 1917, pp. 14-15; Message of Oswald West, Governor of Oregon, p. 41 (1915); Voters' Pamphlet, General Election, November 5, 1912, pp. 22-30; Message of Oswald West, Governor of Oregon, pp. 4-5 (1911); Report of Board of Tax Commissioners 19-21, 27 (1911); Voters' Pamphlet, General Election, November 8, 1910, pp. 24-25; Report of Tax Commission 5-10 (1906). Although the primary purpose of the 1917 amendments was to permit classification, the use of the phrase "within the territorial limits of the authority levying the tax" raised the principle of territorial uniformity to that of an express constitutional requirement. But the drafters intended a requirement of territorial uniformity within each class of subjects taxed. Thus Standard Lumber Co. v. Pierce et al., supra, in discussing the 1917 amendments to article I, section 32, and article IX, section 1, stated that "among the members or objects included in a class selected by the [l]egislature, inherent uniformity as well as territorial uniformity is required." 112 Or. at 335-36, 228 P. at 819. (Emphasis supplied.) Indeed, the intentions of the drafters of the amendments can be traced back to the 1905 commission which, as quoted above, sought to draft constitutional provisions Thus, once a taxing authority selects a class for taxation, the tax must apply uniformly among all objects in the class that are within the territorial limits of the authority levying the tax.[20] Plaintiffs contend that article I, section 32, prohibits a taxing authority from classifying the subjects of taxation according to a geographical location. They further contend that the only common characteristic shared among those taxed in the District is their location. *13 Past decisions of this court have recognized the role of the judiciary in reviewing the constitutionality of tax classifications, but we have also recognized and expressly held that a taxing authority has a wide range of discretion to classify subjects of taxation. See, e.g., Huckaba v. Johnson, 281 Or. 23, 25-26, 573 P.2d 305 (1978); Tharalson v. State Dept. of Rev., 281 Or. 9, 16, 573 P.2d 298 (1978); Dutton Lbr. Corp. v. Tax Com., 228 Or. 525, 539, 365 P.2d 867 (1961); Smith et al. v. Columbia County et al., 216 Or. 662, 341 P.2d 540 (1959); Wittenberg et al. v. Mutton et al., 203 Or. 438, 280 P.2d 359 (1955); Garbade and Boynton v. City of Portland, 188 Or. 158, 191-92, 214 P.2d 1000 (1950). In previous decisions we have upheld the legislature's classification of income for taxation (McPherson v. Fisher, 143 Or. 615, 622, 23 P.2d 913 (1933)); the legislature's classification of occupations for taxation (State v. Winegar, 157 Or. 220, 225, 69 P.2d 1057 (1937)); a municipal corporation's classifications of various kinds of businesses, trades and professions for a license tax (Garbade and Boynton v. City of Portland, supra, 188 Or. at 192, 214 P.2d 1000); the legislature's separate tax treatment of non-residents for income tax (Berry v. Tax Commission, 241 Or. 580, 397 P.2d 780, 399 P.2d 164 (1964)); and the legislature's classification for inheritance tax purposes of property on the basis of its location either inside or outside the state (Tharalson v. State Dept. of Rev., supra, 281 Or. at 15-17, 573 P.2d 298). See generally Etter, Municipal Tax Differentials, 37 Or.L.Rev. 1 (1957). As noted above, in the present case the City is levying its business and property taxes on all businesses and property within a geographical area. Therefore, the City is not singling out any fixed group of persons; anyone might change or move his business or his property investments in and out of the District. Cf. Tharalson v. State Dept. of Rev., supra at 17, 573 P.2d 298. The persons subject to the City taxes are subject thereto because they own property or operate a business within the District. Therefore, the tax classification would be constitutional as long as the geographical area defined as the District is a valid class. In his article on municipal tax differentials, Etter notes that location is not a proper basis for classifying property. Etter, supra at 41. But he goes on to explain: We agree. Recognizing the broad freedom a taxing authority has to classify subjects for taxation, we conclude that a classification based on or defined by geographical location is nevertheless constitutionally permissible if it is also based upon qualitative differences that distinguish the geographical area from other areas within the territorial limits of the authority levying the tax. In other words, a taxing authority may not single out a subterritory for exclusive tax treatment (either taxation or exemption) if that subterritory is indistinguishable from the rest of the territory. But if the subterritory is different in quality compared to the rest of the territory, then article I, section 32, does not prohibit a taxing authority from defining the subterritory as a separate class. This requirement is based upon the principle established in our previous decisions that a tax classification is constitutionally valid if it rests upon genuine differences. See Huckaba v. Johnson, supra, 281 Or. at 25-26, 573 P.2d 305 (citing cases). In addition, if the taxing authority selects a subterritory for taxation and that subterritory is the only area so taxed, then the subterritory must not only be qualitatively different but must also be unique. There may be two types of qualitative differences that might justify singling out a geographical area for tax treatment. One type might be described as natural qualities. These would be qualities that exist in the land by reason of nature, for example, swamp land, or land with less than 20 *14 inches rainfall, or a flood plain. The second type might be described as politically imposed qualities. These would be qualities that exist in the subterritory by political decision, commitment and action, and they may well result because of economic factors or human conditions. Thus the wider significance of the present analysis is that article I, section 32, does not prevent tax classifications from reflecting qualitative differences that result from land use planning decisions. Such planning decisions are almost inevitably stated in territorial terms; but this does not mean that a tax classification which reflects a land use classification is based only on location and therefore invalid, rather than being validly based on the qualitative difference in land use characteristics. The Court of Appeals reasoned that the businesses within the District are a distinct and valid class because they all share the same conditions unique to a downtown urban core area. As the court explained, Although this analysis alone might adequately validate the territorial classification, we find an additional compelling reason why the District is uniquely and qualitatively different from the remainder of the city. In addition to the fact that the businesses and property within the District presently share, and in the past have shared, the conditions unique to being in a downtown urban area, the City is taxing the District for the purpose of creating a unique area in the future. The City has committed itself to provide a package of special services not provided elsewhere in the city, including free motor vehicle parking, an economic promotion and development program, and a public transportation program. In this regard, the qualities that distinguish the District from the rest of the City are politically imposed. The District is unique not only because it contains the only downtown area in the city, but also because the City has committed itself to providing services and programs that patently and physically distinguish the District from any other area of the city. We therefore hold that the City validly classified the District, and the property and businesses therein, for the purpose of separate tax treatment. This classification does not violate article I, section 32, of the Oregon Constitution. For the same reasons, this classification does not grant any citizen or class of citizens a privilege or immunity that is not equally available to all on the same terms (Or.Const. art. I, § 20), nor does it deny anyone the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution. Plaintiffs also contend that the property and business taxes are not being levied uniformly and equally within the District itself. In addition to arguing that the taxes violate article I, section 32, in this regard, plaintiffs argue that the taxes violate the Privileges and Immunities Clause of the Oregon Constitution (art. I, § 20)[21] and the Equal Protection Clause of the fourteenth *15 amendment to the United States Constitution.[22] Plaintiffs argue that the property tax is discriminatorily imposed within the District because certain properties receive tax credits while similar properties do not. They argue that the business taxes are also discriminatorily imposed because professional businesses are taxed at a flat rate, while nonprofessional businesses are taxed on their gross receipts and sales. As noted above, this court recognizes the broad freedom of a taxing authority to classify subjects for taxation. This power to classify includes the authority to subclassify persons included in the general class. See Huckaba v. Johnson, supra, 281 Or. at 26, 573 P.2d 305 (citing cases). Properties within the District have been subclassified according to whether the property is within the Tenth and Oak Overpark Assessment District (which is located within the Downtown Development District), or according to whether the property is devoted partly or entirely to automobile parking facilities open to the general public on a first-come-first-served basis, free of charge and under control of the Downtown Development District. Properties that provide District-controlled free parking receive a credit that reduces their District property taxes in an amount that reflects the proportion of the property devoted to such public parking. The sum of all the deductions for these properties is then apportioned to all other properties in the District in accordance with their respective assessed valuations. Next, the properties that contributed to the Overpark Assessment District receive a credit equal to their assessment, and that amount is deducted from their District property taxes. The sum of all the deductions for the Overpark assessment is apportioned finally to all the properties in the District in accordance with their respective assessed valuations, except the properties whose adjusted property tax does not exceed their Overpark assessment. Plaintiffs contend that the classification for tax credit of properties located within the Overpark Assessment District is an unconstitutional territorial classification. These property owners, however, do not receive credits because they are located in the Overpark Assessment District. They receive credits because they are assessed by the Overpark Assessment District and thus, like the property owners who provide District-controlled parking, they are already financing public parking within the District. We therefore conclude that the classification of properties within the Overpark Assessment District is valid and that the property tax is uniform as applied to the classes of property within the District. Finally, plaintiffs contend that taxing professional businesses in the District at a flat rate while taxing nonprofessional businesses in the District according to their gross sales and receipts violates the constitutional requirements of equal protection and uniform taxation. We disagree. Article I, section 32, does not demand that a taxing authority treat professional businesses and nonprofessional businesses as the same class of subjects. We therefore conclude that the business taxes do not violate article I, section 32. For the same reasons, the City's tax scheme does not grant any citizen or class of citizens a privilege or immunity that is not equally available to all on the same terms (Or.Const., art. I, § 20), nor does it deny anyone the equal protection of the laws guaranteed by the Fourteenth Amendment. Plaintiffs contend that the city ordinances that restrict parking by those persons employed, resident or lodged within *16 the District while in their place of employment or while in their lodging or residence constitute a denial of equal privileges or immunities under article I, section 20, of the Oregon Constitution or a denial of equal protection under the fourteenth amendment to the United States Constitution. Both constitutional provisions prohibit class discrimination. See, e.g., School Dist. No. 12 v. Wasco County, 270 Or. 622, 627-28, 529 P.2d 386 (1974); Plummer v. Donald M. Drake Co., 212 Or. 430, 437, 320 P.2d 245 (1958). Plaintiffs contend that article I, section 20, is violated because District employers, employees, residents and hotel and motel guests are prohibited from enjoying the free parking privileges available to all other members of the public. Article I, section 20, however, prohibits only the grant of a privilege which does not belong to all citizens "upon the same terms." In the instant case, those persons in the District subject to the parking restrictions nevertheless may enjoy the privilege of free parking upon the same terms as all members of the general public: when they are not working or residing in the District. And no member of the public may park for free while he is employed, resident or lodged in the District. We note that the trial court found that these parking restrictions are intended to prohibit those who would regularly be downtown anyway and who would use downtown facilities for longer periods of time from occupying free parking spaces to the exclusion of consumers and clients, thereby defeating the purpose of the free parking program. We therefore conclude that the terms of the parking ordinance do not violate article I, section 20, of the Oregon Constitution and, for the same reasons, do not violate the fourteenth amendment to the United States Constitution. Plaintiffs raise many other challenges to the City's ordinances; for example, that the ordinances prohibiting parking are void for vagueness, and that the parking program violates the Motor Vehicle Parking Facilities Act (ORS 223.805 to 223.845). Plaintiffs' other challenges are, however, insubstantial and do not merit discussion. We conclude that the circuit court had jurisdiction over the challenges to the ad valorem property tax. We also conclude that the City's charter amendment and ordinances are lawful and constitutional. Affirmed as modified. PETERSON, Justice, dissenting. The majority reaches a result which many would agree is socially, politically and economically desirable. But the decision in this case turns not on social desirability, political wisdom or economic need. This case is determined by Article I, section 32, of the Oregon Constitution. I cannot agree with the conclusion of the majority and therefore dissent. My reasons are: 1. Article I, section 32, by its clear terms, prohibits a taxing authority from creating a class of subjects determined by geographical lines. 2. A policy underlying the "territorial limits" clause of Article I, section 32, is to prevent a majority from imposing tax burdens that should be uniformly distributed upon all, upon a minority within the territorial limits of the taxing authority. The imposition of a tax burden only upon those owning property or operating businesses within a geographical area, when similar property exists outside the geographical area but within the taxing district, is improper and violates the uniformity clause. 1. Article I, section 32, by its terms, prohibits a taxing authority from creating a class of subjects determined by geographical lines Article I, section 32, provides: The phrase "all taxation shall be uniform on the same class of subjects" was contained in a 1917 amendment to Article I, *17 section 32, which previously required that "all taxation shall be equal and uniform." Prior to 1917, the constitution was construed to require that the rate of taxation "be absolutely equal upon all property of whatever kind * * * [and] property was required to be valued and taxed at equal rates."[1] The inclusion in 1917 of the words "all taxation shall be uniform on the same class of subjects" permitted "the classification of property in respect to its nature, condition or class, and the imposition thereon of different rates of taxation upon different classes of property."[2] The framers of the 1917 amendment thus guaranteed that (a) among members of a class, uniformity would exist, and (b) that within the taxing district, territorial uniformity would also exist. In this case, the "authority levying the tax" is the City of Eugene, not the Downtown Development District. For the purposes of this case, the constitutional provision should be read as follows: Applying the plain language of the constitution, this requires that all property of the same class within the city be taxed uniformly. There is no claim in this case that properties of the type found in the district are not found elsewhere in Eugene. The majority upholds the creation of a class determined by geographical location because The majority concludes that a tax classification based upon geographical location is valid if the territory is "qualitatively different," either because of (1) natural characteristics such as "swamp land, or land with less than 20 inches rainfall, or a flood plain," or (2) politically imposed qualitative factors such as those resulting from human conditions or the economy of the area. The majority states: The majority's conclusions do not withstand critical analysis. The "natural characteristics" approach, under which a class of subjects may be determined by the "qualities *18 that exist in the land by reason of nature," may well be a valid approach, if the law defines the class by the natural characteristics and not by location. But that approach was not used by the City of Eugene to define the class and the subdistricting cannot be upheld on that basis. The City's creation of the District as a separate class must, if at all, be validated under the majority's second theory, based upon a qualitative difference as (a) an area in which "the businesses and property within the District presently share, and in the past have shared the conditions unique to being in a downtown urban area" or (b) as an area upon which the city is imposing additional taxes "for the purpose of creating a unique area in the future." (Emphasis added.) As to (b), clearly this is a bootstrap approach under which any taxing body could impose additional taxes upon any area because of planned improvement in order to create "a unique area in the future." Under this concept, a slum area consisting of modest homes, owned by their occupants, could be slated for urban renewal "in order to create a unique area in the future." Taxes to renew the area could be imposed solely upon the homeowners. The property owners' inability to pay the increased taxes might well compel them to sell their homes to investors who could afford to pay the higher taxes in anticipation of increased land values after the qualitative improvements had been made. Such a tax, under the majority's reasoning, would be valid. It would also, in a real sense, be confiscatory. The city's classification of the District, if valid at all, can only be valid because the property within the District shares unique qualities qualities which are unique to it, and to it only. But there is no evidence in this case that properties of similar type, similar construction and similar use do not exist outside the geographical area. The only truly unique feature of the District is its location.[3] In no other way can it be said that the conditions in the District are totally unique to it. As to the possibility of regarding the Downtown Development District area as a separate class of property and hence separately taxable under the classification power of Article I, section 32, of the Oregon Constitution, there are obvious difficulties. The only common characteristic the Downtown Development District must inevitably share is its location. There are many classifications of property within the area that are common to property immediately outside of the area. Property inside the area is composed of real property, personal property, rental property, inventories, parking lots, perhaps some unimproved property and partially developed property. Whatever its nature, it is clear that similar property exists within the remainder of the city limits of Eugene. Therefore, it cannot be said that any uniform classification was being made within the city on the basis of the property's use or development. Although as stated in Standard Lbr. Co. v. Pierce, 112 Or. 314, 335-336, 228 P. 812 (1924), the classification of property for property tax purposes along functional lines is constitutional under Article I, section 32, such a classification has not in fact been made under the charter and ordinances of the City of Eugene. Orval Etter, one of the attorneys for the City of Eugene in this case, is well known as an authority on Oregon municipal law. The lead article in the 1957 Oregon Law Review was written by Mr. Etter on the subject "Municipal Tax Differentials."[4] On the subject of classifying property for tax purposes on a geographical basis, Mr. Etter's conclusion leaves no room for doubt classification based on location is impermissible. Mr. Etter hastens to add that, by creating a special taxing district, with authority to levy taxes, taxes can be validly imposed within a subdistrict. He writes: Another way of achieving the goal sought would be to amend the constitution to permit a city to tax some districts differently than others. Oak Park Federal Savings & Loan Association v. Village of Oak Park, 54 Ill. 2d 200, 296 N.E.2d 344 (1973), illustrates this point well. There, Article IX, section 10, of the Illinois Constitution of 1870 required that property located within a municipal corporation be taxed uniformly. In 1970, the Illinois constitution was amended to give home rule units the power to make local improvements by special assessment and also "to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services to those areas and for the payment of debt incurred in order to provide those special services." Ill.Const. Art. *20 7, § 6(1). Thus, express constitutional authority allowed cities to create special service districts and to tax them at different rates. The governing body of Oak Park, Illinois, enacted a series of ordinances "for establishing areas for the providing of special services and provided that the president and board of trustees of the Village of Oak Park shall be the governing body of the special service area. It authorized the levying of taxes by the village board on the property in the special service area. * *" 296 N.E.2d at 346. The ordinances also provided for the creation of a shopping mall, landscaping, lighting, and for the imposition of a real estate tax against the property of the special service area for the purpose of purchasing parking lots. For reasons not relevant to this opinion, the action of the village board was held to be invalid. The case illustrates, however, the point that in order to achieve a subdistricting scheme similar to the one involved in this case, a constitutional amendment was required. The constitutions of other states contain provisions similar to Article I, section 32, and the courts of those states have construed such provisions to prohibit taxing districts based upon geographical lines. Monagham v. Lewis, 21 Del. (5 Penne.) 218, 59 A. 948 (1905), is a case involving a law passed by the Delaware legislature which recited: The law imposed taxes on the described area at a rate "not exceeding one-fourth of the regular rate levied on persons and estates in the remaining parts of the said city." Article 8, section 1, of the Delaware Constitution provided that "All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." The plaintiff contended that the act was unconstitutional and void under Article 8, section 1, because the tax was not uniform upon the same class of subjects within the territorial limits of the authority levying the tax. The Delaware court held that the law was in direct conflict with the constitutional provision and was void. Essex County Park Commission v. Town of West Orange, 77 N.J.L. 575, 73 A. 511 (1909) involved an act which exempted selected public lands from taxation. The New Jersey constitution directed that "property shall be assessed under general laws by uniform rules." This language had been construed to permit the exemption from taxation of property of various classifications. The challenged act provided that all lands which were the property of a taxing district, and located within the boundaries of the taxing district, were exempted from taxation. If the property owned by the taxing district was located outside the taxing district, it was taxable. The court reasoned that "[i]t is thus sought to form a class for taxation marked by the characteristic of location merely." 73 A. at 513. The New Jersey court struck down the law, saying: Accord, Baldwin Construction Co. v. Essex County Board of Taxation, 16 N.J. 329, 108 *21 A.2d 598 (1954), which held that increased assessments in selected areas determined by "arbitrarily fixed geographical boundaries of necessity worked discrimination in respect of comparable properties immediately beyond the unreasoned and artificial borderline." 108 A.2d at 603. If the class is to be fixed with reference to unique characteristics, the classification should be described in those terms, not on geographical terms. Otherwise, any city could create a special taxing subdistrict on a geographical basis and later seek to justify the district on the basis of some "unique characteristics" which had no relevance to its creation. Requiring that the classifications be defined in terms of the unique characteristics of the property at least insures that the authority creating the special district considers those characteristics in determining the necessity for the district. The record in this case also reflects arbitrary decisions made without reference to any objective criteria. A group of "business people" whose properties were within one block of the northern district boundary requested to have their properties included in the district. According to one of the city planners, these properties did not meet the "distance from the mall criteria [sic]," but the properties were included in the district, nonetheless. Other property owners whose properties met the criterion were excluded from the district because they did not want to be within the district. I will concede that these variations may be minor. But a classification, the applicability of which depends upon such whims, cannot be valid. I believe that the majority strains to reach a desired result because it is persuaded that the Eugene City Council has taken a dynamic step toward the solution of a problem chronic to our cities core area decay in order to achieve a socially desirable result. I am sympathetic with the goal sought to be attained. Unfortunately, Article I, section 32, expressly prohibits this action. Beyond that, however, the approach of the majority may create the foundation for ills which are more destructive than the ills sought to be cured. The primary reason justifying the action taken by the city is that a general benefit to the city will result. The majority, at 289 Or. 170, 613 P.2d 8 states: In a very real sense, only the property owners, merchants and business people in the District are being taxed and deprived of their parking in order to create a "benefit to the economy of the City as a result of the economic improvement of the City's central business district." Some contend that the burden of taxes should be imposed according to the benefit which each taxpayer receives from the protection afforded by the government. But almost universally, the public policy of uniformity prevails over the public policy of taxation according to the benefit received. The district in this case was created by a vote of the voters of the entire city, and the tax was imposed by a vote of the elected representatives of the voters of the entire city. Beyond question, and in every sense, the majority is imposing a tax upon the minority which (to use the language of the majority opinion) will "benefit * * * the economy of the [entire] City."[6] Unquestionably, the essence of the democratic process is the sovereignty of the majority. The interests of the many are preferred to those of few.[7] In that sense, the minority is subject to the will of the majority. But it is equally well settled that the majority cannot, without restriction, impose economic, social, or political burdens upon the minority that are not common to all. The majority's holding permits the imposition of excessive tax burdens upon the minority. John Stuart Mill wrote: The restraint placed upon the legislature is normally found in the state's constitution. Alexander Hamilton referred to restriction of popular government under a constitution so as to secure the protection of the individual's rights from the majority.[9] The majority's recognition that the language of Article I, section 32, "was intended to prevent anyone from escaping his just share of the tax burden" necessarily includes a recognition that no one should bear more than his or her "just share" of the tax burden. 289 Or. at 172, 613 P.2d at 9. The evils which Article I, section 32, seeks to avoid (one being discriminatory taxation) are too easily attained by permitting a "classification" defined only by geographical area. Requiring the class to be defined other than by geographical area (as by zone, or type or nature of property) is not onerous and insures that the generality of the law which the constitution intends to insure, is maintained. Differential classifications should be determined by the use of property or by characteristics of the property, not by location. If a tax is imposed by reason of the location of property, some basis for the classification, apart from location, should be apparent from the law itself, rather than by reference to extrinsic matters. If the tax subdistrict is described geographically, some justifiable basis for the classification, apart from location, should be apparent from the law itself. If a qualitative class is to exist, the class must be determined by qualitative factors. And if the classification is to have validity, those qualitative factors must be set forth in the law itself. Justice Jackson, concurring in Railway Express v. New York, 336 U.S. 106, 112-113, *23 69 S. Ct. 463, 93 L. Ed. 533 (1949), opined: Strict adherence to Article I, section 32, guarantees that taxation not be the means to unfairly oppress a minority. LENT, J., joins in this dissent. [*] Holman, J., retired January 21, 1980. [1] The voters approved a measure allowing the City to levy a tax of $129,250 on real property in the district in excess of the six percent limit prescribed by article XI, § 11, of the Oregon Constitution. [2] Because all three cases involve the same issues, we shall refer to the three opponents to the measures as plaintiffs. [3] The Court of Appeals characterized all the plaintiffs' challenges as a "scattershot pattern of contentions." Apparently the Court of Appeals was influenced by the fact that plaintiffs' challenges ranged from contentions that the ordinances violated equal protection and uniformity of taxation to a contention that the ordinances violated the canons of legal ethics. [4] ORS 305.410 reads as follows: "(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. For the purposes of this section, and except to the extent that they preclude the imposition of other taxes, the following are not tax laws of this state: "(a) ORS 577.110 to 577.605 relating to beef council contributions. "(b) ORS 576.051 to 576.584 relating to commodity commission assessments. "(c) ORS chapter 477 relating to fire protection assessments. "(d) ORS chapters 731, 732, 733, 734, 737, 743, 744, 746, 748 and 750 relating to insurance company fees and taxes. "(e) ORS chapter 473 relating to liquor taxes. "(f) ORS chapter 583 relating to milk marketing, production or distribution fees. "(g) ORS chapter 767 relating to motor carrier taxes. "(h) ORS chapter 319 relating to motor vehicle and aircraft fuel taxes. "(i) ORS title 39 relating to motor vehicle and motor vehicle operators' license fees and boat licenses. "(j) ORS chapter 578 relating to wheat commission assessments. "(k) ORS chapter 562 relating to racing taxes. "(l) ORS chapter 657 relating to unemployment insurance taxes. "(m) ORS chapter 656 relating to workers' compensation contributions, assessments or fees. "(n) ORS chapter 579 relating to potato commission assessments. "(o) ORS 311.420, 311.425, 311.455, 311.650, 311.655 and ORS chapter 312 relating to foreclosure of real and personal property tax liens. "(2) The tax court, the circuit courts and district courts shall have concurrent jurisdiction to try actions or suits to determine the priority of property tax liens in relation to other liens. "(3) Except as permitted under section 2, amended Article VII, Oregon Constitution, this section and ORS 305.445, no person shall contest, in any action, suit or proceeding in the circuit court or any other court, any matter within the jurisdiction of the tax court." [5] With respect to questions of law regarding the City's taxes on professional and nonprofessional businesses within the District, the Court of Appeals held that the circuit court had jurisdiction because these taxes were enacted pursuant to the City's charter authority rather than under the tax laws of Oregon. [6] The major changes were for the purpose of clarifying the original jurisdiction and general powers of the tax court. See Or. Laws 1965, ch. 6, § 16. [7] Later the legislature added ORS 323.416, providing for tax court review of state cigarette taxation, and ORS 305.115, providing for tax court review of Department of Revenue orders. These are two additional examples of tax court jurisdictional provisions codified outside of ORS 305.410. [8] Later amendments to ORS 305.410 and to the jurisdiction of the tax court support our conclusion. In 1971 the legislature removed gift and inheritance taxes from the list of taxes that "are not tax laws of this state" in ORS 305.410(1). See Or. Laws 1971, ch. 567, § 14. In the same legislation, ORS 118.410 was amended to provide for tax court jurisdiction over the state inheritance tax law and ORS 119.280 was amended to provide for tax court jurisdiction over the state gift tax law. Or. Laws 1971, ch. 567, §§ 10, 13. [9] We note that several cases involving local taxation have been litigated in the circuit courts and the Court of Appeals rather than in the tax court. See, e.g., Budget Rent-A-Car v. Multnomah County, 287 Or. 93, 597 P.2d 1232 (1979) (county tax); Horner's Market v. Tri-County Trans., 2 Or. App. 288, 467 P.2d 671, rev. denied 256 Or. 124, 471 P.2d 798 (1970) (metropolitan transportation district tax). Cf. Girt et al v. Tri-Met et al, 4 OTR 92 (1970) (interpreting "tax laws of this state" under ORS 305.410 as encompassing taxes imposed by the legislature and not encompassing a tax imposed by a municipal corporation). [10] The result of split jurisdiction is more pronounced in the following example. According to ORS 305.410(1)(e), the laws in ORS chapter 473 relating to liquor taxes are not tax laws of this state. Therefore, a taxpayer challenging his liquor tax because he is entitled to, but did not receive, a tax credit under ORS 473.030(6) would have to file his proceeding in the circuit court. If the taxpayer also challenges his liquor tax on the basis of another statute that is a tax law of this state, according to the City's reasoning, that challenge could not be litigated in the circuit court but must be filed in the tax court. [11] As noted above, the legislature has given the tax court jurisdiction over other taxes and tax questions by statutory provisions separate from ORS 305.410(1). In the present case we are interpreting only the effect of ORS 305.410(1). [12] Like the Court of Appeals, we limit our review to the ad valorem property taxes levied by the City for the two years, 1973-74 and 1974-75. We are not concerned with the City's argument that the District ad valorem real property tax was converted in April of 1975 into a tax on the ownership of real property. 40 Or. App. at 191 n. 2, 594 P.2d. 1261. [13] Article XI, section 9, provides in part: "No county, city, town or other municipal corporation by vote of its citizens, or otherwise, shall become a stockholder in any joint company, corporation or association, whatever, or raise money for, or loan its credit to, or in aid of, any such company, corporation or association. * * *." [14] For a discussion of other city programs and other methods for revitalizing central business districts, see Weaver & Duerksen, Central Business District Planning and the Control of Outlying Shopping Centers, 14 Urban L.Ann. 57 (1977). [15] Plaintiffs contend that territorial uniformity is also required by Article IX, section 1, of the Oregon Constitution, which 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." Plaintiffs do not distinguish between article IX, section 1, and article 1, section 32. We have held that these two constitutional provisions requiring tax uniformity are to be read together. State ex rel. v. Malheur County Court, 185 Or. 392, 411, 203 P.2d 305 (1949). The two provisions, however, are not identical. Although article IX, section 1 requires uniform taxation, the specific requirement of territorial uniformity is expressed in article I, section 32. If the City taxes do not violate the territorial requirement of article 1, section 32, then the taxes do not violate article IX, section 1, in that respect. Furthermore, article 1, section 32, applies to all taxation, state and local, while article IX, section 1 appears to apply only to those taxes that operate throughout the state. Taxes levied by a city, such as those in the instant case, do not operate throughout the state. [16] The requirement that taxation be uniform throughout the tax district, as expressed prior to 1917, was summarized in the following analysis of one legal scholar of that era: "* * * A requirement of uniformity does not mean that the rate of taxation shall be exactly the same in every subdivision of the state. The legislature may create taxing districts for special purposes and may levy taxes in those districts for purposes germane to the objects for which the districts are created. "The rule only requires that taxation shall be uniform within the limits of the authority levying the tax, that is, that a tax levied for state purposes shall be uniform throughout the state, a tax levied for county purposes shall be uniform throughout the county, and so on. In some of the constitutions this rule is expressly stated, but where it is not thus expressly stated the constitutions are interpreted in conformity with it. "There is uniformity and equality of assessment and taxation where the same basis of assessment is fixed for all property, and the same rate of taxation is fixed within the district subject to taxation. If it be a tax for state purposes, there is equality and uniformity where the rate is the same throughout the state; if for county or township purposes there is equality and uniformity where the rate is the same throughout the county or township. So long as this result is reached, it makes little or no difference by how many or by what agencies it is accomplished." Gray, Limitations of Taxing Power and Indebtedness § 1351b at 670 (1906). (Footnotes omitted.) See also, Cooley, Constitutional Limitations 726 (7th ed. Lane 1903): "* * * the rule of apportionment must be uniform throughout the taxing district, applicable to all alike; but the legislature have no power to arrange the taxing districts arbitrarily, and without reference to the great fundamental principle of taxation, that the burden must be borne by those upon whom it justly rests. * * *" It is interesting to note, however, that decisions of this court prior to 1917, that recognized and applied the rule of territorial uniformity of taxation, nevertheless permitted some territorially defined differentials in taxation. See, e.g., Johnson v. Jackson County, 68 Or. 432, 136 P. 874 (1914); City of East Portland v. County of Multnomah, 6 Or. 62 (1876). Other state courts also permitted some exception to the requirement of territorial uniformity. See e.g., Watkins v. Barrow, 121 Va. 236, 92 S.E. 908 (1917); Daly v. Morgan, 69 Md. 460, 16 A. 287 (1888). In one comprehensive study of constitutional provisions requiring uniformity of taxation, the author dismissed the importance of a territorial uniformity requirement in the following words: "* * * A geographical connotation is a part of the complete idea symbolized in the term, and quite often the expression `within the territorial limits of the taxing authority' occurs in the constitutions; but geographical uniformity is not a primary basis for limiting the taxing power, either of the states or the federal government. Its purpose is to create what may be thought of as an administrative rule for the uniform execution of such tax legislation as the legislature may enact, and logically falls outside the expressed concern of this discussion." Matthews, The Function of Constitutional Provisions Requiring Uniformity in Taxation, 38 Ky.L.J. 31, 56 (1949). [17] The amendment to article I, section 32, submitted in 1910 would have omitted the words "and all taxation shall be equal and uniform" and inserted the words "taxes shall be levied and collected for public purposes only, and the power of taxation shall never be surrendered, suspended, or contracted away." See Voters' Pamphlet, General Election, November 8, 1910, p. 24. [18] The amendment to article 1, section 32, submitted in 1912 would have provided uniform taxation upon each separate class with the territorial limits of the authority levying the tax and would have permitted taxes to be levied upon different classes of property at different rates. See Voters' Pamphlet, General Election November 5, 1912, p. 21. [19] The amendment to article I, section 32, submitted in 1914 was identical to that proposed in 1910. At the same time an amendment to article IX, section 1, was submitted that provided for "reasonable classifications of the subjects of taxation." See Voters' Pamphlet, General Election, November 3, 1914, pp. 12-13. [20] Plaintiffs argue that in State ex rel. v. Malheur County Court, 185 Or. 392, 411, 203 P.2d 305 (1949), we held that article I, section 32, and article IX, section 1, require that taxation shall be uniform with the territorial limits of the authority levying the tax and that the rate of taxation must be equal and uniform "throughout the taxing district, whether state or local" (quoting from Yamhill County v. Foster, 53 Or. 124, 129, 99 P. 286 (1909). Plaintiffs' reliance on Malheur County, however, is misplaced. That case involved challenges to a state statute requiring counties to levy a tax to pay their share of state public welfare according to the need for relief funds in each county. We reasoned that "* * * if a tax is equal and uniform throughout the taxing district, there is no violation of the constitutional mandate [of uniform taxation]." Id., 185 Or. at 411, 203 P.2d at 314. We then concluded that: "In our opinion, chapter 545 [the state statute in question] imposes a duty upon each county to levy a county tax. * * * Since the tax required to be levied is a county tax, and since the levy will be uniform within each county, there is a sufficient compliance with the provisions of the constitution requiring uniformity." Id. at 412, 203 P.2d at 314. Thus, we did not hold that all taxation must be uniform throughout the taxing district; we merely held that a tax that is uniform throughout the taxing district is constitutional. Our statements in Malheur County, that a tax must be uniform within the territorial limits of the authority levying the tax and that the rate of taxation must be uniform throughout the taxing district, were only dicta. We note in particular that Yamhill County, was decided prior to the 1917 amendments to article I, section 32, and article IX, section 1. [21] Article I, section 20, 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." [22] The fourteenth amendment to the United States Constitution provides: "No State shall * * * deny to any person within its jurisdiction the equal protection of the laws." [1] Standard Lbr. Co. v. Pierce, 112 Or. 314, 334, 228 P. 812, 818 (1924). [2] Id. at 335, 228 P. at 818. For an extensive analysis of the uniformity clauses of the various state constitutions, see W. Newhouse, Constitutional Uniformity and Equality in State Taxation (1959). [3] Webster's New International Dictionary of the English Language (2d ed. 1961), defines "unique" as "1. Single, sole. 2. Being without a like or equal; single in kind or excellence; unequaled; hence, loosely, unusual; notable." [4] Etter, Municipal Tax Differentials, 37 Or.L. Rev. 1 (1957). [5] As examples of special districts now permitted under Oregon law, see, e.g., ORS ch. 266, Park and Recreation Districts (authority to levy taxes granted by ORS 266.410(5)); ORS 267.510 to 267.650, Transportation Districts (taxing authority provided by ORS 267.620); ORS 440.305 to 440.410, Health Districts (taxing authority granted by ORS 440.395); and ORS 777.005 to 777.725, Ports (taxing power provided by 777.430). See generally ORS ch. 198, Special Districts Generally, and Reilly v. Paulus, 288 Or. 573, 607 P.2d 162 (1980) (upholding a Metropolitan Service District created under ORS ch. 268). [6] According to one witness, it was a "community [goal] of the City of Eugene." [7] "The majority * * * exercise a prodigious actual authority * * *; no obstacles exist which can impede or even retard its progress, so as to make it heed the complaints of those whom it crushes upon its path * *." A. De Tocqueville, Democracy in America 327 (1898 ed.). [8] J.S. Mill, On Liberty (1859), in Prefaces to Liberty 244-245 (B. Wishy ed. 1959). [9] See G. Dietze, The Federalist 148 (1960). [10] As to the equal protection aspects of taxation uniformity and the relationship between the Oregon Constitution and the Fourteenth Amendment to the Constitution of the United States, O. Etter, in Municipal Tax Differentials, 37 Or.L.Rev. 1, 37-38 (1957), has advanced trenchant arguments which I neither accept nor reject at this time.

cbd9fbebb95a6583e84b330891eb076ea7ac40cf35e9b887b4defce6121cbc25

1980-05-28T00:00:00Z

b31fd493-7afc-429f-b539-c4904abc92b1

Stanfield v. Laccoarce

288 Or. 659, 607 P.2d 177

oregon

Oregon Supreme Court

607 P.2d 177 (1980) 288 Or. 659 Dorna Dee STANFIELD, James P. O'Neal, and James H. Spence, Respondents, v. James P. LACCOARCE and Judith Elaine Laccoarce, Petitioners, James T. Laccoarce, Pauline L. Laccoarce, Umpqua Credit Adjusters, Inc., Robert H. Ruth, Associates Capital Services Corporation, an Indiana Corporation, State of Oregon, Acting by and through the State Scholarship Commission for the Use and Benefit of Its Student Loan Funds, Douglas County, and William Stanfield, Defendants. CA 12007; SC 26358. Supreme Court of Oregon. Argued and Submitted January 8, 1980. Decided March 4, 1980. Randolph Slocum of Slocum & Hill, Roseburg, argued the cause and filed briefs for petitioners. James H. Spence of Spence, O'Neal & Banta, Roseburg, argued the cause and filed a brief for respondents. *178 Before DENECKE, C.J., and TONGUE, HOWELL, LENT and LINDE,[*] JJ. HOWELL, Justice. Plaintiffs filed this suit to foreclose a land sale contract. Plaintiffs are the assignees of the original vendors. The primary defendants are James T. and Pauline Laccoarce, who are the original vendees (hereinafter "vendees") and James P. and Judith Laccoarce (hereinafter "defendants"), the subpurchasers from James T. and Pauline Laccoarce. The trial court allowed plaintiff's motion for summary judgment against defendants and entered a decree of strict foreclosure. The Court of Appeals affirmed without opinion. We granted review. It is difficult to piece together the facts from the pleadings in this confusing and complicated transaction. In their complaint for foreclosure filed in September, 1977, plaintiffs alleged that they were assigned the interest of the original vendors in August, 1977; that the original vendees had entered into a conditional sale contract in September, 1967, to purchase the real property; that the vendees were in default in various particulars, including a failure to make payments when due; and that the vendees had sold the property to defendants without the permission required in the land sale contract. The complaint named the vendees and the defendants as party-defendants and also alleged that the defendants "have or claim to have some right, title or interest in the real property." The vendees did not enter an appearance and an order of default was taken against them. Defendants, however, filed an answer and cross-complaint. In the answer they admitted that they have an interest in the property, and they denied plaintiffs' allegations of default. In the cross-complaint, they attached a copy of a 1973 agreement between the vendees and themselves, they alleged that they have been assignees of the vendees since 1973, and they alleged that plaintiffs (and their predecessors) knew of their assignment, accepted their payments, and waived any breaches of performance.[1] The cross-complaint also contained allegations of damages which are not material to the issue of strict foreclosure. After the trial court allowed plaintiffs' motion to strike the cross-complaint, defendants filed an amended answer which was similar to the original answer, except that defendants alleged their claims for damages in separate counts. The trial court sustained plaintiffs' demurrer to the cross-complaint and to defendants' allegations that the plaintiffs knew of the assignment, accepted payments, and waived any breach. Defendants filed a second amended answer and a cross-complaint, again alleging knowledge by plaintiffs of defendants' interest, *179 acceptance of payments and waiver of any breaches. Again the trial court sustained plaintiffs' motion to strike or, in the alternative, to demur to the cross-complaint. The trial court explained, in a Memorandum, that the agreement between defendants and the original vendees is not an assignment, but is a separate and distinct contract of sale. The trial court was of the opinion that, because defendants are not privy to the original contract, they had no rights as against the plaintiffs. The next pleading appearing in the record is plaintiffs' motion for summary judgment based "upon ORS 18.105 and the records and files herein." Plaintiffs did not file any supporting documents. Defendants, however, filed an affidavit specifically denying the allegations in plaintiffs' complaint concerning breaches of the contract. Thereafter the trial court entered an order allowing the motion for summary judgment, entered an interlocutory decree of strict foreclosure, and subsequently entered a final decree of strict foreclosure. When the trial court allowed plaintiffs' motion for summary judgment he stated in a Memorandum that he did so for two independent reasons: (1) the defendants have "no standing to affirmatively contest the foreclosure of a contract to which they are not a party";[2] and (2) the "defendants have not, by an affidavit of denial, or otherwise, demonstrated there is a genuine issue of fact as required by ORS 18.105(4) and Gleason v. International Multigoods [sic] Corporation. [282 Or. 253, 577 P.2d 931 (1978)]." We disagree with the trial court's first reason for granting plaintiffs summary judgment. From the record it appears that the trial court's ruling was based on the erroneous assumption the defendant had no defense. Even if defendants are subpurchasers, and not assignees, they may contest the foreclosure of the original real estate contract. In their complaint plaintiffs named defendants as party-defendants in the suit, alleged that defendants had purchased the real property, and alleged that defendants have or claim to have some interest in the property. If we accept plaintiffs' allegations, then these defendants are entitled to contest the foreclosure suit because they are named party-defendants who claim an interest in the property. Furthermore, defendants alleged in their answers that plaintiffs had been aware of defendants' interest, had accepted payments from them for over four years, and had waived any breaches of the original contract. As party-defendants who claim an interest in the real property, these defendants are entitled to allege and prove these facts.[3] The trial court should not have granted the motion for summary judgment on the grounds the defendants had no standing to resist the foreclosure. On remand the trial *180 court should re-examine its rulings on plaintiffs' motions and demurrers based on this decision. We also disagree with the trial court's second reason for granting summary judgment. The trial court applied ORS 18.105(4) which requires a party responding to a properly supported motion for summary judgment not to rest upon the mere allegations or denials of his pleading, but to set forth by affidavit or otherwise specific facts showing that there is a genuine issue as to a material fact. The trial court relied on Gleason v. International Multifoods Corp., 282 Or. 253, 577 P.2d 931 (1978). The trial court's reliance on ORS 18.105(4) and on Gleason is misplaced. This court has previously noted that ORS 18.105(4) applies when the party moving for summary judgment has adequately supported his motion with affidavits or other material. See Engelking v. Boyce, 278 Or. 237, 242, 563 P.2d 703 (1977); Pelege v. Chrysler, 278 Or. 223, 563 P.2d 701 (1977). See also First Nat. Bank v. Cities Service, 391 U.S. 253, 288-89, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968); 10 Wright & Miller, Federal Practice and Procedure: Civil § 2739 (1973). In Gleason we applied ORS 18.105(4) because the party moving for summary judgment supported his motion by affidavit. See 282 Or. at 258, 577 P.2d 931. In the instant case the plaintiffs did not support their motion for a summary judgment by affidavit or otherwise. ORS 18.105(4) therefore does not apply to the instant case. Plaintiffs, the party moving for summary judgment, had the burden of showing that there are no genuine issues of material fact and that they were entitled to judgment as a matter of law. The record on summary judgment is viewed in the light most favorable to the party opposing the motion. See Seeborg v. General Motors Corporation, 284 Or. 695, 588 P.2d 1100 (1978); Uihlein v. Albertson's, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Santilli v. State Farm, 278 Or. 53, 59, 562 P.2d 965 (1977). See also United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); 10 Wright & Miller, supra, § 2716. In the instant case the plaintiffs filed no supporting material but merely rested on their pleadings.[4] Defendants, however, did not rely solely upon their answer, which had denied the allegations of the complaint and had alleged payments by them accepted by plaintiffs, but went further and filed an affidavit in opposition to the motion for summary judgment. The affidavit stated that they specifically denied the allegations of breaches made in paragraph IV in the complaint. We believe that an issue of fact was created and that the matters should not have been decided on the motion for summary judgment.[5] Reversed and remanded. [*] Did not participate in this decision. [1] Paragraph IV of the answer states: "That plaintiffs and their predecessors in interest have, at all times since February 2, 1973, been aware of said assignment * * and have accepted payments from your answering defendants since said date; that the plaintiffs herein are, and have been, personally aware of your answering defendants' interests prior to the date of filing their complaint; that your answering defendants deny any breaches of the terms and conditions of the contracts attached to plaintiffs' complaint * * * and allege that, if any of the alleged breaches have occurred, plaintiffs and their predecessors in interest have, by their past actions, led your answering defendants to believe that the terms of said contracts would not be strictly enforced; that plaintiffs and their predecessors in interest have, through a consistent practice of ignoring past breaches such as those alleged in their complaint, permitted these answering defendants to rely on such course of conduct and have failed to give reasonable, or any, notice that they would insist on strict performance of the provisions of said contracts; that plaintiffs and their predecessors in interest have not given these answering defendants a reasonable, or any, opportunity to remedy any of said alleged breaches before filing the within suit to foreclose said contract; and that plaintiffs have suddenly and without fair notice, pounced upon the answering defendants, ousted them from possession, and attempted to cancel their rights under said contracts." [2] The court stated in its memorandum opinion: "* * * First, the Court has, by prior rulings consistently held these Defendants are not parties, by assignment or otherwise, to the contract Plaintiffs seek to foreclose, and, therefore have no rights nor obligations under that contract. For this reason, they have no standing to assert affirmative defenses against these Plaintiffs as might be available to the original vendees as a party in contractual privity with these Plaintiffs. In short, the Court has held these Defendants sub-vendees and not assignees as they have alleged. In substance then, the Court has consistently held these Defendants only have recourse against the sub-vendors." [3] Under the allegations contained in the pleadings, if plaintiffs had accepted late payments from defendants, then defendants may not be declared in default and the property may not be subject to foreclosure unless plaintiffs first give defendants notice and an opportunity to bring the payments up to date. See, e.g., Fisher v. Tiffin, 275 Or. 437, 551 P.2d 1061 (1976); Soltis v. Liles, 275 Or. 537, 551 P.2d 1297 (1976). In Fisher we stated: "The law in this state is well established that, even when a contract contains a time-essence clause, a vendor who, through a consistent practice of accepting late payments, has permitted the purchaser to rely on this course of conduct must give reasonable notice that he will thereafter insist on strict performance of the contract provisions. The vendor must also give the purchaser a reasonable opportunity to bring the payments up to date before he is entitled to strict foreclosure. * * *." 275 Or. at 440, 551 P.2d at 1062. [4] The court heard testimony from several witnesses for the plaintiffs at the hearing on the motion for summary judgment. The trial court later ruled, however, that the taking of testimony was improper and that such testimony would not be considered on the motion for summary judgment. [5] We believe it is appropriate to note the number of cases coming before the appellate courts on allowance of motions for summary judgment. In that connection we believe that it is also appropriate to quote the language of Justice Holman in Seeborg v. General Motors Corporation, 284 Or. 695, 588 P.2d 1100 (1979): "ORS 18.105 was `enacted to facilitate effective use of the court system by allowing for a quick, early and inexpensive method of determining whether the pleadings present a triable issue of fact.' Garrison v. Cook, 280 Or. 205, 209, 570 P.2d 646, 648 (1977). The party moving for summary judgment must establish that (1) there is no issue as to any material fact; and (2) he is entitled to judgment as a matter of law. If these requirements are met, the parties need not wait until trial but may seek a final adjudication of the action by motion. `In this way, dilatory tactics resulting from the assertion of unfounded claims or the interposition of specious denials or sham defenses can be defeated, parties may be accorded expeditious justice, and some of the pressure on court dockets may be alleviated.' 10 Wright & Miller, Federal Practice and Procedure § 2712. But at the same time it must be remembered that a summary judgment motion goes to the merits of a case, and, when granted, operates to merge or bar the cause of action for res judicata purposes. `Since its impact is rather drastic, summary judgment must be used with a due regard for its purposes and should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues.' Id." 284 Or. at 699, 588 P.2d at 1102.

de54f97436e7d8aef9b430ab8c29beaedb735b53be73cba34216048cbab1aaa5

1980-03-04T00:00:00Z

bc934ee8-6516-4c0a-9b1a-3ab7eb1e725e

Matter of Woodman

289 Or. 551, 614 P.2d 1162

oregon

Oregon Supreme Court

614 P.2d 1162 (1980) 289 Or. 551 In the matter of the Compensation of Donald E. Woodman. Donald E. Woodman, Petitioner, v. GEORGIA-PACIFIC CORPORATION, Respondent. WCB 78-5283; CA 14188 and SC 26641. Supreme Court of Oregon. Argued and Submitted May 5, 1980. Decided July 24, 1980. *1163 Michael Strooband, of Bischoff, Murray & Strooband, P.C., Eugene, argued the cause for petitioner. With him on the brief were Doblie, Bischoff & Murray, P.C., Eugene. Jack L. Mattison, of Jaqua & Wheatley, P.C., Eugene, argued the cause and filed a brief for respondent. Raymond J. Conboy, Portland, filed a brief for the Oregon Trial Lawyers Association as amicus curiae. Paul R. Bocci, Jr., Portland, filed a brief for Oregon Association of Defense Counsel as amicus curiae. With him on the brief were Schwabe, Williamson, Wyatt, Moore & Roberts, and Robert E. Joseph, Jr., Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. LINDE, Justice. As a result of an industrial accident in 1974, claimant's left arm was amputated a few inches below the shoulder, and he was fitted with a prosthesis. After further surgical procedures and replacement of the prosthesis due to pain, he returned to work for the employer in 1976 but continued to experience phantom pain and other difficulties. In 1978, the Workers' Compensation Department issued a Determination Order awarding claimant the scheduled 192 degrees of permanent partial disability for 100 percent loss of the arm as prescribed by ORS 656.214(2)(a).[1] Claimant sought an additional award for unscheduled disability of his left shoulder and back. After a hearing, the referee affirmed the determination order. The Workers' Compensation Board *1164 modified the order to award claimant an additional 48 degrees of unscheduled disability for 15 percent disability of his upper back.[2] This award was reversed by the Court of Appeals. 42 Or. App. 899, 601 P.2d 909 (1979). We allowed review in order to determine under what circumstances permanent partial disability resulting from an injury which causes a loss scheduled in ORS 656.214(2) may also be compensable as an unscheduled disability under ORS 656.214(5). The exact question has not previously been decided by this court, but it is not a new issue. See, e.g., Shemel, Workmen's Compensation Awards for Injuries to Specific Members of the Body, 30 Cornell L.Q. 218 (1944). The problem is inherent in the structure of the workers' compensation law. Oregon's law, like that of other states, compensates permanent partial disability on two distinct principles. When the injury affects a part of the body specified in the statute an arm, leg, hand, foot, finger, toe, or joints thereof, an eye or an ear compensation is awarded for the permanent loss of use or function of the injured member or organ, in an amount fixed by law irrespective of the actual effect on the earning capacity of the particular worker. ORS 656.214(2). In other words, the measure of compensation is the physiological rather than the economic effect of the injury. When permanent disability results from an injury to any other, "unscheduled," part of the body, compensation is measured by the loss of earning capacity, that is, by the loss of economic function. ORS 656.214(5), supra note 2; Surratt v. Gunderson Bros., 259 Or. 65, 78, 485 P.2d 410 (1971); Ryf v. Hoffman Construction Co., 254 Or. 624, 459 P.2d 991 (1969); Kajundzich v. State Ind. Acc. Comm., 164 Or. 510, 512, 102 P.2d 924 (1940). Both measures are designed to compensate for the economic loss of earning capacity, not for the physical loss as such. The use of prescribed degrees of compensation for the scheduled physiological losses, somewhat like liquidated damages, serves to simplify and expedite settlement of such claims by excluding disputed predictions of the claimant's future earning capacity; but this gain carries the cost that the schedule may sometimes overstate and sometimes understate the actual loss of earning capacity of the injured individual. Predictably, the statutory design comes under strain whenever a scheduled loss has functional consequences that reduce the claimant's earning capacity in substantially greater degree than is provided in the schedule. On the side of the employer in this case,[3] it is argued that the legislature has fixed and from time to time has adjusted the compensation for permanent partial disability from scheduled losses to reflect what in its judgment are the effects on earning capacity to be expected from such losses in most ordinary occupations, and that it meant this to be the exclusive compensation under the statute. This is also said to extend to those secondary bodily or psychic consequences of a scheduled loss that are so predictable that they must have been contemplated by the legislative scheme. On the side of the claimant it is argued that once the disabling injury extends beyond a scheduled part of the body, it has "spread" to the unscheduled category and is compensable under ORS 656.214(5) regardless whether the "spreading" was an expected or unexpected consequence of the original injury. Only the "inevitable" consequences of a scheduled loss are conceded to be covered *1165 by the scheduled measure of compensation. The Court of Appeals reasonably considered itself bound by language in this court's opinion in Kajundzich v. State Ind. Acc. Comm., supra, which quoted an early New York case for the proposition that the scheduled award covers any "usual and expected effect" of the injury to the scheduled part of the body, but that it does not preclude a nonscheduled award for an "actual, although unusual and unexpected, condition" resulting from that injury. 164 Or. at 514, 102 P.2d at 926, quoting Dowling v. Gates, 253 N.Y. 108, 110-111, 170 N.E. 511 (1930). Kajundzich itself was a different case. There the issue was whether a scheduled award for injury to a foot precluded an award for a greater degree of disability for injury to the leg, another scheduled member, and the court sustained the larger award on its own review of the facts. Applying the same principles to the evidence in a companion case, the court reversed a scheduled award for partial disability of a hand when the injury was to claimant's thumb and there were no separate physiological consequences to the hand but only the loss of function to be expected from the loss of a thumb. Graham v. State Ind. Acc. Comm., 164 Or. 626, 102 P.2d 927 (1940). Neither case involved an unscheduled loss to be measured by reduced earning capacity. Also distinguishable are cases in which a conceded injury to an unscheduled part of the body is accompanied by loss of function of a scheduled part, as in Surratt v. Gunderson Bros., supra, 259 Or. at 78, 485 P.2d 410, Foster v. S.A.I.F., 259 Or. 86, 485 P.2d 407 (1971); Walker v. Compensation Dept., 248 Or. 195, 432 P.2d 1018 (1967), for in such cases there is no reason to assume that the legislature meant the existence of a scheduled loss to limit the award for lost earning capacity payable for the unscheduled loss. Still another variation is an injury to a scheduled part of the body that produces a loss of function different from that covered in the schedule, for instance an eye injury causing disability other than loss of vision. ORS 656.214(2)(i); Russell v. SAIF, 281 Or. 353, 574 P.2d 653 (1978) (allowing unscheduled disability rating). The case now before us presents the question of an injury to a scheduled part of the body affecting an unscheduled area with additional disabling effect. As stated above, the employer contends that the scheduled award is exclusive if the additional effect is "usual" or "expected"; the claimant contends that only "inevitable" effects are excluded. It should be made clear at the outset to what this contest of adjectives is addressed. It is not the probability or certainty of lost earning capacity. Nor is it the probability or certainty that a given operational function of the uninjured parts of the body will by lost because it depends on the missing or disabled member. Both of these consequences clearly are encompassed within the scheduled award. Rather, the dispute concerns the physiological (possibly also the psychic) consequences of an injury to a scheduled part of the body for other, unscheduled areas. It is a question of medical cause and effect. If these consequences extend beyond the anatomical limits of the scheduled part itself, they may be said to "spread," as claimant states. One possible reading of the law might be that whenever an injury does extend or spread beyond the limits of a scheduled to an unscheduled area, and the effect on the unscheduled area would itself be recognized as disabling, then the disability would fall within ORS 656.214(5) regardless of its medical probability or improbability. That reading would have the virtue of simplicity. However, petitioner's claim does not go so far. He concedes that to move beyond the scheduled award to unscheduled loss of earning capacity in every such case would go beyond the legislative design when the effect on the unscheduled area is an "inevitable" consequence of the injury to the scheduled member or organ. The disagreement is between that statement of the test and the employer's contention that the legislature meant to incorporate all "usual and expected" effects beyond the scheduled area in the statutory award for the scheduled loss. It becomes a disagreement over the required degree of probability. *1166 There are limits to how much the law can express by adjectives and adverbs. Even the word "inevitable" in this context expresses not a logical necessity but an empirical judgment about the human organism that rests on the current state of clinical knowledge and statistical experience. We shall not attempt a false precision by stating the required relationship to be shown by expert testimony as a numerical percentage of probability discounted by another numerical degree of confidence. We believe that the following is adequate to express the judgment that must be made on adequate evidence when an injury compensable as a scheduled loss is claimed to have caused independently disabling consequences in an unscheduled area. First, the unscheduled disability must be "independent" in the sense that it would be recognized as a disability impairing the claimant's earning capacity if there had been no loss of use or function in the scheduled member or organ. This only restates the proposition previously stated, that compensation is not payable under ORS 656.214(5) merely because the operational use of an unscheduled part of the body depends on the missing or disabled scheduled part. Second, the consequential loss in the unscheduled area is included in the scheduled formula when the medical expectation that it will accompany the scheduled loss is so great that its failure to occur would be an exceptional case. So much we believe may fairly be attributed to the legislative purpose in providing a schedule of awards for certain losses of use or function in lieu of individual predictions of lost earning capacity. But we do not think that this legislative assumption extends to secondary consequences beyond the scheduled loss that are merely common or probable. They must be so intrinsic to the original injury (even if delayed) that their failure to follow it would be anomalous and surprising. If the secondary consequences are of this kind, they do not give rise to recovery for unscheduled disability under ORS 656.214(5); otherwise they do. Third, it is clear that these criteria of probability refer to injuries and their consequences in the relevant population group at large, not to the physical characteristics peculiar to the individual claimant. Whatever disabling effects the legislature included as necessary consequences within the scheduled losses, they would be those common to the general population of working men and women rather than to one or another individual. The question remains whether the law was misapplied in the present case. Petitioner claimed unscheduled disability in his shoulder and back due to chronic neuroma in the left shoulder, muscular atrophy in the upper left back, and spinal problems resulting from imbalance after the loss of his left arm. The Workers' Compensation Board stated its review of the medical evidence as follows: In reversing the Board's order on its own review of the record, ORS 656.298(6), the Court of Appeals wrote: Unlike the Court of Appeals, this court does not make an independent judgment on the facts. 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). Thus it is necessary to determine whether the Court of Appeals reversed the Board in this case because it disagreed with the Board's view of the evidence or because it misconceived the legal test of compensability. The Board's order, as quoted above, used the terms "associated with" and "related to" in describing the causal link between the injury to the arm and the consequences for the shoulder and back. These terms are insufficiently precise to show whether the Board found from the evidence that these consequences would or would not follow the amputation of the arm in all but exceptional cases. The opinion of the Court of Appeals stated that the claimant concedes this point with respect to the atrophy. As to the other two asserted complications, we cannot be sure from the excerpt quoted above whether the court would have reached the same evaluation of the record if it had examined it under the legal test as we have stated it. Not being able to make that evaluation here, we are obliged to remand the case for that purpose to the Court of Appeals. Reversed and remanded. PETERSON, Justice, dissenting. I dissent. I have no quarrel with the first and third parts of the three-part test set forth on page 1166 of the slip opinion. I disagree with the second part of the test for two reasons. First, we are impliedly overruling Kajundzich v. SIAC, 164 Or. 510, 102 P.2d 924 (1940), and Graham v. SIAC, 164 Or. 626, 102 P.2d 927 (1940). Second, I fear that part two of the three-part formula will prove to be difficult to follow and difficult to apply. The majority states: This test differs from the test adopted by this court in 1940 in Kajundzich and Graham. In Kajundzich, a claimant injured his foot and sought compensation for a fracture of the bones of the left ankle, as well as for an injury to the muscles, tendons, ligaments, and nerves of the left leg. A physician testified that the industrial accident destroyed the nerves to his leg, and that it caused the atrophy of his leg. Other doctors attributed the atrophy of the left leg to non-use rather than to nerve injury. This court concluded that there was substantial evidence tending to support the general finding of injury to the leg. As the court characterized the evidence, the claimant's original injury was to his foot, and had spread to the leg. The court held that the scheduled award did not preclude an additional award for unusual and unexpected conditions which developed as a result of the injury. With respect to the rule applicable to such situations, the court quoted with approval from Matter of Dowling v. Gates & Co., 253 N.Y. 108, 170 N.E. 511 (1930), which held that: In Graham, a worker with preexisting injuries to his fingers suffered total loss of function of the thumb. The plaintiff contended that "by reason of prior injuries to his fingers, and the injury to his thumb, compensation should be awarded on the basis of disability to his hand" (164 Or. at 627, 102 P.2d at 928). Because there were no compensable injuries to parts of the hand other than the thumb, this court held that compensation had to be limited to that provided by the schedule for a thumb injury, even though loss of the thumb necessarily limited use of the hand. The applicable rule to be drawn from these cases is clear: Additional compensation may be awarded beyond the amount of the scheduled compensation if additional injuries to other areas of the body are sustained as a result of the scheduled injury, if such resulting injuries are unusual or unexpected. The majority correctly states that neither Graham nor Kajundzich "involved an unscheduled loss to be measured by reduced earning capacity." This is true, but I can see no difference in substance between a Graham situation (where hand disability resulted from a thumb injury) and the case at bar (where back and shoulder problems allegedly resulted from loss of an arm.) I fear that the persons working with this formula (the doctors, lawyers, hearings officers and litigants) will find it extremely difficult to understand and apply. The majority states that there "are limits as to how much the law can express by adjectives and adverbs"; that rules that use words such as "usual," "expected," or "inevitable," create a "contest of adjectives." That may be true, but the test proposed by the majority will result in no improvement so far as adjectival and adverbial contests are concerned. Instead of medical witnesses being asked whether such sequelae "normally" or "inevitably" follow, they will be asked questions such as: Is the medical expectation great that the sequelae will follow the scheduled loss? Is the failure of the sequelae to follow the scheduled loss exceptional? Are the sequelae common? Are the sequelae merely a probable as distinct from an exceptional result of the scheduled loss? Are the sequelae so intrinsic to the original injury that their failure to follow it would be anomalous and surprising? The rule, as articulated by the majority, is difficult to understand and apply. If we intend to allow compensation for all unscheduled sequelae other than those as to which the medical expectation that they will accompany the scheduled loss is so great that their failure to occur would be exceptional,[1] it would be better to say that all consequential unscheduled injuries are covered unless they inevitably follow the scheduled loss. [1] At the time of claimant's accident, ORS 656.214(2)(a) provided: "(2) When permanent partial disability results from an injury, the workman shall receive $70 for each degree stated against such disability as follows: "(a) For the loss of one arm at or above the elbow joint, 192 degrees, or a proportion thereof for losses less than a complete loss." [2] At the time of this order, ORS 656.214(5) provided: "In all other cases of injury resulting in permanent partial disability, the number of degrees of disability shall be a maximum of 320 degrees determined by the extent of the disability compared to the workman before such injury and without such disability." The phrase "extent of the disability compared to the workman" presumably meant "compared to the normal condition, or ability, of the worker" before the injury and without the disability. The section was revised in 1979. [3] Because of the wide interest in the issue beyond the immediate parties, the Court invited briefs amicus curiae from the Oregon Trial Lawyers Association and the Oregon Association of Defense Counsel. This opinion refers without distinction to the able briefs submitted by the parties and by amici curiae. [1] This awkward sentence illustrates how difficult it is to state the rule.

06a04968821a9971ceaaf663c46a3b53cb9cb0ec81c3c30a3144c71ed11ab852

1980-07-24T00:00:00Z

6ac444bc-e44a-4e80-b633-6c20e02dc560

Inkley v. Forest Fiber Products Co.

288 Or. 337, 605 P.2d 1175

oregon

Oregon Supreme Court

605 P.2d 1175 (1980) 288 Or. 337 Harry H. INKLEY, Petitioner, v. FOREST FIBER PRODUCTS CO. and State Accident Insurance Fund, Respondents. CA 13382; SC 26423; WCB 78-873. Supreme Court of Oregon, In Banc. Argued and Submitted November 5, 1979. Decided January 22, 1980. *1176 Charles S. Tauman, of Willner, Bennett, Bobbitt & Hartman, Portland, argued the cause and filed the briefs for petitioner. Mary T. Danford, of Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland, argued the cause and filed the brief for respondent Forest Fiber Products Co. Darrell E. Bewley, Salem, argued the cause for respondent SAIF. With him on the brief were K.R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, Salem. DENECKE, Chief Justice. This case arises under the Oregon Occupational Disease Law, ORS 656.802-824. Petitioner Inkley worked from 1956 to 1977 as a welder-mechanic for respondent Forest Fiber Products Co. In September 1976 petitioner filed a claim with the employer seeking compensation for a job-related hearing loss. At that time Forest Fiber Products was a direct responsibility employer, directly liable for the payment of compensation benefits to injured workers.[1] Until April 1, 1976, however, Forest Fiber Products had been a contributing employer,[2] purchasing workers' compensation coverage for its employes through the State Accident Insurance Fund (SAIF). Pursuant to ORS 656.262(1), claims for injuries sustained prior to April 1, 1976, were payable by SAIF, not the employer. The employer denied petitioner's claim on the ground that his hearing had improved since April 1, 1976. SAIF also denied responsibility, claiming that workplace conditions subsequent to April 1976 could have contributed to petitioner's hearing loss and that this relieved SAIF of any responsibility. No party disputed that petitioner suffers from a compensable occupational disease. The Workers' Compensation Board (WCB) held, however, that neither the employer nor SAIF is liable, and the Court of Appeals affirmed without opinion. Inkley v. Forest Fiber Products Co., 41 Or. App. 178, 596 P.2d 1332 (1979). We granted review to determine which, if either, of the two potential paying agencies should be required to accept petitioner's claim. Petitioner worked in a hardboard plant. His job involved prolonged exposure to noisy machinery. Petitioner could not say exactly when his hearing problem began. At a WCB hearing in 1978 he testified: An audiogram commissioned by the employer in 1972 indicated a 34.3 per cent hearing loss. In 1974 or 1975 the employer began to provide earmuff type noise mufflers and also moved the maintenance shop in which petitioner spent half his work day to a quieter part of the premises. Nevertheless, by March 1976 the extent of petitioner's hearing loss had increased to 37.4 per cent. In September 1976 petitioner filed with the employer a claim for compensation for his hearing loss. By then Forest Fiber Products had become a direct responsibility employer, and petitioner never submitted a claim to SAIF. On April 2, 1977, with the claim still pending, petitioner retired. In January 1978 petitioner received a denial notice from the employer's insurance carrier, Employee Benefits Insurance Co. (EBI).[3]*1177 The letter stated that the denial was based upon the fact that petitioner's hearing had improved since the employer assumed coverage. EBI cited another audiogram test taken after petitioner's retirement in May 1977, which revealed a slight improvement in petitioner's hearing since the March 1976 test.[4] Petitioner filed a timely request for a hearing. At petitioner's request the referee ordered the joinder of SAIF as a defendant. At the hearing the petitioner did not take a position as to which of the two carriers is responsible. EBI and SAIF each attempted to show that the other should bear the burden. In addition, SAIF challenged the referee's authority to join a defendant who had not been served with a notice of claim. As stated, the WCB ultimately held that neither carrier was liable. Thus, petitioner has received no compensation to date for a hearing loss which all parties agree is job related. The petitioner in this case presents the same problem as the occupational disease claimant who at different times held jobs with several employers, each of which involved exposure to conditions which might cause the disease. By their very nature chronic conditions such as silicosis, asbestosis, and occupational loss of hearing usually cannot be traced to a single incident or injury. As we observed in White v. State Ind. Acc. Comm., 227 Or. 306, 322, 362 P.2d 302, 309 (1961): Uncertainties as to the cause and date of onset of chronic occupational maladies make the assignment of liability to any one employer difficult and somewhat arbitrary. The Court of Appeals confronted this problem in Mathis v. SAIF, 10 Or. App. 139, 499 P.2d 1331 (1972). The claimant in that case suffered from asbestosis, which he had contracted during the course of a 31-year career as an asbestos worker. His final job in the trade lasted only four months, at the end of which he was advised by a physician to retire from that line of work. A medical review board concluded that claimant's last job involved some exposure to asbestos, but that "Exposure to asbestos in years past with a different employer was no doubt far more important in the causation of his disease * * *." 10 Or. App. at 143-44, 499 P.2d at 1333. The Oregon Occupational Disease Law does not provide for the apportionment of liability between several employers. Thus, the Court of Appeals in Mathis had to decide which of the claimant's several employers should bear the entire burden. The court resolved that question by adopting the so-called "last injurious exposure rule," stated by Professor Larson as follows: The current edition of Larson cites 22 jurisdictions which follow the last injurious exposure rule in occupational disease cases.[5] We did not review the Mathis decision, but the reasons cited by the Court of Appeals for adopting the rule are persuasive to us. Claimants in the position of the petitioner need to know with which employer or carrier to file a claim. ORS 656.807(1) provides, in part: The effect of this short limitations period is that a claimant who files against the wrong employer may lose his right to compensation entirely. The rule governing allocation of liability among several employers, therefore, needs to be as definite as possible. When only one employer is involved, the claimant must show a causal relationship between workplace conditions and his illness.[6] In the multiple employer situation, however, such a "causality rule" would expose the claimant to the risk of no recovery, if his initial judgment as to which job had the strongest causal relation to his illness proved faulty. The inequity of denying a disabled worker his benefits under the statute because he mistakenly filed against the wrong employer influenced the Court of Appeals to adopt the last injurious exposure rule. Under the rule an occupational disease claimant must show that his condition arose "out of and in the scope of the employment," ORS 656.802(1)(a), but he need not meet the often impossible burden of showing that workplace conditions at a specific time and place caused or materially aggravated his condition. The rule requires the claimant to show only that the employment environment during the relevant period could have been a contributory cause of the disease. That question is more susceptible to proof in a WCB proceeding than is the question of whether the workplace did cause the disease. In this case all of the parties agree that liability should be determined according to the last injurious exposure rule. The dispute focuses on whether the employment environment after April 1976 could have contributed to petitioner's hearing loss. On this point there is conflicting evidence. EBI relies primarily on the results of petitioner's audiogram examinations, which indicated that between March 1976 and May 1977 his hearing improved slightly. EBI attributes this improvement to the remodeling of the manufacturing plant, and the issuance of earmuffs by the employer. Petitioner testified that the new shop was quiet in comparison with the old shop. SAIF disputes the significance of the audiogram test results, as evidence that petitioner's hearing improved after March 1976. The 1977 examination was conducted two months after petitioner's retirement. SAIF presented evidence that time away from the noise reduced the severity of petitioner's hearing loss and that a test taken just before petitioner's retirement would not have indicated any improvement. Even after the shop renovation petitioner spent 50 per cent of his workday in close proximity *1179 to noisy machinery. Moreover, petitioner testified that he could not wear the earmuffs when he was welding. A 1978 letter from petitioner's physician, Dr. Smith, stated that the medical evidence is "quite compatible with noise exposure over the last several years." The referee who presided over the WCB hearing held that the last injurious exposure rule applies, and that petitioner suffered exposure to conditions which could cause the disease during the time that EBI was on the risk. Accordingly, he assigned the claim to EBI for payment. Upon review, the WCB reversed. The ultimate conclusion of the Board was that petitioner did not suffer exposure after April 1976 to the kind of noise that could cause a hearing loss. In reaching that conclusion, however, the Board may have misconstrued the last injurious exposure rule. At one point the opinion states: Under the last injurious exposure rule the claimant does not have the burden of proving medical causation. He need only prove that the employment environment could have contributed to the hearing loss. This distinction is critical to petitioner's case, and the statement quoted above impeaches the entire holding of the Board. The opinion and order of the referee indicates that the referee correctly applied the last injurious exposure rule to the facts as he found them.[7] Were the function of the WCB limited to correcting errors of law we would remand the case with instructions to reinstate the order of the referee. ORS 656.295 has been interpreted, however, to require de novo review by the Board of factual as well as legal questions, based on the record transmitted by the referee. Coday v. Willamette Tug & Barge, 250 Or. 39, 42-43, 440 P.2d 224 (1968). The factual questions in any case depend, of course, on the law to be applied. In this case the Board's misinterpretation of the last injurious exposure rule may have prejudiced its findings of fact. In order to give the employer the de novo review specified by the statute, we conclude that the Board must have another opportunity to decide whether the employment environment from April 1976 to petitioner's retirement could have contributed to his hearing loss. Our decision to remand the case for reconsideration by the Board requires us to reach the petitioner's second assignment of error, a challenge to the dismissal of petitioner's claim against SAIF. Prior to the hearing on petitioner's claim, he requested and the referee ordered the joinder of SAIF. At the hearing, counsel for SAIF, raised two procedural defenses, both founded upon ORS 656.807(1).[8] The first defense was that the referee lacked jurisdiction over SAIF, because petitioner had never filed a claim against SAIF. The statute provides that all occupational disease claims shall be void unless a claim is filed with SAIF or with the direct responsibility employer. Secondly, SAIF argued that petitioner did not file a claim against SAIF within the statutory limitations period. In addition to these procedural defenses, SAIF denied its liability under the last injurious exposure rule. The referee held that neither of SAIF's procedural defenses had merit.[9] SAIF had no occasion to appeal these conclusions to the Board, because the referee ultimately held that the employer is liable under the last injurious exposure rule. The Board reversed the referee and held that the employer is not liable. As an afterthought, *1180 with no explanation, the Board held that SAIF is not liable either. Since SAIF did not appeal from the decision of the referee, we must assume that the Board accepted the procedural defenses which SAIF raised, unsuccessfully, before the referee. The language of ORS 656.807(1) is susceptible to more than one interpretation. It could be read to give workers the option of submitting claims to either the employer or SAIF. We will assume, without deciding, that when the employer is a contributing employer ORS 656.807(1) requires the worker to file his or her claim with SAIF. Petitioner presents the hybrid case of a worker whose employer was both a contributing and a direct responsibility employer, at different times. Under the statutory scheme petitioner should have filed against SAIF and the employer. In the circumstances of this case, however, petitioner's understandable confusion as to his statutory obligations is not fatal to his claim against SAIF. ORS 656.807(4) states: "The procedure for processing occupational disease claims shall be the same as provided for accidental injuries under ORS 656.001 to 656.794." The worker who suffers an accidental injury must notify his or her employer within 30 days after the accident. ORS 656.265(1). Notice to the employer serves the same function as filing a claim under the Occupational Disease Law. The failure to provide timely notice bars a claim, unless: We can think of no reason to deny occupational disease claimants the same excuses for late or deficient filing as are available to injured workers under the Workers' Compensation Law. The Court of Appeals in Gronquist v. SAIF, 25 Or. App. 27, 547 P.2d 1374, rev. den. (1976), held ORS 656.265(4), relating to accidental injuries, was made applicable by ORS 656.807(4) to claims arising under the occupational disease law. It stated: SAIF did not even argue that it was prejudiced by petitioner's failure to file a formal notice of claim against SAIF. In several cases the Court of Appeals has held that the employer bears the burden to prove that it was prejudiced by untimely notice of an accident. Widener v. La-Pac. Corp., 40 Or. App. 3, 6, 594 P.2d 832, rev. den. (1979); Satterfield v. Compensation Dept., 1 Or. App. 524, 528, 465 P.2d 239 (1970). These holdings are consistent with our rule that provisions of the Workers' Compensation Law should be interpreted liberally in favor of the worker. Burkholder v. S.I.A.C., 242 Or. 276, 283, 409 P.2d 342 (1965); Livingston v. State Ind. Acc. Comm., 200 Or. 468, 472, 266 P.2d 684 (1954). It also puts the burden on the party best able to come forward with evidence to establish prejudice. Since SAIF made no showing of prejudice stemming from the irregular procedure used by petitioner to draft SAIF into the proceeding, we hold that the WCB has jurisdiction over SAIF, and that petitioner's claim must be assigned to SAIF for payment, if the Board finds that petitioner did not suffer exposure after April 1, 1976, to an employment environment which could have been a contributory cause of his hearing loss. Reversed and remanded to the Court of Appeals with instructions to remand to the Workers' Compensation Board. [1] ORS 656.017(1) prescribes two methods by which an employer may provide for the payment of benefits due to employes under the Workers' Compensation and Occupational Disease Laws. A direct responsibility employer unilaterally assumes the burden of providing compensation to his subject workers. ORS 656.403(1). The employer may insure his risks with a qualified carrier, but the maintenance of insurance "shall not relieve any such employer from full and primary responsibility for claims administration and payment of compensation under this chapter." ORS 656.403(3). A contributing employer, by contrast, pays premiums to the State Accident Insurance Fund, and the Fund assumes direct responsibility for the compensation of employes. ORS 656.262(1). [2] See note 1, supra. [3] Respondent Forest Fiber Products purchased workers' compensation coverage from EBI. The coverage took effect on April 1, 1976, the date that the company became a direct responsibility employer. Although the purchase of insurance did not affect the employer's direct liability to its workers, ORS 656.403(3), EBI defended the employer's position at all times throughout this proceeding. [4] A fourth audiogram, taken in March 1978, confirmed that petitioner's hearing had improved slightly since the March 1976 test. For convenience, we summarize the results of petitioner's four hearing evaluations as follows: [5] 4 Larson, Workmen's Compensation Law § 95.21, n. 75 (1979 and Supp. 1979). [6] This requirement derives from the language of ORS 656.802(1)(a), which defines occupational disease as "any disease or infection which arises out of and in the scope of the employment * * *." [7] The dispositive finding by the referee was that "claimant's exposure during the time EBI was on the risk was `of a nature which causes the disease' * * *." [8] The relevant text of ORS 656.807(1) appears at page 5, supra. [9] In review of the conclusions stated below we need not discuss the referee's reasons for rejecting SAIF's arguments on jurisdiction and timeliness.

dec3754cd7489208c91890d12458b55982a648d95f4077528ca1c72930a4eeea

1980-01-22T00:00:00Z

c0a8a459-3faa-411c-a213-40c6988d4af7

State v. Caruso

289 Or. 315, 613 P.2d 752

oregon

Oregon Supreme Court

613 P.2d 752 (1980) 289 Or. 315 STATE of Oregon, Respondent, v. Nicholas Edward CARUSO, Petitioner. TC 78-26700; CA 14143 and SC 26704. Supreme Court of Oregon, In Banc. Argued and Submitted May 5, 1980. Decided June 24, 1980. Dan E. Neal, Eugene, argued the cause and filed the petition and briefs for petitioner. Frank R. Pagagni, Jr., Asst. Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was J. Pat Horton, Dist. Atty., Eugene. James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem, filed a brief amicus curiae. Gary D. Babcock, Public Defender, and Thomas J. Crabtree, Deputy Public Defender, Salem, filed a brief amicus curiae. TANZER, Justice. We accepted review of this criminal case in order to consider the extent to which ORS 135.037 requires pretrial omnibus hearings.[1] Instead, after supplemental briefing, we conclude that ORS 138.060, which regulates the scope of state's appeals in criminal cases, is dispositive. Defendant was charged with driving under the influence of intoxicants in violation of ORS 487.540. The prosecutor moved for a pretrial hearing to determine the admissibility *753 of a breath test result. The trial court refused to hear the matter prior to trial and called the case for trial. The prosecutor represented that the state could not proceed to trial without a pretrial determination of the admissibility of its essential evidence, the breath test result. The trial court, on its own motion, dismissed the case. The state appealed, contending that the duty of the trial court to provide a pretrial hearing is mandatory under ORS 135.037.[2] The Court of Appeals reversed and remanded on the merits. We allowed defendant's petition for review. The state's right to appeal is regulated by ORS 138.060, which provides: The order of dismissal appealed from in this case comes within the definition of subsection (1). In this respect, at least, the appeal is properly taken and we have jurisdiction of the case. The trial court's general authority to dismiss a charge, as it relates to this case, is provided for by ORS 135.755: The reason for the dismissal set forth in the order is the readiness of defendant for trial and the representation of the prosecutor that, without a pretrial omnibus hearing, the state was not prepared to go to trial. Although the state and the order speak of unpreparedness for trial, there is no suggestion that the state could have become prepared by taking action such as finding a witness or waiting out a conflicting trial. Cf. State v. Sharp, 28 Or. App. 429, 559 P.2d 930 (1977). Rather, the prosecutor's action was implicitly a refusal to go to trial and an invitation for a dismissal. In that situation, the court had little choice but to dismiss the case "in the furtherance of justice" and the dismissal was proper. The intention of the state in inviting dismissal was not simple obstinacy; it was to obtain appellate review of the preceding ruling denying a pretrial evidentiary ruling through an appeal from the order of dismissal. Although the state may appeal pursuant to ORS 138.060(1) from a pretrial order of dismissal, the dispositive question of this case is whether the scope of such an appeal includes orders which precede the order of dismissal appealed from. We hold that it does not. The right of the prosecution to appeal is subject to limitations and considerations which do not apply to any other litigant, the foremost of which arise from the defendant's protection against double jeopardy. In other appeal and review contexts, as a general rule, an aggrieved litigant may appeal from any final order. See, e.g., ORS 19.010, 419.561, 183.480(1). By contrast, ORS 138.060(1) and (2) list the specific final orders from which the state may appeal: pretrial dismissal and arrest of judgment. A similar difference exists regarding scope of appeals. Other appellants, when appealing from an appealable order, may also obtain appellate review of all preceding or "intermediate" orders which inhere in the order appealed from. The general pattern of civil and criminal appeals, subject to exception, is that a litigant who is dissatisfied *754 with a nonfinal order has no interlocutory appeal. Rather, he proceeds with the litigation until there is a final order and, if aggrieved by it, he appeals the final order and assigns as error the preceding rulings of which he complains. With particular regard to criminal procedure, ORS 138.040, which regulates the scope of appeal by a defendant after trial, provides an instructive comparison to the provision for state's appeals. It provides: By contrast, ORS 138.060 contains no general reference to intermediate orders or proceedings. Because the state cannot appeal from an adverse judgment after jeopardy has attached, there is special provision for pretrial interlocutory appeals by the state. It is not a general provision. Rather, it applies only to those pretrial orders which the legislature deemed sufficiently significant to warrant the delay, expense, interruption and continuing restraint which result from such an exceptional procedure. Subsections (3) and (4) list the nonfinal orders from which an interlocutory appeal is allowed, i.e., pretrial orders for suppression and return. There is no suggestion implicit in ORS 138.060 that the legislature intended that the state could use an appeal from a proper dismissal as a conduit for appellate review of the correctness of other preceding orders. Cf. State v. Langlois, 287 Or. 503, 600 P.2d 872 (1979); State v. Koennecke, 274 Or. 169, 174-75, 545 P.2d 127 (1976). Were we to assume for argument that the words of ORS 138.060(1) are capable of a broader interpretation, the legislative history does not support such a reading. ORS 138.060(1) formerly allowed the state to appeal only from a judgment for defendant upon demurrer. In 1971, the legislature expanded the subsection to include pretrial dismissals generally. 1971 Or. Laws, ch. 644, § 1. The proponent of the amendment, speaking on behalf of the Department of Justice, explained that its purpose was to allow the state to appeal dismissals of indictments on grounds other than grounds for demurrer, particularly constitutional grounds, whether raised by demurrer or motion. As an example, he referred to the "outrageous" result in State v. Sieckmann, 251 Or. 259, 445 P.2d 599 (1968), in which an indictment was erroneously dismissed because it failed to list a grand jury witness, but the Supreme Court held that the state's appeal of that erroneous ruling was foreclosed by the exclusive statutory reference to judgments on demurrers. There is no mention that there was a larger purpose intended for the amendment i.e., to allow a prosecutor to invite a dismissal as a vehicle for the appeal of each and every pretrial ruling which he finds unsatisfactory. See Testimony of Solicitor General Tanzer, Minutes, Senate Criminal Law and Procedure Committee, April 14, 1971. There may be a remedy for such wrongs, see, e.g., ORS 34.010, 34.110, but it is not direct appeal. Nor is any support for the state's contention to be found in ORS 135.037, set out above at note 1. A purpose of that statute is to preserve the state's right of appeal of those rulings which are appealable under ORS 138.060. It was not intended to expand the scope of the state's right of appeal.[5] *755 The Court of Appeals reached the opposite resolution of this issue in State v. Lewis, 39 Or. App. 151, 591 P.2d 414 (1979). It reasoned that a denial of a state's motion for a pretrial ruling on the admissibility of defendant's statements and breath test results was erroneous under ORS 135.037, an issue we do not reach here. It further reasoned that the state was prejudiced in that it would have to forego its right under ORS 138.060(3) to appeal the suppression order if it went to trial without a pretrial ruling and that the state's refusal to proceed was therefore "proper." It concluded that "the court's dismissal in the face of that refusal was an abuse of discretion." 39 Or. App. at 155, 591 P.2d at 415. Discretion, however, lies in the choice of permissible alternative actions. A trial court faced with a plaintiff which refuses to proceed because the plaintiff is dissatisfied with an earlier court ruling has scant alternative to dismissal. The holding in Lewis regarding scope of appeal is disapproved. See also State v. Riggs, 35 Or. App. 571, 582 P.2d 457 (1978). The preceding order may have been error, but the dismissal was not.[6] Because the dismissal was not erroneous and because the denial of the order for a pretrial hearing could not be properly assigned as error, the judgment of the trial court should have been affirmed. Reversed. TONGUE, Justice, dissenting. I respectfully dissent from the opinion by the majority because of my belief that this case was correctly decided by the Court of Appeals and that State v. Lewis, 39 Or. App. 151, 591 P.2d 414 (1979), as cited by the Court of Appeals in support of its opinion in this case, was also correctly decided and should not have been "disapproved" by the majority. [1] ORS 135.037 provides: "(1) At any time after the filing of the accusatory instrument in circuit court and before the commencement of trial thereon, the court upon motion of any party shall, and upon its own motion may, order an omnibus hearing. "(2) The purpose of an omnibus hearing shall be to rule on all pretrial motions and requests, including but not limited to the following issues: "(a) Suppression of evidence; "(b) Challenges to identification procedures used by the prosecution; "(c) Challenges to voluntariness of admissions or confession; "(d) Challenges to the accusatory instrument. "(3) The court, at the time of the omnibus hearing, may also consider any matters which will facilitate trial by avoiding unnecessary proof or by simplifying the issues to be tried, or which are otherwise appropriate under the circumstances to facilitate disposition of the proceeding. "(4) At the conclusion of the hearing and prior to trial the court shall prepare and file an order setting forth all rulings of the court on issues raised under subsection (2) of this section. The court shall further prepare and file a memorandum of other matters agreed upon at the hearing. * * *" [2] Mandamus is not available if the state has a right to a direct appeal. ORS 34.110; State ex rel. Automotive Emporium v. Murchison, ___ Or. ___, 611 P.2d 1169 (1980). [3] This statute applies to district court proceedings. ORS 46.800(1). [4] This corresponds, for example, to ORS 19.140, which regulates the scope of appeal in civil cases. It provides: "Upon an appeal, the appellate court may review any intermediate order involving the merits or necessarily affecting the judgment or decree appealed from; and when it reverses or modifies such judgment or decree, may direct complete restitution of all property and rights lost thereby." Also, cf. ORS 183.482(7), which similarly defines the broad scope of administrative review. [5] ORS 135.037 was enacted by the 1973 Legislative Session. The proponent, speaking to the Senate Committee on Judiciary on behalf of the Oregon District Attorneys' Association, explained: "They [the ODAA] believe that in Oregon there are numerous items that must be settled prior to trial. Some of these items are appealable by the state. In order to have the state exercise its right to appeal, these items must be determined prior to trial. To avoid having the possibility of having three or four issues raised consecutively, they think it would be an advantage to both the defense and the state and it would ultimately speed up the process if they could all be combined into one hearing." Minutes, Senate Committee on Judiciary, p. 6, June 1, 1973. [6] This is to be distinguished from cases where appealable orders are followed by dismissal. See State v. Hoare, 20 Or. App. 439, 532 P.2d 240 (1975); see also State v. Knudsen, 41 Or. App. 123, 597 P.2d 834 (1979). This case presents no such issue in that the ruling complained of was not itself appealable under ORS 138.060.

187986608c1357d8984dc277d5f205bc8007ee1e3575c741adc0ce7a7b7fba76

1980-06-24T00:00:00Z

f198ea80-e655-44a7-8d9b-97711af0eb6b

Lincoln Const. v. Thomas J. Parker & Assoc.

289 Or. 687, 617 P.2d 606

oregon

Oregon Supreme Court

617 P.2d 606 (1980) 289 Or. 687 LINCOLN CONSTRUCTION, Inc., Petitioner, v. THOMAS J. PARKER & ASSOCIATES, Inc., Respondent. No. 77-2278-L-3; CA 11335 and SC 26672. Supreme Court of Oregon. Argued and Submitted May 5, 1980. Decided September 30, 1980. *607 Sidney Ainsworth, Ashland, argued the cause for respondent. On the briefs was Jack Davis, Ashland. William H. Ferguson, Medford, argued the cause for petitioner. With him on the brief was Grant, Ferguson & Carter, Medford. Before DENECKE, C.J., and TONGUE[*], HOWELL, LENT[*], LINDE, and PETERSON, JJ. PETERSON, Justice. This is an action for breach of contract. The trial court, sitting without a jury, made a general finding for the plaintiff on its complaint, and against the defendant on its counterclaim, and entered judgment for the plaintiff. The Court of Appeals reversed the trial court as to plaintiff's complaint and affirmed as to defendant's counterclaim. 43 Or. App. 207, 602 P.2d 676 (1979). We reverse the Court of Appeals and order the reinstatement of the trial court judgment. Weyerhaeuser was the successful bidder on a timber sales contract with the United States Forest Service. The contract required Weyerhaeuser to build a logging road to Forest Service specifications. Weyerhaeuser subcontracted with the defendant to construct the logging road. The contract between Weyerhaeuser and defendant provided in part: Weyerhaeuser advised Mr. Parker, defendant's president, that an estimated 81,450 cubic yards of gravel would be needed. The Weyerhaeuser-Parker contract was not specific as to the amount of gravel that would be needed, nor did the contract provide for payment on the basis of cubic yards of gravel used. Plaintiff operated rock crushing equipment. Parker met with plaintiff's superintendent and asked for a "price" for processing 81,451 yards of gravel. The superintendent gave him a bid of $3.10 a yard for 81,451 yards. At that time, no contract was executed. Later, defendant's lawyer prepared a contract between plaintiff and defendant pursuant to which plaintiff agreed to perform the blasting, crushing and stockpiling of rock necessary to construct the road. Plaintiff had no responsibility for the construction of the road itself. That contract contained these clauses: Plaintiff commenced its performance in September of 1976. In May, 1977, plaintiff determined that it had crushed and stockpiled rock in excess of the estimated requirements specified in the contract documents between defendant and Weyerhaeuser and thereupon removed its equipment from the site. Plaintiff sought payment from defendant for the difference between the amount it had already received in periodic payments and the contract price per cubic yard times the estimated requirements specified in the contract documents. When defendant refused to pay plaintiff according to plaintiff's demand, plaintiff filed a "construction lien" against the property. Shortly thereafter, Weyerhaeuser terminated its contract with defendant. Subsequently, defendant and Weyerhaeuser negotiated a settlement of their dispute as to what was owing to defendant by Weyerhaeuser. In doing so, they jointly hired an independent surveyor from Klamath Falls to determine the quantity of rock plaintiff had crushed and stockpiled. The surveyor determined that 60,118 cubic yards was then stockpiled, and defendant and Weyerhaeuser added to that volume 6,300 cubic yards of rock which had been put in place on the road to determine what Weyerhaeuser owed defendant for this portion of the contract. Plaintiff was advised of the fact that the independent surveyor would be measuring the stockpile, but it refused to participate in the supervision of his measurement. Instead, plaintiff employed its own expert, who determined that plaintiff had crushed and stockpiled more than the estimated contract requirement, 81,451 cubic yards. Plaintiff then commenced this action. The Court of Appeals held, as a matter of law, that (1) the provisions of the contract between plaintiff and defendant barred any recovery for stockpiled rock beyond the amount "as measured and determined by Weyerhaeuser" (43 Or. App. at 211, 602 P.2d at 678); and (2) that matters relating to measurement, determination or payment for rock had been conditioned upon the certificate of a third person (Weyerhaeuser or the Forest Service), and that "the judgment of that person is conclusive." The Court of Appeals erred in its holding because: *609 A. The court held that plaintiff was bound, as a matter of law, by the measurement of the independent surveyor hired by Weyerhaeuser and the defendant. The contract between the defendant and the plaintiff did not provide that such determination could be made by a person other than Weyerhaeuser or the Forest Service. B. The payment provisions of the contracts are ambiguous, and there was a question of fact as to the meaning of the contract. The finding of fact of the trial court must therefore be upheld, as it was supported by substantial evidence. Parties to contracts often provide for resolution of disputes by a skilled, neutral third person. The rationale is that a quick resolution of their differences is commercially more practicable than a potentially expensive lawsuit. When a contract clearly expresses that a third person is to make final decisions respecting specified matters, such agreement is enforceable. Such third person's determination is final, absent a showing of fraud, bad faith, or a failure to exercise honest judgment. Friberg v. Elrod, 136 Or. 186, 195, 296 P. 1061 (1931). The plaintiff claims that there is nothing in the language of the contracts which reflects a binding agreement that a third person have authority to make any binding determination. We need not decide that question. Normally, when contracting parties agree to abide by determinations made by a third person, they do so in the belief that the third person will make such determinations in good faith, and in a fair impartial manner. To a substantial degree, the honesty, integrity and objectivity of such third person is a factor in the decision of one to agree that a third person make such determinations. Assuming that the contract clearly delegated the determination to a third party, the provision was not strictly adhered to. In negotiating a settlement, Weyerhaeuser and Parker employed a surveyor to measure the volume of stockpiled gravel, and they settled, based upon his calculations. Plaintiff, if it agreed to be bound by the determination of any third person, agreed to be bound only by determinations made by Weyerhaeuser representatives or the Forest Service. Here the measurement of gravel was performed by neither. The contract did not bind the plaintiff to accept the determination of a person jointly designated by Weyerhaeuser and the defendant. Even if defendant were otherwise correct as to the delegation issue, it cannot be said, as a matter of law, that such calculations were "a statement of work completed furnished by Weyerhaeuser representatives." The plaintiff claims that the provisions of the Weyerhaeuser-Parker contract quoted above related to periodic payments during the course of construction and did not govern the method of measuring or determining the volume of crushed rock processed by the plaintiff. The defendant asserts that the contracts are clear and that the Weyerhaeuser determination must be followed. We believe that the payment provisions in the Weyerhaeuser-Parker contract are ambiguous. The contract states that Parker is to be paid at roughly two-week intervals for the amount "of labor expended and material purchased and incorporated into the work." (Emphasis added.) However, the aforementioned clause is qualified by this clause: It is not clear how this clause affects payment for work done but not yet "incorporated into the work," such as the crushing of rock. Furthermore, the Weyerhaeuser-Parker contract contained a provision for termination by either party on 30 days' notice. The *610 contract is not explicit as to how payment is to be made for work done but not yet incorporated into the work if the contractor is dismissed from the job by Weyerhaeuser after having only partially completed the road work, or if the contractor terminates midstream. The "subject to" clause does not clarify how the measurement of rock crushed but not yet incorporated is to be determined in the event of a termination. Nor is the contract between plaintiff and defendant free from ambiguity. The critical provision of the contract between them refers to the price per yard "as measured and determined in accordance with the attached agreements." The "attached agreements" (the Weyerhaeuser-Parker contract) made no express provision for measurement or determination of crushed rock, beyond the reference to "a statement of work completed furnished by Weyerhaeuser" or a Forest Service "Report of Purchaser's Credit for Specified Road Construction." The payment provisions of the contract between the parties are ambiguous in that provision is made for measurement and determination of crushed rock by reference to documents which contain no provision for such determinations. To some extent, the contracts were ambiguous, and the trial court was therefore free to consider the plaintiff's evidence and find consistent with the plaintiff's claims.[2] In an action at law, a general finding of the trial court is equivalent to a general verdict, and we must affirm any judgment entered thereon if the finding is supported by substantial evidence. Progress Quarries, Inc. v. Lewis, 281 Or. 441, 443, 575 P.2d 158 (1978). There is ample evidence to support the judgment of the trial court. We therefore reverse the Court of Appeals and reinstate the trial court judgment for the plaintiff. [*] TONGUE and LENT, JJ., did not participate in this decision. [1] The defendant claims that the "attached agreements" were the Weyerhaeuser Parker contract. There is also a question whether the contracts were ever integrated by attachment or otherwise. The trial court could well have found that no agreements were attached. Plaintiff's superintendent denied examining them. Parker himself testified, in answer to a question from the court, that there were no attachments to the contract when he signed. The trial court was troubled by this, and at one point in the trial stated: "* * * The defense, on the other hand, contends that all of these other materials that are referred to in this agreement were attached at one time, that therefore, we have a complete integrated agreement, and from there we digress to the position of plaintiffs saying, `Well, they've admitted the contract and apparently everything isn't here,' and I can't rule on everything that isn't here. I don't know what the plaintiff has in mind compared to what the defendant has in mind when you're referring to the matters that are referred to in this agreement but aren't attached to the agreement, so I don't know where to begin. "* * *. "* * * What I want to find out at this point is whether or not this was the complete agreement when it was executed by the parties, signed by the parties. If this is it, then you can launch into what you're going into right now. So if we can get over that preliminary hurdle, that would assist me in my future rulings." We need not reach this question, however, for our decision is based upon other grounds. [2] "As a general rule the construction of a contract * * * is a question of law. * * * The exception to this rule is that if the language of the contract is ambiguous or if technical words, local phrases or terms of art are used and evidence is properly admitted showing meaning, the question becomes one of fact." Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 Or. 639, 643, 576 P.2d 1244 (1978).

b644501d5f75c61eacc3eb2df4488af65b478ab2370ba70dddd67b77b9fd50b6

1980-09-30T00:00:00Z

be5ae6b5-5a60-4c21-a724-b622025f28bc

WR CHAMBERLIN v. Northwestern Agencies

289 Or. 201, 611 P.2d 652

oregon

Oregon Supreme Court

611 P.2d 652 (1980) 289 Or. 201 W.R. CHAMBERLIN & Company, a Corporation; Pacific Hawaiian Lines, Inc., a Corporation; and Shramrock Steamship Company, a Corporation, Respondents, v. NORTHWESTERN AGENCIES Incorporated, a Corporation, Petitioner. CA 10846; SC 26543. Supreme Court of Oregon. Argued and Submitted February 5, 1980. Decided May 28, 1980. Jeffrey M. Batchelor of Gearin, Landis & Aebi, Portland, argued the cause and filed briefs for petitioner. Rex E.H. Armstrong, Portland, argued the cause for respondents. With him on the briefs were Jerard S. Weigler and Lindsay, Nahstoll, Hart, Neil & Weigler, Portland. Before TONGUE,[*] P.J., and HOWELL, LENT and LINDE, JJ. LENT, Justice. The issue presented in this case is whether the weight of an uncontradicted opinion by claimant's[1] expert witness[2] is exclusively within the jury's province. *653 Plaintiff is a maritime shipping company. Defendant is a company in the business of obtaining insurance for others. Plaintiff brought a declaratory judgment action alleging that defendant negligently failed to procure or verify that the full amount of insurance requested by plaintiff had been obtained, and that as a result of defendant's negligence plaintiff suffered a monetary loss. The case was tried to a jury which returned a verdict for defendant. The Court of Appeals reversed the judgment for defendant, holding that the plaintiff's motion for a directed verdict should have been granted because the jury could not reasonably reject plaintiff's expert witness's opinion that defendant's conduct "was a failure to exercise the due diligence of a maritime insurance broker." 42 Or. App. 125, 600 P.2d 438 (1979). This court allowed review, ORS 2.520, 288 Or. 81 (1979). The following facts are stated in the light most favorable to defendant, in whose favor the jury found. See, e.g., Shepler v. Weyerhaeuser Company, 279 Or. 477, 484, 569 P.2d 1040 (1977). In 1970 plaintiff retained defendant, through its agent Leonard Wynkoop, to obtain hull and machinery insurance coverage for its barges. Defendant issued a one-year subscription policy covering the period September 26, 1970 to September 26, 1971. A subscription policy is a policy underwritten by several insurance companies which agree to cover various percentages of the risk. Forty-five percent of the hull and machinery insurance was covered by "admitted" companies, that is, companies licensed to write insurance in Oregon. A signature of an agent of such an insurer is binding on the company, and no further verification is needed. The remaining 55 percent of the risk was placed with British insurance companies: Lloyd's of London and British Institute. Defendant obtained this placement through James E. Moore & Company, a California insurance broker who signed on behalf of Puritan Marine Insurance Company of Boston, a nonadmitted company. Puritan Marine in turn placed the risk with the British companies. A "cover note" is a statement issued by nonadmitted companies within 30 days after signing a subscription policy verifying coverage until replaced by a certificate of insurance. A cover note dated October 9, 1970, was sent by the British companies to Puritan Marine, then to Moore, than to defendant. A second one-year subscription policy was issued by defendant on September 7, 1971, covering the period September 26, 1971 to September 26, 1972. This policy was patterned after the first policy, again placing 55 percent of the risk with British companies. The cover note dated October 20, 1971, however, shows that the British companies agreed to underwrite only 40 percent of the hull and machinery value. There is no evidence to show that this cover note reached the defendant during the policy period. The defendant's agent, Mr. Wynkoop, stated that it was his custom to rely on Moore's signature on the subscription policy to verify the coverage. The plaintiff's barges were damaged in three separate marine accidents during the period covered by the second insurance policy. Plaintiff recovered only 85 percent of the loss and initiated this action against defendant to recover the 15 percent deficit. Defendant first argues that defendant's expert witness's testimony contradicts plaintiff's expert witness's testimony "that defendant's conduct fell below the applicable standard of care" and, therefore, a jury question was presented. Defendant secondly argues that even if plaintiff's expert witness's opinion is uncontradicted, the jury is not bound to accept it in this case. We allowed review to consider the second contention. Because we conclude that the jury was not bound to accept the plaintiff's expert witness's opinion, we need not decide whether there was a conflict in the evidence. *654 Plaintiff's expert, an insurance broker experienced in marine insurance, testified on direct examination as follows: We regard this opinion testimony as setting forth what a reasonable person would have done in these circumstances and that defendant marine insurance broker's conduct in failing to verify coverage by the securing of a cover note was failure to do what a reasonable person would have done in these circumstances to protect his client, the plaintiff, from an unreasonable risk of harm.[5] This opinion testimony was necessary in this case because the reasonableness of the conduct of a marine insurance broker is not likely to be within the knowledge of the average juror. See Getchell v. Mansfield, 260 Or. 174, 179, 489 P.2d 953 (1971). We have assumed that the defendant did not introduce conflicting evidence on this issue. The plaintiff's expert testified that the broker should secure a cover note, and in this case the policy listed 55 percent coverage, but the cover note verified only 40 percent coverage, thereby implying that had the defendant secured the cover note, the discrepancy would have been corrected. The Court of Appeals stated that the plaintiff's expert's testimony was "clear, convincing, credible, ordinary and uncontradicted." That court held that a jury could not reasonably find otherwise, therefore the plaintiff's motion for a directed verdict should have been granted. 42 Or. App. at 131, 600 P.2d 438 at 442. The question to be decided is whether the jury should have been bound to accept the expert's uncontradicted opinion. We hold that the jury may reject this conclusion because the weight of the opinion of an expert witness is a matter particularly within the province of the jury. *655 This court has stated that the testimony of expert witnesses is to be received and weighed with caution. Jones v. Jones, 276 Or. 1125, 1130, 557 P.2d 239 (1976); Wallace v. American Life Ins. Co., 111 Or. 510, 225 P. 192, 227 P. 465 (1924); Baber v. Caples, 71 Or. 212, 138 P. 472 (1914). In Baber we quoted from Taylor on Evidence § 58 (8th ed.): Even if a jury accepts that an expert witness has expressed an opinion which he believes to be entirely truthful, the jury may not be persuaded on the ultimate issue to be decided. We conclude that the weight of plaintiff's expert witness's opinion was properly left to the jury. The judgment of the Court of Appeals is reversed and the case is remanded for reinstatement of the judgment for defendant. [*] Tongue, J., did not participate in this decision. [1] We used the word "claimant" to designate the party having the burden of proof on a given issue. [2] We use the term "expert witness" to mean a witness who is qualified, by reason of special knowledge or skill gained from experience, training, or education in a particular field, to express an opinion on a matter within that field that will be of assistance to the trier of fact in discharging the trier's function. Cf. Galego v. Knudsen, 281 Or. 43, 47, 573 P.2d 313 (1978). [3] Plaintiff's expert, Mr. Bowden, previously testified that a surplus line agent is an insurance agent licensed to place business with nonadmitted insurance companies. [4] The defendant points out that this response is insufficient to establish the standard of care of a reasonable marine insurance broker because the response is given in the first person. The Court of Appeals stated that taken in context, the expert's answer was intended to express the applicable standard of care. 42 Or. App., at 129, 600 P.2d 438. Although the answer is technically insufficient, we do not reject the Court of Appeals' construction of this testimony. [5] Compare, 2 Restatement (Second) of Torts, §§ 282 and 283. [6] We have held that the jury should not be instructed to weigh expert opinion with caution because to do so would invade the province of the jury as judges of the credibility of the witnesses. See Kennedy v. Industrial Acc. Com., 218 Or. 432, 436, 345 P.2d 801, 86 A.L.R.2d 1032 (1959). Cf., ORS 44.370; ORS 17.250; Kaiser v. States SS Co., 203 Or. 91, 96, 276 P.2d 410 (1954); Graham v. Coos Bay R. & N. Co., 71 Or. 393, 416-417, 139 P. 337 (1914).

a3b2abb1df7590142f8ee8c32ad79bd627df67cd4fbb1c633af57235fd2d3eb6

1980-05-28T00:00:00Z

19aa9831-a03c-4927-8775-58a59a41f93e

State v. Cohen

289 Or. 525, 614 P.2d 1156

oregon

Oregon Supreme Court

614 P.2d 1156 (1980) 289 Or. 525 STATE of Oregon, Petitioner, v. Jeffrey J. COHEN, Respondent. CA 12428; SC 26553. Supreme Court of Oregon. Argued and Submitted March 3, 1980. Decided July 24, 1980. Robert C. Cannon, Asst. Atty. Gen., argued the cause for petitioner. With him on the briefs were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Marianne O. Bottini, Deputy Public Defender, argued the cause for respondent. With her on the briefs was Gary D. Babcock, Public Defender, Salem. Before DENECKE, C.J., and TONGUE, HOWELL, LENT and PETERSON, JJ. HOWELL, Justice. The defendant was indicted for aggravated murder, ORS 163.095(2)(d), and murder under ORS 163.115(1)(b). In a trial before the court he was convicted of both charges. The Court of Appeals reversed the conviction on the ground that the indictment charging aggravated murder was insufficient. We granted the State's petition for review. The indictment stated in pertinent part: The majority opinion of the Court of Appeals held that Count I of the indictment alleging aggravated murder was deficient because it did not allege that the defendant "personally" committed the murder. The court then reversed the judgment of the trial court and remanded for modification of defendant's conviction from aggravated felony murder to felony murder and for entry of a new sentence.[2] 42 Or. 297, 600 P.2d 892 (1979). Chief Judge Schwab dissented, arguing that the indictment, in its entirety, clearly charges that the defendant personally shot his victim in violation of the aggravated felony murder statute. Felony murder is defined in ORS 163.115(1)(b) as murder Aggravated felony murder is defined in ORS 163.095(2)(d): Under ORS 132.550(7), an indictment must contain: Under ORS 132.540(3): This court has stated that the objects of an indictment are (1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the defendant to avail himself of his conviction or acquittal thereof if he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction. State v. Sanders, 280 Or. 685, 687-88, 572 P.2d 1307 (1977); State v. Smith, 182 Or. 497, 500-01, 188 P.2d 998 (1948). We have further recognized that article I, section 11, of the Oregon Constitution guarantees that persons accused of a crime have the right to "demand the nature and cause of the accusation against him." State v. Sanders, supra 280 Or. at 688, 572 P.2d at 1308. We agree with the Court of Appeals that aggravated murder (ORS 163.095(2)(d)) and felony murder (ORS 163.115(1)(b)) are distinct *1158 offenses. Under ORS 163.115(1)(b), in order to constitute felony murder, the defendant must have been engaged in the commission of one of the specified felonies and a homicide must have been caused by the defendant or by any other participant in the crime. For aggravated felony murder, ORS 163.095(2)(d) requires that the defendant personally commit the homicide. The elements of the two crimes are the same except that aggravated felony murder under ORS 163.095(2)(d) requires one additional element: personal commission of the homicide. Although the indictment does not contain the word "personally" in referring to the manner in which defendant caused the death of another human being, the indictment was sufficient to notify defendant that he had to defend the charge of aggravated murder under ORS 163.095(2)(d). The indictment specifically listed the crime of aggravated murder and referred to ORS 163.095. The indictment then particularly charged that defendant, in the course of a robbery, "did cause the death of another human being, to-wit: Donald V. Baune, by shooting him with a firearm, to-wit: a pistol, * * *." (Emphasis added.) Charging the defendant with causing death "by shooting [the victim] with a firearm" is sufficient to inform the defendant that the State intends to prove that defendant had personally committed the homicide. Accordingly, we reverse the decision of the Court of Appeals. Reversed and remanded. LENT, Justice, dissenting. As the majority concedes, aggravated murder, as defined in ORS 163.095(2)(d), and felony murder, as defined in ORS 163.115(1)(b), are distinct offenses. The one important distinction, for the purpose of the issue before us, is whether the defendant "personally" committed the homicide. Count I of the indictment attempts to charge aggravated murder without any allegation that the defendant "personally" committed the homicide described in the indictment. Under this indictment, the plaintiff could have proven that the defendant's agent shot the victim with a firearm or that defendant aided or abetted another in the shooting, State v. Fraser, 105 Or. 589, 594, 209 P. 467 (1922), and this is so even though the defendant may not even have been present at the scene of the homicide, State v. Carroll, 155 Or. 85, 62 P.2d 830 (1936). I would concede that ordinarily the specific means employed in committing a crime need not be described with any great particularity, but when the very manner or means of commission is what defines the crime, I believe it is necessary to allege such manner or means. When it is a peculiar manner or means of commission of the proscribed act that governs which of two distinct offenses is sought to be charged, the specified manner or means should be required to be alleged in the accusatory instrument. This indictment is simply insufficient to charge aggravated murder. To require the plaintiff to add the word "personally" when charging aggravated murder under ORS 163.095(2)(d) places no great burden upon the prosecutor and would enable the accused to know exactly what is the charge against him. I would dispose of this case as did the Court of Appeals. State v. Cohen, 42 Or. App. 297, 300, 600 P.2d 892 (1979). [1] The plural forms of the words were not deleted on the indictment. [2] Aggravated murder, under ORS 163.095, may be committed in several different ways. ORS 163.095(2)(d) describes what is commonly referred to as aggravated felony murder. Similarly, murder under ORS 163.115 may be committed in several different ways. ORS 163.115(1)(b) describes what is commonly referred to as felony murder.

b1247529b565f5a0f56758fa79c18c8d9700ba5a1a6849cd4eb81ed6c5fc2449

1980-07-24T00:00:00Z

25b499c6-21f5-446f-be61-f025236cc8c7

State v. Foster

288 Or. 649, 607 P.2d 173

oregon

Oregon Supreme Court

607 P.2d 173 (1980) 288 Or. 649 STATE of Oregon, Respondent, v. Dell Kenneth FOSTER, Jr., Petitioner. CA 11775; SC 26368 Supreme Court of Oregon, In Banc.[*] Argued and Submitted December 3, 1979. Decided March 4, 1980. David L. Slader, Portland, argued the cause and filed briefs for petitioner. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Catherine Allan, Asst. Atty. Gen., Salem. *174 HOWELL, Justice. The issue in this criminal appeal is whether the defendant's waiver of his right to have an attorney present during custodial interrogation was voluntarily made. Defendant was arrested at his residence on April 10, 1978 at 11:15 p.m. The arresting officers charged him with kidnapping in the first degree and extortion and advised defendant of his Miranda rights.[1] The officers brought him to the police station where, at approximately 12:15 a.m., they again advised him of his rights, and defendant signed an Advice of Rights form indicating that he understood his rights. Defendant told the police officers that he did not want to discuss any matter without having an attorney present. From 12:15 a.m. until approximately 4 a.m. the morning of April 11, 1978, police detectives spoke with defendant "giving him an opportunity to waive his right to have an attorney present," and hoping to get him to make some incriminating statements. They presented him with the evidence they had accumulated which connected him with the kidnapping. They told him that they knew of his self-incriminating admission to his ex-wife and that a van similar to hers had been involved in the kidnapping. They discussed the maximum penalties, the possibility of plea bargaining and the possibility of bail reduction. They suggested that defendant's prospects might be better if he cooperated with them in recovering the $100,000 ransom money and they stated that, in their opinion, assisting in the return of the money could have a bearing on the sentence and later parole. One detective described their efforts in the following words: While they advised defendant that it could be in his interest to talk, the detectives questioned him about the location of his brother, who was also a suspect in the case. They found a portion of a matchbook cover sticking out of one of his shoes, and they asked him if the telephone number written thereon belonged to his brother. Warning him that the ransom money should be recovered prior to trial, they asked him where the money was hidden. Throughout the questioning, defendant was extremely upset. He told the detectives that he would be willing to discuss the case with them but that he wanted to talk to an attorney first. The detectives continued questioning defendant, telling him that his statements would not be admissible in court because he had not waived his rights, but also suggesting that he cooperate and waive his right to an attorney. Defendant repeated his request for an attorney three or four times during the course of the questioning. Nevertheless, defendant spoke with the detectives and said that he knew he was going to jail for a long time, that he did not want to incriminate his brother, that the phone number on the matchbook cover belonged to his brother, and that he did not know where the ransom money was hidden because his brother told him only that it was buried somewhere. The questioning ended at about 4 a.m. on April 11, and the defendant was booked and jailed. A day later, on April 12 at 10:45 a.m., one of the detectives spoke with defendant in jail "to ask him to waive his right" to have an attorney present. Defendant had not yet seen an attorney and the detective was prepared to readvise defendant of his rights. But first the detective wanted to inform defendant of new developments in the case so that defendant could decide whether to waive his right to counsel. The detective told him that his brother had been arrested and that he had implicated defendant in the kidnapping and the receipt of some of the ransom money. The detective said that he realized defendant had requested an attorney; he also said that in fact an attorney would advise defendant not to discuss the case. Then the detective asked defendant if he wanted to waive his right *175 to have an attorney present. The detective told defendant he felt there was a good chance defendant would be convicted and that it would be to defendant's benefit to cooperate and try to recover the ransom money. After 15 minutes of reviewing the case, the detective again asked if defendant wanted to waive his rights. Defendant then agreed to talk. He was uncertain whether the detective was telling the truth, so the detective requested a lawyer who was present in the building to witness the detective's statements. After hearing the detective's statements, the lawyer suggested to the defendant that he see an attorney. The detective advised defendant of his rights. Defendant agreed to waive his right to have an attorney present, signed a formal waiver to that effect, and proceeded to make a statement and answer questions. The state conceded and the trial court held that the statements made by defendant during the first discussion with police on April 11 should be suppressed. The court denied the motion to suppress the matchbook cover and the evidence obtained therefrom. It also denied suppression of defendant's statements made on April 12. Defendant was convicted of kidnapping in a trial before the court. Defendant appealed the trial court's partial denial of his motion to suppress, and the Court of Appeals affirmed the denial. 40 Or. App. 635, 596 P.2d 572 (1979). In State v. Singleton, 288 Or. 89, 602 P.2d 1059 (1979), this court extensively reviewed Oregon and United States Supreme Court decisions regarding waiver of the constitutional rights to remain silent and to consult with an attorney during a custodial interrogation. We need not elaborate on that discussion. In Singleton we said: The trial court held, and the state concedes, that the police officers violated defendant's constitutional rights when they interrogated him on April 11 after he had asserted his rights to remain silent and to consult with an attorney. Therefore during the April 11 questioning the police did not "scrupulously honor" defendant's rights. The Court of Appeals held that defendant's statements on April 12 (following his signed waiver) "were not the result of and hence not tainted by the earlier interrogation" on April 11. 40 Or. App. at 640, 596 P.2d at 575. Our concern, however, is not with the voluntariness of defendant's statements on April 12, but with the voluntariness of defendant's signed waiver which preceded his statements. The actions of the police that resulted in defendant's statements on April 11 amounted to an attempt to persuade defendant to waive his rights and to talk. We must therefore ascertain whether the police actions that had occurred *176 on April 11 affected defendant's waiver on April 12. In State v. Mendacino, 288 Or. 231, 603 P.2d 1376 (1979), we held that coercive police actions that had produced the defendant's first two inadmissible confessions were not effectively removed so that as a matter of law his third confession was involuntary. The defendant's first two confessions resulted when the police interrogated the defendant after he had asserted his rights to remain silent and to see an attorney. In analyzing the continued effect of Miranda violations, we said: In Mendacino we were concerned with the problem whether earlier unlawful coercive conduct affected the voluntariness of a defendant's later confession. In the instant case, we are concerned with the effect of prior unlawful conduct on the voluntariness of a defendant's waiver of constitutional rights. The analysis, however, is the same; we must inquire into the totality of the circumstances surrounding the series of police interrogations to determine whether the defendant in fact knowingly and voluntarily decided to forego his rights to remain silent and to have the assistance of counsel. State v. Singleton, supra; Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979). In Mendacino we looked at the totality of circumstances from the time the defendant was first detained and considered a suspect until the time he gave his third confession. 288 Or. at 233-34, 238, 603 P.2d 1376. In the instant case we must look at the totality of circumstances from the time defendant was arrested and first interrogated until the time defendant signed the waiver. The circumstances surrounding the police interrogation of defendant on April 11 and 12 indicate the police detectives persisted "in repeated efforts to wear down his resistance and make him change his mind." Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S. Ct. 321, 327, 46 L. Ed. 2d 313 (1975). When the police continued to interrogate defendant for three and one-half hours on April 11 after he had asserted his right to have an attorney present, the police created the impression that the assertion of one's rights was meaningless. Similarly, when the detectives attempted to persuade defendant to waive his right to have an attorney present, without allowing defendant the right to counsel he had requested, they created the impression that the assistance of counsel would be meaningless.[3] The opinions offered by the detectives that defendant's predicament was hopeless and that defendant would benefit if he cooperated were intended to be, if not undue persuasion, at least substitutes for the legal advice the defendant was seeking from an attorney of his own.[4] This police conduct must *177 be considered together with the circumstances that defendant was held in custody for over 30 hours, that the same detective was involved in both the April 11 and April 12 questionings, and that defendant was extremely upset. In sum, the police officers, by improper means, succeeded in persuading defendant to sign the waiver of his constitutional rights. Accordingly, we hold that defendant's waiver was not voluntarily made and was therefore invalid. The defendant's motion to suppress statements made by defendant on April 12 should have been granted. Reversed and remanded. [*] Holman, J., retired January 21, 1980. Linde, J., did not participate in this decision. [1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). [2] In State v. Singleton, 288 Or. 89, 602 P.2d 1059 (1979), we particularly relied on Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979); Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975); Miranda v. Arizona, supra, n. 1; State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979); State v. Whitewater, 251 Or. 304, 445 P.2d 594 (1968); State v. Sanford, 245 Or. 397, 421 P.2d 988 (1966); State v. Atherton, 242 Or. 621, 410 P.2d 208, cert. denied 384 U.S. 1025, 86 S. Ct. 1982, 16 L. Ed. 2d 1030 (1966). [3] It is anomalous that the police detectives characterized their efforts as "giving [defendant] an opportunity to waive his right to have an attorney present." By continuing their interrogation, they were denying defendant his right to have an attorney present. At the suppression hearing one of the detectives admitted on cross-examination, "The reason that I was there [on April 12] was to ask him to waive his right to that attorney, which he eventually agreed to do." [4] At the suppression hearing the trial judge observed: "* * * Does a police officer who has been told that a man wants to exercise his constitutional right have a duty to the police department or the public or to the Defendant or to the District Attorney or any interested group, * * * to try and talk the person out of asserting their rights, which is basically what it amounts to in this case. They talked him out of it by showing him the helplessness of the situation * * *. [T]hey talked him out of his decision to assert a right to counsel, and I'm very disturbed. Very disturbed."

4970888b77a36b09d3ddfedd5a73407073258829e013b36a232183ed53afdb76

1980-03-04T00:00:00Z

42dcc6e9-8698-4856-92a2-6b2cba23f926

State Ex Rel. Automotive Emp. v. Murchison

289 Or. 265, 611 P.2d 1169

oregon

Oregon Supreme Court

611 P.2d 1169 (1980) 289 Or. 265 STATE of Oregon ex rel. Automotive Emporium, Inc., Plaintiff-Relator, v. John J. MURCHISON, Judge of the Circuit Court of the State of Oregon for Multnomah County; and Harl Haas, District Attorney for Multnomah County, State of Oregon, Defendants. State of Oregon ex rel. Kenneth O. Trow, Plaintiff-Relator, v. John J. Murchison, Judge of the Circuit Court of the State of Oregon for Multnomah County; and Harl Haas, District Attorney for Multnomah County, State of Oregon, Defendants. SC 26477, SC 26478. Supreme Court of Oregon, In Banc. Argued and Submitted February 6, 1980. Decided June 3, 1980. *1170 Charles J. Merten, Portland, argued the cause for plaintiff-relator. With him on the briefs was Merten & Saltveit, Portland. James M. Brown, Asst. Atty. Gen., Salem, argued the cause for defendants. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. TANZER, Justice. This is an original mandamus proceeding. Relators are indicted criminal defendants who petition this court to mandate the circuit judge and district attorney to conduct a preliminary hearing or dismiss the charges. Relators claim entitlement to a preliminary hearing, notwithstanding their indictment. The defendants on the writ assert, among other things, that mandamus is not a proper remedy because the relators may appeal if convicted. The power of this court to issue writs of mandamus is granted by the constitution, Or.Const. Art. VII (Am.), § 2,[1] and defined by statute, ORS 34.110, which embodies conventional mandamus theory. It states: *1171 As relators acknowledge, direct appeal in criminal cases is generally regarded as a "plain, speedy and adequate remedy in the ordinary course of the law," State ex rel. Maizels v. Juba, 254 Or. 323, 331-34, 460 P.2d 850, 852 (1969); Henkel v. Bradshaw, 257 Or. 55, 475 P.2d 75 (1970). A denial of a preliminary hearing is a ruling which may be reviewed on direct appeal. ORS 138.020 and 138.040,[2]State v. Sanford, 245 Or. 397, 405, 421 P.2d 988 (1966), State v. Walley, 1 Or. App. 189, 460 P.2d 370 (1969); cf. State v. Pfeiffer, 25 Or. App. 45, 548 P.2d 174 (1976); see also Anderson v. Gladden, 234 Or. 614, 627, 383 P.2d 986 (1963). Therefore, in the absence of special circumstances, relators have a plain, speedy and adequate remedy in the form of a direct appeal. The relators contend that direct appeal is not an adequate remedy because they will be prejudiced in two respects if forced to trial without a preliminary hearing: they will be denied (1) pretrial discovery of the testimony of a prosecution witness who has refused to be interviewed, and (2) a pretrial opportunity to determine whether the state has probable cause to require them to answer to the charge.[3] The issue is whether this constitutes such prejudice as renders direct appeal a less than adequate remedy. We conclude that it is not. As to the first contention, there is no difference relevant to mandamus between this and any other pretrial ruling denying discovery. Any claim of prejudice arising from a denial of discovery is reviewable on direct appeal. State v. Wolfe, 273 Or. 518, 542 P.2d 482 (1975); State v. King, 30 Or. App. 223, 566 P.2d 1204 (1977); State v. Castro, 25 Or. App. 873, 551 P.2d 488 (1976).[4] This is to be distinguished from a discovery order which erroneously requires disclosure of privileged communications, State ex rel. N. Pacific Lbr. v. Unis, 282 Or. 457, 579 P.2d 1291 (1978), or which requires disclosure by a party (e.g., the state) which has no post-trial appeal from an adverse judgment, State ex rel. Johnson v. Richardson, 276 Or. 325, 555 P.2d 202 (1976). Those cases are distinguishable in that relators suffered an irretrievable loss of information and tactical advantage which could not be restored to them on direct appeal. Relators here are not prejudiced by the requirement that they defer review of their claim of denial of discovery until direct appeal. Were their assertion correct, every pretrial discovery ruling would be subject to review by mandamus. Neither is the prospect of suffering the burden of litigation a sufficient injury in itself to justify mandamus. Direct appeal is an adequate remedy unless the relator would suffer a special loss beyond the burden of litigation by being forced to trial.[5] Examples of such injury *1172 are the obligation to make nonrecoverable interim payments of compensation, State ex rel. Huntington v. Sulmonetti, 276 Or. 967, 557 P.2d 641 (1976), and being required to relitigate when a summary judgment is set aside by the trial court after its authority to do so has expired, State ex rel. State Farm Mutual Auto Ins. Co. v. Olsen, 285 Or. 179, 590 P.2d 231 (1979). Here, however, there is no special loss asserted. Because direct appeal is a plain, speedy and adequate remedy for the review of the ruling challenged by relators, mandamus is inappropriate. The writ is therefore dismissed. Alternative writ of mandamus dismissed. PETERSON, Justice, specially concurring. I concur in the result. I do so because I believe that the question of the constitutionality of present Oregon procedures permitting prosecution by information or indictment can be reached by direct appeal. The relators complain that they are disadvantaged in contrast to defendants who are charged by information, which constitutes a denial of the equal protection of the law. Such a claimed deprivation is sufficient to raise the constitutional questions without a showing that the lack of such hearing may have affected the outcome of the trial and was therefore prejudicial error. LINDE, J., joins in this opinion. LENT, Justice, dissenting. The majority orders dismissal of the alternative writ of mandamus issued by this court pursuant to Article VII (amended), section 2, of the Oregon Constitution. I must dissent because I believe the majority has misconceived the question of law presented by the allegations of the alternative writ as admitted by defendants' demurrer.[1] The majority states that it is given that direct appeal in a criminal case is "generally regarded" as a plain, adequate and speedy remedy in the ordinary course of the law. Since the denial of a preliminary hearing is a ruling which may be "reviewed" on direct appeal according to the majority, it follows that "in the absence of special circumstances" relators have such a plain, adequate and speedy remedy. The majority then proceeds to miscast the relators' position so as to make it appear that the issue presented is whether mandamus will lie to review an order of the trial court denying discovery. That simply is not the issue. Rather the issue presented by this proceeding is whether, in the circumstances established by the writ and demurrer thereto, if relators are not afforded a post-indictment hearing akin to that commonly known as a "preliminary hearing," the state, acting through the defendants, will have denied relators due process and equal protection of the laws.[2] Under the law of this state the district attorney may institute felony proceedings against a defendant in at least two different ways. He may charge the defendant on a district attorney's information filed in circuit court if, after a preliminary hearing before a magistrate, the defendant has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the defendant committed it. Or.Const., Art. VII (Amend.), § 5(5). On the other hand, the district attorney may take the matter to the grand jury which may return an indictment *1173 charging the defendant with a crime when all of the evidence before the grand jury is such as would in the judgment of the grand jury warrant a conviction by a trial jury if the evidence is unexplained or uncontradicted. Or.Const., Art. VII (Amend.), § 5(3); ORS 132.380 and 132.390. More simply put, the district attorney may elect whether the state shall initiate prosecution by way of a preliminary hearing or by way of the grand jury. In this case the state, through the defendant district attorney, elected to proceed and accuse relators by way of indictment; consequently, relators were not afforded that preliminary hearing which is available to any defendant against whom the district attorney elects to proceed by district attorney's information. The indictment charged relators with the crime of Unauthorized Use of Vehicle, ORS 164.135. The name of a certain witness appeared on the face of the indictment as having been a witness examined before the grand jury, ORS 132.580, and as being a co-owner of the vehicle. Police reports made available to relators' counsel indicated that this was the witness who would give evidence essential to the prosecution on the element of want of authority to use the vehicle. Counsel's investigator attempted to interview that witness, who refused to talk abut the case. Relators then moved to dismiss the indictment and, alternatively, should that motion not be allowed, moved for an order allowing relators a "preliminary hearing." Defendant judge of the circuit court denied the motions. The majority's proposed dismissal of the writ is premised upon the existence of a plain, adequate and speedy remedy by way of appeal if relators are convicted. That assumes that on appeal relators will receive a decision as to whether they have been denied due process and equal protection of the laws by reason of being denied a preliminary hearing because the district attorney exercised his unfettered discretion to proceed against relators by indictment rather than district attorney's information. I daresay they will not get such a decision. Upon appeal the relators will presumably assign as error the denial of their motions. The appellate court will inquire only as to whether it is error to deny a post-indictment motion for a "preliminary hearing" and, holding that there need not be a preliminary hearing where the grand jury has indicted, will find no error. Even if we assume that the appellate court would find error, I do not see how the relators will be able to show that the error contributed to their convictions. The question presented as to the denial of due process and of equal protection of the laws by a criminal procedure system that allows the prosecutor unfettered discretion to decide which criminal defendants shall have a preliminary hearing and which shall not is not a trivial or frivolous question. The California Supreme Court has squarely held such a system to work a denial of equal protection of the laws. Hawkins v. Superior Court, 22 Cal. 3d 584, 150 Cal. Rptr. 435, 586 P.2d 916 (1978). I quote from the summary, 22 Cal. 3d at 584, 150 Cal. Rptr. 435, 586 P.2d 916, because I find it to be accurate: The California court noted that under California law the defendant charged by information becomes entitled to an "impressive array" of procedural rights not available to the defendant charged by indictment.[3] The same thing is true under Oregon law. A defendant charged by information is afforded a preliminary hearing before a neutral magistrate. At the hearing the defendant will be represented by counsel. The defendant may confront and cross-examine the witnesses called by the state. He may subpoena witnesses and present their evidence. He has a right to testify in his own behalf. None of those rights are available to a defendant against whom the district attorney elects, for reasons of his own, to proceed by indictment.[4] The Michigan Supreme Court in People v. Duncan, 388 Mich. 489, 201 N.W.2d 629 (1972) reached the same result as the California Court by a different route. The Michigan Court exercised its supervisory power to order that lower courts afford a post-indictment hearing to defendants who had been deprived of a preliminary hearing. Those cases are, of course, not binding upon this court, and it might well be that we would not come to the same conclusion upon constitutional or other grounds. If I were at all convinced that relators in the case at bar had any way to get a decision upon direct appeal upon these constitutional issues, I would not write this separate opinion. Of course, the majority could dispel my suspicion that the issue will not be reached by making it clear that an appeal will present that issue to be decided by the court of direct appellate jurisdiction. The majority does not satisfy me in that respect. I dissent. [1] Or.Const. Art. VII (Am.), § 2: "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. [2] ORS 138.020 states: "Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in [ORS 138.040] and not otherwise." ORS 138.040 states: "The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court * * *. Upon appeal * * * any decision of the court in an intermediate order or proceeding may be reviewed. * * *" [3] Because relators do not allege that they are being detained, the second allegation of prejudice means only that they will be forced to litigate. [4] The dissent asserts that we should reach the issue urged by relators because, if convicted, it will be difficult for them on direct appeal to demonstrate prejudice. That may be. Regarding relators' claim of entitlement to a probable cause determination, it is true after a verdict beyond reasonable doubt that relators will be hard put to claim prejudice arising from a denial of a pretrial probable cause hearing. Regarding relators' right to discovery, the existence or not of prejudice will be an issue as in any appellate review of a denial of discovery, State v. Wolfe, supra. Such an appeal might differ from Wolfe, however, in that if federal constitutional error is found, we must reverse unless we can declare it harmless beyond a reasonable doubt. State v. McLean, 255 Or. 464, 477-79, 468 P.2d 521 (1970). [5] An exception exists where the relator asserts that a court is improperly asserting jurisdiction, State ex rel. Knapp v. Sloper, 256 Or. 299, 473 P.2d 140 (1970), State ex rel. Handly v. Hieber, 256 Or. 93, 471 P.2d 790 (1970). This exception has also been extended to cases of improper venue. Mack Trucks, Inc. v. Taylor, 227 Or. 376, 382, 362 P.2d 364 (1961) (dicta); State ex rel. Ricco v. Biggs, 198 Or. 413, 425, 255 P.2d 1055 (1953); Willamette Lbr. Co. v. Cir. Ct., Mult. Co., 187 Or. 591, 598, 211 P.2d 994 (1949). Neither jurisdiction nor venue is in issue here. [1] This dissent is from the action of the majority in holding that appeal is an adequate remedy. I express no view on the merits of relators' claims of unconstitutionality of the Oregon dual prosecution system. [2] Amendment XIV to the United States Constitution provides in pertinent part: "* * *; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [3] A case comment on Hawkins v. Superior Court, 22 Cal. 3d 584, 150 Cal. Rptr. 435, 586 P.2d 916 (1978), in 13 Suffolk L.Rev. 1482 (1979) collects other writing in legal periodicals in the last decade. A particularly interesting article suggesting constitutional infirmity in the dual prosecution system is that by Alexander and Portman: Grand Jury Indictment Versus Prosecution by Information An Equal Protection-Due Process Issue, 25 Hastings Law J. 997 (1974). [4] Oklahoma provides by statute the right of the defendant to have a post-indictment "preliminary hearing." Okla. Stat. Ann. tit. 22, § 524.

433f5131b116653975169803a0ca4449adad712affef563b0bab183804e630e2

1980-06-03T00:00:00Z

a00ac86f-81d7-4f2d-875f-37bd41f2d168

State v. Palaia

289 Or. 463, 614 P.2d 1120

oregon

Oregon Supreme Court

614 P.2d 1120 (1980) 289 Or. 463 STATE of Oregon, Respondent, v. John Henry PALAIA, Petitioner. No. 108915; CA 14050; SC 26624. Supreme Court of Oregon. Argued and Submitted April 9, 1980. Decided July 23, 1980. David A. Hilgemann, of Schlegel, Milbank, Wheeler, Jarman & Hilgemann, Salem, argued the cause and filed a brief for petitioner. Karen H. Green, Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Michael J. Francis, Asst. Atty. Gen., Salem. Before DENECKE, C.J., and HOWELL, LENT, PETERSON and TANZER, JJ. PETERSON, Justice. The defendant was charged by a grand jury indictment with the crime of escape in *1121 the second degree, ORS 162.155.[1] The indictment charged a violation of ORS 162.155(1)(b): The facts are not in dispute. The defendant had been convicted of a felony, robbery in the first degree, and was sentenced to a 20-year term, which he was serving in the Oregon State Penitentiary. On June 6, 1978, the defendant was taken from the penitentiary to the Marion County Courthouse for a court appearance. After the appearance, a deputy transport officer from the Marion County Sheriff's office escorted the defendant and another prisoner from the jail in the courthouse to a van parked outside the entrance. As the officer opened the door to the van, the defendant dropped a book which he had been carrying, ran around the back of the van, and escaped. Although restrained with handcuffs and a chain around his waist, the defendant was able to obtain a car in which he was recaptured later the same day. After the state presented evidence of these facts, the defendant moved for a judgment of acquittal claiming that there was no evidence that he had escaped from "custody" as defined in ORS 162.135(3). ORS 162.135(3) provides: After the defendant made his motion for acquittal, the trial court permitted the state to reopen its case. The state then offered into evidence an order from the Marion County Circuit Court dated April 28, 1978, in a case entitled "THE STATE OF OREGON, Plaintiff, vs. JOHN HENRY PALAIA, Defendant, No. 105, 693," which read: The defendant thereafter renewed his motion for acquittal, which was denied. After his conviction and sentence, he appealed, claiming that the "trial court erred in failing to acquit the defendant because of a material variance between the indictment and proof." The Court of Appeals affirmed without opinion. 42 Or. App. 837, 601 P.2d 917 (1979). In his petition for review defendant contends: Defendant then seeks to avoid either of the two situations with these claims: 1. He could not be found guilty of escape from a correctional facility (ORS 162.155(1)(c)) because he was not charged with that offense. 2. He could not be found guilty of the crime for which he was indicted (ORS 162.155(1)(b)) because the court order pursuant to which he was in the charge of the transport officer "did not state that such custody was the result of a prior felony conviction." The record is clear that the defendant "had been convicted or found guilty of a felony," the first element of ORS 162.155(1)(b). ORS 162.155(1)(b) also requires proof that the defendant's restraint was imposed "as a result" of his having been convicted of a felony. Examination of the minutes of the Oregon Criminal Law Revision Commission reveals that the language "imposed as a result thereof" was added to Article 23 of the Criminal Law Revision Commission's Preliminary Draft No. 3 of the Proposed Oregon Criminal Code (now ORS 162.155(1)(b)). Its purpose was to make clear that this subsection was not intended to apply either to the escape of a person presently charged with a misdemeanor or felony, or to the escape of one convicted of a misdemeanor, who had previously been convicted of a felony, been sentenced and released from custody on that charge. Oregon Criminal Law Revision Commission Minutes at 19, Tape 49, Side 2 at 490 (March 18, 1970). We construe the phrase "as a result thereof," as used in ORS 162.155(1)(b), to apply to the numerous situations in which a felon is in actual or constructive restraint of a peace officer and not within a correctional facility (a) following a finding of guilt and an order remanding defendant to the custody of a law enforcement person or agency, or (b) following commitment of defendant by court order to a correctional facility after a judgment of conviction. This case falls within (b).[2] Contrary to the defendant's contention, escape from custody imposed as a result of a conviction of a felony (ORS 162.155(1)(b)) and escape from a correctional facility (ORS 162.155(1)(c)) are not necessarily mutually exclusive. Under the facts of this case, the defendant could as well *1123 have been charged and convicted of escape from a correctional facility.[3] The defendant's second assignment of error is that the trial court erred in failing to instruct the jury on the lesser included offense of escape in the third degree, ORS 162.145, which provides: He contends that the jury should have been instructed on the "lesser included offense" of escape in the third degree because there was a question of fact whether he was in custody "as a result of" a felony conviction. ORS 162.155(1)(b). Escape from custody, without more, supports a conviction only under ORS 162.145, escape in the third degree. The statute governing lesser included offenses is ORS 136.465, which provides: A similar statute, ORS 136.460, permits a jury to acquit a defendant of the degree of the crime charged in the accusatory instrument and convict the defendant of any inferior degree of the crime or of an attempt to commit the crime. This section provides: Both statutes were part of the original Deady Code of 1864. Deady, Crim.Code ch. 17, §§ 163-164 (1864). The sections were not amended until 1973, when the legislature adopted the suggestion of the Criminal Law Revision Commission that the sections should not be limited to instances where the crime is charged by indictment, but that they should also be applied when the crime is charged by information or complaint. Or. Laws 1973, ch. 836, §§ 243, 244. See Criminal Law Revision Commission, Proposed Oregon Criminal Procedure Code, Final Draft and Report §§ 368-369 (Commentary) (1972); Id., § 367 (Commentary). We have twice previously construed ORS 136.465 to require the trial court to instruct on lesser included offenses only when the evidence, or inferences to be drawn from the evidence, is sufficient to permit the jury to find the defendant guilty of the lesser offense and innocent of the greater. In State v. Williams, 270 Or. 152, 526 P.2d 1384 (1974), the defendant was indicted for burglary in the first degree. The trial court denied the defendant's requested instruction on the lesser included offense of criminal trespass, and the defendant appealed. Both the Court of Appeals and this court affirmed the conviction. We stated: Over dissents by Chief Justice O'Connell and Justice Holman, this court adopted the rule followed by the majority of state and federal courts: "* * * The trial judge must instruct on lesser included offenses only when justified by the evidence or inferences to be drawn from the evidence." *1124 270 Or. at 154, 526 P.2d at 1385. We rejected the argument that instructions on lesser offenses are always required because a jury in a criminal case is entitled to accept or reject the state's evidence, in whole or in part. In State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975), we affirmed the defendant's conviction of burglary in the first degree against defendant's challenge that the trial court erred in refusing to instruct the jury on the crime of theft in the second degree by receiving. The court concluded that either the state or the defendant has a right to request instructions on lesser included offenses, with certain limitations. We stated: The dissenting opinion in the case at bar asserts that the application of ORS 136.460 requires a different standard in instructing the jury than that enunciated in Williams and Washington. Our earlier cases demonstrate that we have applied the same standard where inferior degree offenses or attempts have been involved. In State v. Duffy, 135 Or. 290, 295 P. 953 (1931), the defendant excepted to the trial court's failure to instruct the jury on the subject of an attempt to commit the crime charged in the indictment. The court rejected the defendant's contention that this was error, stating: The statute governing the power of the jury to acquit the defendant of the crime charged and to convict of an inferior degree of the crime charged or of an attempt was OC § 13-946 (1930). This statute, identical to ORS 136.460 prior to the 1973 amendment, was not cited by the court in Duffy. The court, in Duffy, considered and rejected the defendant's claim that he was entitled to an instruction on attempt even in the absence of evidence to support the instruction. *1125 Similarly, in State v. Wilson, 182 Or. 681, 189 P.2d 403 (1948), this court faced a defendant's challenge to the trial court's failure to instruct the jury as to the different degrees of homicide under Oregon law. The court set out OCLA § 26-947 (now ORS 136.460) and OCLA § 26-948 (now ORS 136.465) and then stated the rule as follows: The court then determined that on the facts of the case, there was some evidence to support a verdict of either second degree murder or manslaughter, and that it was therefore error for the court to fail to so instruct the jury. The rule set out by the court in both cases is in accord with that enunciated in Williams, and Washington: if there is evidence from which the jury could find the defendant guilty of the inferior degree or of an attempt and not guilty of the higher degree, then the jury must be instructed on the inferior degree offense. Cf. Annot., 21 A.L.R. 603 (1922); Annot., 27 A.L.R. 1097 (1923); Annot., 102 A.L.R. 1019 (1936) (the rule applied in homicide cases). In 4 Wharton's Criminal Procedure § 545 (1976), the author states the rule is follows: ORS 136.465 and ORS 136.460 have existed, essentially in their present form, since 1864. The predecessor of ORS 136.460 was construed in State v. Wilson, supra. We have consistently construed both statutes to require that, before a "lesser-included" instruction or "inferior-degree instruction" can be given, there must be evidence which supports the requested instruction so that the jury could rationally find the defendant guilty of the lesser or inferior offense. The commentary to the Proposed Criminal Code indicates that the Criminal Law Revision Commission based the grading of the escape offenses upon the risk to others created by the escape. Criminal Law Revision Commission, Proposed Oregon Criminal Code, Final Draft and Report §§ 190-192, 194-195 (1970). The Commission stated: The clear purpose of for distinguishing between escape from custody only (third degree escape) and escape from custody imposed pursuant to a felony conviction (second degree escape) was to deter, by means of a potentially greater punishment, escapes by convicted felons. The evidence was uncontradicted that the defendant had been convicted of a felony (first degree robbery) and sentenced to a 20-year term in the custody of the Corrections Division. The order directing the defendant's transfer to the courthouse explicitly set forth the reasons for the transfer. It recited (1) that the defendant was "in custody of the Superintendent [of *1126 the penitentiary] by virtue of a lawful commitment"; (2) that it was necessary that he appear before the court; and (3) that, therefore, he should be delivered to the Sheriff of Marion County for transport to the courthouse. While the uncontradicted evidence introduced by the state was that the defendant was in custody on a felony charge, the defendant contends that the jury could disregard that part of the evidence that it was a felony charge and thus find defendant was in custody for some other cause. He would therefore be guilty only of the lesser offense, escape from custody. We rejected a similar argument in State v. Williams, 270 Or. 152, 526 P.2d 1384 (1974). It is correct that the jury could disregard the uncontradicted evidence that the defendant was in custody as a result of a felony conviction, irrational as such a result might be. However, the trial court has no obligation to assist the jury in reaching an irrational result by instructing them, in effect, that they can disregard the evidence that the defendant was in custody on a felony charge and find that he was in custody for some other reason, and therefore guilty only of third-degree escape. We conclude that the jury could not rationally or consistently have found the defendant guilty of the lesser offense and innocent of the greater. The trial court did not err in refusing to instruct the jury on the lesser offense. We have carefully considered the other assignments of error, but they need not be discussed here. The material facts giving rise to this criminal proceeding are without dispute, and the evidence of the defendant's guilt is overwhelming and beyond doubt. We do not believe that the other claimed errors prejudiced the defendant in any way. Affirmed. LENT, J., filed a dissenting opinion. LENT, Justice, dissenting in part. I dissent from that part of the majority opinion finding no error in the trial court's refusal to instruct upon the crime of Escape in the Third Degree. The majority correctly states that ORS 136.465 is the statute governing lesser included offenses and then asserts that ORS 136.460 is a "similar" statute. Those statutes read as follows: I disagree that ORS 136.460 is a "similar" statute. By its very terms ORS 136.460 is not concerned with lesser included offenses. The majority discusses State v. Williams, 270 Or. 152, 526 P.2d 1384 (1974); State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975); and State v. Duffy, 135 Or. 290, 295 P. 953 (1931). I submit that none of those cases was concerned with ORS 136.460. In Williams the defendant was charged with Burglary in the First Degree and complained of the refusal of the trial court to instruct upon Criminal Trespass in the First Degree. This court's opinion is completely devoid of any mention of ORS 136.460 (then numbered ORS 136.650). The opinion was confined to application of ORS 136.465 (then numbered ORS 136.660). Likewise, in Washington the defendant was charged with Burglary in the First Degree and complained of the trial court's refusal to instruct upon the crime of Theft in the Second Degree. In Washington the court does mention, in passing, ORS 136.460 but the case was not concerned with application of that statute, and the discussion of the case was in terms of the provisions of ORS 136.465. There is nothing in Duffy to indicate this court was dealing with "a crime consisting *1127 of different degrees." As a matter of fact the crime there charged was not a crime consisting of different degrees; Therefore, there was no situation calling for the application of ORS 136.460. In Duffy the defendant complained of the failure to instruct upon the offense of an attempt to commit the crime actually charged. There was no reason to discuss Section 13-946, Oregon Code 1930 (the then version of ORS 136.460), and the court did not discuss that statute at all. Anything the court might have said concerning that statute would have been dictum. As a matter of fact, the defendant had not requested that the trial court instruct on "any lesser grades" of the crime charged. Duffy has nothing to do with the statute in question. Duffy was concerned only with whether the court, on its own volition, should have instructed upon the crime of "attempt" to commit the crime charged. The majority then turns to State v. Wilson, 182 Or. 681, 189 P.2d 403 (1948). In that case the defendant was indicted for murder in the first degree under the felony-murder statute and complained upon appeal of the refusal of the trial court to instruct "as to the degrees of homicide under the statutes of Oregon." It is true that the court mentions both § 26-947, O.C.L.A. (now ORS 136.460) and § 26-948, O.C.L.A. (now ORS 136.465) in discussing that assignment of error; however, the court, just as does the majority here, fails to recognize that the two sections deal with different concepts. Moreover, the opinion is tied up with matters peculiar to the fact that the crime charged was not "classical" murder in the first degree, i.e., an intentional homicide committed with premeditation and deliberation and with malice aforethought. Rather, the successful prosecution of the charge of first degree murder depended upon a showing that the homicide was committed while defendant was attempting robbery of the victim. There is nothing to indicate that the court was concerned with an analysis of the very language of the statute. Instead the court flung itself into a discussion of case law with no attempt to inform the reader whether the cases dealt with statutes having the same language as does ORS 136.460. The terms of ORS 136.460 are relatively clear. The legislature has made a policy decision that where a defendant is charged with a crime consisting of different degrees, the jury is empowered to find him not guilty of the degree charged and guilty of any inferior degree. Here defendant was charged with Escape in the Second Degree and asked that the jury be allowed to consider whether he was not guilty of that charge and guilty of Escape in the Third Degree and thereby exercise the power legislatively granted. The majority analyzes his claim of error as if he sought an instruction on a lesser included offense. That analysis is simply not in point. Defendant was entitled to have the jury instructed as he requested. I dissent from that portion of the opinion. [1] ORS 162.155: "(1) A person commits the crime of escape in the second degree if: "(a) He uses or threatens to use physical force escaping from custody; or "(b) Having been convicted or found guilty of a felony, he escapes from custody imposed as a result thereof; or "(c) He escapes from a correctional facility. "(2) Escape in the second degree is a Class C felony." [2] Even before the order of April 26, 1978, was in evidence, under the foregoing analysis, the record was sufficient to sustain the defendant's conviction. The transcript contains the testimony of Wayne Baker, the chief records officer of the Oregon State Penitentiary, who testified (1) that defendant, on June 6, 1978, was in custody of the Oregon Corrections Division pursuant to a conviction in Multnomah County for robbery in the first degree; and (2) that on June 6, 1978, he was on "temporary loan to [Marion] [C]ounty by court order from that county." A copy of defendant's Multnomah County judgment of conviction was also in evidence. [3] See State v. Hutcheson, 251 Or. 589, 447 P.2d 92 (1968), which held that a prisoner sentenced to the Oregon State Correctional Institution who escapes from a work release program is in the constructive custody of the institution.

e90b8d7e388602b3126776cc345b02a3b71f606c48b55f17dafd32957c72e1ae

1980-07-23T00:00:00Z

873cc6fe-d41f-403a-97db-a7441e6ee15c

State v. Scharf

288 Or. 451, 605 P.2d 690

oregon

Oregon Supreme Court

605 P.2d 690 (1980) 288 Or. 451 STATE of Oregon, Respondent, v. Nancy Lee SCHARF, Petitioner. TC T-82694; CA 10121; SC 25855. Supreme Court of Oregon, In Banc. Argued and Submitted April 3, 1979. Decided January 22, 1980. Reargued December 3, 1979. Mark Irick, of Hayter, Shetterly, Noble & Weiser, Dallas, argued the cause on December 3, 1979, for petitioner. Philip Hayter, Dallas, argued the cause on April 3, 1979, and filed a brief for petitioner. Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Al J. Laue, Sol. Gen. and Donald L. Paillette, Asst. Atty. Gen. James A. Redden, Attorney General, Walter L. Barrie, Solicitor General, and Robert C. Cannon, Assistant Attorney General, Salem, for petition on rehearing. No appearance contra, on rehearing. *691 LINDE, Justice. Convicted of driving under the influence of intoxicants (DUII), ORS 487.540, defendant appealed on the ground that the trial court admitted evidence of a chemical test of her breath that was administered after her arrest and after she was denied permission to telephone her attorney for advice. The Court of Appeals affirmed the conviction by an equally divided court, 36 Or. App. 345, 585 P.2d 23 (1978), and we allowed review. The issue to be decided is whether the prosecution in a DUII case may rely on a defendant's assent to undergoing such a breath test when defendant submitted to the test only after demanding and being denied an opportunity to seek advice. We hold that under such circumstances the test results are not obtained with the defendant's voluntary and informed assent as contemplated by law and therefore reverse. The issue arises from simple and undisputed facts. A state police officer stopped defendant's car and decided to arrest her for driving under the influence of intoxicants. The officer informed her that she had the right to remain silent, the right to consult an attorney and to have the attorney present before being questioned, if she wished, and the right to terminate questioning at any time. She asked to telephone an attorney and was told that she could do so at the police station. Upon arrival at the station, the officer advised defendant of her choice to take or refuse a "breathalizer" test and asked whether she consented to the test. Defendant repeated her requests for permission to call her attorney before deciding whether to take the test. Her requests were denied. Ultimately she submitted to the test, the results of which were later used, over her objection, to convict her of the offense. As has become characteristic of criminal cases in recent years, the parties couch much of their argument in terms of federal constitutional guarantees, made applicable to the states by the 14th amendment. This carries into our present problem such issues as whether the refusal to let defendant call her attorney violated her rights under the 6th amendment, and if so, whether it led to the kind of self-incriminatory consequences that must be suppressed as a result of the denial of access to counsel, or whether the breathalizer test is the kind of search to which counsel's advice is irrelevant and which may be imposed without violating either the 4th, 5th, or 6th amendments.[1] Before addressing such federal issues, however, a court's responsibility is first to decide the effect of the state's own laws, because if the state provides what defendant claims, it does not deprive her of the due process commanded by the 14th amendment. Conversely, a procedure not forbidden by the United States Constitution is not by that fact "authorized" in the absence of contrary state law, for the Constitution only limits the actions of state officials; authority to take these actions must be found in state law. State v. Sims, 287 Or. 349, 353 n. 1, 599 P.2d 461 (1979); State v. Spada, 286 Or. 305, 309, 594 P.2d 815 (1979); State v. Smyth, 286 Or. 293, 593 P.2d 1166 (1979); State v. Scurlock, 286 Or. 277, 593 P.2d 1159 (1979); State v. Heintz, 286 Or. 239, 255, 257-258, 594 P.2d 385 (1979) (concurring opinion); State v. Greene, 285 Or. 337, 349, 591 P.2d 1362 (1979) (concurring opinion); State v. Flores, 280 Or. 273, 279, 570 P.2d 965 (1977); Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977); State v. Ivory, 278 Or. 499, 503, 564 P.2d 1039 (1977); State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977); *692 State v. Florance, 270 Or. 169, 180-187, 527 P.2d 1202 (1974); State v. Brown, 262 Or. 442, 453, 497 P.2d 1191 (1972). If the state law is determined to be adverse to defendant, of course the federal issues remain to be decided. But the court will not needlessly interpret state law in a manner that would reach an unconstitutional result. State v. Smyth, supra; State v. Harmon, 225 Or. 571, 577, 358 P.2d 1048 (1961), and cases there cited. When the issues are examined in this order, the result need not be derived from a constitutional "right to counsel." The question, rather, is whether there were valid grounds for denying Mrs. Scharf's request to make the telephone call during the period preceding the administration of the breathalizer test, and if not, what effect an improper denial has on the prosecution's right to use the test results against her. The state does not deny, in principle, that Mrs. Scharf was entitled to call an attorney at some point following her arrest. The officer correctly told her so at the time of the arrest. As we have recently stated, nothing in Oregon law authorizes officers to hold an arrested person incommunicado beyond the immediate necessities of the arrest and the circumstances of custody itself.[2] The state does not claim that any such practical obstacles made it necessary to prevent or delay Mrs. Scharf's telephone call. Nor is there any contention that a telephone call would unduly delay the test.[3] If a person who insists on obtaining advice before making a choice unsuccessfully attempts to do so and the officer has reason for concern that the delay will make an eventual test unusable, the officer might at that time tell the arrested person that he will regard any further delay in making the choice as a refusal and report it as such to the Division of Motor Vehicles under ORS 487.805(2). Cf. Capretta v. Motor Vehicles Div., 29 Or. App. 241, 562 P.2d 1236 (1977) (license revocation). Rather, Mrs. Scharf was prevented from using the telephone specifically in order to compel her to choose whether to submit to the breathalizer test before making the call and to deprive her of legal advice on that choice. But it is not and cannot seriously be contended that depriving an arrested person of legal advice is in itself an authorized reason for preventing her to make a telephone call. Instead the state relies on the contention that administration of the breath test is a civil rather than a criminal procedure. That might be true if it were limited to determining whether the driver's license should be suspended or revoked. See Burbage v. Dept. of Motor Vehicles, 252 Or. 486, 450 P.2d 775 (1969); Stratikos v. Dept. of Motor Vehicles, 4 Or. App. 313, 477 P.2d 237, 478 P.2d 654 (1971).[4] But we have held *693 that a DUII charge is a criminal prosecution. Brown v. Multnomah County Dist. Ct., supra. We also hold that when the state's officers have deliberately compelled a person to decide on submitting to the breathalizer test without the requested opportunity to seek advice, the state did not obtain the test results with the person's consent as provided by law. The Legislative Assembly has left the decision whether or not to submit to a chemical test of his or her breath to the person arrested for driving under the influence of intoxicants. It has done so in the roundabout way of first creating the statutory fiction of an "implied consent" and then providing that the arrested person may refuse to take the test at the cost of facing a probable 120-day suspension of his or her driver's license. ORS 487.805.[5] The statute provides that the officer is to "request" submission to the test, not order it. If the driver objects, the request is to be followed by an explanation of the consequences of a refusal for the driver's license, ORS 487.805(2), and of the driver's right to obtain a test of his own, ORS 487.810. In other words, the legislature prescribed that the breath test would be administered only upon the DUII suspect's voluntary and informed choice, subject to the sanction of a license suspension. By declining to breathe into the test device a driver could choose not to risk facing the results in a criminal trial and instead refrain from driving a car for four months. The arrested driver's choice is no less a choice because one would prefer to avoid either alternative. And the legislature has made clear that it is to be an informed choice. For not only must the officer's report recite that he furnished the required information about the rights and consequences involved; ORS 482.550 provides that these procedural steps and recitals could be controverted in a hearing on the resulting license suspension.[6] More than that: Compliance with the procedure of warning and informed choice is made subject to a highly unusual "appeal" in a de novo jury trial in circuit court "as provided in criminal actions" before the license suspension takes effect. ORS 482.560. In view of these defenses available in the license suspension procedures on the one hand, and on the other hand the procedural protections and the potential sentences in a DUII trial, see Brown v. Multnomah County Dist. Ct., supra, (including possible challenges to the test procedures and results, *694 see ORS 487.815),[7] the choice demanded of the motorist in custody is by no means the simple alternative: "Breathe into the device and chance the results in a DUII trial or take a 120-day license suspension." The legal consequences of the choice are neither obvious nor easy to evaluate in the individual case. Indeed these legal consequences change with the passage of new legislation, as in 1979.[8] There may be collateral effects for the individual's overall driving record, insurance coverage, even employment. Commonly an arrested person will know little of these implications of the decision to take or to refuse the test. But she may recognize, as Mrs. Scharf did, that it is a decisive moment for the subsequent legal consequences and want to call counsel for advice before making the decision. In the state's view, the informed choice is to be confined to the limited information recited by the police. But it would contradict the legislature's concern with assuring the arrested driver a voluntary and informed choice to assume that it meant to force him or her to depend solely on police advice. The most conscientious officer cannot in good conscience do more than recite the 120-day suspension sanction and the suspect's right to have an independent test performed at her own expense. ORS 487.805(2)(d), (e), 487.810. Even if an officer were more intent on explaining the alternatives then on getting assent, he could not give advice tailored to the arrested person's circumstances. In no other context do we expect a person in custody on a criminal charge to rely for legal advice on those who intend to prosecute her. To the contrary, in view of the long established and well-known right of any arrested person to call an attorney, there is no reason to believe that the legislature meant to exclude from that right one critical stage, and this the very stage that the legislature expressly required to be voluntary and informed. The exact opposite is the logical implication of that legislative policy. The state's position would produce a wholly incongruous result. At the time of arrest, the motorist is told that she may consult an attorney. If she is later prosecuted, she is entitled to legal representation. ORS 135.050, Brown v. Multnomah County Dist. Ct., supra. Only at one point between the beginning and the end of the criminal process the state insists on interrupting her access to her attorney. That is at the point when the police call upon her to choose whether to provide evidence to be used against her on the very charge on which counsel is later to defend her. And this choice, as the legislature wants her to know, is voluntary and has important legal consequences. Counsel upon arrest and counsel at trial, but never counsel at the moment of the decisive choice. The logic of such a rule would have seemed familiar to Alice from the trial in Wonderland.[9] But there is no reason to think that the legislature contemplated any such rule when it enacted ORS 487.805. Because the legislature decided to employ breath tests in DUII prosecutions only with the suspect's informed assent, it follows that the results of such a breath test are to be used against a DUII defendant only when they have been obtained by legally proper procedures. This court held as much in State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969). There the breathalizer procedure was invalidated for failure to show that the equipment was properly tested as required by law. Though the breath test results might nevertheless have been accurate, their use against the defendant was denied as inconsistent with the statute. The identical principle applies once it is established that denial of the normal right *695 to consult one's attorney is inconsistent with the legislative decision that the breath test is to be administered only upon the arrested person's voluntary and informed choice.[10] Indeed, the state's brief does not argue otherwise. It seeks to defend only the practice of denying the accused access to counsel before choosing to take or refuse the breath test. The state does not maintain that if this practice is improper, the test results may nevertheless be used. In sum, what is in dispute in this case is only the propriety of a deliberate practice to deny arrested persons the right to call a lawyer before deciding whether or not to give the police evidence on the criminal charge on which the person is arrested. As set out above, there is no legal authority for this practice. It contradicts the legislative decision to make use of the breathalizer test depend upon the arrested motorist's informed choice. When a state has been as sensitive as Oregon has been to safeguard the access of a person in police custody to outside counsel, it would be inexplicable to create an exception in this of all cases in a situation where the law deliberately has given the arrested person a choice between two very different procedures and potential sanctions. Since Mrs. Scharf was denied such access in pursuit of an improper practice and not because of any practical obstacles, it follows that the results of the test should not have been used in evidence against her, and her conviction on that evidence must be set aside. Reversed and remanded. DENECKE, Chief Justice, dissenting. The majority holds that the informed consent statute requires that a person requested to take a breathalyzer test be given the opportunity to obtain the advice of counsel before deciding whether to take the test. The statute does not expressly so require. In my opinion the statute impliedly does not so require; the most reasonable interpretation of the statute is exactly to the contrary. The first Oregon law relating to testing those arrested for drunken driving provided that the officer could not test the arrested person if such person objected. Oregon Laws 1941, ch. 430. At this time there was considerable doubt whether the arrested person could be compelled to take the test. 51 Mich.L.Rev. 1195 (1953). Probably that is why the Oregon law was initially written so that a person could not be tested if he or she objected. Voluntary testing was unsatisfactory and states began to experiment with laws providing that by using the highways the driver consented to be tested. The validity of such laws continued to be dubious and, therefore, the legislature added provisions that the person could refuse and such refusal could not be introduced into evidence at the criminal trial. However, the person's driver's license could be suspended if he or she refused. 88 A.L.R.2d 1064-1066 (1963). Oregon enacted such laws. Oregon Laws 1965, ch. 574. This is basically the statute applicable to this case. *696 In 1979 the Oregon Legislature decided that it would not cause the implied consent law to be invalid if it amended that law to provide that evidence of the driver's refusal to take the test would be admissible in civil and criminal proceedings. Oregon Laws 1979, ch. 822. The legislature has repeatedly evidenced serious concern about the problem of driving while under the influence of liquor. It has strengthened the enforcement of laws relating to driving while under the influence by amendments which changing constitutional law seemed to permit. In light of this history of repeated changes in the law in favor of stronger enforcement, I cannot read an implied legislative intent to require the opportunity for legal advice which certainly would not strengthen enforcement. The statute expressly provides that the officer may inform the arrested person of his or her choices. ORS 487.805(2). In view of this express provision for the officer informing the arrested person of his or her choices and the consequences of the choices, I do not believe it reasonable to infer that the legislature also intended to legislate that the arrested person is entitled to additional advice from a lawyer. The subject of advice was expressly provided for; if the legislature had intended to provide additional advice, the normal procedure would be to expressly so provide. The majority finds a legislative "concern with assuring the arrested driver a voluntary and informed choice." From this the majority reasons that the decision to take or refuse the test must be "informed." And then the majority concludes that from this premise, "informed" must mean with the assistance of counsel. In my opinion a statement of the argument is sufficient to reveal its deficiencies. The majority also holds that the breathalyzer test results must be excluded from evidence because the officer did not comply with an implied provision of the statute requiring the officer to permit the arrested person to obtain legal advice. In my opinion this is contrary to our decision in State v. Valentine/Darroch, 264 Or. 54, 66-69, 504 P.2d 84 (1972). We there held that evidence would not be excluded because it was obtained in violation of a statute. The majority is of the opinion that Valentine/Darroch is not in point but the issue in this case is identical to that in State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969), in which we did exclude the evidence. In my opinion State v. Fogle is not in point. ORS 487.815 (at the time of Fogle, ORS 483.644) provides: This statute expressly provides that breathalyzer results are not "valid" unless the equipment is initially tested. In Fogle there was no evidence of any test being made of the equipment. Therefore, we held that the result of the breath test was not admissible. We held that if the test was not "valid" the legislature clearly intended that the breath test would be incompetent evidence and, therefore, inadmissible. ORS 487.815, pursuant to which Fogle was decided, has no application to this case. ORS 487.805, the statute applicable in this case, does not require even that the officer inform the arrested person of his or her choices. Subsection (2) provides that before one's driver's license can be suspended for refusal to take the test, the officer must inform the defendant of his choices and the consequences of his choice. *697 In State v. Osburn, 13 Or. App. 92, 96, 508 P.2d 837, 839 (1973), the Court of Appeals held: In my opinion this is a reasonable interpretation of the statute. On the other hand, it does not appear reasonable to conclude that when the legislature expressly provides that the effect of an officer's failing to advise a person of his or her choices and their consequences is to prohibit the state from suspending his or her license, the legislature, nevertheless, intended that if one is prevented from obtaining a lawyer's advice the test results must be excluded from evidence. TONGUE and HOWELL, JJ., join in this dissent. TANZER, J. It has been my practice since joining this court not to participate in the review of cases in which I participated as a judge of the Court of Appeals. This is such a case and I am not participating in its decision. The result is unaffected by any action of mine. To abstain in silence, however, would be misleading. Because this case was decided by a four-member majority which included my predecessor, the validity of the majority opinion as precedent depends upon whether I would have concurred. I would not necessarily in a future similar case concur in the reasoning of the majority in this case. [1] U.S.Const., amend. IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S.Const., amend. V: "No person shall ... be compelled in any criminal case to be a witness against himself, ..." U.S.Const., amend. VI: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." [2] "It is not disputed that an arrested person has a right to have access to counsel when taken into custody and thereafter, subject only to the practical necessities of custody that may temporarily prevent immediate communication with counsel. We know nothing in Oregon law, nor did counsel for the state when asked, that would authorize the police to prevent or delay communication between an arrested person and a lawyer who is, or who is asked to become, that person's attorney. Certainly nothing of the kind follows from the simple fact of an arrest...." State v. Haynes, 288 Or. 59, 70-71, 602 P.2d 272, 277 (1979). Footnote 4 quoted the American Law Institute's Model Code of Pre-Arraignment Procedure, section 140.7 (1975). [3] Regulations require a 15 minute period of observation before the test is administered. OAR 333-13-020 (1972). A longer delay does not necessarily vitiate the test results. [4] But see Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976): "The license revocation proceeding thus becomes an arm of the prosecutor in his attempt to gather evidence against the accused for use in criminal prosecution. Moreover, it is used as a means of obtaining evidence at the time of arrest or detention for suspicion of driving under the influence. Only after the driver makes his decision regarding the test does the proceeding divide clearly into its civil and criminal aspects civil, if testing is refused; criminal, if testing is consented to; ... Under these circumstances, we cannot see why evidence gathering for prosecution for driving under the influence using implied-consent procedures is any less subject to constitutional scrutiny than other evidence-gathering procedures such as searches, use of informers, or custodial interrogation." (Emphasis in original.) 247 N.W.2d at 388-389. [5] ORS 487.805: "(1) Any person who operates a motor vehicle upon the highways of this state shall be deemed to have given consent, subject to ORS 487.805 to 487.815 and 487.825 to 487.835, to a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance.... "(2) If a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance, refuses the request of a police officer to submit to a chemical test of his breath as provided in subsection (1) of this section, and if the person has been informed of the consequences of such refusal as provided by ORS 482.540 to 482.560 and of his rights as provided in ORS 487.810, no test shall be given, but the police officer shall prepare a sworn report of the refusal and cause it to be delivered to the division..." [6] ORS 482.550(1) provides for an adjudicatory hearing and findings. Subsection (2) provides: "The scope of the hearing shall be limited to: "(a) Whether the person at the time he was requested to submit to a test was under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance; "(b) Whether the police officer had reasonable grounds to believe, at the time the request was made, that the person refusing to submit to the test had been driving under the influence of intoxicants in violation of ORS 487.540 or of a municipal ordinance; "(c) Whether the person refused to submit to a test; "(d) Whether such person was informed of the consequences, under ORS 482.540 to 482.560, of his refusal to submit to the test; and "(e) Whether such person was informed of his rights as provided in ORS 487.810." [7] An uncounseled lay person is in no position to assess possible challenges to the test procedure or to the reliability of the test itself. See, e.g., Comment, Breath Alcohol Analysis: Can It Withstand Modern Scientific Scrutiny?, 5 North Ky.L.Rev. 207 (1978). [8] Oregon Laws 1979, ch. 822, amended ORS 487.805 to allow evidence of refusal to take a breath test (or other chemical tests under ORS 487.835) to be admitted in civil or criminal proceedings, thus further complicating the legal considerations that bear upon the arrested person's choice to take or decline the breath test. [9] Cf. The Queen's explanation to Alice: "The rule is, jam tomorrow and jam yesterday but never jam today." L. Carroll, Through the Looking Glass 209 (Grosset & Dunlap. 1946). [10] The Court of Appeals, though denying certain claims of procedural impropriety, has assumed that such improprieties would lead to exclusion of evidence of chemical blood tests. See, e.g., State v. Freymuller, 26 Or. App. 411, 552 P.2d 867 (1976); State v. Osburn, 13 Or. App. 92, 508 P.2d 837 (1973); State v. Annen, 12 Or. App. 203, 504 P.2d 1400 (1973); State v. Greenough, 7 Or. App. 520, 491 P.2d 630 (1971). Decisions on admitting or excluding improperly obtained evidence are not instances of a single "exclusionary rule." Rather, they depend on whether the premise of the impropriety was a law addressed to the manner of obtaining or using the evidence or a law protecting some unrelated interest. See State v. Valdez, supra; State v. Fairley, 282 Or. 689, 580 P.2d 179 (1978), and cf. State v. Haynes, supra; State v. Jones, 279 Or. 55, 60, 566 P.2d 867 (1977). Thus cases like State v. Valentine/Darroch, 264 Or. 54, 504 P.2d 84 (1972), are not in point. There defendants claimed that the police had failed to comply with a statute requiring an officer to give notice of his authority and purpose before forcing entry into a dwelling, and the court held that the statutory violation, if proved, would not compel suppression of the resulting evidence. Unlike that statute, ORS 487.805 is plainly and solely directed to the manner of obtaining breath test evidence in DUII cases, and a finding that defendant was improperly constrained in making the statutory choice necessarily vitiates the test. Cf., e.g., Benanti v. United States, 355 U.S. 96, 78 S. Ct. 155, 2 L. Ed. 2d 126 (1957) (excluding evidence obtained in violation of wiretapping law).

b06d3aa69391c993e29a2ad115924bc27ece15cd5e8cee0d377dedb220672c3b

1980-01-22T00:00:00Z

86340cdc-258e-4b24-b8a8-000f88923e99

State v. Spencer

289 Or. 225, 611 P.2d 1147

oregon

Oregon Supreme Court

611 P.2d 1147 (1980) 289 Or. 225 STATE of Oregon, Respondent, v. Michael Dennis SPENCER, Petitioner. No. B47-427; CA 13453; SC 26493. Supreme Court of Oregon. Argued and Submitted February 5, 1980. Decided June 3, 1980. David J. Phillips, Staff Atty., Public Defender Services of Lane County, Inc., Eugene, argued the cause for petitioner. With him on the briefs was Elizabeth A. Baldwin, Eugene. Ronald J. Sticka, Asst. Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was J. Pat Horton, Dist. Atty., Eugene. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. DENECKE, Chief Justice. This case presents questions concerning the constitutionality of the Oregon disorderly conduct statute, ORS 166.025. The statute defines eight types of disorderly conduct. Petitioner/defendant was arrested and charged with a violation of § (1)(c), which provides: The criminal complaint states: Defendant filed a demurrer, in which he attacked the constitutionality of ORS 166.025(1)(c) "on its face." The demurrer cites numerous constitutional defects in the statute.[1] The trial court sustained the demurrer. The Court of Appeals reversed and remanded for trial in a per curiam opinion, citing State v. Donahue, 39 Or. App. 79, 591 P.2d 394 (1979).[2] We allowed review. We reverse the decision of the Court of Appeals. Defendant contends that the language defining the offense is unconstitutionally vague and overbroad, in that it could deter citizens from exercising their rights of free expression guaranteed by the federal first amendment[3] and by Art. I, § 8 of the Oregon Constitution. Although both parties to this case frame their arguments in the rhetoric of first amendment jurisprudence, we will first consider the state constitutional claims. Our determination that ORS 166.025(1)(c) deprives the defendant of liberties secured by Art. I § 8 obviates any need to reach the first amendment question. Deras v. Myers, 272 Or. 47, 53, 535 P.2d 541 (1975).[4] Art. I, § 8 of the Oregon Constitution provides: This constitutional provision is a prohibition on the legislative branch. It prohibits the legislature from enacting laws restraining the free expression of opinion or restricting the right to speak freely on any subject. If a law concerning free speech on its face violates this prohibition, it is unconstitutional; it is not necessary to consider what the conduct is in the individual case. If the law is not unconstitutional on its face, it nevertheless might be applied in a manner that would violate Art. I § 8. In this case the nature of the alleged conduct of the defendant is unknown to us and the question is whether the law on its face violates Art. I, § 8. The statute makes the expression or the speaking of certain kinds of language criminal if done intentionally or recklessly to cause "public inconvenience, annoyance or alarm" and in a public place. However, the statute does not require that the words spoken actually cause "public inconvenience, annoyance or alarm." The statute makes the speaking of the words themselves criminal, if spoken with the requisite intent, even if no harm was caused or threatened. With this dissection of the statute it is apparent that the law does restrain freedom of expression of opinion and restricts the right to speak. We recently had before us a similar problem in a challenge to a statute that defined the crime of "harassment" to include any communication, made with the same mental elements, "in a manner `likely to cause annoyance or alarm'." State v. Blair, 287 Or. 519, 601 P.2d 766 (1979). That statute also *1149 was directed at the act of communicating. The harassment law was somewhat more restrictive in that it required at least a likelihood of "annoyance or alarm," which the present law does not. Nevertheless, we held the statute unconstitutional because of the vagueness of its terms. We did not decide the defendant's free expression claim; however, we said: The same shortcoming applies to the present statute, ORS 166.025. It is directed at the expression or the speech. There may be types of "expression" that would not be within the protection of Art. I, § 8 under any imaginable circumstances. But when the terms of a statute as written prohibit or restrain expression that does come within this protection, the statute is a law forbidden by Art. I, § 8. The state contends that abusive and obscene language are types of expression or speech that are not protected by Art. I, § 8. The disorderly conduct statute does not define abusive or obscene language. The state contends that the meaning of these words can be discerned by the definition of obscenity in ORS 167.060(7), relating to obscenity and related offenses, or by common understanding. ORS 167.060(7) provides: Assuming that definition is applicable to the disorderly conduct statute, the mere speaking of such words is not excluded from the protection of Art. I, § 8. Whether words commonly regarded as obscene fall within or without the protection of the constitutional protection of expression depends upon the circumstances in which the words are used. The utterance of words which are commonly regarded as obscene is not constitutionally protected if, among other requirements, "the dominant theme of the material [words] taken as a whole must appeal to a prurient interest in sex." State v. Childs, 252 Or. 91, 95-96, 447 P.2d 304 (1969). In Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 1785, 29 L. Ed. 2d 284, reh. den. 404 U.S. 876, 92 S. Ct. 26, 30 L. Ed. 2d 124 (1971), the court stated the same proposition: "Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic." In State v. Blair, supra, 287 Or. at 523, 601 P.2d at 768, with this distinction in mind, we stated: "* * * freedom of speech does not exclude expressions that are `offensive' or `obscene' in the sense of vulgar." We conclude that the legislature did not intend the phrase, "obscene language," as used in the disorderly conduct statute, to be limited to words whose dominant theme appeals to a prurient interest in sex. That the phrase is in a disorderly conduct statute and that there are a number of other statutes making criminal various aspects of obscenity as that word is used in its erotic sense, supports this conclusion. We hold that ORS 166.025(1)(c) is void as contrary to Art. I, § 8 of the Oregon Constitution. The decision of the Court of Appeals is reversed and the order sustaining defendant's demurrer is reinstated. [1] The exact number of constitutional claims lurking in the defendant's briefs cannot be determined with absolute certainty, since none of the briefs filed by either party included "[a] succinct and clear summary of the arguments appearing in the body of the brief," nor were assignments of error "clearly and succinctly stated under a separate and appropriate heading," as required by Rules 7.17 and 7.19 of the Oregon Rules of Appellate Procedure. To the extent that clearly stated arguments command the attention of the court, litigants could present their claims more forcefully, as well as make the task of the court much easier, by following the rules cited above. [2] Judge Roberts dissented, on grounds that the terms "abusive or obscene language," as used in § (1)(c), are unconstitutionally vague and overbroad. [3] "Congress shall make no law * * * abridging the freedom of speech * * *." [4] On the hierarchy of state and federal constitutional claims see, generally, Linde, Without Due Process: Unconstitutional Law in Oregon, 49 Or.L.Rev. 125, 131-35 (1970).

56e8f5ecc03934337b3a3edbdffcfdaf7f0984682324114020f4dd3688cb55a3

1980-06-03T00:00:00Z

4de83ada-77e4-4eb6-a30a-4329897ec6df

State v. Montigue

288 Or. 359, 605 P.2d 656

oregon

Oregon Supreme Court

605 P.2d 656 (1980) 288 Or. 359 STATE of Oregon, Respondent, v. Terry Edward MONTIGUE, Petitioner. TC 78 0544; CA 11143; SC 26112. Supreme Court of Oregon, In Banc. Argued and Submitted June 5, 1979. Decided January 22, 1980. *657 Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. TONGUE, Justice. Defendant was convicted of illegal possession of dangerous drugs, ORS 167.207. On appeal to the Court of Appeals he assigned as error the denial of his motion to suppress evidence seized in a search of his apartment pursuant to a search warrant, based upon the affidavit of a police officer which stated that one Marshall Edward Morton had "contacted" the officer and informed him that while he (Morton) was in defendant's apartment he saw a large quantity of what he was able to identify as marijuana, as well as a large quantity of a white powdery substance which defendant represented to be cocaine and offered to sell to Morton. Defendant contended that "the affidavit [in support of the application for search warrant] was insufficient to support a finding of probable cause by the magistrate," in that neither the credibility of the informant nor the reliability of his information was established in the affidavit, as required by 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). The Court of Appeals rejected that contention, 38 Or. App. 363, 590 P.2d 274 (1979), holding that an informant's reliability is sufficiently established for the purposes of such an affidavit when, as in this case, he is named and his information comes from personal observation, citing its previous decisions in State v. Poteet, 9 Or. App. 231, 495 P.2d 783, rev. den., (1972); State v. Poole, 11 Or. App. 55, 500 P.2d 726, rev. den., (1972), and State v. Bidwell, 14 Or. App. 679, 514 P.2d 559, rev. den., (1974). We allowed defendant's petition for review in order *658 that this court may consider the intrinsic sufficiency of such an affidavit to support a search warrant.[1] Both Aguilar v. Texas, supra, and Spinelli v. United States, supra, involved the sufficiency of search warrants based upon affidavits stating facts supplied by anonymous, unnamed informants. The test established by Aguilar-Spinelli to be applied in determining the sufficiency of such affidavits is the following "two pronged" test: The difference between the "credibility spur" and the "reliability spur" of the "veracity prong" has been stated as follows: A distinction is recognized, however, in the application of these requirements to cases in which search warrants are based upon affidavits setting forth facts supplied by named "citizen-informers," as distinguished from paid or protected, anonymous and unnamed police informants. Thus, the "citizen-informer" is distinguished from the ordinary "police informer" in 1 LaFave, Search & Seizure, § 3.3, p. 499 (1978), as follows: To the same effect, as stated in Harney & Cross, The Informer in Law Enforcement 40 (2d ed. 1968): As Justice Harlan noted (in his dissenting opinion) in United States v. Harris, 403 U.S. 573, 599, 91 S. Ct. 2075, 2089, 29 L. Ed. 2d 723 (1971), As stated in Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741, 769-72 (1974): In accord with these distinctions, probably most courts which have considered this problem have held that an affidavit naming a "citizen informant" as the source of the information set forth in the affidavit sufficiently satisfies the "veracity" requirement of Aguilar-Spinelli, without setting forth further facts showing that such an informant was "credible" or that his information was "reliable." See, e.g., opinion by Friendly, J., in United States v. Burke, 517 F.2d 377 (2d Cir.1975); Cundiff v. United States, 501 F.2d 188 (8th Cir.1974); United States v. Bell, 457 F.2d 1231 (5th Cir.1972); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App. 1976); State v. Drake, 224 N.W.2d 476 (Iowa 1974); State v. Lindquist, 295 Minn. 398, 205 N.W.2d 333 (1973); State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971); People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971); State v. Northness, 20 Wash. App. 551, 582 P.2d 546 (1978). Some other courts have held that identification of a citizen informant does not of itself satisfy the requirement of "veracity," and that the affidavit must also affirmatively set forth the circumstances from which the status of the named informant as a "citizen informant" can be inferred by the magistrate in issuing the search warrant. See People v. Smith, 17 Cal. 3d 845, 132 Cal. Rptr. 397, 553 P.2d 557 (1976). See also Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978). Still other courts have held that when it affirmatively appears that the person named in the affidavit was not a disinterested "citizen informant," but was a possible accomplice or participant in the crime, such a person was not entitled to a presumption of reliability. See United States v. Pincus, 450 F. Supp. 66 (W.D.Pa. 1978); Wilson v. State, 314 A.2d 905 (Del. 1973). See also People v. Trontell, 188 Colo. 253, 533 P.2d 1124 (1975). Also, according to LaFave, supra, at § 3.4, p. 599: In this case, however, there is another "factor" in addition to the naming of the informant in the affidavit in this case which entitled this named informant to the presumption of veracity. Also, this is not a case in which it appears on the face of the affidavit that the named informant was himself a participant or accomplice in the criminal acts or in which other facts appeared on the face of the affidavit reflecting adversely upon the reliability of the named informant. The affidavit of the police officer in this case stated as follows: In Oregon, by reason of ORS 162.375, it is a crime to initiate a false report to a law enforcement agency. Also, a person who does so may be liable for damages in a civil action for malicious prosecution. Cf. Rose v. Whitbeck, 278 Or. 463, 564 P.2d 671 (1977). Finally, by revealing his name, and by thus exposing his identity, an informant may more likely be called as a witness so as to be exposed to the penalties of perjury in the event that his testimony is contrary to the facts stated in the affidavit. The affidavit in this case states not only the name of the informant, but that he (the informant) "contacted" the police officer within 24 hours of the event in question and "advised" the officer of the fact that he was present in defendant's apartment "with permission" for a period of only 30 minutes; that while he was there he observed not only a substance which he believed to be marijuana, but also a substance which defendant represented to be cocaine and offered to sell to him. We hold that from these facts, taken as a whole, the magistrate could properly infer that Mr. Morton "initiated" the report of a crime to a law enforcement agency which, if false, would subject him to punishment under ORS 162.375, as well as to possible liability in damages for malicious prosecution and further punishment for perjury if subsequently called as a witness and that, for these reasons, this named informant *661 was sufficiently credible and his information sufficiently reliable so as to provide a proper basis for the issuance of a search warrant. We hold that the facts stated in the affidavit in this case were sufficient to support the issuance of the search warrant and that the trial court did not err in denying defendant's motion to suppress. Accordingly, we affirm the decision by the Court of Appeals. Affirmed. DENECKE, Chief Justice, dissenting. I concur in that part of the dissenting opinion of Justice Lent that would hold that the affidavit in this case is insufficient. HOLMAN, Justice, dissenting. I agree with that part of the dissent of Lent, J., which holds that the naming of the informant alone is insufficient to prove his probable veracity, that the affidavit is therefore defective, and that the majority opinion's so-called additional factors are nothing more than an argument that name alone is sufficient and is an example of pulling one's self up by one's bootstraps. LENT, Justice, concurring in part; dissenting in part. I concur in the majority's holding that the mere naming of an informant does not suffice to furnish a basis for the magistrate to conclude that the informant is veracious. I concur, also, in the reasoning for that conclusion found in the separate, concurring opinion of Linde, J. I dissent, however, from the holdings of those opinions that the affidavit in this case affords enough additional information for the magistrate to infer the informant is truthful.[1] Moreover, I believe something more should be said as to the basic approach in analyzing the sufficiency of an affidavit to establish probable cause. It is conceded that there is no statute which is dispositive of the matter now before us and that we must turn to Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution to resolve the issues before us. We should be mindful of certain considerations with respect to those constitutional provisions. Over half a century ago this court expressed a basic principle to be kept in mind insofar as Article I, section 9, of the Oregon Constitution is concerned. In State v. McDaniel, 115 Or. 187, 194, 231 P. 965, 237 P. 373 (1925) we said that this constitutional provision is to be strictly construed in favor of the individual who invokes its protection. The Supreme Court of the United States similarly views the function of the Fourth Amendment. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 392, 91 S. Ct. 1999, 2002, 29 L. Ed. 2d 619 (1971) that court noted that the Fourth Amendment "guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures * * *" (emphasis added). The reason for enforcement of each of the relevant constitutional provisions is to protect citizens, the law abiding as well as the criminal, against unreasonable searches and seizures, and absent uncompromising examination of the reliability of alleged informants by both magistrates and reviewing courts protection for all persons against unreasonable searches will simply disappear. Both the state and federal constitutions require probable cause to be shown for the issuance of a warrant. When the information presented by affidavit to the magistrate to establish probable cause is that of the affiant himself the oath of the affiant is considered prima facie sufficient for the magistrate to accept the veracity of the supplier of the information. On the other *662 hand where the information is not presented upon the personal knowledge of the affiant but rather upon the unsworn statement of another (the informant) to the affiant, the constitutions require that the affidavit must contain sufficient data from which the magistrate will be independently convinced of the trustworthiness of the information given by the informant. From 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) Judge Moylan has developed an outline oft cited and utilized in determining whether an affidavit of this kind is sufficient to meet the constitutional tests of a showing of probable cause. See, Moylan, "Hearsay and Probable Cause: An Aguilar and Spinelli Primer," 25 Mercer Law Review 741, 755: Judge Moylan's outline may be a valuable tool and serve well as a point of departure for analysis in a given case, but it contains a trap in its very configuration because it leads us to focus first upon the knowledge prong and then upon the veracity prong. I believe that an affidavit of the kind here involved is properly tested by turning first to whether there is sufficient data sworn to by the affiant to afford the magistrate a basis for concluding that the informant is veracious. The Court of Appeals asserted in this case, 38 Or. App. at 365, 590 P.2d at 275 that "an informant's reliability[2] is sufficiently established where, as here, he is named and his information comes from personal observation." The proposition will not stand because it assumes as true something which is not necessarily true. It assumes that the informant is an eyewitness. Whence the data that the informant was an eyewitness? Why, from the information which the informant gave to the affiant. The assumption is totally unwarranted unless the magistrate has some data from the affiant to afford a reasonable basis for the magistrate to conclude the informant is veracious. Only then can the magistrate reasonably infer that the informant's claim of being an eyewitness is true. In other words, how can the magistrate start by assuming the claim of being an eyewitness is true and from that assumption conclude that the information is trustworthy? He can't, of course, unless the affidavit affords data to show the magistrate that the informant is a "truth speaker" (Judge Moylan's apt term) and, therefore, that the magistrate should believe the informant's most fundamental assertion, i.e., that he is an eyewitness. It is urged upon us that naming the informant is sufficient to establish a basis for the magistrate to conclude that the informant is probably to be believed in what he has asserted to the affiant. Some of the cases cited to us as standing for such a rule seem to proceed upon a line of reasoning that Aguilar and Spinelli, supra, dealt with unnamed informants and that the language of those cases was addressed to the particular problems associated with professional informers or stool pigeons, most likely themselves to be members of the criminal milieu. If the informant is not of that class and merely an eyewitness, therefore, say those courts, there is no basis for furnishing a "track record" of the informant, and it need not be done. I agree that furnishing a "track record" for the once-in-a-lifetime witness to crime who reports his observations to a police officer affiant is impossible. I do not agree that the affidavit provides probable cause simply because the informant is named therein and asserts that he is an eyewitness to certain events which describe the commission of a crime. *663 Probably the case which has gone furthest in requiring no more than name and claim of being an eyewitness is United States v. Burke, 517 F.2d 377 (2d Cir.1975). There the sworn statements of police officers were that an informant identified by name and address had informed the affiants that the informant had seen the defendant in possession of a sawed-off shotgun at a certain time at certain premises. Upon noting that this was not an unnamed informant case, the court summarily concluded that the rules of Aguilar and Spinelli were inapplicable because they could not be applied to the hearsay statements of eyewitnesses (including victims) theretofore unknown to the police. The court expressed concern over the paucity of data concerning the informant and suggested other data which could have been easily furnished.[3] Nevertheless the court seemingly required nothing more than the bare identification of the informant and his unsworn assertion that he was an eyewitness. In Burke the court primarily relied upon United States v. Bell, 457 F.2d 1231 (5th Cir.1972); McCreary v. Sigler, 406 F.2d 1264 (8th Cir.1969); United States v. Unger, 469 F.2d 1283 (7th Cir.1973); and United States v. McCoy, 478 F.2d 176 (10th Cir.1973). A brief review of those cases would indicate that they are not all helpful to the Burke court position. In United States v. Bell, supra, the crime was bank robbery. The affiant identified by name and address or bank occupation informants who, respectively, saw one or more defendants in the bank during the commission of the robbery, standing by a getaway car, running from the bank to a getaway car and proceeding away from the scene in a getaway car. The court said, 457 F.2d at 1238: It is clear from the emphasized matter that the court had assumed the truth of the claim by these informants that they were eyewitnesses. From that point the court departs to the next point on the circle, i.e., that the magistrate can adequately assess the eyewitness's information and, if he believes it, he must then (returning to initial point on the circle) believe that it was based *664 upon first hand knowledge, in other words, that the informants were eyewitnesses. I submit that this circuity of reasoning simply says that if one, not under oath, claims to be an eyewitness and his story is reasonable and accepted by the magistrate, the magistrate is entitled to treat his information as eyewitness information. Laying Aguilar and Spinelli aside entirely I submit that kind of reasoning will not support finding constitutional probable cause.[4] In McCreary v. Sigler, supra, the informant was unnamed and had told the affiant that the informant was an eyewitness to the crime of breaking and stealing from a coin box in a public telephone booth. The informant told the affiant the identity of three persons involved, that one of them had talked to the informant at the scene and that the informant saw McCreary and one of the girls in the booth and at that time heard coins rattling in the box. Based upon this information officers had "tailed" McCreary and the girls and thereby developed further evidence of McCreary's guilt. The court found credibility had been sufficiently shown, 406 F.2d at 1269: In answer to the claim that the informant was not "identified in any way" the court answered in part, 406 F.2d 1268: McCreary actually tends to support the proposition that something more than identity by name, address, and occupation is required to satisfy constitutional requirements. In United States v. Mahler, 442 F.2d 1172 (9th Cir.1971) the crime was interstate travel to commit extortion. The victim had been the defendant's paramour and defendant had taken pictures of her and the two of them that "could be more than a little damaging to her." He attempted to use the pictures to extort property from her. Part of an affidavit to search defendant's property was on the basis of the unsworn statements of the victim to the affiant or a brother officer. These statements were corroborated in part by another woman, who was also "fully identified." The affidavit contained data supporting the victim's statements in many pertinent details. The court did state that when the informant is the victim it need not be shown by other facts that she is reliable. There is nothing in the case which would indicate that mere naming of an informant would show credibility, however, and it is obvious that the court has found "credibility" from the inherent nature of the tale and corroboration. The court cites McCreary as authority. In United States v. Unger, supra, relied upon by the Burke court, the informant was not named. The affiant dubbed the informant a "citizen," which I take to be in the nature of a conclusory disavowal by the police officer affiant that the informant was of the criminal milieu. The affidavit swore that the citizen had informed the officer of the facts which explained a perfectly legitimate reason for the informant to be where he was in a position to observe the contraband. It was sworn that the informant claimed to be working at his occupation in the basement of an apartment building where he saw a locker containing weapons of a kind which the informant recognized because of his military experience, that he had then called the police to report this experience, had pointed out the building to the police and had drawn a detailed diagram to assist the police in finding the contraband. There is nothing in this case to suggest that merely naming an informant who claims to be an eyewitness is enough to justify a neutral and detached magistrate in believing the information. *665 In a later case, the Unger court held insufficient an affidavit to establish the informant's veracity even though he was named and "came forward" to the police with his information and it appeared that he must have been an eyewitness, although that was not asserted. United States ex rel. Saiken v. Bensinger, 489 F.2d 865 (7th Cir.1973). As above noted the Burke court also relied upon United States v. McCoy, 478 F.2d 176 (10th Cir.1973). This was an airplane hijacking case. A named informant was a passenger, interviewed by an FBI agent who conducted a throw-down, snapshot lineup, at which the passenger identified defendant as the hijacker. Another named informant was a stewardess who claimed she had received a note from the hijacker. The note was turned over to an FBI agent and examined in the FBI laboratory where it was found by expert opinion to be the product of the defendant. Another named informant was a state police officer, who was a fellow Air National Guardsman with the defendant and supplied the information that defendant was an accomplished sky diver and had discussed with the informant "a plane sky-jacking" and that on the night of the crime defendant was not at home. The court found the affidavit sufficient without any discussion of whether merely naming these informants would have been sufficient to establish a basis for a finding of veracity. In summary, the Burke court and the Bell court seemed to have adopted a rule that naming the informant who claims to be an eyewitness sufficiently establishes the informant's veracity for probable cause purposes, but it is submitted the logic of the position is not sound and that in Bell the affidavit contained far more than just names of the informants. The other cases relied upon in Burke seem of little comfort to the Burke court either because the affidavit disclosed much more than mere name concerning the informant and his opportunity for eyewitness observation or because the court seems to have paid no attention to anything other than the basis of the informant's knowledge as distinguished from whether he was telling the truth as to the initial step, i.e., that he was an eyewitness. Another United States Court of Appeals case, Cundiff v. United States, 501 F.2d 188 (8th Cir.1974), relies upon McCreary, supra, and holds sufficient an affidavit which identified a chain of informants claiming to be eyewitnesses in a bank robbery case. One was the teller from whom the money was taken, who described the robber and his clothing as being a rust colored jumpsuit. The next was a lady outside the bank who saw a man in such a jumpsuit leave the area of the bank and go behind a building, from behind which a green car left the area. The next were two boys who saw a man in such a jumpsuit come behind the building and get into a green Mercury auto with a damaged fender. The next was a man who while standing in his front yard had seen such a car within a block of the bank and the driver looking toward the bank. Within 20 minutes investigating officers found such a car parked at a nearby motel and thereby apprehended defendant who was a guest at the motel. The court said, 501 F.2d at 190: Do not these data, by implication, cry out the veracity of the informants? The majority cites the Burke, Cundiff and Bell cases as standing for a rule that Burke may fairly be said to stand for such a rule because that is what the court held on the facts before it. In Bell and Cundiff there was much more in the affidavit than the mere identity of the "citizen-informants." None of those opinions seem to realize that calling one a "citizen-informant" is just as conclusory as calling him *666 "reliable informant." How can the magistrate know any more concerning the veracity of the informant simply because the affiant asserts the informant to be a "citizen-informant" than the magistrate knows when the affiant asserts the informant is "reliable"? He can't, of course. It follows, therefore, that the affidavit must contain data concerning the informant which either directly tends to establish his veracity or permits logical inferences to establish that the informant is probably telling the truth. In some of the state court cases cited by the majority for the above mentioned rule such data clearly appears. In State v. Drake, 224 N.W.2d 476 (Iowa 1974) the crime was receiving and concealing stolen goods. The informant was an unnamed person claiming to be an eyewitness. It appeared that the informant saw the stolen goods (racks of clothing) on the defendant's property when the informant was taken to the property as a possible purchase, thereof by a real estate salesperson. The informant was identified by occupation and employer. I submit there was enough here to establish a legitimate reason for the claimed eyewitness to be where he claimed to be thereby tending to dispel any inference that he was anything other than a concerned citizen without motive to falsify. State v. Lindquist, 295 Minn. 398, 205 N.W.2d 333 (1973) involved a warrantless arrest. The sufficiency of probable cause for police action was the issue, however, and the informant gave the police her name, address and telephone number and claimed to be an eyewitness to defendant's possession of marijuana. She told the police her motive for coming forward was fear that someone such as defendant would supply drugs to her child. She furnished much detail concerning the elements of the crime. Again a case is presented of one who furnishes a motive for coming forward which prima facie appears to afford a basis for concluding the informant to be a concerned citizen with no motive to falsify. State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971) is cited by the majority as standing for the rule while Professor LaFave (1 LaFave, Search & Seizure, § 3.4, p. 591 (1978)) seems to indicate that the case does not stand for the rule. In any event the case involved a warrantless arrest and search incidental thereto. The issue was whether there was probable cause for the police actions. The informant had called the police by telephone and during the course of the conversation identified herself by name, occupation and place of business. She furnished detailed information concerning defendant's attempt on that morning to sell her marijuana at the place where she worked. She told police defendant would return to attempt a sale later that day. She described defendant in some detail. The police came to where she worked. Defendant returned as predicted and she identified defendant to the police. I submit the information furnished to justify police action was sufficient to establish to a magistrate's satisfaction that this informant was an average citizen motivated by nothing other than to cause the arrest of one engaged in criminal activity. The "veracity" of this informer shines through. People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971) states that the "citizen-informer" who acts openly should be encouraged. In this case the affidavit named the informant and identified her by occupation, employer and place of employment. The affidavit contained detailed information disclosing circumstances of the legitimate reason for the informant's presence at the place from which her observations were made. The opinion says that probable cause (and therefore veracity) can be shown by identifying the informant by name and address. I submit there was far more before the magistrate to afford him basis for an inference that he there dealt with an average citizen with no motive to falsify but instead the desire to act only as a good citizen. Professor LaFave in the work cited above at page 591 lists cases which stand for the proposition that veracity may be assumed where the data shows that the informant is an "average citizen" reporting his personal observations. Professor LaFave, however, *667 rightly observes that veracity may appear by the very nature of the circumstances under which the incriminating information became known. For this he cites People v. Paris, 48 Cal. App. 3d 766, 122 Cal. Rptr. 272 (1975). The case concerned a search upon a warrant. The informant was named and identified by occupation (a telephone installer and reserve police officer). The affidavit disclosed that the informant told the affiant that the informant was in the course of his occupation as telephone installer which caused him to go into a room where he observed what he thought to be marijuana based upon his training as a reserve police officer. Again we have a case where the data carries the indicia of the veracity of the informant. The magistrate may easily infer that the informant is an average citizen whose motive is to assist in the apprehension of a criminal. There is nothing to arouse any suspicion that the informant is himself involved in crime in general or this one in particular. Professor LaFave lists several cases. I have read each of them and in each there are circumstances revealed concerning the informant which supply a basis for deeming him to be veracious. This is true although the court may say that naming the "citizen-informant" suffices. That sort of statement obviously begs the question for the court has found the informant to be a "citizen-informant" by reason of data which affords a basis for a reasonable inference that the informant is a "truth speaker." The same idea is summed up in People v. Schulle, 51 Cal. App. 3d 809, 124 Cal. Rptr. 585 (1975) where the court says, 51 Cal. App. 3d at 814, 124 Cal. Rptr. at 588: The court goes on to point out the other side of the coin is found in the case of the stool pigeon or person who is "criminally involved or disposed." Such persons, says the court, are generally motivated by something other than good citizenship. From all of this I conclude that in assessing the trustworthiness of unsworn information furnished by one who claims to be an eyewitness to criminal activity the first inquiry must be whether there is sufficient data to afford a basis to find that the informant is veracious. Obviously this will not appear from merely naming the informant. A man's name alone tells the magistrate nothing concerning his veracity. The magistrate may, however, be persuaded that the informant is veracious where the data furnished to the magistrate either directly establishes that condition in some manner or, at least, indirectly establishes it by furnishing details which permit the reasonable inference that the informant acts with no other motive than that of the good citizen who is bent on assisting in law enforcement. There should be nothing left unexplained which would tend to arouse the magistrate's suspicion that the informant acts from other motives. The majority and concurring opinions find the affidavit in the case at bar to be sufficient to establish a basis for the magistrate to conclude that the informant is veracious. I totally disagree; moreover, I find the affidavit by neglecting to afford data to support a legitimate reason for the informant to be in a position to make his observation makes his veracity suspect on the very face of the affidavit. The majority takes the position that there is another "factor" which entitles the named informant to the presumption of veracity. This "factor" is made up of elements discussed following the setting forth, in haec verba, of the affidavit. I shall discuss these elements of the other "factor" seriatim. 1) Initiation of a false report to a law enforcement agency is a crime. ORS 162.375. It is a crime whether the initiator is named or unnamed in an affidavit by the initiatee. Named or unnamed in the affidavit, the informant's identity was known to the police, and if (a) his report was false and (b) the state should choose to prosecute, he would be just as subject to prosecution and conviction in one case as in the other. 2) If all other elements of the tort can be established, one who sets the criminal prosecution in motion is liable to the party wronged whether or not the tortfeasor is named to the magistrate. Naming him merely makes his identity more readily discoverable to his victim. Failure to name him is, I submit, not an insuperable bar to discovery of his identity by the hypothetical plaintiff in whose favor the criminal proceeding has terminated. 3) Accepting the premise, arguendo, that a named informant is more likely to be called (but by whom?) as a witness in later stages of the criminal prosecution, I answer that he cannot be successfully prosecuted for perjury unless he is shown beyond a reasonable doubt to have been false in his testimony when called as a witness. Lying to the affiant police officer subjects him only to prosecution under ORS 162.375, as discussed under the first element, supra. It is reasonable to assume that the magistrate, if he thought of it at all, would suppose that the informant would not be called by the criminal defendant as a witness unless the informant is prepared to recant. This should speak little to the magistrate of veracity. The state would call him, if otherwise advisable, only if he is expected to stay by his story. Only if (a) that story after given in testimony can be shown to be false and (b) the state should choose to prosecute is the informant exposed to the penalties of perjury. This is a slender reed upon which the magistrate should depend for accepting the veraciousness of the informant. 4) That the informant was present at the scene of the crime with the permission of the defendant and was offered by the defendant an opportunity to participate in criminal activity and that the informant, in those circumstances, "contacted" the police about the incident seems not nearly so apt to attest to his veracity as would the circumstances of such "contact" by a completely disinterested bystander witness to crime. It would seem that in the circumstances described in the affidavit the magistrate would want to know something more about the presence "with permission" of the informant at the crime scene. Still under this element, I find the affidavit's description of the crime scene and of the informant's knowledge of the nature of the contraband impressive in satisfying the knowledge prong, but I fail to understand how it supports the magistrate in finding the informant to be a "truth speaker." The further fact that he made his police report within approximately 24 hours certainly goes to the issue of whether it is probable that contraband is still on the premises, but how that should be of aid to the magistrate in drawing the conclusion that the informant probably speaks with straight tongue completely escapes me. Still under the same element, I would note that if the affiant police officer were able to swear to some other facts which independently of the informant's advice tended to corroborate that advice in salient part, we might have an affidavit in which veracity of the informant is established under the second spur of the veracity prong, that is to say, reliability. There is nothing of that kind in this affidavit. The purpose of this exercise has thus far been to attempt to show that while giving lip service to requiring something more than mere naming of the informant, the majority has actually required nothing more. The "factors" are nothing more than reasons for the argument that naming alone is enough. For myself I would hold that in order to give the magistrate a basis for finding the *669 named informant to be veracious something more is required. If the affiant has knowledge which tends to show that his named informant is a true "citizen-informer" such as an apparently nonparticipating, bystander eyewitness or a true victim of the crime, such details should be made available in the affidavit upon which judicial determination of probable cause is to be made. Cf., State v. Dunavant, 250 Or. 570, 444 P.2d 1 (1968); State v. Hughes, 20 Or. App. 493, 532 P.2d 818 (1975). It seems only reasonable to require that if there are factors other than the informant introducing himself by name to the police officer which have led the police officer to believe that the informant is a "truth speaker," the police officer affiant should make those known to the magistrate. I venture to say that a magistrate would feel put upon should he find that an affiant had asked him to rely upon less than the affiant knew in assessing the informant's veracity. There must be more for the magistrate than a named informant's plausible lie. It must readily occur to anyone that in the situation with which this case is concerned there was an easy way to avoid this controversy over the informant's veracity. Since the police officer affiant swore that the informant came forward openly with his report of criminal activity what better way to put his information before the magistrate existed than to have the informer make his own affidavit. The thought occurred to this writer prior to my reading the case of United States v. Burke, supra. In that case, as I have noted, the court went further than any other in upholding an affidavit which identified the informant by name and address only.[5] Even that court, however, 517 F.2d at 381, pointed out how easy it would have been to get an affidavit from the informant himself and thus obviate the entire inquiry as to his veracity. Where the police are dealing with a true "citizen-informant" in circumstances which make it relatively easy to obtain the informant's own affidavit, it would seem to be a highly salutary procedure. I conclude that the majority is correct in acknowledging that the applicable constitutional provisions require more than mere naming of the informant to satisfy the veracity prong of the requirement that probable cause be established in the affidavit. I must dissent from the majority's decision that the affidavit in this case actually does more than to name the informant insofar as affording to the magistrate a basis upon which to find the informant to be a veracious individual either generally or in this instance. LINDE, Justice, specially concurring. Important in this case is that the court is in agreement that a search warrant is not adequately supported by an informant's statement merely because the informant is named in the affidavit. More is required to show why the issuing judge should believe the informant besides his name. The majority and minority disagree only about whether the magistrate who issued the warrant upon the affidavit in this case made a misjudgment requiring the suppression of the evidence seized under the warrant. The requirement that persons or places ordinarily may be searched only upon a judicial warrant issued "upon probable cause, supported by oath, or affirmation" is one of the classic formulations of the American bills of rights. Or.Const. art. I, sec. 9. In deference to this constitutional guarantee, ORS 133.545 provides in part: Central to the constitutional guarantee is that the search may be made only if a judicial officer, not a police officer or a prosecutor, is convinced by trustworthy information under oath that there is probable cause for authorizing the search. It is a judgment in which the judge cannot defer to the officer seeking the warrant; he must make it himself. When the information comes from someone other than the person who swears to it, the judge must know more than that the affiant believes the informant; the judge must know why he should believe the informant. The judge's responsibility for decision can hardly be capsulized in a mechanical rule that obliges him to issue a warrant whenever the name of a source of otherwise plausible statements appears in an affidavit. Nor can he be expected to decide whether to believe the hearsay recited in the affidavit by whether the informant's name is George Washington or Ananias. It seems that the legal significance of the informant's name as such has become exaggerated as a reflex from the more vexing concern with affidavits relying on unnamed informants, particularly "police informants." This concern about unnamed informants is incorporated in the last sentence of ORS 133.545(3), quoted above. Because courts have been more troubled about authorizing searches on the hearsay statements of unnamed "police informants," the reaction seems to be that when this problem is not presented, a judge needs no further assurance of the informant's probable truthfulness before issuing a warrant. But this reflex is a patent non sequitur. The fact that a person quoted in the affidavit is not represented to be an unnamed police informant tells the judge nothing about him or her other than that he or she is not an unnamed police informant. Most people are not. Among the vast majority of people who are not "police informants" in the sense of having a frequent or ongoing relationship with the police, the judge can hardly draw an inference whose report to the police is worthy of respect and whose is not without more information than a name. Nor does it take one any further to clothe anyone who is not a "police informer" in the mantle of a "citizen informer." Since citizenship as such is obviously not meant to be relevant, the term again is only a way of distinguishing the named informant from one who is in one or another relationship of dependence, control, or continuing collaboration with the police. In other words, the question of sufficient identification is whether the judge can conclude that the unsworn hearsay information on which he is asked to issue a warrant, if it is not otherwise vouched for on grounds stated in the sworn police affidavit, originated in the sworn independent of the police itself, a source worthy of the judge's belief. What all the "prongs" and "spurs" in the analyses quoted in this case come down to is this basic duty of the judge to make up his own mind upon the sworn submissions of the affidavit, whether to believe the statements *671 that are claimed to constitute probable cause to search someone's home or property or effects. A rule that a name without more suffices to support an affidavit based on hearsay would contradict the law that the judge's responsibility for accepting or rejecting the adequacy of the "probable cause" for a search cannot be delegated to the officers who request the warrant. In the present case the prevailing opinion postulates that the judge who issued the warrant could infer from the affidavit that the named informant was a resident of Eugene, with a known address, otherwise independent of the police, who on his own initiative came forward to give the police information on his personal knowledge concerning the actions of another person known to him. We may presume that the judge did conscientiously decide for himself to draw that inference and to regard the informant as more likely truthful than not. ORS 41.360(15)-(17). Certainly the record shows nothing to the contrary. It is true that the basis for such an inference in the affidavit was minimal and the future practice should be to provide more supporting information. But the case was argued in the suppression hearing and in the Court of Appeals primarily on the issue of controverting the affidavit by evidence attacking the informant's veracity rather than of the adequacy of the affidavit to allow the issuing judge to believe the informant's statement in the first place. Although that issue was raised, perhaps it was slighted because the Court of Appeals had previously held that naming an informant in the affidavit is in itself sufficient to support issuance of a warrant. That view has now been disapproved. On the record of this particular case, the issuing judge is entitled to the benefit of any doubt whether the informant was sufficiently described to deserve belief, without having anticipated today's holding. I therefore concur in the result. [1] Defendant's petition for review is limited to the question of the denial of defendant's motion to suppress because of the claimed insufficiency of the affidavit to support the search warrant and does not question the decision of the Court of Appeals in affirming the denial by the trial court of defendant's supplementary motion to controvert the affidavit. Although, as a result, the decision by that court on that question is not before this court on this petition for review, we note that the Court of Appeals, in support of its holding that the trial court did not err in denying defendant's motion to controvert, quoted from the Commentary, Oregon Criminal Procedure Code § 168 at 107 (1968) as stating that "the defendant may challenge the good faith but not the objective truth of testimony in support of probable cause * * *." We also note, however, that this comment was made with reference to the terms of that section of the Oregon Criminal Procedure Code [final draft], but that the Oregon Legislature, in adopting what is now ORS 133.693 expressly provided that defendant may contest the "good faith, accuracy and truthfulness of the affiant as to the evidence presented before the issuing authority," but may do so "only upon supplementary motion * * *." [2] Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974). [3] Moylan, supra, note 2, at 757-58. [1] On the contrary, as I shall discuss later in the body of this separate opinion, I find information which, I believe, should tend to arouse the magistrate's suspicion that he needs to know something more of this informant to dispel a rather logical inference that this informant is of the "criminal milieu." [2] This use of the word "reliability" is subject to the kind of criticism made by Judge Moylan in his article cited in the text of this opinion. See pages 755-756. The Court of Appeals has apparently used the word "to connote the overall subject of the outline itself and every one of its constituent parts." [3] The court even noted the possibility that the informant could have been lying to the affiants but brushed this off as being just part of the working of the system. [4] I have no particular problem in agreeing that the affidavit in United States v. Bell, 457 F.2d 1231 (5th Cir.1972) is sufficient because of the inferences which may be drawn from circumstances disclosed in the affidavit other than name and address or occupation of the informants, respectively. [5] The court was seemingly completely unconcerned that the affidavit did not show any legitimate errand which took the informant to the vantage point for his observations. [1] The section continues: "(4) Instead of the written affidavit described in subsection (3) of this section, the judge may take an oral statement under oath when circumstances exist making it impracticable for a district attorney or police officer to obtain a warrant in person. The oral statement shall be recorded and transcribed. The transcribed statement shall be considered to be an affidavit for the purposes of this section. In such cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the judge receiving it and shall be retained as a part of the record of proceedings for the issuance of the warrant." There is no claim here that the warrant is supported by oral statements under subsection (4). As the statute makes clear, the magistrate may consider oral statements only when it is impracticable for the prosecutor or police officer to obtain a warrant in person. When such an officer appears before the magistrate, all supporting information must be found in the written affidavit. Additional oral statements of facts in support of the requested warrant are improper unless they are reduced to writing and sworn to as a supplemental affidavit.

f5e83745e7515a9f98296a943c251d8a9b5251284f75cd54c72fb3687bc5ea68

1980-01-22T00:00:00Z

64ffc94d-7c80-48e7-82c2-4bf42e1b87ca

Securities-Intermountain v. Sunset Fuel Co.

289 Or. 243, 611 P.2d 1158

oregon

Oregon Supreme Court

611 P.2d 1158 (1980) 289 Or. 243 SECURITIES-INTERMOUNTAIN, Inc., Petitioner, v. SUNSET FUEL COMPANY AND CY STADSVOLD, Respondents. TC A7605 06171; CA 11004; SC 26291. Supreme Court of Oregon. Argued and Submitted December 4, 1979. Decided June 3, 1980. *1159 Rudy R. Lachenmeier, of Vergeer, Roehr & Sweek, Portland, argued the cause and filed briefs for petitioner. Donald J. Friedman, of Black, Kendall, Tremaine, Boothe & Higgins, Portland, argued the cause and filed briefs for respondent Sunset Fuel Co. Elizabeth K. Reeve, of Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, argued the cause for respondent Stadsvold. With her on the briefs were Ridgway K. Foley, Jr., and Kenneth E. Roberts, Portland. Before DENECKE, C.J., and HOLMAN,[*] HOWELL, LENT, LINDE and PETERSON, JJ. LINDE, Justice. The question before us concerns the application of the proper statute of limitations to an action for damages brought by plaintiff, as assignee of a general contractor of a construction project, against an architect and a heating contractor allegedly responsible for a defective heating system. There are three possibilities: The six-year "contract" statute of limitations, ORS 12.080(1), the general two-year statute of limitations, ORS 12.110(1), and a special two-year statute relating to actions for damages "for injuries to a person or to property arising from another person having performed the construction, alteration, or repair of any improvement to real property," ORS 12.135. The choice is complex. If the special statute, ORS 12.135, covers all damage claims arising from faulty performance of the covered services in construction work, it applies *1160 to this action. If that section is limited to certain kinds of injuries or to tort claims, it then becomes necessary to determine whether plaintiff's action is properly characterized as arising from contract or tort. The present action was initiated more than two years but less than six years after defendants completed their work and plaintiff discovered the claimed injuries. The trial court entered summary judgment for defendants on their affirmative defense that ORS 12.135 barred the action. The Court of Appeals affirmed, 40 Or. App. 291, 594 P.2d 1307 (1979), and we allowed review. Before examining the parties' contentions it is necessary to review the statutory formulations. ORS 12.080(1) allows six years within which to bring an action "upon a contract or liability, express or implied," with exceptions not relevant here.[1] ORS 12.110(1) enacts a two-year limit for a list of specified intentional torts and for "any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter."[2] Thus ORS 12.110(1) does not purport to be a statute of limitations for a general category called "torts." Rather, it covers the residual category of those actions which cannot be said to arise from contracts or from other sources of liability covered by different statutory limitations.[3] ORS 12.135 is a later addition to these statutes, enacted in 1971. It provides: Unlike the two earlier sections, this statute does not define its coverage by the legal source or nature of the liability on which the action is founded but on the character of the injuries incurred in a specified context. Its literal elements are that the action be one to recover damages for injuries to a person or to property, and that these injuries have arisen from another person having performed certain services in the construction, alteration, or repair of real property. When the action is by the person for whom the contractual services were to be performed against persons engaged to perform them, as it is in this case, the question is whether ORS 12.135 applies to a claim of financial losses from alleged breaches of contract by the persons so engaged. The coverage of the statute has been the subject of divided opinions in the Court of *1161 Appeals. In the first case raising the issue, the court held that an action on an express warranty to remedy defects in the repair of a building was not limited to two years but could be commenced within six years as a contract action governed by ORS 12.080(1). Housing Authority of Portland v. Ash Nat'l, 36 Or. App. 391, 584 P.2d 776 (1978). The opinion explained this conclusion by two reasons: first, that the words "injuries to a person or to property" appear to contemplate tort actions, and second, that although ORS 12.080 excepts from its six-year limitation some contract actions governed by other sections, it was not amended to include such an exception for ORS 12.135. In the present case, the Court of Appeals avoided any reference to this preceding opinion, since it held that plaintiff's action should not properly be characterized as an action upon a contract but rather as a tort action. Judge Buttler concurred on the different ground that the damages claimed here were not for injuries to a person or to property. 40 Or. App. at 301, 594 P.2d 1307. In a subsequent action on an express warranty, the court adhered to its decision in Housing Authority of Portland v. Ash Nat'l, but one member of the court who participated in all three cases concluded that he now thought that decision to have been wrong and that ORS 12.135 should properly govern actions on contract as well as tort theories. Amfac Foods v. Fred A. Snyder Roof, Inc., 43 Or. App. 107, 602 P.2d 321 (1979). The problems of the statute's intended coverage cannot be wholly resolved by an examination of its text. Certainly the use of the terms "injuries to a person or to property" includes the kinds of harms which, when caused by substandard construction work, might give rise to a tort claim. But ORS 12.135 makes no mention of the legal theory on which a claim for damages is founded, nor must it necessarily preclude the wider reading urged by defendants that it covers such financial "injuries" from faulty performance as, for instance, a reduced value of the building or the cost of substitute performance. We therefore turn to an examination of its legislative history. The impetus for a special limitation of actions against building contractors apparently came from the Associated General Contractors of America, Inc. (AGCA), a trade association. The original bill, introduced as HB 1259 in the 1971 legislative session, proposed that initiation of any action, "whether in contract, tort or otherwise" arising from a contractor's work on an improvement of real property be limited to six years from the completion of the project, defined as the date when the improvement either is accepted by the "contractee" or is ready for use or occupancy. However, the bill also provided that it would not extend a period of limitation provided by another statute. It is apparent that this bill was addressed to the contractors' concern, not about the length of the limitation periods but about fixing the time from which these periods are measured, specifically about claims that might "arise" from latent defects in construction work long after a potential defendant had completed the work. The outer limit of such claims was to be six years from the date of completion, whether the claim was "in contract, tort or otherwise," and irrespective of the kind of injury claimed. However, if another statute limited the time within which to commence the action, HB 1259 would not extend that time. We understand this to have intended that an action previously subject to a two-year limitation from the date when the injury occurred, or perhaps when it was discovered, would still be subject to that limitation even short of six years from the date of completion. Thus HB 1259 did not propose to do away with the preexisting distinction between contract claims and other theories of liability; it merely proposed to subject them all to the outer limit of six years measured from the date of completion. Evidently the absolute six-year limitation was not acceptable to the House committee that considered the bill. The committee extended the period to ten years and added a new provision addressed to "an injury to property or person or an injury causing *1162 wrongful death." If such an injury occurred after the eighth year following completion, an action "in tort" to recover damages could still be commenced within two years from the date on which the injury occurred, so that for such actions the ultimate limitation would be 12 rather than 10 years after the completion of the project. Eng. HB 1259 (April 16, 1971). Thus the reference to an "injury to property or person" first entered the bill in this proposed amendment, coupled with references to "wrongful death" and actions "in tort." The committee amendment in turn was unsatisfactory to the original proponents. It led them to propose a new version, now phrased to apply to "[a]n action to recover damages for injuries to a person or to property," which was to be limited to two years from the date of the injury but not more than seven years from the date the work was completed. The spokesman for the AGCA explained that this proposal was patterned on the then current provision governing medical and dental malpractice actions, ORS 12.110(4) (1971). With a change in the outer limit from seven years to ten, this amendment became the basis for ORS 12.135. In summary, HB 1259 began with the objective of fixing a starting date for applying the statutory time limits to actions against construction contractors in contract, tort, or otherwise, while maintaining the existing differences in the limitation periods. Attention shifted to the problem of tort actions "arising" late in the period measured from completion. The final bill, which was said to intend a parallel to malpractice actions, made no reference to "contract" or "tort"; but it incorporated the two-year limitation common to other noncontractual claims, measured from the date of an "injur[y] to a person or to property," and subject to a ten-year limitation from the date of completion. Neither the text nor the legislative history persuades us that ORS 12.135 eliminated the six-year period of limitation on commencing a conventional action for breach of a contract in the building industry. To the contrary, the original bill specified the six-year period already familiar for actions on contracts, only fixing a starting date for this period and preserving any shorter period that might apply under another law; the two-year period now in ORS 12.135 first entered the bill only to save "tort" actions for certain classes of injuries that might occur late in the limitation period. The final shift confined the entire bill to these classes of injuries "to persons or to property." The origins of this phrase and the chosen analogy of medical and dental malpractice actions indicate that the contemplated injuries were those analogous to the "injuries to the person" covered by ORS 12.110(4), but the bill again eliminated any reference to "tort." Although actions for such injuries will often be based on a tort theory, particularly when the injury is to someone not a party to the construction contract, it is not the choice of theory but the nature of the injury that was made the criterion of ORS 12.135. We conclude that the phrase "injuries to ... person[s] or to property" was thought to encompass what is commonly meant by "personal injuries," i.e. bodily injuries including their psychic consequences, and physical damage to existing tangible property, but not financial losses such as a reduced value of the completed project due to the unsatisfactory performance of the work or the added cost of satisfactory completion or replacement. Actions to recover such financial losses remain within statutes of limitation other than ORS 12.135.[4] With this perspective we turn to an examination of plaintiff's claims in this case. *1163 These claims arise from the installation by defendant Sunset Fuel Company of an allegedly defective heating system in an apartment complex under construction by plaintiff's assignor, the general contractor. Plaintiff sought damages from Sunset Fuel Company and also from defendant Cy Stadsvold, employed as the architect on the project. The injuries alleged in the two counts of the complaint against Sunset Fuel Company consist of costs in redesigning the system or completing it as designed or as redesigned, plus interest losses caused by the delay in construction. The complaint against Stadsvold essentially repeats the same statement of injuries, with the addition of a claim for plaintiff's staff time needed to obtain a loan to cover the increased costs.[5] These are characteristic financial injuries alleged to result from faulty performance of a business transaction. There is no allegation of any personal injury or injury to tangible property occurring in the course of or in consequence of the faulty performance, in the sense intended by ORS 12.135. Accordingly, that statute does not apply to this case. It remains to determine which statute does apply. Defendants maintain that plaintiff's action was commenced too late because its causes of actions are not "upon a contract" within the six-year limit of ORS 12.080(1) but rather are tort claims and therefore limited to two years. The argument rests upon a line of cases, reaching at least from Dalton v. Kelsey, 58 Or. 244, 114 P. 464 (1911) to Ashley v. Fletcher, 275 Or. 405, 550 P.2d 1385 (1976), in which this court has sought to determine the statute of limitation appropriate to the "real" character of the action rather than to leave this solely to the plaintiff's chosen statement of his cause of complaint.[6] The resulting body of law is explicable as the product of case-by-case development more than of any single coherent theory. As long as statutes prescribe different periods for commencing an action depending on its legal character, it is often unavoidable to characterize a plaintiff's action for this purpose. The early Oregon law did not involve such a choice between causes of action on a contract or in "negligence" or "tort," because the latter were not statutory categories. Under the original 1862 Code, based on New York's Field Code, the six-year period of limitation applied both to actions "upon a contract or liability, express or implied," and also "for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated"; a two-year limitation was imposed *1164 only on actions for libel, slander, assault, battery, or false imprisonment. 1862 Or.Gen.Laws 5, ch. 1, §§ 6, 8. Unenumerated tort actions, therefore, such as "trespass on the case," were simply in the residual class equally covered by the six-year limitation if the action was pleaded or found not to be "upon a contract or liability, express or implied." These sections of the 1862 Code were amended in 1870 to move the residual class from the six-year section, now ORS 12.080, to the two-year section, now ORS 12.110. Act of Oct. 22, 1870, § 9, 1870 Or.Gen.Laws 34-35. See generally, Comment, 52 Or.L. Rev. 91, 92-93 (1972). Eventually, this led to regarding the two-year statute as one affirmatively addressed to actions for "torts" rather than only residually to actions "not arising on contract." In Dalton v. Kelsey, supra, the parties had settled their respective rights in an irrigation ditch by agreement, and plaintiff complained that defendant subsequently had diverted water belonging to plaintiff. The court noted that the pleaded agreement contained no covenant by defendant to do or abstain from doing anything with respect to plaintiff's share in the ditch or the water therein, so plaintiff's remedy was "case" and not breach of contract. 58 Or. at 250. Schwedler v. First State Bank of Oregon, 92 Or. 33, 179 P. 671 (1919), held that an action for trespass on the case, alleging fraud and deceit, could not be commenced after two years as an "action for taking, detaining or injuring personal property." On the other hand, a complaint charging that defendant had negligently released stored water which washed away plaintiff's property was held to fall within the terms just quoted and therefore timely, over defendant's claim that it was a tort action "not ... especially enumerated." Deetz v. Cobbs & Mitchell Co., 120 Or. 600, 253 P. 542 (1927). These decisions took plaintiff's pleading on its own terms; they did not purport to look beyond a well-pleaded complaint so as to impose upon plaintiff a contrary characterization of his cause of action that would defeat it. Other issues than the time limits on actions were decided by determining the legal character of plaintiff's complaint, with later consequences for the problem of statutes of limitation. The most pertinent instance is Currey v. Butcher, 37 Or. 380, 61 P. 631 (1900). This was an action seeking damages against attorneys allegedly employed by plaintiff to search a title and negotiate a purchase of real property. The complaint alleged that defendants had neglected to discover a judgment lien and to advise plaintiff thereof but had fraudulently purchased and enforced the judgment on their own behalf. Defendants demanded that plaintiff elect between relying on the breach of contract or on the tort of fraud. The court held that the alleged breach of professional duty was a tort as well as a breach of the contract of employment, that "at common law the injured party could sue, either in assumpsit, for a breach of the implied promise, or in case, for the neglect of the duty," and that "[i]n the latter instance it is necessary to aver the contract of employment, showing the relation of attorney and client, as a matter of inducement, because without such contract there could be no duty to the plaintiff, and hence no liability." 37 Or. at 385, 61 P. at 633. "Inducement," in the pleading terminology of the times, meant introductory allegations describing the transaction but not defining the legal theory of the complaint, and the court noted that in actions alleging injury from the negligence of attorneys, physicians, mechanics, carriers, or innkeepers, the allegations showing the defendant's occupation or employment from which his duty arose were characteristic matters of inducement. 37 Or. at 385-386, 61 P. 631, quoting from Bliss, Code Pleading (3d ed) § 150. The court concluded that Currey's remaining allegations could be pleaded in aggravation of damages for the tort, and that the complaint therefore stated a single cause of action. In Currey v. Butcher, then, the court said that the client could choose to proceed either for breach of contract (assumpsit) or in tort, and the allegations were read so as to sustain the complaint against an attack for *1165 duplicity. Similarly, in Ashmun v. Nichols, 92 Or. 223, 178 P. 234, 180 P. 510 (1919), which was a tenant's action for personal injuries after the landlord had promised but failed to repair a defective step, a complaint framed in tort was sustained against an objection that the duty was purely contractual and would not extend to the claimed personal injuries.[7] At stake there was the measure of damages. Neither case involved the statutes of limitations. Nevertheless, once the claims were characterized for these purposes, the characterization thereafter was taken also to govern the period of limitation. This was shown by Goodman v. Fernald, 154 Or. 654, 61 P.2d 1253 (1936), another action against a landlord for personal injuries resulting from failure to make promised repairs. The court decided that despite the alleged promise, once the demand for damages for personal injuries marked the action as one in tort, the passage of the time for commencing such actions defeated it entirely. The possible alternative of permitting it to proceed on the alleged breach of contract for the appropriate measure of damages was not considered. Again, in Wilder v. Haworth, 187 Or. 688, 213 P.2d 797 (1950), applying the two-year statute of limitation to a medical malpractice action, the court cited Currey v. Butcher, supra, for the proposition that an action "based upon alleged negligent performance by defendant of his contract with plaintiff, sounds in tort," although the court went on to point out that even if the plaintiff had chosen to sue for a breach of contract, the six-year period to commence such an action also had elapsed. Currey, it will be recalled, far from holding that a malpractice action necessarily must be in tort, merely had allowed the plaintiff's choice between such an action and one in assumpsit as a matter of pleading. Similarly, Wilder v. Haworth left open the possibility that a patient might sue a physician for breach of contract. In Dowell v. Mossberg, 226 Or. 173, 355 P.2d 624, 359 P.2d 541 (1961), a patient attempted to do just that. Again the court left open the question whether such an action might be brought upon an express contract for a particular treatment or result. But the court held that when a complaint alleged in general terms that defendant undertook to diagnose and treat plaintiff's ailments with the appropriate care and skill, the contract was only "a matter of inducement," and drafting the complaint as one upon a contract did not change the substance of the action from being one in tort. 226 Or. at 183, 190. *1166 Dowell v. Mossberg was followed by Bales for Food v. Poole, 246 Or. 253, 424 P.2d 892 (1967), an action against a professional engineer for damages resulting from the careless mislocation of a building on its site. The case differed from the preceding medical malpractice cases in that the parties used a written contract of employment, in a standard form prepared by the American Institute of Architects, but the court noted that plaintiff relied on no specific provision of this contract, only claiming an implied warranty that defendant would use due professional skill and care. Primarily plaintiff attempted to draw a distinction between his property damage and the personal injuries involved in the earlier cases, which the court said was not the line drawn by ORS 12.080 and 12.110. Thus the two-year limit of ORS 12.110(1) was held to apply.[8] Finally, Bales for Food in turn was followed in Lindemeier v. Walker, 272 Or. 682, 538 P.2d 1266 (1975) and Ashley v. Fletcher, 275 Or. 405, 550 P.2d 1385 (1976), actions for damages resulting from faulty performance by a real estate broker and by an architect, without adding anything new to the analysis. The foregoing line of development may be summarized as follows. Originally all actions upon any contract or liability; express or implied, as well as all actions not otherwise provided for could be commenced within six years, and only a few enumerated tort actions were limited to two years, but after 1870 the unenumerated actions "not arising on contract" were transferred to the two-year statute. When plaintiffs chose to bring actions for personal or property damage caused by the negligence of defendants whose duty toward plaintiff arose from some agreed undertaking, the plaintiffs were entitled to plead the contract as the "inducement" showing defendant's duty and to invoke tort law for the standard of care and for damages. Currey v. Butcher, supra; Ashmun v. Nichols, supra. A plaintiff who proceeded in this fashion had to sue within the two-year limitation on actions "not arising on contract." Goodman v. Fernald, supra; Wilder v. Haworth, supra. None of these cases, nor Dowell v. Mossberg or Bales for Food v. Poole, held that as a matter of substantive law, a plaintiff who alleged a contract for professional or other services and a breach of that contract could not bring an action for damages appropriate to such a claim. Put another way, they do not suggest that if such an action were commenced within the first two years after the alleged breach, it would fail as an action on the contract merely because defendant's breach resulted from careless or otherwise substandard performance that would be actionable without the contract. They do not mean that on such a state of facts, a plaintiff's claim and a defendant's liability are inescapably fixed by the law of torts, no matter what agreement the parties had made. But if an action on a contract theory would be legally possible within the first two years, why not thereafter? Given the need under ORS 12.080 and 12.110 to characterize an action commenced after two years as either contractual or noncontractual, Dowell v. Mossberg and its sequels were concerned to forestall the transformation of actions based on liability independent of any specific agreement into actions for breach of contract for the sole purpose of circumventing the two-year limitation of ORS 12.110. Still, contracting parties are free to specify services and standards of performance that may overlap noncontractual obligations. ORS 12.110 certainly does not contemplate that a defendant *1167 can defeat an action for breach of his contract by asserting that, independent of the contract, his own conduct constituted a tort, whether negligence or, for instance, fraud. Thus the statutes and the precedents leave us with several variations when an action for damages against one engaged to provide professional or other independent services is commenced after two years and is pleaded as a breach of contract. If the alleged contract merely incorporates by reference or by implication a general standard of skill and care to which the defendant would be bound independent of the contract, and the alleged breach would also be a breach of this noncontractual duty, then ORS 12.110 applies. Dowell v. Mossberg, supra. Conversely, the parties may have spelled out the performance expected by the plaintiff and promised by the defendant in terms that commit the defendant to this performance without reference to and irrespective of any general standard. Such a defendant would be liable on the contract whether he was negligent or not, and regardless of facts that might excuse him from tort liability. Or the nature either of the defendant's default or of the plaintiff's loss may be of a kind that would not give rise to liability apart from the terms of their agreement.[9] In such cases, there is no reason why an action upon the contract may not be commenced for the six years allowed by ORS 12.080. Again, the scope of the damages demanded may characterize a complaint as founded in tort rather than in contract. Ashmun v. Nichols, supra; Goodman v. Fernald, supra. But if the complaint nonetheless alleges the necessary elements of an action for breach of contract, including the alleged injury, nothing in the statutes prevents proceeding on that theory and limiting the damages accordingly. These variations may occasionally call for close decisions, but they are the product of a statutory scheme which, since 1870, has imposed different periods of limitations on commencing different actions defined by the legal basis of the claimed liability. Quoting the late Dean Prosser's observation that "there has been a failure to think the thing through,"[10] Justice O'Connell's opinion for the court in Bales for Food "concluded that there is a need for change in the law relating to the limitation of actions, but ... that the change should come through legislation...." 246 Or. at 257, 424 P.2d at 894. Given the existing scheme, we turn to the variations presented by plaintiff's complaint in this case. The complaint alleged specified breaches of written contracts which were annexed to the complaint. The contract with defendant Stadsvold, dated July 1, 1971, was made on a standard form of the Federal Housing Administration, FHA Form No. 2719-A. This standard contract for architectural services spells out the architect's obligations *1168 in considerable detail. They include preparation of working drawings and specifications, supervision and certification of the work while in progress, inspections extending through the guarantee period, and reports on any defects and deficiencies in the work of contractors, with a specific reference to seasonal inspections of the heating and cooling systems. The architect is bound not to subdelegate his inspection responsibilities to another inspector without the owner's authorization or his other responsibilities to anyone not acceptable to the FHA Commissioner.[11] This is exactly the kind of contract that is designed not to leave the scope of the expected professional services to tort standards of professional performance. The complaint alleged that defendant breached the contract by failing to supervise the work of the heating contractor, by failing to review drawings of the proposed system, by authorizing disbursements for uncompleted work, by failing to make inspections, and by delegating the design of the system without the requisite approval. Given the terms of the written contract, these allegations do not invoke a general professional obligation of architects which was negligently performed; they assert breaches of specific contractual commitments. Thus they plead a cause of action "upon a contract" within ORS 12.080(1) which was commenced within the time permitted by that section. The contract with defendant Sunset Fuel Co. (described as a "subcontractor" doing business as Sunset Engineering), dated July 30, 1971, is less comprehensive on its face. Sunset agreed to "fully construct, perform, and in every respect complete" the work described in the contract "in accordance with the Drawings and Specifications prepared by" the architect, Stadsvold, which "hereby become a part of this Contract." Sunset agreed that it had examined all plans and specifications and would be bound thereby. The work to be done was stated *1169 as follows: "A. Furnished full mechanical details. B. Heating system complete with no exceptions." While the word "Furnished" is ambiguous, because it could mean that design details would be furnished to Sunset, the parties stipulated that Sunset Fuel Co. contracted to design the heating system. The complaint alleged that Sunset breached this contract in several ways that require separate examination. The first is said to be in "failing to provide the required mechanical details and drawings of the heating system." Since the contract called for Sunset to furnish "full mechanical details," this properly alleges a breach of contract, not a tort disguised as breach of contract. For the second asserted breach, the complaint alleges: By inclusion of the phrase "unworkmanlike manner," this allegation appears to invoke a negligence standard or general professional duty of due care and skill rather than a contractual standard. In context it can stand as an alleged breach of contract. Apart from that phrase, the allegation is that Sunset's heating system would not meet requirements which were incorporated by reference in the contract, and by which Sunset had agreed to be bound. This differs from a case in which a warranty of "workmanlike" performance or due care toward achieving the intended result is pleaded as an implied term of a general agreement to undertake professional services. Compare Bales for Food, Inc. v. Poole, supra. Finally, the complaint alleged a breach of Sunset's contract in "failing to complete the heating system, in that it was never made operational." This is adequate to plead a breach under the description of the work to be done as "B. Heating system complete with no exceptions," as well as the next section of the contract, in which Sunset agrees "to complete the several portions and the whole of the work" in a timely fashion. An asserted failure to complete work expressly promised in a contract cannot be said to be an allegation of tort masquerading as a breach of contract. We therefore conclude that the complaint against Sunset Fuel Co. as well as against Stadsvold stated a cause of action "upon a contract" within ORS 12.080(1). It was error to enter summary judgment against plaintiff on the ground that the action was commenced too late. The case must be remanded for further proceedings. Reversed and remanded. [*] Retired January 21, 1980. [1] ORS 12.080(1): "An action upon a contract or liability, express or implied, excepting those mentioned in ORS 12.070 and 12.110 and except as otherwise provided in ORS 72.7250; . . shall be commenced within six years." The Court of Appeals noted that plaintiff did not seek to invoke ORS 12.080(3), which allows six years for an action for "injury to any interest of another in real property," with exceptions. [2] ORS 12.110(1): "An action for assault, battery, false imprisonment, for criminal conservation, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit." [3] An affirmative rather than merely residual inclusion of actions "for negligent injury to person or property" in ORS 12.110 is implied by ORS 12.115, which establishes a 10-year maximum delay for such actions but without extending "the limitations established by ORS 12.110." [4] In Kashmir Corporation v. Barnes, 278 Or. 433, 564 P.2d 693 (1977), both parties assumed without discussion that ORS 12.135 was the statute of limitations applicable to a damage action against a surveyor for negligently causing a shortage in a land purchase, and the case was litigated under this statute. In the light of the above analysis, the assumption appears to have been erroneous. Again, in Sponseller v. Meltebeke, 280 Or. 361, 570 P.2d 974 (1977), the choice debated between the parties was whether ORS 12.135 or the Uniform Commercial Code's limitation on warranty actions, ORS 72.7250, applied to fix the starting date for an action on an implied warranty of fitness in the sale of a house. The question whether plaintiff's injury was of the kind covered by ORS 12.135 was not at issue and not discussed. Nor was this issue decided in Mt. Hood Radio & TV v. Dresser Ind., 270 Or. 690, 530 P.2d 72 (1974). [5] In its "second cause of action" against Stadsvold plaintiff pleaded its claims as a third party beneficiary of Stadsvold's contract with the contractor rather than as the contractor's assignee. [6] This characterization has been variously phrased as the "gist" of the action, Currey v. Butcher, 37 Or. 380, 384, 61 P. 631 (1900); as "essentially" describing the nature of the action, Dalton v. Kelsey, 58 Or. 244, 250, 114 P. 464 (1911); as the "gravamen" of the action, Currey v. Butcher, supra at 385, 61 P. 631, Goodman v. Fernald, 154 Or. 654, 662, 61 P.2d 1253 (1936); Lindemeier v. Walker, 272 Or. 682, 685, 538 P.2d 1266 (1975); as the "substance" of the action, Currey v. Butcher, supra at 386, 61, P. 631, Dowell v. Mossberg, 226 Or. 173 at 179, 355 P.2d 624, 359 P.2d 541 (1961); as the "predominant characteristic" of the action, Lindemeier v. Walker, supra; in tort, Wilder v. Haworth, 187 Or. 688, 690, 213 P.2d 797 (1950). The choice among these phrases is immaterial, since they do no more than describe the conclusion. The question on which the conclusion depends is which characteristic of a given action is "predominant" for the purpose at hand; i.e., whether it is the plaintiff's theory of the legal source of defendant's liability, or the factual setting of the dispute, or the injuries asserted by plaintiff, or his claimed measure of damages, or another element relevant for this purpose. The answer in turn depends on the particular law governing the disputed issue, in this case the statutes of limitations. [7] These remarks of the court, more than 60 years ago, are pertinent: "Perhaps under our code systems we should not attempt to place too much stress upon a somewhat arbitrary and ill-defined distinction between torts and contracts. It is a theory of the code procedure that a party shall have full redress for all legal wrong, whether the wrong results from a breach of contract or from a breach of more general law. It is obvious that many times and in many cases the injury will depend partly upon contract and partly upon a tort or wrong. In an action against a carrier of passengers the right of the injured passenger depends entirely upon his contract to be carried safely, and he could not recover without such contract either expressed or implied, and yet superimposed upon the contract is the wrongful and negligent breach, causing an injury to his person, which was not directly contemplated by the contract, and for which the contract provides no measure of damages. To say that the passenger must separate the two, and depend wholly upon the negligent wrong, on the one hand, or the mere breach of contract alone on the other, would be to deprive him effectually of a complete remedy. "In a case like this we think that when a landlord agrees to keep his premises in repair, the law fastens upon him a duty to keep that contract, and if he violates that duty, after notice of the dangerous condition, he ought in principle to be liable for whatever injuries the tenant naturally and necessarily receives from such breach of duty. If the only injury is one directly contemplated in the contract, as the decreased value of the use of the premises, the action of the tenant would be purely upon the contract. But if the negligence of the landlord resulted, necessarily and naturally, in some further injury to his person or property, he may bring an action, like the one at bar, and it is of little importance whether it is called technically an action on contract or an action upon the tort, or whether it partakes of a double nature, depending upon both tort and contract." 92 Or. at 234-235, 180 P. at 512. [8] Bales for Food v. Poole was later distinguished in Owings v. Rose, 262 Or. 247, 497 P.2d 1183 (1972), an action for indemnity by architects against engineers whose negligence had caused the architects to be liable to a contractor, on the ground that indemnity is viewed as arising from an "implied contract" or "quasicontract" rather than "tort." A broad reading of ORS 12.080 might have placed such claims within the coverage of a "liability . . implied," rather than in the unenumerated class of ORS 12.110(1). The result of the distinction stated in Owings was that a purely fictitious "contract" in indemnity cases would support an action "upon a contract" under ORS 12.080, while a complaint alleging breach of an inexplicit obligation in an actual agreement was not one upon a contract. [9] Even in the setting of medical or other professional services, a defendant might be liable for failing to carry out an agreed service without having fallen short of generally applicable professional standards of skill and care for instance, if a patient has specified untypical conditions of treatment, or if a doctor is unavoidably prevented from keeping an appointment. However, irrespective of the legal premise of the action, it is covered by ORS 12.110(4) if it seeks damages for personal injuries arising from a medical, surgical, or dental treatment actually attempted, cf. Duncan v. Augter, 286 Or. 723, 596 P.2d 555 (1979), or by ORS 12.135 if it seeks damages for injuries to a person or to property in the construction context discussed in Part I, above. New York, which has long had a special provision for malpractice actions in addition to the statutes of limitations from which Oregon's were derived, also has long experience with efforts to bring contract actions in lieu of tort actions for malpractice. See Lillich, The Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Corn L.Q. 339, 347-353 (1962). Contemporary New York decisions indicate that the New York Court of Appeals, in a context similar to the present case, has moved toward an analysis like that adopted here. See Sears, Roebuck & Co. v. Enco Associates, 43 N.Y.2d 389, 372 N.E.2d 555, 401 N.Y.S.2d 767 (1977); Paver & Wildfoerster v. Catholic High School Assoc., 38 N.Y.2d 669, 345 N.E.2d 565, 382 N.Y.S.2d 22 (1976). See also Steiner v. Wenning, 43 N.Y.2d 831, 373 N.E.2d 366, 402 N.Y.S.2d 567 (1977). [10] Prosser, The Borderland of Tort and Contract in Selected Topics on the Law of Torts 440 (1953). [11] The Architect's services shall include the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings, as may be required, the issuance of certificates for payment, the keeping of accounts, supervision of the work, as well as inspections during the guarantee period, and the preparation of drawings and specifications and written opinions in connection with construction changes.... ..... "6. The Architect will advise the Owner and the Commissioner of any omissions, substitutions, defects and deficiencies noted in the work of contractors, but does not guarantee the performance of their contracts. The supervision by the Architect is to be distinguished from the continuous personal supervision by a resident inspector. The Architect or his agent shall visit the project as often as the nature and progress of the work and interests of the Owner and the Commissioner require. During the guarantee period the Architect shall inspect the project for evidence of faulty materials and workmanship. The landscape work, heating and cooling systems shall be inspected in appropriate seasons and the project in general shall be inspected at or about the ninth month after completion. In addition, the Architect shall make such other inspections and perform services as may be necessary and incidental to the requirements of the drawings and specifications. When authorized by the Owner, a resident inspector satisfactory to both the Owner and the Architect shall be hired by the Architect at a salary satisfactory to the Owner who shall reimburse the Architect for the cost thereof in addition to the agreed fee. ..... "8. Architect's certificates evidencing recent inspection and acceptability of the work and certifying as to the validity of requested payments shall be executed simultaneously with requests for advances for payment covering construction cost, or monthly reports of progress and compliance when advances during construction are not requested. The foregoing shall be in the form prescribed by the Commissioner and shall be based upon personal inspection of the work by the Architect or his agent. The name of the inspector shall be indicated if the inspection is not made by the Architect. ..... "10. The Architect and the Owner recognize the interest of the Mortgagee and the Commissioner and any action, inaction, or determination by either the Architect or the Owner is subject to acceptance or rejection by the Mortgagee and by the Commissioner. The Architect is required to act and serve in a professional capacity without bias or partiality. No portion of the Architect's work or responsibility may be sublet or delegated to any one not acceptable to the Commissioner."

c196d04c3b3cdd6ee01985ca82a4e46e3845e16aff8751c9f6b5d79d450f1f9f

1980-06-03T00:00:00Z

56377790-1247-4a09-8595-3d9adb83a6cf

State Ex Rel. State Scholarship Com'n v. Magar

288 Or. 635, 607 P.2d 167

oregon

Oregon Supreme Court

607 P.2d 167 (1980) 288 Or. 635 STATE of Oregon by and through Its State Scholarship Commission, Respondent, v. MAGAR E. Magar, Petitioner. TC 34033; CA 13780; SC 26559. Supreme Court of Oregon. Argued and Submitted February 6, 1980. Decided March 4, 1980. *168 Magar E. Magar, pro se. Robert C. Cannon, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Before DENECKE, C.J., and TONGUE, HOWELL, LENT and LINDE, JJ.[*] TONGUE, Justice. This is an action on a promissory note which provided for reasonable attorney fees in the event of a default. The only issue is whether the Court of Appeals was correct in reversing the trial court for denying attorney fees to the plaintiff. 42 Or. App. 361, 600 P.2d 505 (1979). The complaint alleged that defendant had defaulted in payment of the note and that $700 was a reasonable attorney's fee. It prayed for a judgment of $1,359 as the principal balance, with interest, and also for attorney fees in the sum of $700. The answer was a general denial, with affirmative defenses. Prior to trial defendant served upon plaintiff, pursuant to ORS 17.055, an "offer to compromise" under which defendant offered "to allow judgment to be given against him in the sum of $1,583 * * * which is plaintiff's prayer plus prayed for interest." That offer did not, however, include an offer to allow judgment to be entered for the $700 claimed for attorney fees. Plaintiff then filed a motion to amend its complaint to delete "$700" and "attorney fees in the sum of $700" and to substitute "a reasonable attorney's fee." Plaintiff also made an oral motion for allowance of attorney fees. The court then entered a judgment which, after reciting that "the defendant having made an offer of compromise pursuant to ORS 17.055 which was accepted by the plaintiff," ordered that "plaintiff shall have judgment as prayed for in the complaint for $1,359 together with accrued interest * * *," but also ordered that "neither party shall recover attorney fees." Plaintiff appealed from that judgment, contending that the trial court erred in denying its motion for attorney fees "as the prevailing party under the terms of the promissory note" and that: In support of these contentions plaintiff cited ORS 20.096 and Colby v. Larson, 208 Or. 121, 297 P.2d 1073, 299 P.2d 1076 (1956), among other cases. *169 Defendant contended that when there is an acceptance of an "offer of compromise" under ORS 17.055 there is no "prevailing party" under ORS 20.096. The Court of Appeals, in reversing the trial court and in sustaining plaintiff's contention that it was entitled to attorney fees as the "prevailing party," held that "[a]lthough the document signed by defendant and the attorney for plaintiff was entitled `Offer of Compromise' it was in fact an offer to allow judgment against defendant"; that the judgment as entered was "for" the plaintiff which was, "therefore, the prevailing party and entitled to attorney fees." (42 Or. App. at 364, 600 P.2d at 506). That court also said that "the facts of this case are strikingly similar to those in Colby v. Larson," supra, in which this court said (at 126, 297 P.2d at 1075) that: We disagree with this reasoning by the Court of Appeals. First of all, the facts of this case are substantially different than those in Colby. The statute under which plaintiff sought attorney fees in that case was ORS 20.080, which then provided for attorney fees as a part of costs in certain tort actions in which the amount prayed for was less than $500 (since increased to $1,000) when a written demand for payment had been made not less than 10 days before filing the action. On the other hand, ORS 20.096 (as relied upon by this defendant), provides for attorney fees to the prevailing party in actions on contracts, and then only those contracts which "specifically provide for attorney fees."[1] Colby was a tort action for $372 in damages. The complaint alleged that such a written demand had been made upon defendant and refused by him. Defendant's answer admitted his liability in the full amount of damages sued for, but denied plaintiff's right to recover an attorney's fee and alleged a tender by the deposit of $372 with the clerk of the court. The trial court entered judgment in that amount, but denied plaintiff's cost bill, which included $250 as attorney fees. In holding that the plaintiff in Colby was entitled to attorney fees under ORS 20.080 this court rejected defendant's contention that because before trial, but after commencement of the action, he had offered to allow judgment to be entered against him in the full amount prayed for, plaintiff could not recover costs, including attorney fees, by reason of ORS 17.055 and held that the "evil" which the legislature sought to alleviate by the adoption of ORS 20.080 was (at 126, 297 P.2d at 1075) that: *170 And, as previously noted, that purpose would be defeated if a defendant could ignore a demand made under that statute and then wait until an action was brought before offering payment of the claim, thereby escaping attorney fees and other costs. No such "evil" was sought to be alleviated by the legislature in the adoption of ORS 20.096, upon which the plaintiff relies in this case as the basis of its claim for attorney fees. Instead, the obvious reason for its adoption was to enable a defendant to claim attorney fees when he is successful in resisting an action on a contract which provides for payment of attorney fees incurred to enforce the provisions of the contract. Of more importance, however, is the fact that in this case defendant's "offer of compromise" under ORS 17.055 was not an offer to pay the entire amount of the judgment prayed for by plaintiff's complaint, as in Colby. Also, there was no acceptance of a limited offer of compromise in Colby. In this case the complaint expressly sought a judgment against defendant not only for the balance due on the promissory note, but also for attorney fees in the amount of $700, later amended to read "reasonable attorney fees." There is no good reason why a defendant in a case such as this should not be permitted to make an "offer of compromise" under ORS 17.055 limited to payment of the amount sought as a judgment for the balance due on the note, without making an offer to also pay the amount sought as a judgment against him for attorney fees.[2] We also perceive no good reason why a plaintiff who accepts such a limited offer of compromise should not be bound by his acceptance. If the plaintiff in such a case decides to pursue his demand for a judgment that will include attorney fees, he is at liberty to do so by rejecting the offer and going to trial. If, however, as in this case, the plaintiff accepts an offer which, by its terms, does not include an offer for payment of attorney fees, we believe that plaintiff is bound by the terms of the contract which has resulted from his acceptance of such an offer and cannot thereafter contend that he is entitled to attorney fees as the "prevailing party" under ORS 20.096. ORS 17.055 provides that upon the acceptance of an offer of compromise "judgment or decree shall be given accordingly." The entry of a judgment based upon the acceptance of an offer of compromise under ORS 17.055 is, in effect, the entry of a consent decree. We have previously held that "a judgment or decree entered by consent of the parties is in the nature of a contract, approved by the court." Nieminen v. Pitzer, 281 Or. 53, 57, 573 P.2d 1227, 1228 (1978). As also held in Westfall v. Wilson, 255 Or. 428, 431, 467 P.2d 966, 967 (1970), quoting from a previous decision: As also held in Schmidt v. Oregon G. Mining Co., 28 Or. 9, 40 P. 406, 1014 (1895) at 25, 40 P. at 408: Upon application of these statutory provisions and these principles to the acceptance of an offer to allow entry of a judgment which does not include a part of the judgment sought by the complaint in this case a judgment for attorney fees we hold that the only judgment that can properly be entered is one which is in accordance with the terms of the offer, as accepted. It follows, in our judgment, that in this case a judgment was properly entered only for the balance due on the promissory note, with interest, as offered by the defendant, and that the trial court did not err in refusing to enter judgment for an additional amount as attorney fees. It follows that we must reverse the decision by the Court of Appeals. Reversed. [*] Linde, J., did not participate in this decision. [1] ORS 20.096 provides: "(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 he 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 necessary disbursements. "* * * "(3) As used in this section and ORS 20.097 `prevailing party' means the party in whose favor final judgment or decree is rendered. "(4) As used in this section and ORS 20.097 `contract' includes any instrument or document evidencing a debt." [2] ORS 17.055 provides: "Except as provided in ORS 17.065 to 17.085, the defendant may, at any time before trial, serve upon the plaintiff an offer to allow judgment or decree to be given against him for the sum, or the property, or to the effect therein specified. If the plaintiff accepts the offer, he shall by himself or attorney indorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon him; and thereupon judgment or decree shall be given accordingly, as in case of a confession. If the offer is not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial; and if the plaintiff fails to obtain a more favorable judgment or decree, he shall not recover costs, but the defendant shall recover of him costs and disbursements from the time of the service of the offer."

7b05dfa79eb5c6121bbf91239dc036dfb7398a0aef41c760ea3707e75d255596

1980-03-04T00:00:00Z

63833a96-832a-4026-828f-e593d2650dc1

State v. Jordan

288 Or. 391, 605 P.2d 646

oregon

Oregon Supreme Court

605 P.2d 646 (1980) 288 Or. 391 STATE of Oregon, Respondent, v. Nadine JORDAN, Also Known As Juanita Adams, Petitioner. CA 8349; SC 25930. Supreme Court of Oregon, In Banc. Argued and Submitted April 3, 1979. Decided January 22, 1980. Reargued November 5, 1979. James E. Mountain, Jr., Deputy Public Defender, Salem, argued and reargued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem. W. Benny Won, Asst. Atty. Gen., Salem, argued and reargued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. *647 HOWELL, Justice. The principal question presented on this appeal is whether a police officer may enter a private dwelling to execute an arrest warrant without obtaining a search warrant. The facts surrounding the entry and arrest are largely undisputed. Florine Davidson, Sandra Jordan, and defendant Nadine Jordan resided in a house in northeast Portland. Defendant is Sandra Jordan's sister. On January 15, 1977, the house was approached by two Portland police officers, Charles Ault and Sammy Ray Rosson, who had an outstanding warrant for Sandra Jordan's arrest. Ault had learned from reliable sources that Sandra was believed to be living at the house and that she was thought to be driving a yellow Pinto automobile. On the evening in question, a yellow Pinto was parked in the driveway of the house. Ault and Rosson called for reinforcements who surrounded the house. The two then went to the front door and were met by Florine Davidson and defendant Nadine Jordan. The officers stated their purpose and asked the women for their names and some identification. Defendant Nadine Jordan identified herself as "Juanita Adams" but refused to produce any identification. Both women refused to let the police search the residence. The officers returned to their vehicle and ran a record check on Juanita Adams. The name was reported as an alias for Sandra Jordan. Not knowing whether defendant was Sandra Jordan, the officers returned to the house and took her into custody, intending to establish her identity by means of fingerprinting at the police station. While seated in the police car, Officer Ault observed a mug shot of Sandra Jordan and was uncertain that he had the right person. He ordered the other officers to return to the house to see if there was another person there who was actually Sandra Jordan. The officers entered the house without a search warrant and eventually found Sandra hiding in the attic. Defendant was charged with hindering prosecution, ORS 162.325. Prior to trial, she filed a motion to suppress any evidence seized as a result of the entry into her home. The evidence she sought to suppress was the person of Sandra Jordan. The trial court denied the motion and, following a trial, defendant was convicted. Defendant's sole assignment of error on appeal is that the trial court should have suppressed the evidence obtained as a result of a search without a search warrant. The Court of Appeals affirmed defendant's conviction in an opinion that focused principally on the question of whether the officers had probable cause to believe Sandra Jordan was still in the residence after they had taken defendant into custody. 36 Or. App. 45, 583 P.2d 1161 (1978). The court found that the officers did have such probable cause, and that the entry was therefore justified under ORS 133.235(5), which provides: The Court of Appeals' opinion was written prior to this court's decisions in State v. Olson, 287 Or. 157, 598 P.2d 670 (1979), and State v. Peller, 287 Or. 255, 598 P.2d 684 (1979), in which we held that an entry into a private home to arrest, without an arrest warrant, was justified only if the state showed the existence of exigent circumstances. Neither Olson nor Peller decided whether a search warrant in addition to an arrest warrant is necessary to arrest on private premises. That question is now squarely presented. Defendant contends that the failure of the police to obtain a search warrant to enter her premises resulted in a violation of her statutory and constitutional rights. Before turning to the constitutional question in this case, we first examine Oregon statutory law to determine whether the right claimed by the defendant in this case is in fact protected by legislation. See State v. Spada, 286 Or. 305, 594 P.2d 815 (1979). ORS 133.535 provides, in part: Although this statute permits the issuance of a search warrant to an officer seeking to arrest a suspect on private premises, the statute does not purport to require such a warrant. We conclude from this that Oregon statutes do not require an officer to obtain a search warrant prior to entering a private home to arrest.[1] We now consider the defendant's claim that the police conduct in this case violated article I, section 9 of the Oregon Constitution[2] and the fourth amendment to the United States Constitution.[3] Both these constitutional provisions, in substantially identical language, protect against unreasonable searches and seizures. As background, while the common law recognized that "every man's house is his castle," it also held that "no one charged with a crime can have a castle against the King's or the State's warrant for his arrest." Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 800-01 (1922); 1 Chitty, Criminal Law 51-59 (1816). A peace officer armed with an arrest warrant was therefore permitted to enter a private dwelling to effect an arrest if the officer had reason to believe the suspect was inside the dwelling, regardless of whether the officer also had a search warrant.[4] The United States Supreme Court has left unsettled the question whether and under what circumstances an officer may enter private premises to make a warrantless arrest. See United States v. Watson, 423 U.S. 411, 418 n. 6, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 113, n. 13, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); Coolidge v. New Hampshire, 403 U.S. 443, 474-81, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). This court has held, however, that absent exigent circumstances an arrest warrant is required before a police officer may enter private premises to make an arrest. State v. Peller, supra; State v. Olson, supra.[5] *649 When this court decided State v. Olson, supra, we particularly relied on the United States Supreme Court opinion in Coolidge v. New Hampshire, supra, from which we quoted: We also relied on People v. Ramey, 16 Cal. 3d 263, 127 Cal. Rptr. 629, 545 P.2d 1333, cert. denied 429 U.S. 929, 97 S. Ct. 335, 50 L. Ed. 2d 299 (1976), from which we quoted the following: Many federal and state courts have held that a police officer may enter private premises to execute a valid arrest warrant as long as the officer reasonably believes that the subject of the arrest warrant is on the premises. See, e.g., United States v. Woods, 560 F.2d 660, 665-66 (5th Cir.1977), cert. denied 435 U.S. 906, 98 S. Ct. 1452, 55 L. Ed. 2d 497 (1978); United States v. Harper, 550 F.2d 610, 613-14 (10th Cir.), cert. denied, 434 U.S. 837, 98 S. Ct. 128, 54 L. Ed. 2d 99 (1977); United States v. Cravero, 545 F.2d 406, on pet. for rehearing, 545 F.2d 420 (5th Cir.1976), cert. denied, 430 U.S. 983, 97 S. Ct. 1679, 52 L. Ed. 2d 377 (1977); United States v. James, 528 F.2d 999, 1016-17 (5th Cir.), cert. denied, 429 U.S. 959, 97 S. Ct. 382, 50 L. Ed. 2d 326 (1976); Rice v. Wolff, 513 F.2d 1280, 1291-92 (8th Cir.1975), rev'd. on other grounds sub nom. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); United States v. Jones, 475 F.2d 723, 729 (5th Cir.1973); Rodriguez v. Jones, 473 F.2d 599, 605-06 (5th Cir.), cert. denied, 412 U.S. 953, 93 S. Ct. 3023, 37 L. Ed. 2d 1007 (1973); United States v. Brown, 151 U.S.App.D.C. 365, 369-370, 467 F.2d 419, 423-24 (D.C. Cir.1972); United States v. McKinney, 379 F.2d 259, 262-63 (6th Cir.1967); United States v. Alexander, 346 F.2d 561 (6th Cir.1965), cert. denied, 382 U.S. 993, 86 S. Ct. 575, 15 L. Ed. 2d 480 (1966); State v. Platten, 225 Kan. 764, 594 P.2d 201 (1979); Nestor v. State, 243 Md. 438, 221 A.2d 364, 368 (1966); Cook v. State, 35 Md. App. 430, 371 A.2d 433 (1977); State v. Jemison, 14 Ohio St.2d 47, 236 N.E.2d 538 (1968); State v. Clark, 40 Ohio App.2d 365, 319 N.E.2d 605 (1974); Commonwealth v. Terebieniec, ___ Pa.Super. ___, 408 A.2d 1120 (1979); State v. McNeal, 251 S.E.2d 484 (W. Va. App. 1978); People v. Stibal, 56 Ill. App.3d 1048, 14 Ill. Dec. 652, 372 N.E.2d 931 (1978). In United States v. Carvero, supra, the court held that "when an officer holds a valid arrest warrant and reasonably believes that its subject is within premises belonging to a third party, he need not obtain a search warrant to enter for the purpose of arresting the suspect." 545 F.2d at 421. Accord, United States v. Woods, supra; United States v. Harper, supra. The Cravero court reasoned that a police officer who has already obtained an arrest warrant a judicial determination of probable cause to believe that a suspect has committed an offense may "determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances." 545 F.2d at 421. We agree with the holding in Cravero and the other cases cited above.[6] *650 Other courts have held that the Fourth Amendment requires police to obtain a search warrant prior to entering private premises to effect an arrest. See United States v. Prescott, 581 F.2d 1343, 1350 (9th Cir.1978); Government of Virgin Islands v. Gereau, 502 F.2d 914, 928 (3d Cir.1974), cert. denied, 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975); State v. Jones, 274 N.W.2d 273 (Iowa 1979); Laasch v. State, 84 Wis.2d 587, 267 N.W.2d 278 (1978). We are of the opinion, however, that there is no constitutional requirement that police officers who hold a valid arrest warrant and have probable cause to believe the subject is located on private premises must also obtain a search warrant before they may enter the premises to execute the arrest warrant.[7] When we held in Olson that the Fourth Amendment applies when police enter private premises to effect an arrest, we essentially held that, absent exigent circumstances, arrests on private premises conducted outside the judicial process are per se unreasonable. See State v. Peller, 287 Or. at 260, 598 P.2d 684. Cf. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). The extent to which a judicial officer must be involved in approving an arrest on private premises, however, involves our consideration of the governmental interests in effective law enforcement. See, e.g., United States v. Watson, supra, 423 U.S. 411, 417, 96 S. Ct. 820, 46 L. Ed. 2d 598; id. at 431-32, 96 S. Ct. at 831-832 (Powell, J., concurring). As the United States Supreme Court has explained, Judicial scrutiny of probable cause to search every place where the suspect may be located would unduly hamper the police in the performance of their duties. Apprehending a criminal suspect is not the same as searching for evidence or contraband. A suspect will not stay in one place; he will attempt to avoid capture. And this inherent mobility to escape often presents unforeseeable dangers that necessitate swift police action. See, e.g., United States v. McKinney, supra.[8] The constitutional requirement of reasonableness does not mandate that we handicap police apprehension efforts by requiring officers to wait at the threshold while the suspect hides or flees or by requiring officers to return for a warrant to search each time the suspect flees to hide in another house or apartment. As one court recently explained, in holding that police with a valid arrest warrant and probable cause to believe the suspect is within may enter private premises to execute the warrant: We believe that constitutional rights will be protected as long as any arrest on private premises is supported by the judicial authorization of an arrest warrant and the police officer's probable cause to believe that the arrested is within the premises. United States v. Cravero, supra; United States v. Brown, supra; United States v. McKinney, supra. The reasonableness of the officer's judgment is, of course, subject to review. Furthermore, the entry pursuant to an arrest warrant is valid only for the purpose of making the arrest and not for the purpose of conducting a general search. See United States v. Cravero, 545 F.2d at 421 n. 2. In the instant case, the only "evidence" seized by the police was Sandra Jordan the person named in the arrest warrant. Accordingly, we hold that police officers may enter private premises to make an arrest if they have a valid arrest warrant and probable cause to believe that the subject of the warrant is present on the premises. Neither the fourth amendment to the United States Constitution nor article I, section 9, of the Oregon Constitution requires that police officers also obtain a search warrant. The Court of Appeals held that the police officers clearly had probable cause to believe that Sandra Jordan, the person named in the arrest warrant, was on the premises. *652 The defendant does not contend that the police never had probable cause to believe that Sandra Jordan was within the house, but argues that once the police arrested defendant, believing she was Sandra Jordan, "[s]ome additional fact, indicating that defendant might not be Sandra, was necessary to a finding of probable cause." Assuming this to be the case, we do not agree with defendant's contention that after her arrest no additional facts had been adduced supporting probable cause to believe Sandra was still in the house. During the suppression hearing, Officer Ault testified that after taking the defendant into custody, This photographic comparison was sufficient to lead a reasonably prudent person to believe that the defendant was not Sandra Jordan and that Sandra was still on the premises. The defendant argues that where an arrest warrant exists for a suspect, only one person is the suspect and thus when one person is arrested, whatever probable cause there is to look for the suspect is used up. The fact that there is a warrant for one person's arrest, however, should make no difference as long as there is, in fact, probable cause for both the first arrest and the subsequent search. In the present case, the officers had probable cause to believe that Sandra Jordan was in the house, but they did not know for certain which person in the house was Sandra Jordan. They also did not know that the defendant and Sandra Jordan were sisters. Probable cause may justify the arrest of more than one person if circumstances exist that would lead a reasonably prudent person to believe that each suspect could be the person named in the arrest warrant. The defendant's presence at the house and her use of the name Juanita Adams were circumstances that supported the reasonable belief that defendant was Sandra Jordan. However, the police officer's uncertainty regarding defendant's resemblance to the photograph of Sandra Jordan, her sister, supported a reasonable belief that Sandra Jordan was still in the house. The Court of Appeals, therefore, did not err in holding that the police officers had probable cause to enter the defendant's premises. Affirmed. LINDE, Justice, dissenting. If the Court's opinion is taken at face value, the majority appears prepared to hold that any arrest warrant, no matter for how trivial an offense, authorizes a police officer to force entry into any premises, no matter whose, to search for the person named in the warrant, if he has probable cause to believe that the person may be found there. Such a rule does not give the people of this state the protection against unreasonable searches that they sought to guarantee themselves in the State's Bill of Rights, Or. Const. art. I, sec. 9.[1] Moreover, it is logically irreconcilable with our decision of last year that only under exigent circumstances may an officer force entry when he has perfectly valid reasons to make an arrest, though no arrest warrant. State v. Olson, 287 Or. 157, 598 P.2d 670 (1979) and State v. Peller, 287 Or. 255, 598 P.2d 684 (1979). I therefore dissent. State v. Olson, supra, held that police officers may not enter a private home without a warrant to make an arrest merely upon probable cause to believe that the person they seek is in the home, except in "hot pursuit" or when there are exigent circumstances that require action before a *653 warrant can be obtained. Similarly, State v. Peller, supra, held that although a police officer may have had probable cause to arrest the defendant and to believe he was within the residence, he could not without a warrant enter a residence to make the arrest unless "the exigencies of the situation made that course imperative." 287 Or. at 262, 598 P.2d at 688. These decisions established that although officers are otherwise in a position to make a valid arrest, an unconsented entry into private living quarters invades a separate constitutional right, a right which may be invaded without prior judicial authorization only when exigent circumstances preclude such prior authorization. The only distinction between the present facts and those in Olson and Peller is that there the officers themselves had valid grounds to arrest the person they sought, whereas in this case a warrant had been issued for Sandra Jordan's arrest. This distinction cannot explain a different result as to forcing entry into someone's residence without exigent circumstances. As far as a forced entry into private living quarters is concerned, one or the other origin of the officer's authority to make the arrest is a distinction without a difference. A police officer may arrest a person on his own authority when the officer has probable cause to believe either that the person has committed a felony or a major misdemeanor or traffic offense, or that the person has committed any other offense in the officer's presence. ORS 133.310(1).[2] This authority depends on no special exigency when the arrest occurs in public or in a place where the officer has a right to be. If probable cause is found to exist, the arrest is as valid as an arrest under a warrant. Yet the objective of arresting someone whom the officer has unquestioned authority to arrest, even someone whom he may personally have seen committing a felony, does not alone allow him to enter a residence for the purpose. He needs the authorization of a judge or circumstances too urgent to await such an authorization. State v. Olson, supra, State v. Peller, supra. The existence of an arrest warrant as such, without more, adds nothing to the underlying premise for making an arrest. Of course it relieves the officer of personal responsibility for the decision to arrest, since he need not know anything about the reasons for it. But all that the issuing magistrate has determined in signing an unadorned arrest warrant is that he has been presented ex parte with evidence, frequently hearsay, that suffices to show probable cause for an arrest. Often he will have less reliable knowledge of the alleged grounds than an officer acting under ORS 133.310(1). Although the law encourages the use of citations in lieu of arrest, the warrant may be issued for a misdemeanor of a mere violation. ORS 133.110.[3] Thus, when a magistrate signs an unadorned warrant of arrest, and of arrest only, all he has considered is whether there is sufficient evidence of probable cause to take control of the named individual and bring her before the nearest magistrate. Unless the matter is brought to his attention, he has not made a judicial determination that the urgency of arresting this individual requires or justifies forcing entry into private quarters *654 to search for her, nor whose private quarters shall be so entered and searched. Yet it is exactly this justification that, under Olson and Peller, must have the advance approval of a magistrate unless exigent circumstances forbid. The existence of probable cause to make the arrest is not the issue as far as entry is concerned. Olson and Peller were decided on the premise that the officers had adequate cause to make a valid arrest. The existence of an arrest warrant adds nothing new to this. The majority expresses concern about imposing a "handicap" on police officers seeking to make an arrest. But the requirement of a prior judicial authorization in order to protect the private householder is no more of a handicap in this case than in Olson and Peller. The need to search a dwelling in order to make an arrest is exactly as great for a valid warrantless arrest as for one based on the existence of a warrant. If anything, the practical necessity often will seem greater when the officer has good grounds to arrest upon his own initiative without awaiting a warrant; yet unless the circumstances are exigent, he may not force entry. Again, the majority says that the owner or occupant of the dwelling is protected by the officer's reasonable belief that the person to be arrested is on the premises, and further that the reasonableness of this belief is subject to judicial review. That, too, would be the same with or without an arrest warrant. But beyond this, the argument strikes to the core of the requirement of a warrant authorizing the entry, for the whole point of the requirement is that judicial responsibility be exercised before the entry, not in some hypothetical later proceeding. The majority does not specify the time and the form of the judicial review which it invokes as the safeguard. If it means that if the person named in the warrant is found, and if evidence is seized, and if he is prosecuted, and if the search is then found to have been improper, that person may succeed in having the evidence suppressed, then the majority puts the cart before the horse. Legal guarantees against unjustified searches or seizures are not to be measured on the assumption that the search turns up an offender or evidence of an offense. It cannot be emphasized too often that the function and effectiveness of these guarantees must be judged from the standpoint of an ordinary, lawabiding person whose living quarters have been forcibly entered and searched, over her objection or in her absence. If the search proves to be mistaken, must she nevertheless acknowledge the entry and search to be no invasion of her rights? That is the criterion of a legal entry and search; yet judicial scrutiny upon a motion to suppress is irrelevant when the police found nothing.[4] Theoretically such a person can test the issue by an action in tort or under the civil rights laws.[5] But the point of the legal guarantees, and the measure of their effectiveness, is to provide the security of prior rather than subsequent judicial scrutiny except in an emergency. The essence of the protection is precisely that the right of the people to be secure in their homes is not to rest only upon the reasonable belief of police officers that they have probable cause to force entry. For such a measure of security, the bills of rights would not need an article I, section 9 or a 4th amendment; common trespass law would do. Instead, the bills of rights provided for judicial warrants in advance of entry to search. It must not be forgotten that police officers may have probable cause to believe that a person named in an arrest warrant may be found in one of several places. The person is seen entering an apartment house. May officers insist on entry into each apartment to look for him, or force entry without exigent circumstances when no one is at home? An offender is reasonably believed *655 to be hiding out in an isolated colony of private vacation homes or condominiums. May officers break into one after another without prior judicial authorization? It will often be natural to look for a person sought under a warrant in the homes of his parents, or his wife, or other relatives or friends. Are all of them subject to having their homes entered and searched, in their absence or over their protests, without a magistrate's prior determination that this should be done? The position urged by the state would extend to all these situations, and regardless whether the grounds for the arrest warrant are as grave as a homicide or as trivial as unpaid traffic fines. In State v. Bishop, 288 Or. 349, 605 P.2d 642, also decided today, the police forced entry into the home of defendant's mother. What they had was a warrant for the arrest for her son for not paying a number of traffic fines. The rule stated by the majority in the present case must be tested against the entirely possible hypothesis that Bishop was not at his mother's home. When the law provided for issuing arrest warrants for traffic offenders, did it contemplate that such warrants authorized a search for the offender in someone else's home, in the occupant's absence or over her protests?[6] In order to provide the protection of article I, section 9, it does not follow that the warrant must be denominated a "search warrant." Warrants to search for a person "for whose arrest there is probable cause or who is unlawfully held in concealment" indeed are specifically authorized under the search warrant statutes. ORS 133.535(4).[7] Often a magistrate's grant of authority to search for a person in a specific dwelling, such as the residence in the present case, would reasonably follow this statute. But the statutory search warrant need not be the exclusive form of authorization. ORS 133.235(5)[8] shows that the legislature did not intend it to be. Nor does the constitutional guarantee put a label on the type of warrant: It demands only that the warrant describe the place to be searched as well as the person to be seized. As Judge Duniway recently wrote for the federal Ninth Circuit on this issue: "We think, however, that the distinction between a search warrant and an arrest warrant is an artificial one. The Fourth Amendment makes no such distinction." United States v. Prescott, 581 F.2d 1343, 1350 (9th Cir.1978). But in the presence of our own constitutional guarantee, Oregon citizens should not have to turn to federal law for protection. Thus the state's concern about a "two warrants" requirement to make an arrest is exaggerated. For constitutional purposes it is immaterial whether the judicial authorization to enter is contained in a separate document entitled a "search warrant" or in the same warrant authorizing the arrest. If officers who seek an arrest warrant want authority to enter and look for the suspected offender at a particular residence, they may ask to have this included in the warrant upon showing probable cause to expect the person to be found there. If they can show probable cause to search in more than one place, this too can be included in the initial warrant. If the information is acquired after the initial arrest warrant is issued, it can be amended or a new one issued. The constitutional warrant requirement is not a matter of forms. Its crux is that a magistrate has made a decision to authorize an unconsented entry and search, upon his independent judgment that the importance of making the arrest and the probability of finding the person to be arrested justify it. Only such a requirement *656 can maintain judicial control of the kind of simultaneous or seriatim searches of private quarters in each of which the suspected offender might reasonably be found. Other courts have discussed the circumstances that may permit an unconsented entry to make an arrest. These include (1) the nature and gravity of the offense for which the person is to be arrested, (2) the officers' knowledge that the suspect is armed and (3) that delay would pose a danger to others, (4) the strength of the reasons to believe that the person is in the premises being entered, (5) the likelihood that the person will escape if the entry is delayed, (6) the circumstance that the entry, though unconsented, is made peaceably rather than forced. See, e.g., Nilson v. State, 272 Md. 179, 321 A.2d 301 (1974), quoting Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970); State v. Johnson, Iowa, 232 N.W.2d 477 (1975). A combination of these circumstances may create an exigency justifying action before a warrant can be obtained, satisfying the rule of State v. Olson and State v. Peller discussed above. However, no such exigent circumstances are claimed to exist in this case. The warrant was to arrest Sandra Jordan for failure to appear on another charge. There was no apparent urgency to make the arrest. There is no claim that she was armed or dangerous or that, assuming she was in the house, she could have fled unnoticed while the officers awaited a further warrant. If the bare existence of an arrest warrant authorized this forced entry and search, it would authorize any forced entry and search upon probable cause anywhere. Such a rule cannot be reconciled with the rule of Olson and Peller, supra. Accordingly, the entry and search went beyond the officers' authority and its fruits should have been suppressed. DENECKE, C.J., and LENT, J., join in this dissent. [1] This view apparently was shared by the members of the commission that drafted ORS 133.535. See Proposed Oregon Criminal Procedure Code § 132, Comment A (Final Draft and Report 1972). It is also the position taken by the drafters of the ALI Model Code of Pre-Arraignment Procedure, § SS 210.3 and commentary, at 124-25, 506-07 (1975). [2] Article I, section 9, of the Oregon Constitution provides: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." [3] The fourth amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [4] According to Professor Wilgus, even an arrest warrant was not considered necessary by most authorities. It was merely necessary that the party making the arrest be acting within his lawful rights. Wilgus, Arrest without a Warrant, 22 Mich.L.Rev. 541, 802-03 (1922). See also J. Landynski, Search and Seizure and the Supreme Court 26-27 (1966). This meant that an officer could enter without any warrant to arrest for a felony if the officer had probable cause to believe the suspect had committed the felony and probable cause to believe the suspect was within the premises to be entered. Cf., United States v. Watson, 423 U.S. 411, 418, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976) (discussing the common law rule and citing numerous authorities). [5] In State v. Chinn, 231 Or. 259, 265, 373 P.2d 392, 395 (1962), this court held that officers armed with an arrest warrant could enter the suspect's home whether or not they had obtained a search warrant. The opinion notes that such an entry was permitted "both at common law and by statute * * *." We did not discuss the constitutional question raised by defendant in the present case. [6] We note that the United States Supreme Court has in dicta approved of the Cravero holding in Dalia v. United States, 441 U.S. 238, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979), in which the court held that a warrant for electronic surveillance need not include a specific authorization to enter covertly the premises described in the warrant. The Court said: "* * * Often in executing a warrant the policy may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter the suspect's home in order to take him into custody, and they thereby impinge on both privacy and the freedom of movement. See, e.g., United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). * *" 441 U.S. at 257-58, 99 S. Ct. at 1694. We also note that the ALI Model Code of Pre-Arraignment Procedure § 120.6 (1975) permits a law enforcement officer to enter private premises to arrest a person whom he is authorized to arrest if the officer has reasonable cause to believe that the person is present on such premises. The commentators wrote that "* * * Twenty-five [state] jurisdictions have statutes permitting forcible entries to make any arrest which is otherwise lawful. The statutes in six states authorize forcible entries for purposes of arrest if the arrest is under a warrant or for a felony. The statutes in six states allow forcible entry if the arrest is under a warrant, while in two states the statutes authorize entry to arrest in case of a felony." Id. at 310 (commentary). (Footnotes omitted.) See also id. at Appendix XI. The Kansas statute authorizing entry to arrest, K.S.A. 22-2405 (1974), was applied in United States v. Harper, 550 F.2d 610 (10th Cir.), cert. denied 434 U.S. 837, 98 S. Ct. 128, 54 L. Ed. 2d 99 (1977). The Harper court also relied on the Cravero decision. The Michigan statute authorizing entry to arrest, Mich.Comp.Law Ann. § 764.21 (1948), was applied in United States v. Alexander, 346 F.2d 561 (6th Cir.1965), cert. denied 382 U.S. 993, 86 S. Ct. 575, 15 L. Ed. 2d 480 (1966). In addition, several courts have indicated but have not directly held that the police may enter private premises to arrest if they have an arrest warrant. See, e.g., United States v. Houle, 603 F.2d 1297, 1300 n. 5 (8th Cir.1979); United States v. Calhoun, 542 F.2d 1094, 1102 (9th Cir.1976), cert. denied 429 U.S. 1064, 97 S. Ct. 792, 50 L. Ed. 2d 781 (1977); Huotari v. Vanderport, 380 F. Supp. 645, 650 (D.Minn. 1974); State v. Cook, 115 Ariz. 188, 564 P.2d 877, 883 (1977) (quoting Ramey); People v. Ramey, 16 Cal. 3d 263, 127 Cal. Rptr. 629, 636, 545 P.2d 1333, 1340 (1976) (requiring "the judicial authorization of an arrest warrant"); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971); Commonwealth v. LeBlanc, ___ Mass. ___, 367 N.E.2d 846, 850 (1977); Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177, 1180 (1978) ("police should have obtained an arrest warrant"). [7] The legal commentators are also divided over the question whether a search warrant is necessary prior to the entry of private premises to execute an arrest warrant. See, e.g. 2 LaFave, Search and Seizure 378-86 (1978); Rotenberg & Tanzer, Searching for the Person to be Seized, 35 Ohio St.L.J. 56, 65-71 (1974); Note, Warrantless Entry to Arrest: A Practical Solution to a Fourth Amendment Problem, 1978 U.Ill.Law Forum 655, 673-76; Comment, The Constitutionality of Warrantless Home Arrests, 78 Colum.L.Rev. 1550, 1566-67 (1978); Comment, Forcible Entry to Effect a Warrantless Arrest The Eroding Protection of the Castle, 82 Dick L.R. 167 (1977); Comment, Watson and Santana: Death Knell for Arrest Warrants?, 28 Syracuse L.Rev. 787 (1977); Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev. 995 (1971). [8] The McKinney court reasoned that the issuance of an arrest warrant is itself an exceptional circumstance obviating the need for a search warrant. The court said: "* * * An arrest warrant is validly issued only when a magistrate is convinced that there is probable cause to believe that the named party has committed an offense. This determination, together with the inherent mobility of the suspect, would justify a search for the suspect provided the authorities reasonably believe he could be found on the premises searched. * * *" 379 F.2d 263. [1] Or. Const. art I, § 9: "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." [2] ORS 133.310(1): "(1) A peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed: "(a) A felony, a Class A misdemeanor, an unclassified offense for which the maximum penalty allowed by law is equal to or greater than the maximum penalty allowed for a Class A misdemeanor, or a major traffic offense as defined in subsection (5) of ORS 484.010; or "(b) Any other offense in the officer's presence." [3] ORS 133.110: "If the magistrate is satisfied that there is probable cause to believe that the person charged has committed the offense complained of, he shall issue a warrant of arrest. However, on a misdemeanor or violation charge or on a felony charge which in the discretion of the court may be considered a misdemeanor charge at the time sentence is imposed he may authorize a peace officer to issue and serve a citation as provided in ORS 133.055." [4] Nor is the claim that an officer's belief was unreasonable often likely to be persuasive when the officer in fact found the person to be arrested. [5] See ORS 30.260-30.300. A claim under 42 U.S.C. § 1983 is also a tort under ORS 30.265. [6] This issue was not reached in State v. Bishop because it had not been raised below. [7] ORS 133.535 states: "The following are subject to search and seizure under ORS 133.525 to 133.703: ..... "(4) A person for whose arrest there is probable cause or who is unlawfully held in concealment." [8] ORS 133.235(5) states: "In order to make an arrest, a peace officer may enter premises in which he has probable cause to believe the person to be arrested to be present."

020637912f8af7b0eb8df4ae49c3b9a5f92a59f4fa7f7d888130d813020aa3fd

1980-01-22T00:00:00Z

c55214ad-7d20-4cab-8387-167dad4ab038

JACKSON CTY. v. Compton

289 Or. 21, 609 P.2d 1293

oregon

Oregon Supreme Court

609 P.2d 1293 (1980) 289 Or. 21 JACKSON COUNTY, a Political Subdivision of the State of Oregon, Respondent, v. Betty K. COMPTON, John C. Compton, and First State Bank of Oregon, an Oregon Corporation, As Trustee of the Thomas E. Whittle Unitrust, Petitioners, Thomas E. Whittle, Defendant. CA 11316; SC 26476, 26483. Supreme Court of Oregon, In Banc.[*] Argued and Submitted December 4, 1979. Decided April 8, 1980. Rehearing Denied May 1, 1980. William B. Wyllie, Salem, argued the cause and filed briefs for petitioners Compton. *1294 Michael J. Morris, Portland, argued the cause for petitioner First State Bank of Oregon. With him on the briefs was J. Rion Bourgeois, and Evans, Hall & Grebe, P.C., Portland. Thomas J. Owens, Medford, argued the cause and filed a brief for respondent. HOWELL, Justice. This is a declaratory judgment proceeding filed by plaintiff, Jackson County (herein "County"), seeking a determination that the County is the owner and entitled to possession of certain stockpiled gravel. The defendants are Betty K. Compton and John Compton ("Comptons"), the owners of the real property upon which the gravel is located; First State Bank of Oregon ("Bank"); and Thomas E. Whittle ("Whittle"), who did not appear and is no longer involved as a party. The trial court entered a summary judgment in favor of defendants. On appeal, the Court of Appeals reversed, and we granted review. On October 20, 1971, defendant Whittle, the original owner of the real property, entered into an agreement with Jackson County for the processing and removal of river run rock from Whittle's property. The agreement stated, in part: Later the agreement was extended to January 1, 1976. Prior to the termination date and on March 21, 1975, Whittle conveyed the real property to the Bank. The deed contained the clause: After Whittle conveyed to the Bank, he apparently made some assurances to the County that the County owned the gravel. However, the County knew about the conveyance from Whittle to the Bank and, in a letter dated July 18, 1975, an agent for the County wrote to Whittle stating, in part: "I will be happy to discuss a gravel purchase agreement with the new owners at their convenience." On December 31, 1975, the Bank sold the real property to the Comptons on contract. After January 1, 1976, the extended expiration date of the County-Whittle agreement, the Comptons refused to allow the County to remove the stockpiled gravel from the premises, and the County filed this declaratory judgment proceeding. The terms of the agreement between Whittle and the County describe the grant of a "profit a prendre" or "profit." A profit a prendre is the right to acquire, by severance or removal from another's land, some thing or things previously constituting a part of the land. 3 Tiffany, Real Property 427 § 839 (3d ed. 1939, Jones ed.); 1 Thompson, Real Property 523, § 139 (Grimes 1964); Hahner, An Analysis of Profits A Prendre, 25 Or.L.Rev. 217, 221, 227 (1946). See also High v. Davis, 283 Or. 315, 322, 584 P.2d 725 (1978); Bingham v. Salene, 15 Or. 208, 214, 14 P. 523 (1887). Profits include the right to take gravel, stone or minerals from another's land and *1295 the right to enter, cut and remove timber from another's land. Tiffany, supra at 428; Thompson, supra at 510, § 135; Hahner, supra at 218-19 n. 5. See also Babler Bros., Inc. v. Hebener, 267 Or. 414, 418 n. 1, 517 P.2d 653 (1973) (rock); Gray v. Handy, 349 Mass. 438, 208 N.E.2d 829 (1965) (sand); Beckwith v. Rossi, 157 Me. 532, 175 A.2d 732 (1961) (gravel). Cf. Paullus v. Yarbrough et ux., 219 Or. 611, 639-40, 347 P.2d 620 (1959) (timber); Falk, Timber and Forest Products Law 38, § 36 (1958); Note and Comment, 34 Or.L.Rev. 256, 258-59 (1955). The Restatement of Property describes a profit as being similar to an easement and subject to the same rules as easements. Restatement of Property § 450, Special Note (1944). The Restatement goes on to explain that a profit is an easement that may include The duration of a profit a prendre depends on the original terms of the grant creating the right. Thompson, supra at 527, § 140; Hahner, supra at 244. By the terms of the agreement between Whittle and the County, as extended, the grant of the profit to take the river run rock would expire on January 1, 1976. The agreement also specified that the County would no longer have a continuing right to remove stockpiled rock after that date. Previous decisions of this court and other courts indicate a general rule with regard to removal date provisions in agreements to enter, sever, and remove physical substances such as timber, coal and gravel from another's land. In Sandy Holding Co. v. Ferro, 144 Or. 466, 25 P.2d 561 (1933), the defendant claimed the right to cut and remove timber from plaintiff's land based on a contract that limited the right of removal to a specific term. The contract did not specify what would happen to timber cut but not removed before the removal date. We held the following: We particularly relied on several prior decisions that a conveyance of timber on the condition that it be removed by a specific date amounts only to a sale of all the timber that the grantee can cut and remove before that date. See Coquille M. & T. Co. v. Dollar Co., 132 Or. 453, 285 P. 244 (1930); Kee v. Carver, 95 Or. 406, 187 P. 1116 (1920); Kreinbring v. Mathews, 81 Or. 243, 159 P. 75 (1916); Anderson v. Miami Lumber Co., 59 Or. 149, 116 P. 1056 (1911). In the Coquille case we said: In Anderson v. Miami Lumber Co., supra, this court explained that a landowner selling the right to cut timber is most concerned about the time of its removal from the land: More recently, in Dunham et ux. v. Taylor et al., 211 Or. 618, 317 P.2d 926 (1957), we interpreted a contract for the sale of standing timber that contained a provision that the timber be cut and removed by a specific date. The contract also expressly provided that the purchasers would forfeit all interest in the timber remaining after the termination date. We said: The importance of the specific removal date provision has been recognized in coal leases and gravel contracts as well as timber contracts. In Boron v. Smith, 380 Pa. 98, 110 A.2d 169, 48 A.L.R.2d 1170 (1955), the plaintiff was the lessee of certain coal lands of the defendants under a lease that conferred the right to mine and remove coal for a term of ten years. The plaintiff argued that the lease constituted a sale of the coal in place for which the plaintiff had fully paid royalties during the term and that he was, therefore, entitled to remove the remaining unmined coal after the expiration of the lease. The court stated: Similarly, in Tamko Asphalt Products, Inc. v. Fenix, 321 S.W.2d 527 (Mo. Ct. App. 1958), the defendant's grantor had sold to the plaintiff's assignor all the chat (gravel) on a specific section of land, provided that the buyer shall remove all the chat on or before a specific removal date. After the removal date and the contract had expired, the plaintiff sought to enter defendant's land and remove the chat. Recognizing that the chat pile was sold as personal property, the court held that plaintiff's Accordingly, we conclude that Whittle and the County agreed to a specific time for allowing the County to enter the land, process the rock, and remove the rock. By agreeing to a specific removal date, the County's ownership of stockpiled rock was defeated by the County's failure to remove the rock that remained on the land after the removal date.[1]See Rayburn et ux. v. Crawford et ux., 187 Or. 386, 393, 211 P.2d 483 (1949); Sandy Holding Co. v. Ferro, supra 144 Or. at 475-76, 25 P.2d 561; Coquille M. & T. Co. v. Dollar Co., supra, 132 Or. at 469, 285 P. 244; Anderson v. Miami Lumber Co., supra, 59 Or. at 151, 116 P. 1056. The County contends, however, that if it no longer owns the rock, then the rock belongs to Whittle. And, when Whittle deeded the land to the Bank, he never conveyed the rock, which was personal property upon severance from the land. The County argues that because Whittle, after he had deeded the land to the Bank, assured the County that he would extend the removal date, Whittle is estopped to deny any rights of the County in the stockpiled rock. We do not agree with the County's contention that the stockpiled rock belongs to Whittle. The fact that the stockpiled rock became personal property is immaterial. Whittle did not sell the County personal property; he sold the County the profit to take rock, which is a real property interest. High v. Davis, supra, 283 Or at 322, 584 P.2d 725; Hahner, supra at 218, 222-23, 227, 233, Whittle's sale of the profit to take the rock created an encumbrance on the land because the profit included the right, in the nature of an easement, to enter the land to process, stockpile and remove rock. Cf. Forsyth v. Nathansohn, 139 Or. 632, 637-38, 9 P.2d 1036, 11 P.2d 1065 (1932); Kreinbring v. Mathews, supra 81 Or. at 249, 159 P. 75; Hedin v. Roberts, 16 Wash. App. 740, 559 P.2d 1001 (1977); Restatement of Property § 450, Special Note, comment f; Thompson, supra at 525-26, § 139; Hahner, supra at 217-27. On January 1, 1976 after Whittle had conveyed all of his real property interests in the land to the Bank and the Bank had sold the land to the Comptons the County's profit terminated, the encumbrance on the Comptons' land expired, and neither the County nor Whittle had any right to enter the Comptons' land and remove the rock. Therefore, the stockpiled rock remaining on the land belongs to the Comptons. Sandy Holding Co. v. Ferro, supra, 144 Or. at 476, 25 P.2d 561; Anderson v. Miami Lumber Co., supra, 59 Or. at 158-59, 116 P. 1056; Tamko Asphalt Products, Inc. v. Fenix, supra at 536; Hedin v. Roberts, supra, 559 P.2d at 1002-003. *1298 Accordingly, we hold that neither the County nor Whittle has any interest in the stockpiled rock that remained on the Comptons' land after January 1, 1976. The trial court did not err in granting summary judgment to the Bank and the Comptons. The decision of the Court of Appeals is reversed. [*] HOLMAN, J., retired January 21, 1980; LINDE, J., did not participate in this decision. [1] The instant case does not involve a forfeiture. The County had a specific term during which it was allowed to remove stockpiled rock. After the term of the agreement expired, the County's rights merely expired. Sandy Holding Co. v. Ferro, 144 Or. 466, 474-76, 25 P.2d 561 (1933); Kee v. Carver, 95 Or. 406, 187 P. 1116 (1920); Anderson v. Miami Lumber Co., 59 Or. 149, 158-59, 116 P. 1056 (1911); Boron v. Smith, 380 Pa. 98, 110 A.2d 169, 172, 48 A.L.R.2d 1170 (1955); Tamko Asphalt Products, Inc. v. Fenix, 321 S.W.2d 527 (Mo. Ct. App. 1958); Hedin v. Roberts, 16 Wash. App. 740, 559 P.2d 1001 (1977).

509fb354da43dbd90b3fde880db432a880e7e97de2e1f4919cc9c172d55b9ebd

1980-04-08T00:00:00Z

c1f095e5-d0dd-4b08-8f0f-cf2c0a949468

Neuberger v. City of Portland

288 Or. 585, 607 P.2d 722

oregon

Oregon Supreme Court

607 P.2d 722 (1980) 288 Or. 585 Maurine NEUBERGER, Lee F. Martinson, Iris M. Felter, Frank Burger, Fay Burger, Marion O'Reilly, George Wittemeyer, Jean Wittemeyer, Wm. G. Cooney, Doris B. Cooney, Thomas E. Craven, James Cross, Mary Cross, Christopher Curtin, Particia Curtin, John Daily, Mary Lou Daily, Douglas P. Dickie, Ella Dickie, Fred C. Felter, Ervin Flick, Ada Flick, Alan Gilmore, Hope A. Gilmore, Ivan Gold, Lois Gold, Merwyn R. Greenlick, Harriet Greenlick, Edward L. Hendricks, Ardis S. Hendricks, Howard E. Hermanson, Frances C. Hermanson, Richard E. Larsen, Phyllis L. Larsen, Helmer V. Larson, Gladys C. Larson, Norman C. Lindhjem, Barbara G. Lindhjem, Mary Louisa McCall, Jack B. Miller, Jeanne P. Miller, A. Don Parr, Dorothy C. Parr, Manvel Schauffler, Verna Schauffler, Joyce Spinks, D.J. Surman, Rod Taylor, Phillip Trautmann, Karen Trautmann, George Tsongas, Joyce Tsongas, Herbert H. Wing, Eileen A. Wing, Saul Zaik, Frances Zaik, Jim L. Cates, Sharon K. Cates, Donald L. Cook, Stacia A. Cook, Stuart Cutler, Beverlee Cutler, William Dippert, Jean F. Dippert, James Ehlbeck, Karen Ehlbeck, Keith Finzer, Joann Finzer, Thomas H. Frith, Jan E. Frith, Eugene C. Kauffman, Patricia A. Kauffman, Gifford L. Kauffman, Gifford L. Martin, Sr., Jewell N. Martin, Kahler Martinson, Donna Martinson, Frank A. Miller, Frank E. Panowicz, Marianne Panowicz, Charles Gary Peterson, Susan L. Peterson, Walt Smith, Carol Smith, LeRoy C. Stammer and Ilo M. Stammer, Respondents, v. CITY OF PORTLAND, Oregon, a Municipal Corporation, Neil E. Goldschmidt, Mayor and Member of the Council of the City of Portland, Francis J. Ivancie, Mildred Schwab, Connie McCready and Charles R. Jordan, Commissioners and Councilmen of the City of Portland, Homer *723 G. Williams, Ronnie A. Bissell, Roland A. Haertl, D. Neal Marlett, Alan G. Quasha, Wayne G. Quasha and Jill Quasha, Copartners Doing Business As Wilbihama Investors, Oroc Lands (Oregon), Inc., an Oregon Corporation, Oroc Lands, Ltd., a Hong Kong Corporation, Wilbihama Investors and Oroc Lands, Ltd., a Joint Venture, Walter Lommell, Jr., Trustee, and Ed E. Meier and Helene E. Meier, Petitioners. CA 7976; SC 25945. Supreme Court of Oregon. February 26, 1980. *724 Paul R. Meyer, of Kobin & Meyer, Portland, for the petition. Before DENECKE, C.J., and TONGUE, HOWELL, LENT,[*] LINDE,[*] PETERSON and TANZER,[*] JJ. HOWELL, Justice. This case, which is before us on petition for rehearing, involves the validity of a zone change granted by the Portland City Council. In writ of review proceedings, the trial court upheld the change. The Court of Appeals agreed with one of the opponents' grounds for challenge and held that the matter must be remanded to the city council for further proceedings. Neuberger v. City of Portland, 37 Or. App. 13, 586 P.2d 351 (1978). The applicants and the council petitioned for review of that decision, but the opponents of the change did not. This court asked the parties to furnish supplemental memoranda on questions raised by the petition for review. In their memorandum the opponents, in addition to addressing those questions, argued that the Court of Appeals had disposed incorrectly of several of their assignments of error. In our original opinion we refused to consider those contentions, pointing out that they were not raised in this court By petition for rehearing, the opponents have called to our attention a letter to their counsel from the State Court Administrator, in response to counsel's inquiry, advising him that when the court grants review upon the petition of one party, the other party may urge the court to rule on questions decided by the Court of Appeals but not raised by the petition. Our published rules do not deal with the question addressed by the Administrator's letter, nor have our previous decisions given any clear guidance to the bar.[1] It is quite possible that the opponents relied on the letter when they decided not to file either a petition for review of the Court of Appeals' decision or a response to the petition which the adverse *725 parties filed. In fairness to the opponents we should not, therefore, have refused to consider their arguments simply because of the manner in which they were presented to this court. The issues which they raise were briefed in the Court of Appeals and both parties had an opportunity to address them in oral argument before this court. We have not, therefore, found it necessary to set the case for rehearing. Instead, we consider the opponents' contentions of error by the Court of Appeals in this supplement to our original opinion. The first of these contentions has to do with the council's evidentiary rulings and its findings on economic factors relating to the proposed zoning amendment. That issue was properly decided by the Court of Appeals and requires no additional discussion. 37 Or. App. at 25, 586 P.2d 351. The other claims of error in the Court of Appeals decision have to do with the opponents' contention that they were denied their right to an impartial tribunal. They rely on Fasano v. Washington Co. Comm., 264 Or. 574, 588, 507 P.2d 23, 30 (1973), where we said: We have reviewed the record carefully and find nothing to indicate that the opponents did not receive a fair hearing before the council. They challenge the council's impartiality on two grounds. First, they complain that while the application for a zone change was pending before the council, negotiations were taking place for the possible sale to the city of an adjoining tract of land owned by the applicants. Second, they object to participation by an attorney for the applicants in the drafting of the detailed ordinance which the city council adopted to implement its decision to allow the change of zone. The original suggestion that the city or some public agency might want to purchase the adjoining property as an addition to Forest Park was apparently made publicly by the applicants in hearings before the planning commission. During the later hearings before the city council it was announced that the possibility of such a purchase was being explored, and at various times throughout the hearings the status of the acquisition proposal was explained to the parties and the public by the mayor and by city staff members. No decision on the proposed acquisition was reached by the time the council voted to approve the zoning amendment. There is nothing in the proceedings before the planning commission and the city council or in the evidence presented by the opponents in the trial court to indicate that any member of the council was improperly influenced by the proposal. Certainly there is no suggestion of covert dealings between the applicants and the council or its agents or that there was any agreement, express or implied, that the zone change would be approved in return for a chance for the city to add the adjoining tract to Forest Park at a favorable price. The opponents argue, however, that the conversations and correspondence between the applicants and representatives of the city concerning a possible sale of the property were improper "ex parte contacts" which are condemned in Fasano. Fasano should not be read as adopting a mechanical rule that any ex parte contact touching on a matter before a tribunal acting quasi-judicially renders the tribunal, or its affected members, unable to act in that matter. To the extent that the language in that opinion can be so understood we disapprove it. The issue is not whether there were any ex parte contacts, but whether the evidence shows that the tribunal or its members were biased. In this case it does not. The opponents' other claim of violation of their right to an impartial tribunal involves *726 the procedures employed after the council had voted to allow the zone change. After making that decision the council directed Mr. Vail, the city's Zoning Supervisor, to prepare the ordinance with the help of the city attorney's office. Mr. Vail prepared a number of rough drafts of the ordinance before he circulated a "review draft" to the parties and members of the council for comment prior to final revision. Mr. Vail testified that prior to that circulation he had met on several occasions with an attorney representing the applicants to discuss the wording of the ordinance, and had furnished that attorney with copies of his earlier rough drafts. Some of the changes in the draft versions of the ordinance, he testified, probably resulted from suggestions made by the attorney. These exchanges were not known to the opponents or their attorneys until after the council voted to approve the final version of the ordinance. The applicants point out that this court subsequently encouraged participation by the parties in framing the findings in proceedings of this kind when we said, in Sunnyside Neighborhood v. Clackamas Co. Comm., 280 Or. 3, 21, 569 P.2d 1063, 1076 (1977): When we made that suggestion we had in mind the procedure frequently employed when trial courts prepare detailed findings in nonjury cases. The proper practice by attorneys proposing findings in such cases is to serve a copy on opposing counsel as well as on the court. When we prepared the opinion in Sunnyside it did not occur to us that it was necessary to caution that a similar practice should be followed when proposed language for an ordinance embodying a quasi-judicial decision is submitted to a local governing body. We do not here decide whether a failure to inform the parties of such proposals can ever be grounds for invalidating the final decision. The record does not show, in this case, that the opponents were prejudiced. They obtained and placed in evidence copies of the various rough drafts of the proposed ordinance prepared by Mr. Vail and of correspondence from the applicants' attorney suggesting certain changes. After ample opportunity to compare these documents with the city council's minutes and to present oral testimony in the trial court, the opponents now complain specifically of one passage in the ordinance which they attribute to a suggestion by the applicants' attorney. That passage reads: Opponents' objection to this portion of the ordinance is that it provides in advance for an allowable density of development based on the formula which it recites rather than requiring that a decision on actual density of development await the presentation of a planned unit development proposal. We need not decide whether the ordinance, construed as a whole, actually has that legal effect. The language to which the opponents object was included in the review draft of the ordinance, a copy of which was submitted to the attorney for the opponents more than two months before final action was taken by the city council. The opponents never, so far as the record shows, *727 questioned or challenged its inclusion in the proposed ordinance. The language complained of is not hidden or obscure or otherwise easily overlooked. It is a prominent part of the operative section of the ordinance. Under the circumstances, regardless of who originally suggested it, its inclusion is not grounds for invalidation of the council's action. Its presence was obvious and the opponents had ample opportunity to challenge it but did not do so. We hold that although the attorney for the opponents should have been informed of suggestions by the applicants as to the wording of the ordinance, the opponents were not, in this instance, prejudiced by the fact that that procedure was not followed. In addition to claiming error by the Court of Appeals in the matters we have discussed above, the opponents, in their petition for rehearing, also argue that our original opinion was erroneous in several respects. We need discuss here only the contention that we should have remanded the case to the council for reconsideration in light of the statewide planning goals promulgated by the Land Conservation and Development Commission.[2] During the hearings before the council, the attorney for the opponents asked whether either the LCDC goals or the statutory interim planning goals[3] governed this zone change application. The mayor asked Mr. Vail, who replied that he did not believe the goals were applicable, but that he would check further before the meeting was over. He apparently did not do so, and the question was not again called to the council's attention. The opponents did not argue to the council, then or later, that it should consider either the statutory or LCDC goals. Although the opponents, in their petition for writ of review, listed the council's failure to consider the statewide planning goals as one of the many grounds for the writ, they did not raise the issue in the Court of Appeals. It is clear that the opponents abandoned this contention when they took their appeal. They now argue that because in our original opinion we held the substantive criteria for zone changes set forth in the Fasano case no longer applicable, we have approved a rezoning decision based on no criteria whatsoever. They also assert that the zone change violated six of the LCDC goals. The opponents can hardly argue that they relied on Fasano in deciding not to raise the issue of the statewide goals on appeal. The standards stated in Fasano could only apply in addition to, not instead of, other standards imposed by law. In spite of the opponents' failure to preserve the issue on appeal, we might have concluded that a remand for reconsideration in light of the applicable goals was the appropriate disposition of this case were it not for the fact that the council's decision was made after considering the substantive concerns addressed by most of the goals upon which the opponents rely. Although the council did not address the specific requirements of the LCDC goals, it gave serious consideration to such matters as the physical characteristics of the parcel and the surrounding area, housing patterns within the city, provision of urban services, traffic patterns, and public transportation facilities. All parties had ample opportunity to present evidence and argument on these and other factors as they affected the propriety of the zone change. Under these circumstances we will not require reconsideration by the council for reasons not pressed before the council or made an issue on appeal. For the reasons given in this supplemental opinion, the opponents' petition for rehearing is denied. [*] Did not participate in this decision. [1] We have published and requested comment on proposed rules which would deal with this matter as follows: "A respondent may but need not file a response to the petition for review. * * * The response shall be served and filed within 20 days after the petition for review is filed. In the absence of a response, respondent's brief in the Court of Appeals will be considered as the response. "* * * If the Supreme Court accepts review it may limit the questions on review. If review is not so limited, the questions before the Supreme Court include all questions properly before the Court of Appeals that the petition or the response claims were erroneously decided by that court. The Supreme Court's opinion will not necessarily address each such question and the court may consider other issues that were before the Court of Appeals on the appeal or review of the judgment or order which is the subject of the petition for review." [2] See ORS 197.225, 197.250. [3] See former ORS 215.515, repealed Or. Laws 1977, ch. 766, § 16, and former ORS 197.280, repealed Or. Laws 1977, ch. 664, § 42 and ch. 766, § 16.

e486189d3f0f1da69b06d9c889f9bc258902cd2ff9cd4493c2efea3bda9a3e10

1980-02-26T00:00:00Z

776c2cae-5cab-4645-a48a-4ea7ea463aba

State v. Tourtillott

289 Or. 835, 618 P.2d 423

oregon

Oregon Supreme Court

618 P.2d 423 (1980) 289 Or. 835 STATE of Oregon, Respondent, v. Donna Lorraine TOURTILLOTT, Petitioner. No. 10158; CA 10998; SC 26660. Supreme Court of Oregon. Argued and Submitted January 8, 1980. Decided October 21, 1980. *424 James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem. Karen Green, Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Before DENECKE, C.J., TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ., and TANZER, Justice Pro Tempore. PETERSON, Justice. The decision in this case turns on the applicability of ORS 131.615 and the requirements of the state and federal constitutions. Three issues are presented for our determination: 1. Do police game checkpoint stops violate ORS 131.615 when there is neither probable cause to believe nor reasonable suspicion that a crime has been committed? 2. Are game checkpoint stops violative of Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the Constitution of the United States when there is neither probable cause to believe nor reasonable suspicion that a crime has been committed? 3. If a police officer makes a valid checkpoint stop followed by an inquiry which would be permitted in connection with the purpose of the checkpoint stop, should the evidence obtained as a result of the inquiry be suppressed if the officer's purpose in making the inquiry was unconnected with the purpose for making the stop? The defendant was convicted of a Class C felony, driving with a revoked license,[1] and was sentenced to imprisonment for one year. Execution of the sentence was suspended and the defendant was then placed on probation. Alleging that the circuit court erred in denying her motion to suppress evidence obtained when she was stopped by an Oregon State Police game officer, she appealed the conviction. The Court of Appeals affirmed, 43 Or. App. 5, 602 P.2d 659 (1979). We accepted review to examine the legality of game checkpoint stops where there exists neither probable cause to believe nor reasonable suspicion that a game law, or any other law, has been violated. The defendant was stopped at a roadblock located on a highway between Powers and Agness, Oregon, just south of the Powers city limits. The roadblock, manned by an officer of the Oregon State Police Game Division,[2] was set up to check hunters' compliance with the game laws, to check hunting licenses and to gather statistics on hunter success on the opening day of deer hunting season, October 1, 1977. According to the trial judge, the roadblock was established "on one of the most rural highways *425 in the whole state of Oregon." A sign stating "Attention Hunters" and "All Vehicles Must Stop" was placed on the side of the road, and the police officer's vehicle, with a sign on its side indicating its ownership, was parked at a right angle to the road. As automobiles approached, the officer, wearing a uniform and badge, stood in the center of the road and held out his hand to stop approaching vehicles. If the car contained older people or others who did not appear to have been hunting, the officer would sometimes permit them to continue after they slowed or stopped. The defendant was driving a friend's car toward Powers. She stopped near the officer. The officer testified that he noticed nothing unusual about the manner in which the defendant operated the automobile, nor did he observe anything unusual about the defendant. After the defendant stopped, the officer asked for identification or a driver's license. The defendant responded that she was suspended and had no driver's license. According to the officer, it was standard operating procedure to ask those stopped at game checks to produce a driver's license or identification if a hunting license was not produced. Petitioner contends that the stop violated ORS 131.615, Article I, section 9, of the Oregon Constitution, and the Fourth Amendment of the United States Constitution[3] because the stop was "not based upon any reasonable suspicion that the defendant had been involved in criminal activity." She also contends that even if the stop was permissible, the officer's subsequent request for a driver's license or identification was impermissibly intrusive. We consider first the contention that the stop violated ORS 131.615.[4] ORS 131.615 provides: An analysis of the legislative history of ORS 131.615 makes it clear that the legislature did not intend to limit all "stops" for law enforcement purposes to those permitted under ORS 131.615. The Oregon Legislature created the Criminal Law Revision Commission in 1967 to revise Oregon law relating to crime and criminal procedure. Or. Laws 1967, ch. 573, § 2. Preliminary work on the Criminal Procedure Code began in 1970. The first preliminary draft of Article 5, relating to search and seizure, was presented in January, 1971. The preliminary draft on search and seizure included a prohibition against searches or seizures[5] not specifically authorized in *426 the Code. Section 2 of the draft, entitled "prohibition of unauthorized searches and seizures," provided: The commentary to the preliminary draft stated: Substantially the same provision was retained in Preliminary Draft Number 3, submitted in May, 1972. On June 5, 1972, Subcommittee Number 2 of the Commission adopted the section. When the Commission considered it on June 16, 1972, however, Section 2 was deleted by a unanimous Commission. Professor George Platt, the Commission reporter, stated: Senator Anthony Yturri, Commission Chairman, then stated he believed that the section was "too restrictive and should be deleted." Id., Minutes at 37. After a discussion on this point, the section was deleted. Five of the six legislators appointed to the Commission and present at the June 16, *427 1972, meeting were members of the 1973 legislature, which adopted the Criminal Procedure Code without any provision prohibiting searches or seizures not authorized by the Code. Or. Laws 1973, ch. 836, §§ 81-121. One member, Senator John Burns, was a member of the Senate Judiciary Committee which held hearings on the Code. Testimony before the Judiciary Committee brought the deleted Section 2 to the committee's attention. See Hearings on SB 80 Before the Senate Judiciary Committee, 57th Or.Legis.Ass'y, Exhibits at 110-114 (Testimony of Jackson L. Frost). The provisions prohibiting searches and seizures other than those authorized by statute continued to be omitted. The significance of this legislative history is that the Commission knowingly and explicitly rejected proposed provisions that the Code was intended to completely define the scope of permissible search and seizure.[8] Additionally, the language of ORS 131.615 limits its application to investigations of crime where reasonable suspicion of criminal activity has focused upon a particular individual. Checkpoint stops, or any other stop where there is no individualized suspicion of criminal activity, do not fall within this language. Police, in performing their assigned functions, stop persons in a variety of ways and for a variety of reasons. For example, they may stop a motorist to warn of a washout ahead and learn, by looking into the car, of evidence leading to the arrest of the driver or an occupant. We believe that the legislature considered and rejected a rule permitting only stops based upon reasonable suspicion or probable cause. We conclude that the legislature did not intend to prohibit game checkpoint stops by enacting ORS 131.615. Both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution impose limitations on search and seizure "in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S. Ct. 3074, 3081, 49 L. Ed. 2d 1116 (1976). See Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331 (1977). Under Article I, section 9, of the Oregon Constitution, we must accord the defendant at least as much protection as that provided by the Fourth Amendment of the Constitution of the United States, although we are at liberty to adopt a stricter test under our own constitution. State v. Greene, 285 Or. 337, 339, 591 P.2d 1362 (1979); State v. Flores, 280 Or. 273, 279-81, 570 P.2d 965 (1977); State v. Florance, 270 Or. 169, 183, 527 P.2d 1202 (1974). See also State v. Elkins, 245 Or. 279, 282, 422 P.2d 250 (1966). We will therefore examine the constitutional question in the light of the Fourth Amendment analyses of the Supreme Court of the United States. *428 The rationale underlying Supreme Court decisions in the area of Border Patrol activity and enforcement of driver license and vehicle registration laws suggests that game checkpoints, including the one at issue, may be maintained without violating Fourth Amendment rights. The efforts of the Border Patrol to stem the flood of illegal aliens entering the United States have been the focus of a line of Supreme Court decisions concerned with the application of search and seizure principles. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976), reviewed the Court's holdings in several earlier cases, and set out the constitutional limitations on Border Patrol activity. 428 U.S. at 555-561, 96 S. Ct. at 3081. A roving patrol unit could search a vehicle for illegal aliens only if there existed probable cause to believe the car searched contained illegal aliens. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973). Similarly, the Border Patrol could search a vehicle at a permanent checkpoint only where probable cause existed for the belief that the car contained illegal aliens. United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975). A roving patrol could stop motorists, in the general area of the border, for a brief inquiry into the motorists' resident status, if the stop was supported by specifically articulable facts, reasonably warranting suspicion that the vehicle contained illegal aliens. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975). Finally, at fixed checkpoints the Border Patrol, even in the absence of reasonable suspicion, may stop, question, and visually inspect all vehicles passing through the checkpoint. United States v. Martinez-Fuerte, supra. The Supreme Court noted that the same objective intrusion upon Fourth Amendment interests (a stop, questioning, and visual inspection) existed in the roving-patrol stops (Brignoni-Ponce) and in the fixed checkpoint stops (Martinez-Fuerte.) 428 U.S. at 558-559, 96 S. Ct. at 3083. However, in upholding a checkpoint stop in Martinez-Fuerte, the Court noted that at a checkpoint stop, the degree of "subjective intrusion-the generating of concern or even fright on the part of lawful travelers-is appreciably less * * *." 428 U.S. at 557-558, 96 S. Ct. at 3082 (see page 433 of this opinion). Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) was concerned with the issue of whether the Constitution permitted a spotcheck, for the purpose of checking the driving license and registration of the car, conducted by a roving patrolman, who had neither probable cause nor reasonable suspicion to believe that the car was being operated contrary to the motor vehicle laws. The Court noted that "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." 440 U.S. at 653-654, 99 S. Ct. at 1395. The Court in Prouse heavily relied on the Border Patrol cases for "guidance in balancing the public interest against the individual's Fourth Amendment interests implicated by the practice of spot checks * * * [that] occurred in this case." 440 U.S. at 657, 99 S. Ct. at 1397. The Court compared the effect of the police procedure in Prouse with those in Brignoni-Ponce and Martinez-Fuerte: The Court, in addition to its "subjective intrusion" analysis, considered the efficiency of the device chosen by the police-the roving stop-to meet the important ends of ensuring highway safety. The Court found that discretionary spot checks were not a "sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail." Prouse, supra, at 659, 99 S. Ct. at 1399. The Court also held that the discretionary spotcheck, as practiced in Delaware, did not sufficiently circumscribe the discretion of the official in the field. Id. at 661, 99 S. Ct. at 1400. Balancing the promotion of legitimate government interests against the psychologically and physically intrusive nature of the spotcheck procedure, the general inefficiency of the method in promoting the desired goal of highway safety, and the degree of discretion it vested in the individual officer, the Court found the practice of discretionary spot checks as practiced in Delaware violated the Fourth Amendment. Id. at 663, 99 S. Ct. at 1401. The Court made it clear, however, that checkpoint stops are not precluded, for Justice White added this caveat: The concurring opinion of Justice Blackmun anticipated the very issue in the case at bar: The game checkpoint stop exercised by the patrolman in this case must be examined in the light of the factors set out in the Border Patrol cases and Prouse. The policy sought to be implemented by the procedure is the enforcement of the state's game and wildlife laws. Balanced against this government interest is the defendant's right to be free from unreasonable seizures. A preliminary consideration is that "one's *430 expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence." Martinez-Fuerte, supra, 428 U.S. at 556, 96 S. Ct. at 3082. Furthermore, since all the vehicles were stopped or slowed at the checkpoint, the degree of psychological and physical intrusion occasioned by the stop here is clearly more analogous to that found permissible in Martinez-Fuerte than to those in Brignoni-Ponce and Prouse. Secondly, the procedure here appears to be more effective in meeting its ultimate goal than was the one chosen in Prouse. In 1977, 412,100 hunting licenses were sold in Oregon,[9] which then contained about 2.4 million people.[10] Recreational hunting and fishing licenses sold in Oregon in 1977 totalled 1,048,158.[11] Over one-half of Oregon's 96,981 square miles is publicly owned.[12] These statistics highlight the task which faces game law enforcement personnel in carrying out the wildlife policy of this state. The broad expanse of territory in Oregon, much of which is virtually uninhabited, makes law enforcement difficult. The checkpoint was established on the first weekend of hunting season. It was placed on an isolated road where hunting activity was to be expected.[13] Thus, the method chosen would be one of the most effective ones to meet its goals. Although the record herein is barren of reference to regulations or policies of the Game Commission or police, the record shows that the operation of the actual roadblock was much the same as in Martinez-Fuerte. Every motorist was stopped or slowed sufficiently for the policeman to make a decision as to whether a further inquiry was called for. There was no exercise of discretion in the sense that the policeman would pull over any vehicle based upon a "hunch." The fact that the roadblock was set during hunting season, in an area frequented by hunters, and subjected all vehicles to being stopped or slowed circumscribes the possibility of an abuse of discretion on the patrolman's part. We conclude that the governmental interest in the enforcement of laws for the preservation of wildlife in this state is sufficiently substantial to justify the minimal intrusion upon the Fourth Amendment rights of those stopped for brief questioning and a visual inspection of their vehicles. On the facts of this case we hold that the roadblock stop was not unreasonable under either the Fourth Amendment of the United States Constitution or Article I, section 9, of the Oregon Constitution.[14] The dissenting opinion does not view the Supreme Court cases as requiring that the challenged law enforcement activity be determined by the balancing test articulated in Prouse, supra, 440 U.S. 654 et seq., 99 S. Ct. 1396 et seq. Instead, the dissent concludes that the Supreme Court has developed different rules governing law enforcement officers in their law enforcement activities, depending upon the activity involved. One rule governs law enforcement officials in their crime enforcement or crime detection activities, and one rule governs law enforcement activity in "administrative investigations." The dissent points out that the administrative search[15] rule requires a suitable warrant procedure[16] in order to search premises. The dissent does not find it necessary to determine whether a warrant is required in this case. The dissent would require, at least, a properly authorized administrative program designed for appropriate agency management purposes, systematically administered to achieve some statutory objective, and not involving the unconstrained exercise of discretion by the law enforcement person. The dissent states that the Terry rule[17] is applicable to crime enforcement or crime detection activities of law enforcement officers. Under Terry, a stop and pat-down search may not be made unless the circumstances raise a suspicion of criminal conduct. The dissent maintains that the result in any given case turns on an examination of the type of law enforcement activity involved. If the law enforcement persons are making an administrative stop for regulatory rather than criminal law enforcement purposes, the rule governing administrative inspections applies. The dissent concludes (dissent, page 448) that the stop at bar was impermissible because There are several important factors that the dissenting opinion fails to consider, or considers of secondary importance. The first factor is that this case does not involve a search. The panoply of case law which the dissent seeks to bring this case within[18] involves searches. Justice Powell, speaking for the majority in one of the border patrol search cases, Ortiz, supra, made this distinction clear: *432 The second factor which the dissenting opinion fails to adequately consider is that the rule espoused by the dissent as being applicable to administrative searches arose from efforts to conduct warrantless searches of premises. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), involved an attempted search of a house. See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967), and Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), involved attempts to search business premises. The Supreme Court has, for many years, distinguished between searches of premises and searches of automobiles. This point was made by the Supreme Court in its recent border patrol cases. See the concurring opinion of Justice Powell in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973). Justice Powell opined: The third factor which the dissenters fail to properly consider is that the result in all of the cases cited by them has turned on this test: One application of the balance test is in the administrative search cases (Camara, See, Marshall), Camara, supra 387 U.S. at 534-35, 87 S. Ct. at 1733, with the result that a warrant for entry was required.[19] In the Border Patrol cases, the same balancing test was applied, with the result that a warrant was not required. This was made clear in Martinez-Fuerte, supra. The Supreme Court upheld the stop in Martinez-Fuerte, supra. The actual balancing was described by the Supreme Court as follows: In its most recent "roving-stop" case, Delaware v. Prouse, supra, the Supreme Court balanced the intrusion on the individual's Fourth Amendment interests against the law enforcement activity's promotion of legitimate governmental interests. 440 U.S. at 653-54, 99 S. Ct. at 1395. In doing so, the Court stated that the standard of "reasonableness" was imposed "upon the exercise of discretion by government officials, including law-enforcement agents." Id. The balance test required by the Supreme Court binds us, as well, for the Fourteenth Amendment makes the Fourth Amendment applicable to the states. The test is easily articulated. In determining the constitutionality of a particular government procedure, the promotion of the legitimate government interest at stake is balanced against the individual's right to have his or her privacy and personal security be free from arbitrary and oppressive interference. The Court has considered the following factors to be important: No one factor is held to be determinative. As with any balancing test, its application to a particular set of facts may prove to be difficult. As a preliminary matter, what the procedure was-search or seizure-and where it took place-home, automobile, public street-impacts greatly on the intrusion factor. On the one end of the spectrum is the search of one's home. Nothing is as personal or private. Nothing is more inviolate. Law enforcement officials must have a warrant to enter, absent probable cause and exigent circumstances. Such is the result of the balancing compelled by the Fourth Amendment. One's expectation of privacy and freedom in the operation of an automobile is significantly less than the expectation of freedom and privacy in one's home. A stop of one's automobile is a minimal intrusion compared to a search of one's home. *434 The Fourth Amendment prohibits unreasonable seizures. Since the key test is reasonableness, the balancing test adopted by the Supreme Court is uniquely adapted to make that determination. The facts and circumstances of each type of seizure must be balanced in determining its permissibility. The dissent would crank an intermediate step into the analysis-the determination of the type of law enforcement activity involved and determine the result accordingly. We reject the claim that a special test should be applied, depending on the law enforcement activity involved. In this case, the activities of the law enforcement officer were involved, at one and the same time, with criminal law enforcement (the apprehension of violators of the wildlife laws) and administrative law enforcement (gathering game statistics). The validity of law enforcement practices should not depend on such compartmentalization. Conceivably, circumstances might exist when an OSHA inspector, charged with enforcement of the Occupational Safety and Health Act of 1970, or a Health Department inspector, charged with enforcing health laws, might enter a home or business without a warrant.[20] That case is not before us. But we have no doubt that the resolution of the issue depends, in the first instance, on the same type of analysis as was made in Prouse, Martinez-Fuerte, and Camara, and which we have made in this opinion-balancing the intrusion on the individual's Fourth Amendment rights against the promotion of legitimate governmental interests. Many law enforcement activities involve, at one and the same time, the enforcement of administrative statutes, rules or regulations which carry a criminal penalty. The result should not turn on whether the criminal law or the administrative law is being enforced. Hunting and fishing law enforcement is a part of law enforcement. Some law enforcement activities are similar to those involved in apprehending criminals; some may be similar to those of an OSHA inspector or Health Department inspector. Since hunting and fishing in Oregon are usually conducted in rural areas, accessible primarily by automobile, the role of the Oregon State Policeman assigned to the Game Division is similar to that of the Border Patrol officer, whether the officer is on foot patrolling the fish and game areas, in a car, or at a checkpoint. Finally, on the dissent's point that the state has not demonstrated that defendant was stopped pursuant to a properly authorized administrative program and that the motorists were left to the unconstrained discretion of the officer in the field, there is no claim or suggestion that the game warden was conducting the checkpoint other than in accordance with established department policy. We apply the presumption that the checkpoint was so established and that official duty has been regularly performed. ORS 41.360(15); Ring v. Patterson, 137 Or. 234, 240, 1 P.2d 1105 (1931). The evidence shows that the checkpoint was clearly marked, its purpose was plainly evident, and the game warden testified that all approaching vehicles were stopped or slowed. The defendant was stopped pursuant to a practice embodying neutral criteria. Defendant also contends that the scope of the officer's inquiry "was not limited to the immediate circumstances which aroused the officer's suspicion," and that the officer's "subsequent behavior was illegally and unconstitutionally intrusive." We disagree. The stop of the defendant's car was constitutionally and statutorily permissible. We are aware of no prohibition against an officer asking a driver for an operator's license when a driver is validly stopped, *435 whatever be the reason for the stop. Oregon motorists are required to have a valid operator's license in their possession while operating a car and, upon demand, to show it to any peace officer. ORS 482.040(2)(b). The defendant claims that the inquiry must relate to the purpose for which the stop was made.[21] Although the officer's request for identification or a driver's license did not directly relate to the purpose of the roadblock, it certainly related to the defendant's status as the driver of the car. We hold that if an automobile is validly stopped by a law enforcement officer, the officer may request the operator's driver's license. Regarding the alternative request for "identification," that, too, is a reasonable request, for if the operator had no license the officer would be entitled to know the identity of the driver. One further point requires discussion. The police officer testified as follows regarding his purpose in asking for identification or a driver's license: We have no doubt that a roadblock created for the sole purpose of "locating people [on whom could be served] papers or warrants" is impermissible, absent evidence that there existed a substantial likelihood of success in locating such persons. Such evidence is absent here. We do not look at the subjective good faith of the officer in considering the reasonableness of searches and seizures. Neither do we suppress evidence otherwise properly obtained because of an improper motive of the police officer. State v. Carter/Dawson, 287 Or. 479, 485, 600 P.2d 873 (1979); State v. Tucker, 286 Or. 485, 493, 595 P.2d 1364 (1979). Ours is not a society where police can stop any citizen and require the production of an "identification card" without reason. But our society is one in which police have law enforcement responsibilities-responsibilities which bring them into contact with motorists in numerous ways and for many necessary purposes. Considering these law enforcement needs, the expectation of privacy one has in operating a car, and the minimum intrusion of a request for an operator's license, we see no violation of either the federal or state constitution under the facts of this case. Affirmed. LINDE, J., filed a dissenting opinion. LINDE, Justice, dissenting. In order to sustain the conviction in this case, the court is prepared to decide that an Oregon state police officer may stop motorists at a temporary "checkpoint" set up at his own discretion in order to investigate whether they perhaps have committed a criminal offense, without either probable cause or grounds for suspicion that any occupant of the vehicle has done so. This *436 result is rationalized by a faulty analysis of the governing constitutional law and, in consequence, of Oregon law. The rationalization has far-reaching implications which will set the courts, and thus those who must advise law enforcement officers, on a future course of illogical, purely ad hoc distinctions. I cannot agree that the majority opinion is a correct statement of the law. This dissent will show, first, the errors in the majority's purported application of the fourth amendment, and second, its consequent misstatement of Oregon law. Certain postulates are not in dispute. It is common ground between the majority opinion and this dissent that the question of state law governing this case is antecedent to the question whether defendant was "seized" in violation of the federal fourth and fourteenth amendments. As recent decisions of this court have repeatedly held, a court's obligation in a case that involves potential statutory and constitutional challenges to governmental action is to determine, first, whether the action is authorized by law; second, whether it is limited by the same or another law; third, whether it is limited by the state constitution and, if the action passes these tests, whether it contravenes the federal Constitution. See State v. Scharf, 288 Or. 451, 454-455, 605 P.2d 690 (1980), and cases there cited; Jarvill v. City of Eugene, 289 Or. 157, 168-171, 613 P.2d 1 (1980). What is meant is a logical, not a temporal, sequence of analysis, for constitutional limits sometimes bear on deciding what authority the lawmaker meant to assert. See e.g. State v. Smyth, 286 Or. 293, 296, 593 P.2d 1166 (1979); Carden v. Johnson, 282 Or. 169, 177, 577 P.2d 513 (1978); Oregon Medical Association v. Rawls, 281 Or. 293, 300, 574 P.2d 1103 (1978) (and cases cited therein); Tharalson v. State Dept. of Revenue, 281 Or. 9, 13, 573 P.2d 298 (1978); State v. Jackson, 224 Or. 337, 345, 356 P.2d 495 (1960); City of Portland v. Welch, 229 Or. 308, 316, 364 P.2d 1009, modified and reh. den. 229 Or. 316, 318, 367 P.2d 403 (1961).[1] There is, however, substantial disagreement over the constitutional limits within which Oregon law is designed to be administered. The majority opinion attempts to show that the stop in this case, if authorized, would not violate the fourth amendment; it then implicitly assumes that the stop fell within the ordinary law enforcement authority of the state police officer. I believe that the majority misconstrues and unjustifiably expands the exceptions to the requirement of strict "probable cause" under the fourth amendment, and that consistent with constitutional limits Oregon law restricts stops for purposes of investigating past criminal conduct to circumstances in which an officer "reasonably suspects that a person has committed a crime." ORS 131.615. It also is undisputed that the officer's order to stop and the temporary detention of defendant and her car were a "seizure" within the constitutional meaning of that word. The majority holds that such a seizure without any individualized grounds is permissible in order to inquire into possible past criminal conduct as long as it is conducted at a stationary checkpoint, and this even when the checkpoint is set up at the discretion of an officer in the field unconfined either by a systematic administrative scheme or by prior judicial approval. I believe, to the contrary, that a "checkpoint" exception from the constitutional requirement of individualized grounds for a warrantless seizure has been recognized only in the context of "regulatory" programs, that is to say, programs designed to accomplish a preventive or corrective aim rather than inquiry into past criminal acts and conducted *437 in conformity with known and systematic administrative authorization rather than at the discretion of police officers. Oregon law, properly construed, remains within the constitutional bounds, as I shall show. But after the majority's opinion it does not. The issue is not whether the state could design a valid program of systematic inquiries in the course of administering its resources of fish and game. But the record before us does not show that the stop was made under any such program. The error lies in attempting nevertheless to sustain this seizure, at the price of hazardous implications that the majority does not and logically cannot confine to offenses under the game laws. Because the premises of the decision are important beyond its facts, they need to be examined with care. Concentrating its attention on the issue of federal more than that of Oregon law, the majority opinion seeks support for its result in selected quotations from United States Supreme Court opinions in rather different cases. One sequence of four cases involved the efforts of officers of the United States Immigration and Naturalization Service to prevent aliens from entering or remaining in this country illegally. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). Another case concerned a state police officer's stop of an otherwise unsuspected driver in order to check his driver's license and the vehicle's registration. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). But these precedents do not support the validity of the stop in the present case. First and most obviously, the cited precedents do not support the present holding, since the government lost in every case except United States v. Martinez-Fuerte. In each of the others the Supreme Court found a violation of the fourth amendment. Thus, far from relying on these precedents, the majority is reduced to distinguishing them and searching out language that it believes would allow a contrary result here. It gets sidetracked into distinctions between searches and stops and why a warrant may be required for one and not the other, none of which is at issue here. And Martinez-Fuerte, which sustained a stop, also is more obstacle than help to the majority, for there the Supreme Court stressed that the stop was valid only because the checkpoint was permanent and was conducted under prescribed agency rules rather than at the discretion of a field officer. In Martinez-Fuerte the Supreme Court pointed out that the border control checkpoint had been operated at the same location (San Clemente, California) for 24 years, and it expressly confined its holding to "permanent checkpoints." 428 U.S. at 566, n. 19, 96 S. Ct. at 3086, n. 19. A chief reason was that such checkpoints involve less discretionary enforcement activity. "The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources." 428 U.S. at 559, 96 S. Ct. at 3083. These officials' discretion is exercised in accordance with applicable statutes and regulations. Id. at note 13. Again, the Court rejected defendant's argument that Border Patrol seizures required some kind of prior judicial scrutiny on the ground that "the need for this is reduced when the decision to `seize' is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials." 428 U.S. at 566. This emphasis on the permanence and fixed, nondiscretionary conduct of checkpoints shows that Martinez-Fuerte demands the opposite result on the present facts even if its evaluation of stops without individualized grounds were otherwise applicable. But my disagreement with the majority is not only over such details as the degree to which the officer's checkpoint *438 was "fixed" or "roving," although this alone would be decisive. Beyond this, I believe the majority errs in transferring that evaluation from the context in which the Supreme Court developed it the context of inspections for preventive or corrective purposes to the different and wider context of seizures aiming at the discovery and punishment of past offenses. No Supreme Court decision applies the "border search" analogy in that wider context, and if this were to happen, I would not import it into Oregon's law of search and seizure. The rules governing the validity of stopping vehicles for regulatory inquiries or inspections have evolved from one of two lines of decisions that reduced the "probable cause" requirement under the fourth amendment. As I have said, it is undisputed that the stop in this case was a "seizure" within the constitutional meaning of the word. Cf. United States v. Martinez-Fuerte, supra, 428 U.S. at 556, 96 S. Ct. at 3082. Ordinarily a person or property may be seized only upon evidence providing probable cause to do so under a criminal statute or other law that the officer purports to enforce. Two distinct lines of decisions, however, treat some kinds of searches and seizures as not "unreasonable" in circumstances short of the strict requirement of probable cause. One line is derived from Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). It arose from the need to stake out constitutional contours for street encounters between police officers and persons who for some reason aroused an officer's suspicion without giving rise to probable cause for an arrest. In this context, the Court declined to find a violation of the fourth amendment in a brief detention at the site of the encounter accompanied by a limited pat-down for weapons if the officer reasonably suspects the person to be armed. While these original decisions focused on the legality of the search rather than the initial stop, they were understood to imply that the stop and temporary detention themselves, if compelled by a show of authority, must also be based upon some reasonable grounds for suspicion and investigation. Cf. Adams v. Williams, 407 U.S. 143, 145-146, 92 S. Ct. 1921, 1922, 32 L. Ed. 2d 612 (1972). The Terry rationale for reasonable police conduct in brief, unplanned, individualized encounters under circumstances raising a suspicion of criminal conduct does not reach systematic, general or random stops for investigation. Nothing in Terry or the cases that follow it gives any credibility to the notion that without any grounds of suspicion persons can be stopped and questioned in order to discover whether they have committed a past criminal offense, if only the stop and questioning is conducted at a "checkpoint." Yet that is what the majority countenances in this case. Contemporaneously with Terry v. Ohio, supra, another line of decisions began to reduce the strict requirements of probable cause for so-called administrative or "regulatory" inquiries. These began with the requirements for obtaining access to premises for housing code and safety inspections of conditions on the premises. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967); Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978). A variation dealt with regulatory agency inspections of certain intensively regulated businesses such as dealers in liquor, Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), and firearms, United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972). Insofar as we deal here with the seizure of a person rather than with premises, we do not face the question of search warrants at issue in those cases. Rather, their relevance for understanding the later vehicle cases lies in the importance the Supreme Court attached, first, to the difference between regulatory and penal objectives of the inquiry and second, to the nondiscretionary, statutory and administrative regularity of the inspection procedure. *439 These two themes were prominent in Camara, in which the Court required that "reasonable legislative or administrative standards for conducting an area inspection are satisfied," after taking pains to state that the administrative inspections were needed for preventive purposes and disclaiming any change in the fourth amendment standard for investigations of crime. 387 U.S. 535, 537-538, 87 S. Ct. 1734, 1735. They were reaffirmed as recently as Marshall v. Barlow's, Inc., supra, when the Court spoke of probable cause, not "in the criminal law sense," but in the sense of adherence to the "reasonable legislative or administrative standards" demanded in Camara. 436 U.S. at 320, 98 S. Ct. at 1824. The Court's distinction again made it clear, if it needed to be made clear, that this reduced standard of probable cause under the fourth amendment referred to legislatively authorized and carefully circumscribed programs of administrative inquiry into existing conditions for the purpose of correcting the condition itself. It would not allow either an agency or a magistrate to authorize dragnet methods of unconsented searches or seizures to discover, for example, whether anyone in the targeted area or population had stolen property, or used marijuana, or engaged in prostitution. Without that distinction between preventive or corrective administration and "catching criminals"-law enforcement in the "criminal law sense"-nothing would remain of the need for individualized grounds for suspicion that the Supreme Court has maintained from Terry v. Ohio, supra, to this year's Reid v. Georgia, ___ U.S. ___, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980), whenever the dragnet is systematic enough. Of course the Supreme Court has held no such thing. But there is serious reason for concern when a majority of this court can believe that the Supreme Court's analysis of regulatory inspections extends to such criminal law enforcement. The majority appears to believe that the Supreme Court's distinction applies only to searches. There is no basis for this. The same fourth amendment refers to "searches and seizures" in a single, consecutive phrase. The differences between entering stationary premises and stopping a moving person, in or outside a vehicle, are relevant to the reasonableness of proceeding without a prior warrant. That is not at issue here. And insofar as a brief stop and inquiry is less "intrusive" (in the Court's current word) than an entry or a search, the factual basis that can constitute "probable cause" may be less. But the majority confuses these differences with the distinction between regulatory and penal law enforcement. By denying that the distinction applies to stops, it holds in effect that ordinary criminal investigation may "seize" a person without any individualized grounds whatever, as long as this is done at a stationary "checkpoint." Neither United States v. Martinez-Fuerte nor Delaware v. Prouse lends support to that conclusion. Contrary to the majority's assumption, these as well as earlier decisions apply the theory of regulatory inspections in contexts other than the search of premises. The Border Patrol cases emerged from the longstanding practices of immigration officials (like those of customs officials) in preventing the unlawful entry of persons or goods into the United States. These practices created problems requiring resolution by the Supreme Court when they moved from the border or port of entry to locations well within the United States. But their aim and their constitutional justification remain what they are at the border: the actual exclusion or expulsion of the unlawful entrant or goods. Cf. United States v. Ramsey, 431 U.S. 606, 97 S. Ct. 1972, 52 L. Ed. 2d 617 (1977) (sustaining authority to search letter from abroad reasonably suspected to contain contraband). If the object of a stop were not the discovery and expulsion of unlawful entrants or goods themselves but, rather, the discovery of evidence of past smuggling operations simply for purposes of criminal prosecution, the stop could not be justified under the Border Patrol cases even if it were conducted at a permanent "checkpoint." *440 The same is true of the checks for driver's licenses and vehicle registrations in Delaware v. Prouse. Possession of a valid license and vehicle registration are a state's regulatory requirements for driving on the public highways. They are checked in order to determine whether the vehicle and driver are qualified to be on the road then and there, much like inspections of safety equipment such as lights or brakes. If the object were to inquire into past offenses for possible prosecution-whether a driver previously had driven a car before the effective date of her license or while its headlights were inoperative, let alone whether she had bought gasoline with an invalid credit card or shot a doe-then the stop would not be saved by being conducted at a stationary checkpoint. In sum, the majority is misled by its preoccupation with the stationary or mobile character of the police officer's checkpoint into disregarding the context in which the Supreme Court has made that a relevant question. It became relevant in the context of the administrative inspection of drivers and vehicles for regulatory purposes. Besides the administration of customs and immigration regulations and vehicle and drivers' license laws, these include such familiar examples as obligatory stops at truck weight scales or agricultural inspections. Cf. Stephenson v. Department of Agriculture & Consumer Services, 342 So. 2d 60 (Fla. 1976), appeal dismissed 434 U.S. 803, 98 S. Ct. 32, 54 L. Ed. 2d 61, reh. den. 434 U.S. 960, 98 S. Ct. 493, 54 L. Ed. 2d 321 (1977). It is not relevant to law enforcement stops which are made on individualized probable cause (even when reduced to reasonable suspicion) to suspect a person of an offense. Such stops may be made on the move as much as at stationary checkpoints, as the Terry v. Ohio line of cases shows. If the law were as the majority conceives it, the way to stop and investigate air travelers for possible drug offenses, as in Reid v. Georgia, supra, would be simply to set up a stationary checkpoint at airport exits. But this obviously is a very different thing from the preventive checkpoints administered at boarding points in order to exclude dangerous persons or items from the airplane. The distinction between preventive or corrective administration and criminal investigation thus is the first step in the analysis, before a question of characterizing the "checkpoint" arises. The Supreme Court has not confined the distinction to the inspection of buildings, as the majority thinks, and there would be little sense in that. Housing and business premises are checked for unsafe conditions in order to correct them; so are trucks and automobiles, airplanes, or vessels, as well as the qualifications of their operators; and the object of border searches for unlawful entrants or contraband is to exclude them. It is not primarily to inflict punishment for harm already done. Although violations may carry potential criminal penalties, the compelled inspection is "administrative" or "regulatory" only when these possible penal consequences are incidental and secondary to a program designed to prevent or correct the harmful condition itself. The Border Patrol cases and Delaware v. Prouse have correctly been categorized as regulatory inspection cases. Chapter 10 of Professor LaFave's Treatise on Search and Seizure is entitled: "Inspections and Regulatory Searches." Section 10.5 begins: "The concern in this section is with yet another variety of administrative searches, the so-called border search." 3 LaFave, Search and Seizure 275. Likewise the treatise places Delaware v. Prouse under the administration of "Vehicle Use Regulations," as distinguished from roadblocks for criminal investigation, which are analyzed in conjunction with Terry v. Ohio and its progeny in chapter 9. 3 LaFave, Search and Seizure 140-141, (1978 and Supp. 27-34, 1980).[2] The majority believes that it can escape the burdens of rigorous analysis by simply *441 invoking the magic term "balancing." The "balancing" that follows may perhaps say something about the adequacy of that contemporary formula as a guide to courts that are called upon to translate constitutional law into operational rules. The majority's "balancing" is perfunctory, compressed into two brief paragraphs. The first states that a great many people buy hunting and fishing licenses in this state, that much of the state consists of public land, and that game law enforcement is a difficult task. The paragraph continues that the time and location of the stop was "where hunting activity was to be expected" and thus a method likely to be effective "to meet its goals." The second paragraph concedes that the stop was not shown to be governed by any regulations or policies other than the officer's own discretion but disregards this because the roadblock stopped or slowed every motorist "sufficiently for the policeman to make a decision as to whether a further inquiry was called for." These brief propositions then lead the majority without more to "conclude that the governmental interest in the enforcement of laws for the preservation of wildlife in this state is sufficiently substantial to justify the minimal intrusion upon the fourth amendment rights of those stopped for brief questioning and a visual inspection of their vehicles." With regret, I must say that this treatment trivializes the grave task of deciding the constitutional rights of men and women in this state. First, the majority endorses the effectiveness of the "method" to "meet its goals" without describing the "goals." The record shows that the officer was not engaged in conservation activities, checking licenses or advising potential hunters on their way into hunting areas. He was checking for completed violations of the law, that is to say, for criminal offenses. Of course the ultimate "goal" of many criminal laws is to deter commission of the offense, but that simply puts this case with all other criminal law enforcement stops. Catching offenders for prosecution is not the same kind of goal as excluding or expelling aliens or preserving wildlife while it is still alive. Second, if the court's "balancing" formula applied to criminal law enforcement stops without individualized grounds, which I deny, the majority offers no evidence that bears either on the nature or magnitude of the harm the roadblock method is supposed to prevent or on its asserted effectiveness. Surely, if the court paid its own formula the respect of taking it seriously, one would expect some attempt to discuss the relevance of the cited number of hunting licenses. How many purchasers of these licenses kill game illegally? Is much of the state's enforcement effort directed at hunting which is illegal only for failure to buy a license, i.e. to a financial concern? What is the magnitude of losses of game from unlawful hunting in relation to the total stock? Similarly, how many persons are "seized" by police officers in pursuit of game law violations? How many of these stops produce proof of a violation? A deep and obvious gap in the majority's unsupported assumption of "effectiveness" is that the opinion does not explain what an inquiring officer can do if a person not otherwise under suspicion declines to answer the officer's question, or responds that he has shot nothing and drives on. The court does not say that the officer may insist on looking into the trunk or back end of a closed vehicle, and for good reason, since that is a search. Nor does the opinion explain how his mere question is so effective as to justify the stop, since such an evaluation must assume a citizen who acts on his rights, not the effectiveness of counting on the citizen's ignorance. Obviously evidence bearing on these matters would be crucial if the majority's "balancing" were more than the prescribed label for the conclusion itself. But the majority does not believe that the Supreme Court's "balancing" formula really requires attention to such questions. The opinion offers no evidence concerning them, and there is none in the record. The easiest and most common fallacy in "balancing" is to place on one side the entire, *442 cumulated "interest" represented by the state's policy and compare it with one individual's interest in freedom from the specific intrusion on the other side, as the majority does here. What balance is likely to be struck between the momentary inconvenience of one person stopped to answer a question and the protection of thousands of the public's deer? Yet it is plain that to "balance" one person's rights with cumulated majoritarian interests in this fashion flies in the face of the premise of constitutionally guaranteed individual rights against the state. The semantic "balance" looks different when it matches the freedom of thousands of citizens from being stopped and questioned by police officers against the chance that one or a few will admit to a hunting or fishing violation. Third, the majority's approach is unworkable because it purports to strike the "balance" ad hoc, limited to the particular police stop on the date and at the location in this case. It does not and cannot provide rules for the legality of police stops at other locations and different times. Would a "game checkpoint" be legal on a highway leading into a town from a hunting area, or on a day toward the end of the season (or out of season)? But the purpose of legal rules, and particularly constitutional rules, is to govern official conduct toward the vast majority of citizens against whom no evidence is obtained, not to provide a defense for the few who end up in court. This again shows that the majority has misunderstood the Supreme Court's use of "balancing" in testing systems of administrative inquiry, not individual police roadblocks. At bottom, the majority's "balancing" is perfunctory because it simply attaches no weight to the "seizure" represented by a roadblock stop and questioning. But on its own terms, that view proves too much. If that method may be used to stop persons without individualized grounds to suspect them of violating the game laws, why not for investigation of more serious criminal offenses, for instance under the drug laws? Surely not because the state's interest is less. Again, the majority's fallacy lies in its refusal to distinguish between criminal law enforcement, as in this case, and the Supreme Court's fourth amendment analysis of systematic regulatory programs. I therefore return to that analysis. The Supreme Court's acceptance or rejection of relaxed standards for unconsented entries, stops, or inspections in true administrative programs has emphasized a particular concern and its corresponding safeguards. The concern is that the decision whether, how, and whom to investigate not be left to the discretion of the officer in the field. The corresponding safeguards, beyond the requirement of legislative prescription of the program, are administrative regularity in its execution or prior approval by a magistrate. The Supreme Court's approach does not assume that officers are empowered in the pursuit of their duties to conduct any search or seizure not forbidden by the fourth amendment. To the contrary, its examination of the various business inspection programs, the Border Patrol stops of automobiles, and the mail search in United States v. Ramsey, supra, scrutinizes the statutory authorization of the officers' actions preliminary to reaching a constitutional issue, though the statutory authority of course cannot exceed constitutional bounds.[3] Thus, in Colonnade Catering Corp., supra, the Court ordered suppression *443 of evidence seized by an unconsented search because the officers lacked statutory authority, even though their actions, if authorized, would not have violated the fourth amendment. The mere fact of statutory authorization is not enough. The question is whether the law or deliberate agency policies promulgated under it give reasonable direction and limits to the investigatory power or leave that power at large in the hands of individual officers. Thus the Supreme Court wrote in explanation of a warrant requirement in Camara v. Municipal Court: 387 U.S. at 532, 87 S. Ct. at 1732. With the occupant's right to demand a warrant, "the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field." See City of Seattle, 387 U.S. at 545, 87 S. Ct. at 1740. In United States v. Ortiz, supra, the Court was "not persuaded that the checkpoint limits to any meaningful extent the officer's discretion to select cars for search.... This degree of discretion to search private automobiles is not consistent with the Fourth Amendment." 422 U.S. at 896, 95 S. Ct. at 2588. By contrast, in United States v. Martinez-Fuerte, the Court noted that "[t]he location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources," and that this discretion of Border Patrol officials would be exercised in accordance with applicable statutes and regulations. 428 U.S. at 559 and n. 13, 96 S. Ct. at 3083 and n. 13. And most recently, in Delaware v. Prouse: The Court continued: Delaware v. Prouse, 440 U.S. at 661-662, 99 S. Ct. at 1400. The Court went on to suggest that a state could develop other methods to check vehicles or drivers, possibly including stops at roadblocks, "that do not involve the unconstrained exercise of discretion." 440 U.S. at 663, 99 S. Ct. at 1401. Again, it must be remembered that the state's concern in the Delaware case was to police the qualifications of vehicles and drivers to be on the road at all, not with the occupants' prior or current compliance with unrelated laws, just as in the border search cases the concern was with the exclusion or expulsion of persons or goods whose very presence was the condition to be prevented or corrected, not with dragnet stops to discover *444 perpetrators of previously committed or unrelated crimes.[4] It may be questioned why it should matter whether a person is subjected to a temporary detention, inquisition, or search in pursuit of a systematic program promulgated by responsible agency officials or at the discretion of individual law enforcement officers in the field. This may, indeed, seem immaterial when such an action is viewed only from the perspective of the single individual ensnared in one particular instance. It is, however, an important element of the exception under which this and similar stops without any particularized suspicion are sought to be justified. The guarantees of the fourth amendment and Oregon's article I, section 9, have a broad role as institutional and procedural safeguards in shaping the conduct of governmental officers before the fact, of which their role as a shield for the defendants prosecuted on illegally seized evidence is only the consequence. See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 367-369, 416-417 (1974); Bacigal, Some Observations and Proposals on the Nature of the Fourth Amendment, 46 Geo.Wash.L.Rev. 529 (1978). The security and freedom from unwarranted official impositions that the search and seizure clauses guarantee is that of "the people," of men and women going about their everyday business, not only or primarily the interests of criminal suspects. Thus officers may undertake "searches" or "seizures" without consent only upon "probable cause" in some form, either found to be so in advance by a magistrate or, if urgency makes this impossible, then such as a magistrate properly would approve if presented to him. Any kind of unconsented inspection without individual probable cause represents an exception to the general rule. The exception for so-called "administrative" or "regulatory" entries or stops for inspection without any grounds for individualized suspicion depends on the premise that the particular practice is indispensable in order to prevent or correct a specified harmful condition, and that "probable cause" for expecting to find instances of that condition by systematic means exists in the mass when probable cause does not exist with respect to any single instance. Unless this premise fits the challenged action, the exception for a "generalized" form of probable cause developed in the line of decisions from Camara v. Municipal Court to Delaware v. Prouse does not apply. Thus it is in the nature of this exception that both of its aspects depend upon a generalized or program-wide assessment. To the extent that the Supreme Court's fourth amendment rule calls for the state's assertion of an exceptionally important public interest in the preventive or corrective administration of the program, this assessment necessarily belongs in the first instance to the responsible legislative and executive officials, not the individual officer. The same is true of assessing the probability that a proposed form of systematic inspection will produce a significant percentage of instances of the condition to be prevented or corrected, and that it is essential in order to accomplish this purpose. Again, these are judgments that can only be made on a program-wide basis, not ad hoc by field officers. And only legislative or agency-wide rules or a magistrate's warrant can confine the purposes, times, places, manner, and targets of "administrative" inspections to those justified by the foregoing assessment. By contrast, when an unconsented entry or stop and investigation is undertaken by an officer against a person and in a place, time, or manner selected in his own discretion, though in the best of faith, it is indistinguishable from the stops without any articulable basis for individualized suspicion that remain forbidden to law enforcement *445 officers even under Terry v. Ohio, supra.[5] The foregoing describes relevant parts of the fourth amendment framework within which the Oregon law governing this case must be examined. It is evident that the question is not whether one or another kind of stop or search may be made under a state's "game laws" any more than, for instance, under its "drug laws" or its "traffic laws." Instead, the initial inquiry must be into the source and purpose of the authorization for the investigatory action, the standards prescribed to confine discretion in administering this authority, the level of official accountability at which discretion is exercised, and the degree of ad hoc improvisation or compliance with a prescribed, systematic program that led the officer to take the challenged action. When evidence for a prosecution is discovered as a result of a warrantless seizure, a motion to suppress calls upon the prosecution to show that the seizure was lawful or that the evidence would have been discovered irrespective of the seizure. ORS 133.673-ORS 133.693.[6]Cf. State v. Warner, 284 Or. 147, 160-161, 585 P.2d 681 (1978); State v. Groda, 285 Or. 321, 331, 591 P.2d 1354 (1979) (concurring opinion); cf. State v. Wilson, 31 Or. App. 783, 787, 571 P.2d 554 (1977); State v. Downes, 19 Or. App. 401, 404-405, 528 P.2d 110 (1974). Since the state here does not make the latter claim, it must demonstrate the lawfulness of Miss Tourtillott's initial stop, or "seizure," by the state police officer. The record contains very little that would show whether this stop was conducted under the kind of administrative program and constraints outlined above. This is not surprising in a local prosecution of a traffic offense, given the novel and unsettled character of the issues, but it confines the state's case within the limitations of this record and of judicial notice. Cf. State v. *446 Warner, supra, 284 Or. at 159, 161, 585 P.2d 681. The only witness called for the state was the arresting police officer. He testified that he was manning a "game check station" that had been established on a rural highway by placing in the middle of the road a yellow sign with the message "Attention hunters ... all vehicles must stop." His purpose was to "check hunters" for "anything basically to do with hunting violations." He testified that besides himself, there was a fish and wildlife department employee nearby who was there "to gather statistics, to see the hunters' success." Miss Tourtillott obeyed the instruction on the sign. The officer then asked for her driver's license, and she admitted that her license was suspended. This record falls far short of explaining the salient characteristics that might give legal validity to operating a "game check station." It does not elucidate under whose direction the officer was acting, who made the determination that a game check station should be established at that time and place, or perhaps at a number of places, and for how long, nor the scope or limits of the assignment given those who were to conduct the check. To the extent that one may draw any inferences from the brief testimony, they seem to be that the checkpoint was temporary and mobile, and that its location, duration, and manner of operation were left to the personnel in the field. From the officer's statements that he was looking for hunting "violations" and the nearby agency employee was collecting statistics of the hunters' "success," it may also be possible to infer that the check was directed at persons who appeared to have been hunting rather than at those who appeared about to go hunting.[7] It is difficult to treat a generalized stop of hunters on the way out of the woods or fields in order to check for poaching or other game law violations as an "administrative" stop for preventive rather than criminal law enforcement purposes, since it comes too late to save the game. The inspections under the housing code in Camara, the immigration checkpoints in Martinez-Fuerte, and the license and registration checks in Delaware v. Prouse would be somewhat more plausible analogies for a program directed at checking the hunting licenses of persons apparently headed toward hunting areas than of those leaving them.[8] The parties invoke different statutory law as governing the stop in this case. Defendant relies on ORS 131.615, which provides: The state concedes that if this statute applies, the officer did not have reasonable suspicion that defendant had committed any offense when he stopped her car. However, the state contends that the requirements of ORS 131.615 do not apply to "checkpoint stops" authorized under another law, and it claims that authority to operate "game violation checkpoints" may be inferred from the wildlife laws, ORS chapter 496. To this, defendant responds that even if such a source of authority might theoretically exist, the state has not shown that the officer acted under a properly authorized *447 program for "administrative" purposes and including the requisite safeguards, and that therefore the stop to inquire into possible hunting "violations" must be tested under ORS 131.615. On the record before us, defendant's argument should prevail. ORS 131.615, supra, is written in terms of authorization. It does not purport to govern all possible stops to the exclusion of any other authorization. It does, however, govern those stops in which the intended inquiry concerns a suspected criminal offense and which cannot be shown to rest on another authorization. The statutes cited by the state for such an alternative authorization, ORS 496.645, 496.660, and 496.675, do not help it here.[9] These sections deal with warrantless arrests, searches, and seizures directed against suspected violators of the wildlife laws and, to be constitutional, necessarily require compliance with the standards governing such law enforcement actions. But the present defendant was not arrested or searched on suspicion of having violated the law. The officer expressly disclaimed any such suspicion. This does not mean that the agency responsible for the management of wildlife in this state, the State Department of Fish and Wildlife, ORS 496.080, may not be authorized to develop and operate a properly designed system of administrative checks on the licensed and regulated activities of hunting and fishing for wildlife.[10] ORS 496.138 assigns to the State Fish and Wildlife Commission the authority to formulate the necessary policies and programs, including rules made under the Oregon Administrative Procedure Act.[11] And the department may enforce its rules by the use of peace officers and state police officers as well as its own personnel. ORS 496.605-ORS 496.615. Of course this authority and any rules or enforcement procedures adopted *448 under it must remain, in the words of article I, section 9, a "law" that does not "violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." On the record before us, it does not appear that the Department has adopted any administrative system of checkpoints for the purposes of wildlife management, or that the present stop was made pursuant to such a systematic program. Nor does examination of the Oregon Administrative Rules promulgated under ORS chapter 496 disclose any administrative program or policy of which we might take judicial notice. Thus we have here no occasion to test a departmental program of "game check points" against article I, section 9, or the 4th amendment, nor to determine whether the particular program is one that would require the prior approval of a magistrate. The short of it is that this stop was not based on the department's exercise of administrative authority under ORS chapter 496 and therefore cannot be justified as such. To the contrary, it appears from this record that the stop was made at the discretion of an officer in the field, in order to discover possible violators of the wildlife laws after the fact with a view to criminal prosecution. This does not differ from other law enforcement stops merely because the laws being enforced concern illegal hunting rather than another illegal activity. Unlike an "administrative" stop, such a law enforcement stop, if short of cause for an arrest, is governed by ORS 131.615. In summary, the state has not demonstrated that defendant was stopped pursuant to a properly authorized administrative program designed for preventive or wildlife management purposes and including the necessary safeguards described in this opinion. Nor was the stop in this case authorized by ORS 131.615 as a law enforcement stop on reasonable suspicion of crime. Since the stop itself was not shown to have been lawful, there is no need to consider defendant's further argument that a stop which might be properly made for the administration of the game laws cannot be used for an inquiry into the driver's licensing laws. Under ORS 133.683, supra, once the stop itself was unjustified, the subsequently discovered evidence of defendant's traffic offense should have been suppressed. DENECKE, C.J., and LENT, J., join in this dissenting opinion. [1] "Except as provided in subsection (2) of ORS 484.735, it shall be unlawful for any person to operate a motor vehicle in this state while the order of the court prohibiting such operation remains in effect. A person who violates this section commits a Class C felony." ORS 484.740. [2] ORS 496.610 provides: "(1) The Department of State Police shall employ a sufficient number of state police to enforce the wildlife laws. "(2) The services and expenses of the Department of State Police incurred in the enforcement of the wildlife laws shall be paid from the State Wildlife Fund. "(3) The members of the state police assigned to enforce the wildlife laws shall be selected from names suggested by the commission. If the commission fails to submit sufficient qualified nominees for such positions, the Department of State Police shall make its own selections." [3] Or.Const., Art. I, § 9: "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." Fourth Amendment, U.S. Constitution: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [4] The defendant has not contended that her stop, if not prohibited by ORS 131.615, was otherwise unauthorized by statute or by rule. We need not determine in this case, therefore, whether the absence of a statute or rule specifically authorizing game checkpoint stops prohibits their use. State v. Skinner, 254 Or. 447, 448-449, 461 P.2d 62 (1969). [5] A "stop" is a seizure within the meaning of the Fourth Amendment. U.S. v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S. Ct. 3074, 3082, 49 L. Ed. 2d 1116 (1976); Terry v. Ohio, 392 U.S. 1, 16-17, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 829 (1968); State v. Tucker, 286 Or. 485, 592, 595 P.2d 1364 (1979). [6] The "stop and frisk" provisions first appeared in the November 1971 draft. [7] See also Platt, A Legislative Statement of Warrantless Search Law, 52 Or.L.Rev. 139 (1973). [8] The commentary to the final draft of the Proposed Oregon Criminal Procedure Code does not indicate a contrary intent. The commentary to section 31 of the draft indicates that the Commission intended to codify the "stop and frisk" law in accord with decisions of the Supreme Courts of the United States and Oregon: "Subsection (1) proposes a codification of the peace officer's ability to stop a person as close to the Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 10 L. Ed. 2d 889 (1968)] and [State v.] Cloman, [254 Or. 1, 456 P.2d 67 (1969)] rationale as possible while giving the courts leeway to interpret the protean situations that arise and giving the officer limited `stopping' powers." In State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977), we stated that "[a]n officer's authority to stop and interrogate a person concerning his possible commission of a crime is covered by ORS 131.615 * * *." Neither Valdez nor Cloman involved a roadblock stop in which all vehicles were stopped absent suspicion that any one car contained evidence of the commission of a crime. In Cloman we specifically noted that we were "not passing upon the right to stop and examine the driver's operating license or the right to stop at a general roadblock." 254 Or. at 6, n. 2, 456 P.2d 67. The question whether the legislature intended to preclude roadblock stops by enacting ORS 131.615 was not before us in those cases. [9] 33 Oregon Wildlife No. 5, page 3 (May, 1978) (published by the Oregon State Department of Fish and Wildlife). [10] The 1978 estimated population was 2,472,000 people. Oregon Blue Book 1979-80, p. 6 (published by Secretary of State Norma Paulus). [11] Id. at 7. [12] Id. at 6, 197-198. [13] On the facts of this case, we need not consider whether a game checkpoint located in a metropolitan area might be overly intrusive with respect to "legitimate traffic." See United States v. Martinez-Fuerte, 428 U.S. at 559, 96 S. Ct. at 3083; United States v. Brignoni-Ponce, 422 U.S. at 883, 95 S. Ct. at 2581. This checkpoint clearly was not overly intrusive with respect to legitimate automobile traffic in the area. [14] This holding is consistent with the result in the only other recent game checkpoint case which has been decided by the highest court of any state. In State v. Halverson, S.D., 277 N.W.2d 723 (1979), the Supreme Court of South Dakota held that a game checkpoint stop did not violate a defendant's Fourth Amendment rights. In Halverson, the defendant was stopped at a roadblock maintained by a state police trooper and four employees of the South Dakota Department of Game, Fish and Parks. Approaching vehicles were stopped by the flashing red lights on the trooper's vehicle, and four other state-owned vehicles were parked at the site. The defendant claimed that evidence of his driving while revoked should be suppressed because it was discovered when he was unconstitutionally forced to stop at the game checkpoint. The court concluded that under United States v. Martinez-Fuerte there was no constitutional violation. Applying the balancing of interests analysis, the court stated: "* * * The intrusion into the right of the nonhunter to the uninterrupted use of the highways is slight and greatly outweighed by the public interest in the management and conservation of wildlife in this state. "* * *. "We hold that the game check stop did not violate defendant's right against unreasonable seizure. The intrusion was reasonable." 277 N.W.2d at 725. [15] Three leading cases in this area, Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967), and Marshall v. Barlow's Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), all involved warrantless searches, of premises. See below, page 432. [16] See v. City of Seattle, supra, 387 U.S. n. 15 at 546, 87 S.Ct. n. 15 at 1741. [17] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). [18] The dissent views the Border Patrol cases and Prouse as mere extensions of the Camara line of administrative search cases, only applied to motor vehicles. An analysis of the Border Patrol cases indicates that the Justices did not see (or at least did not state) that the cases were mere extensions of Camara. [19] The dissent does not go so far as to require a warrant. But the cases relied upon (Camara, See, and Marshall) do. [20] "Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. * * *" Camara, supra, 387 U.S. at 539, 87 S. Ct. at 1736. [21] The defendant relies on United States v. Martinez-Fuerte, supra, 428 U.S. n. 5 at 566-567, 96 S.Ct. n. 5 at 3086, and United States v. Brignoni-Ponce, supra, 422 U.S. n. 13 at 881, 95 S.Ct. n. 13 at 2580, and ORS 131.615. We reject the defendant's contention that the request for the driver's license or identification was in violation of ORS 131.615. We have already determined that the legislature did not intend ORS 131.615 to be applied to stops based on less than reasonable suspicion of criminal activity. It necessarily follows that the officer was not bound by this statute to limit his inquiry "to the immediate circumstances which aroused the officer's suspicion." [1] "[T]he proper sequence of analysis is first, whether a particular official action is authorized by law, second, whether it contravenes the Oregon constitution, and only then whether it satisfies the fourteenth amendment; for when a state in fact protects a person's asserted rights under its law, there can be no question of violating the fourteenth amendment." State v. Greene, 285 Or. 337, 349, 591 P.2d 1362 (1979) (concurring opinion). [2] See also 1 K.C. Davis, Administrative Law Treatise 262 (2d ed. 1978), "Automobiles Near Border." The Davis treatise does not deal with criminal law enforcement. But the Border Patrol cases are administrative law. [3] "It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. But under familiar principles of constitutional adjudication, our duty is to construe the statute, if possible, in a manner consistent with the Fourth Amendment...." Almeida-Sanchez v. United States, 413 U.S. at 272, 93 S. Ct. at 2539. We recently held that a police officer must stay within his authority when he purports to enforce the wildlife laws, without regard to any constitutional violation. Dickens v. DeBolt, 288 Or. 3, 602 P.2d 246 (1979). [4] See, e.g., United States v. Brignoni-Ponce, 422 U.S. at 883 n. 8, 95 S. Ct. at 2581 n. 8. Thus the Supreme Court has also noted with respect to the "administrative" stops by the Border Patrol that these were conducted by specialized personnel not concerned with general law enforcement. [5] Professor W.R. LaFave has written about the importance of systematic rather than ad hoc rules under the fourth amendment: "... Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be `literally impossible of application by the officer in the field.' "If the rules are impossible of application by the police, the result may be the sustaining of motions to suppress on Fourth Amendment grounds with some regularity, but this can hardly be taken as proof that `the people' are `secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Rather, that security can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.... "[A contrary effect can be avoided only] if certain search and seizure rules are expressed in terms of `standardized procedures' or a `set routine,' that is, if there are some rules which `will be applied to all cases of [a certain] type, regardless of particular factual variations,' in lieu of more sophisticated but less precise rules requiring ad hoc decision making by both police and courts. Such an approach seems particularly appropriate for those forms of police action which involve relatively minor intrusions into privacy, occur with great frequency, and virtually defy on-the-spot rationalization on the basis of the unique facts of the individual case." LaFave, "Case-by-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 S.Ct.Rev. 127, 141-143. [6] ORS 133.673 provides that objections to the evidentiary use of illegally seized "things" shall be made by motion to suppress in advance of trial. ORS 133.693(4) provides that on a motion to suppress "evidence seized as the result of a warrantless search," the prosecution has the burden to prove the validity of the search. ORS 133.683 extends suppression to evidence discovered as a result of a search or seizure that would lead to the suppression of "things," unless the prosecution shows that it would have discovered the evidence anyway. When a warrantless seizure results in the discovery of nonphysical evidence that would not otherwise have been discovered, the prosecution burden to justify the initial seizure follows from the combination of ORS 133.683 and 133.693(4). [7] The officer testified that some cars whose occupants plainly seemed not to be hunters were waved on without inquiry. [8] We need not in this case decide whether gathering fish or game statistics alone could be a sufficient reason to conduct a general checkpoint stop of vehicles under a properly confined program. An agency employee engaged in that function might not turn his attention from game statistics to the enforcement of the traffic laws or the search for persons to be served with unrelated warrants or summonses, as the police officer did in this case. Cf. note 4, supra. [9] ORS 496.645: "Any person authorized to enforce the wildlife laws may, without warrant, arrest any person violating any of the wildlife laws, and take the person before any court having jurisdiction of the offense. The court shall proceed without delay to hear, try and determine the matter and enter judgment according to allegations and proofs." ORS 496.660: "(1) Any person mentioned in ORS 496.645 may search any person, and examine any boat, automobile, aircraft, conveyance, vehicle, game bag, game coat or other receptacle for wildlife, or cold storage rooms, warehouses, taverns, boarding houses, restaurants, club rooms, outhouses, saloons, depots, hotels and all other places, except private dwelling houses, wherein wildlife may be kept or sold, and examine all packages and boxes held either for storage or shipment which they have reason to believe contain evidence of violations of the wildlife laws. "(2) Any hindrance or interference to such search is prima facie evidence of a violation of law by parties who hindered or interfered, or attempted to hinder or interfere, in the search or examination. "(3) If upon diligent search or inquiry or both, the person can discover evidence sufficient in his judgment to secure a conviction, or if the person has cause to believe he has sufficient evidence to justify it, he shall at once institute proceedings against the alleged offenders." ORS 496.675: "The persons mentioned in ORS 496.645 may at any time, without warrant, seize and take possession of: "(1) Any wildlife which as been caught, taken or killed, or had in possession or under control, which have been killed, had in possession or shipped, at any time, in any manner or for any purpose contrary to the wildlife laws. "(2) Any guns, boats, fishing or other apparatus used for the purpose of hunting or fishing, at any time, in any manner or for any purpose contrary to the wildlife laws." [10] ORS 496.004 defines wildlife: "(12) `Wildlife' means game fish, wild birds, amphibians, reptiles and wild mammals except whales and porpoises." The department includes the State Fish and Wildlife Commission, the State Fish and Wildlife Director, and other necessary personnel. ORS 496.080. [11] ORS 496.138: "(1) The commission has the authority to formulate and implement the policies and programs of this state for the management of wildlife, and may perform all acts necessary to administer and carry out the provisions of the wildlife laws. "(2) In accordance with any applicable provision of ORS 183.310 to 183.500, the commission may promulgate rules to carry out the provisions of the wildlife laws."

d6a4dd9f313431ddf74e79499826bb09b235ebfe904b46b5e5ec0fbcf23db608

1980-10-21T00:00:00Z

80c223f4-9afd-43a6-8d02-804a1321f616

Perez v. State Farm Mut. Auto. Ins. Co.

289 Or. 295, 613 P.2d 32

oregon

Oregon Supreme Court

613 P.2d 32 (1980) 289 Or. 295 Casimiro O. PEREZ, Personal Representative of the Estate of Hermelinda Loera, Deceased, Petitioner, v. STATE FARM Mutual Automobile Insurance Company, a Corporation, Respondent. No. 78 11 349; CA 13300; SC 26506. Supreme Court of Oregon. Argued and Submitted March 3, 1980. Decided June 24, 1980. *33 Glenn D. Ramirez, Klamath Falls, argued the cause for petitioner. On the briefs were Glenn D. Ramirez, Klamath Falls, and Grant V. Mumpower, Portland. Jay D. Enloe, Portland, argued the cause for respondent. On the brief were Jay D. Enloe, and Vergeer, Roehr & Sweek, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ. PETERSON, Justice. The sole issue in this case is whether the no-fault personal injury protection coverage in a motor vehicle insurance policy written to meet the requirements of ORS 743.800 includes loss of income benefits to the personal representative of a covered person who was killed in an accident. The trial court held that no such benefits were payable and entered summary judgment for the defendant. The Court of Appeals affirmed, 43 Or. App. 19, 602 P.2d 284 (1979), and we granted the claimant's petition for review. Plaintiff's decedent was a pedestrian who was killed instantly when hit by a car driven by defendant's insured. The motor vehicle policy issued by defendant included an agreement to pay various benefits to pedestrians injured by being struck by the insured vehicle, including funeral expenses and: Defendant paid plaintiff's claim for funeral expense benefits, but denied her additional claim for loss of income benefits under the quoted portion of the policy. The coverage at issue was required to be a part of defendant's policy by ORS 743.800, which provides in part: ORS 743.805(1)(b) provides that benefits payable under ORS 743.800(3) The phrase "injured person" and the term "disability" are not defined in either the statute or the defendant's policy. Although plaintiff relies on the terms of the policy, she does not point to anything in its language suggesting that the coverage provided was different from the minimum required by statute. Although the arrangement of the policy provisions varies slightly from that of the statute, the dispositive language is virtually identical. We find no indication of an intention to provide broader coverage than the statute requires. As did the Court of Appeals, we therefore approach the issue as a problem of statutory construction.[2] The lost income benefits which plaintiff seeks are characterized in the first paragraph of ORS 743.800 as "disability benefits." In construing a statute, words of common usage are to be given their natural, plain and obvious meaning. Blalock v. City of Portland, 206 Or. 74, 80, 291 P.2d 218 (1955). The term "disability," as ordinarily and usually defined, involves the inability of a person to perform activities regularly performed by such person by reason of weakness or incapacity, or the want of competent power, strength or physical ability.[3] The word "disability" is not ordinarily used to describe death, although death is undeniably the ultimate disability. Subsection (3) of ORS 743.800 requires that benefits be paid for loss of income from work "during the period of disability" *35 and provides that the disability period ends "on the date the injured person is able to return to the person's usual occupation." From these provisions it appears that the legislature used "disability" to mean inability, while living, to perform one's usual work. Nothing in subsection (3) suggests a legislative intent that loss of income benefits must be provided to the estate of an accident victim whose inability to work at his or her usual occupation arises from the death of the insured person. The obvious purpose of ORS 743.800-743.835 is to provide, promptly and without regard to fault, reimbursement for some out-of-pocket losses resulting from motor vehicle accidents. It would, of course, be possible and quite consistent with this purpose for the legislature to provide for some payment on account of lost wages to the survivors of the victim of a fatal accident. One would expect, however, that if the legislature intended to require such coverage it would have said so in clear language instead of attaching a highly unusual meaning to the undefined phrase "period of disability."[4] We decline to adopt a rule of construction to make a plain agreement ambiguous and then to construe it in favor of the insured. Jarrard v. Continental Casualty, 250 Or. 119, 127, 440 P.2d 858 (1968). The legislative history of ORS 743.800 lends no support to plaintiff's position. As originally enacted in 1971, that section contained no provision for funeral benefits. It did provide for "disability benefits." Former subsection (2), detailing those benefits, provided for their payment Provision for funeral benefits was added in 1973 because, according to the Insurance Commissioner, that provision had been inadvertently omitted from the 1971 bill. See 1973 Or. Laws ch. 551, § 1; House Judiciary Committee, Hearings on HB 2537, Minutes (April 17, 1973). During the same session the phrase "period of disability" was added to what is now subsection (3). Although the legislature's attention had been directed, by the proposed amendment adding funeral benefits, to the question of payments in the case of fatal accidents, there is no suggestion in the legislative history that the change in subsection (3) was related to that question in any way. The new language was part of a change designed to require payments from the first day of disability if the disability lasted 14 days or more. Committee Minutes, supra (April 25, 1973). Cases from other Jurisdictions have been of limited assistance because of differences in statutory language. Benton v. State Farm Mutual Automobile Ins. Co., 295 So. 2d 344 (Fla.App. 1974), and Hamrick v. State Farm Mut. Auto. Ins. Co., 270 S.C. 176, 241 S.E.2d 548 (1978), involved statutory provision for "disability benefits" in no-fault personal injury protection coverage. Both cases are consistent with our decision in that the courts held the statutes did not require the payment of lost income for periods after the death of the wage earner. See also, Griffin v. Travelers Indemnity Company, 328 So. 2d 207 (Fla.App. 1976) (policy provision for loss of income benefits "with respect to the period of disability") and Svec v. Allstate Insurance Co., 53 Ill. App.3d 1033, 369 N.E.2d 205 (1977) (policy provision covering income lost "as a result of total disability"). The court in Ricks v. Coffelt, 369 A.2d 680 (Del. 1977) reached a *36 contrary result under a statute which did not use the term "disability." Plaintiff challenges the reasoning in Hamrick v. State Farm Mut. Auto. Ins. Co., supra, which is cited and discussed in the Court of Appeals opinion. Our decision is based on the language of ORS 743.800, and we need not consider whether the Hamrick court's observations about the "concept" and the proper "function" of no-fault personal injury protection benefits were correct. The Court of Appeals correctly concluded that the statute does not require loss of income coverage unless there is a period of disability prior to death. The decision of the Court of Appeals is affirmed. [1] The relevant policy provisions are almost identical to the statute: "COVERAGE P PERSONAL INJURY PROTECTION "To pay, in accordance with Sections 743.800 to 743.835 inclusive, O.R.S. and all Acts amendatory or supplementary thereto, to or for the benefit of: "(1) the named insured and any relative who sustains bodily injury, caused by accident, in a motor vehicle accident: "(2) any other person person who sustains bodily injury, caused by accident, while occupying the insured motor vehicle or through being struck by the insured motor vehicle while he is a pedestrian, PROVIDED THE ACTUAL USE OF THE INSURED MOTOR VEHICLE IS BY THE NAMED INSURED OR HIS RESIDENT SPOUSE OR WITH THE PERMISSION OF EITHER AND IS WITHIN THE SCOPE OF SUCH PERMISSION: "(a) all reasonable medical expenses incurred for services furnished within one year from the date of accident, subject to the limit shown for the applicable coverage designation in the Schedule for each person who sustains bodily injury in any one accident; "(b) all reasonable and necessary funeral expenses incurred within one year after the date of the accident, but not to exceed $1,000 per person; "(c) if the injured person is usually engaged in a remunerative occupation, 70% of the actual loss of income from work sustained during the period of disability if the disability continues at least 14 days ending on the date the injured person is able to return to his usual occupation; subject to a limit per injured person of not to exceed $750 per month for a period of 52 weeks." (Emphasis in original.) 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. Subparagraph (c) tracks, almost word-for-word, with ORS 743.800(3) and ORS 743.805. [2] The familiar rule that ambiguities in an insurance contract will be resolved in favor of extending coverage, Shadbolt v. Farmers Insur. Exch., 275 Or. 407, 411, 551 P.2d 478 (1976), is a particular application of the general rule of construction that ambiguous terms in a written instrument will be resolved against the party that chose them. See Busto v. Manufacturers Life Ins. Co., 276 Or. 707, 713, 556 P.2d 96 (1976). It has no application when the extent of insurance coverage must be determined by construction of a statute. See 13 J. Appleman, Insurance Law and Practice 349, § 7406 (1976). [3] Ferguson v. Penn Mut. Life Ins. Co., 305 Ill. App. 537, 27 N.E.2d 548, 550 (1940); Hill v. Ins. Co., 146 Iowa 133, 124 N.W. 898 (1910). [4] See, for example, the following statutes in which the legislature has used the term "disability": 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 * * *." ORS 656.005(8)(b): "A `disabling compensable injury' is an injury which entitles the worker to compensation for disability or death." ORS 656.206(2): "When permanent total disability results from the injury * * *." ORS 656.208(1): "If the injured worker dies during the period of permanent total disability, * * *."

5ea0e884a8f7c57d1ad70e2c40c98d05931990e8a85cfccc665fa8a656a4d0c4

1980-06-24T00:00:00Z

8ff40fde-251a-43f1-8b49-f8f91353cd86

Matter of Estate of White

289 Or. 13, 609 P.2d 365

oregon

Oregon Supreme Court

609 P.2d 365 (1980) 289 Or. 13 In the matter of the Estate of Donna Mae White, Deceased. Michael Wayne Hughes, Michelle Denise Hughes and Mitchell James Hughes, by and through Douglas G. Beckman, Guardian Ad Litem, Norman Nelson and Mabel Nelson, Petitioners, v. NOEL WHITE, Personal Representative, Respondent. No. 74-101; CA 11077 and SC 26456. Supreme Court of Oregon. Argued and Submitted January 8, 1980. Decided April 8, 1980. *366 Ferris F. Boothe, of Black, Kendall, Tremaine, Boothe & Higgins, Portland, argued the cause and filed the briefs for petitioners. Gerald R. Pullen, Portland, argued the cause and filed the brief for respondent. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. DENECKE, Chief Judge. The central issue in this case is the proper construction of ORS 30.070, which provides that the personal representative of a decedent "with the approval of the court of appointment," has full power to settle an action for the decedent's wrongful death.[1] In this case the personal representative is the surviving spouse of the decedent. The parties agree that those entitled to share in the distribution of the proceeds of the wrongful death claim or its settlement were the spouse himself, the decedent's parents, and her children by a former marriage. See ORS 30.020(1) and 30.030. We will refer to the parents and children collectively as the petitioners. The surviving spouse, in his capacity as personal representative, negotiated a settlement with the alleged tortfeasor and applied to the probate court for approval, which was granted. The petitioners had received no notice that a settlement was to be submitted to the court for approval and had no opportunity to object before the court acted. The children, who had gone to live with their natural father in California after their mother's death and who were represented by counsel, were notified of the approval of the settlement within a few days. About six months later they petitioned for the appointment of a guardian ad litem who asked, on their behalf, leave to intervene and requested that the order approving the settlement be set aside. After hearing, the probate court denied that relief. Later the court held a hearing to determine the proper allocation of the proceeds of the settlement. *367 All of the petitioners participated in that hearing. Petitioners appealed; they did not contest the order of allocation, but contended the order denying the children's request to intervene and set aside the approval of the settlement, and that portion of the final order of distribution which directed that attorney fees be deducted from the proceeds before the money was apportioned among the beneficiaries were erroneous. The Court of Appeals affirmed in all respects. 41 Or. App. 439, 599 P.2d 1147 (1979). The Court of Appeals held that under the wrongful death statutes the children were not entitled to intervene as a matter of right in the proceeding for approval of the settlement. That court also held that although the probate court may have the authority to permit intervention by beneficiaries in such a proceeding, it did not abuse its discretion by failing to do so in this case considering the lapse of time between the proceeding complained of and the motion to intervene. Petitioners contend in this court that if the statute is properly construed, then intervention is a matter of right. Their position, in essence, is that the words "with the approval of the court of appointment" must be construed to require that interested persons be given notice and an opportunity to be heard because, if it is not so construed, the court's approval may be based on inadequate information or on a one-sided view of the reasonableness of the settlement. The legislature must have intended, they argue, that the court's approval be an informed approval. We have said that the personal representative, when bringing an action for the wrongful death of his decedent, acts solely for the benefit of the persons entitled to share in its proceeds. See, e.g., Christensen v. Epley, 287 Or. 539, 545, 601 P.2d 1216 (1979); Anderson, Adm. v. Clough, 191 Or. 292, 306, 230 P.2d 204 (1951). It is clear that the personal representative, in his management of a wrongful death claim, acts as a fiduciary exactly as he does in his management of the decedent's estate itself. The legislature has elsewhere authorized fiduciaries, including personal representatives, to deal extensively with the property and claims of those for whose benefit they act without prior court approval.[2] If that authority is abused, the remedy is an action by the beneficiaries against the fiduciary. The legislature could have given the personal representative a similar unfettered authority to settle wrongful death claims. It chose instead to condition that authority on prior court approval but made no provision, as it could easily have done, for notice to and participation by the beneficiaries. The Court of Appeals concluded that, although the beneficiaries have a right to be heard regarding allocation of the proceeds of a settlement, there is no basis for inferring that the legislature intended them to have a right to participate in the proceedings for approval of the settlement. We agree. ORS 30.060 provides that any person who claims to be a beneficiary of the wrongful death claim may appeal from the order of distribution of the proceeds. From this we infer that the legislature intended the beneficiaries to be made parties to the distribution proceeding. There is, however, nothing in the statutory scheme suggesting that their participation is required at the settlement stage. Petitioners have cited cases from other jurisdictions which hold or suggest that the beneficiaries of a wrongful death action are to be notified or allowed to participate when the person given control of the action by statute proposes that the action be settled. These cases were decided under statutory schemes which differ from ours, and do not persuade us that ORS 30.070 must be interpreted to require notice to the beneficiaries, and an opportunity to object, before *368 the court may approve the settlement. None of them were decided under statutes with language comparable to the express provision in ORS 30.070 that the personal representative has "full power" to settle a claim. Petitioners contend that if we construe the statute to permit court approval of the settlement on ex parte application by the personal representative, the statute will violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This contention is based on the assumption that a claim for wrongful death is "property" or an "entitlement" within the meaning of the Due Process Clause.[3] That assumption is incorrect. Actions for wrongful death are purely statutory and exist only in the form and with the limitations chosen by the legislature.[4] Our legislature has assigned this cause of action to the personal representative and directed that its management be under his control except as the statutes otherwise provide. Inherent in the statutory scheme is the requirement that the action be managed in the interest of the beneficiaries, but the legislature has chosen not to give them a role in that management. Their rights are to share in the distribution of the proceeds realized by the personal representative by prosecution of the action or by settlement, ORS 30.030, and to a remedy against the personal representative, if, in his management of the claim, he breaches his fiduciary duty. ORS 116.063(2)(b); 114.395. The legislature has not given the beneficiaries the equivalent of a property right in the unliquidated claim itself.[5] We have said above that the wrongful death statutes, by implication, require notice and opportunity for objection before the court finally determines the disposition of the proceeds of a settlement. At that time, then, the beneficiaries are entitled to notice that a settlement has been approved and they then have an opportunity, if they have grounds for objecting to the personal representative's handling of the claim, to bring those objections before the probate court when the personal representative seeks final release from liability in connection with the exercise of his fiduciary duties. See ORS 116.123. In summary, the approval of a settlement without notice to the beneficiaries does not deprive them of the rights to which they are entitled under the wrongful death statutes: the right to share in the proceeds of the action or its settlement and to have an action against the personal representative if he breaches his duties in its management. We see no constitutional obstacle to applying ORS 30.070 according to its express terms.[6] Petitioners also argue that the trial court erred in holding that the attorney fees incurred by the personal representative in preparing and settling the wrongful death action should be charged against the petitioners' share of the settlement proceeds as well as against the personal representative's share. ORS 30.030(2) provides that the expenses of prosecuting a wrongful death claim are to be paid from the proceeds. The amount *369 of the attorney fee in this case was determined under a contingent fee agreement between the personal representative and his counsel. The trial court heard uncontradicted evidence that the terms of the agreement were customary in this kind of case and that the amount was reasonable. In the trial court the petitioners claimed that the fees should not be charged against their shares of the settlement because they had not consented to the contract, but they do not press that argument on appeal. Instead, they contend that no part of the fee should be deducted from their shares because the personal representative's counsel, at the hearing on the disposition of the settlement proceeds, took a position adverse to that of petitioners. The exchanges upon which petitioners rely in support of this contention took place when petitioners' counsel was trying to elicit testimony in support of his argument that the approval of the settlement should be set aside. The trial court ruled repeatedly that that issue had already been determined and was not properly before the court. Petitioners made no contention at that time that the attorney fee provided by the agreement was unreasonable, and made no showing that the personal representative's attorney had not adequately represented the interests of all the beneficiaries during the preparation of the action and the settlement negotiations. We find no grounds in the record for disturbing the trial court's order as to the attorney fees. We have not discussed in any detail the petitioners' arguments that the personal interests of the decedent's husband were in conflict with his fiduciary duties to the other beneficiaries of the wrongful death claim. That is because, as we construe the wrongful death statutes, this appeal does not raise any cognizable claim of a breach of those duties. Nothing in this opinion is intended, however, to foreclose the petitioners from litigating such a claim in a proper proceeding. The decision of the Court of Appeals is affirmed. TONGUE and LINDE, JJ., did not participate in the decision in this matter. [1] That statute provides: "The personal representative of the decedent, with the approval of the court of appointment, shall have full power to compromise and settle any claim of the class described in ORS 30.030 whether the claim is reduced to judgment or not, and to execute such releases and other instruments as may be necessary to satisfy and discharge the claim. The party paying any such claim or judgment, whether in full or in part, or in an amount agreed upon in compromise, shall not be required to see that the amount paid is applied or apportioned as provided in ORS 30.030 to 30.060, but shall be fully discharged from all liability on payment to the personal representative." [2] See, e.g., ORS 114.275, 114.305 (administration of estate by personal representative); ORS 126.080 (guardian of minor); ORS 126.137 (guardian of incapacitated person); ORS 126.313 (conservator); ORS 128.009 (trustee); Hansen v. Bussman, 287 Or. 527, 601 P.2d 794 (1979); ORS 126.313(19) (conservator settling claim). [3] See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 1560, 56 L. Ed. 2d 30 (1978); Fuentes v. Shevin, 407 U.S. 67, 69, 92 S. Ct. 1983, 1988, 32 L. Ed. 2d 556 (1972). [4] Ross v. Robinson, 169 Or. 293, 318, 124 P.2d 918, 128 P.2d 956 (1942). [5] In Anderson, Adm. v. Clough, 191 Or. 292, 306, 230 P.2d 204 (1951) we said that the cause of action for wrongful death "belongs" to the statutory beneficiaries and "is vested" in them. See, also, Ross v. Robinson, 169 Or. 293, 317, 124 P.2d 918, 128 P.2d 956 (1942). The issue we were addressing, however, was the identification of those persons entitled to share in the proceeds of the claim. We were not called upon to characterize the nature of the beneficiaries' interest in the claim for due process purposes. [6] Apart from statutory or constitutional requirements, if all the beneficiaries are not represented at the hearing before the probate court for approval of a settlement, it would be appropriate for the court to make sufficient inquiry to satisfy itself that the settlement is in the best interests of all the beneficiaries.

78c22c415092083857875b093c7dda7588d16af488fbe4dec7706d1e09d7cfed

1980-04-08T00:00:00Z

93e60865-583e-4616-a3c5-18b963c1d3e7

Copeland Sand & Gravel v. Ins. Co. of N. Am.

288 Or. 325, 607 P.2d 718

oregon

Oregon Supreme Court

607 P.2d 718 (1980) 288 Or. 325 COPELAND SAND and GRAVEL, Inc., Appellant-Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Respondent-Petitioner, Tobin, Crawford & Mikolavich, Inc., Respondent. No. 75-414-L; CA 11238; SC 26403. Supreme Court of Oregon. Argued and Submitted November 8, 1979. Decided January 16, 1980. Benjamin E. Freudenberg, Grants Pass, argued the cause for respondent. With him on the briefs was Balderree, Killoran & Nelson, Grants Pass. Hugh B. Collins, Medford, argued the cause for petitioner. With him on the brief was Collins, Velure & Heysell, Medford. *719 Before DENECKE, C.J., and HOLMAN, TONGUE, HOWELL, LENT and PETERSON, JJ. PETERSON, Justice. This action at law for unpaid construction materials and supplies was tried to the court, without a jury. The trial court rendered an oral opinion from the bench at the end of the trial, thereafter made a general finding for both defendants, and entered judgment thereon. On the plaintiff's appeal, the Court of Appeals affirmed as to the defendant Tobin, Crawford & Mikolavich, Inc. (TCM), reversed as to defendant Insurance Company of North America (INA), and ordered that judgment be entered in plaintiff's favor against defendant INA. INA appealed and we reverse. Because the plaintiff claims that there is no evidence to support the trial court's judgment for defendant INA, we must look at the evidence in the light most favorable to INA. In September, 1973, the City of Rogue River contracted with R & W Construction Company (R & W) for the construction of a sewer system. Defendant INA was surety on R & W's performance and payment bond. In mid-1974, R & W ran out of capital to complete the job. Upon being notified of R & W's difficulties with the construction project, INA engaged defendant Tobin, Crawford & Mikolavich, Inc., a firm of local insurance adjusters, to assess the situation for INA. TCM found that one of the key problems was that the two partners in R & W, Carlton and DeBoer, "could not communicate with the City engineer. They would immediately get into an argument as soon as someone spoke." After TCM reported to INA, INA did the following: 1. INA obtained an assignment from R & W of the progress payments then due and to become due from Rogue River. (Rogue River did not release R & W from its contractual obligations nor agree to substitute INA as general contractor.) 2. On June 28, 1974, INA contracted with a Medford firm, Tru-Mix Construction Co., to "provide supervision and administration" for INA in the completion of the contract. The written contract contained this recital: The contract also gave Tru-Mix the right to hire and fire any personnel on the job, and to purchase needed materials and rent or buy needed equipment. Tru-Mix administered the job through August, 1974. There is no evidence that the plaintiff was aware of the terms of the INA/Tru-Mix agreement during the summer and fall of 1974. 3. INA employed TCM to perform various services, including the transmittal of payments to subcontractors and suppliers. TCM took its orders from an INA representative in San Francisco and from Hugh Collins, INA's Medford attorney. TCM forthwith sent all R & W creditors a form letter asking them to sign and return "the enclosed form of assignment with your invoice for labor and materials through June 30, 1974." The letter stated that INA needed the assignments "to enable it to substantiate to the City its upcoming report of payments." The plaintiff, having previously furnished materials to R & W, received such a letter, filled out the assignment, and was paid for work done prior to July, 1974. The plaintiff billed "INA/Tru-Mix Construction Company" for amounts due in July and August, 1974, and was paid. In August, 1974, the INA/Tru-Mix agreement was terminated by mutual consent. Thereafter, the on-site project management was provided by Mr. DeBoer, one of the R & W partners. Because of the importance of the testimony concerning who was running the job after August 31, 1974, we quote portions of the transcript. Mr. Mikolavich, one of the principals of TCM, testified: Mikolavich testified that after September 1, 1974, the procedure went as follows: Mr. Copeland, the plaintiff's president, testified that prior to September 1, 1974, Mikolavich told him that INA was "stepping in to finish the job" and to bill the account thereafter as "INA/R & W Construction." Mikolavich denied all such conversations. Neither INA nor Mikolavich ever ordered any materials or supplies. After September 1, 1974, the materials and supplies were ordered by "the contractor," according to Mikolavich. Payments to subcontractors, suppliers and workers was by check signed by Mikolavich and DeBoer. After September 1, 1974, federal quarterly payroll tax returns were filed in R & W's name. The plaintiff's complaint contained two claims,[1] one for materials, labor and services provided by the plaintiff, and one for materials, labor, services and equipment rental provided by Copeland Paving, Inc., and assigned to plaintiff for collection. Two theories of recovery were alleged as to each claim. One theory was for materials and services provided at "defendants' special instance and request." The second theory of recovery was in the nature of an estoppel. Plaintiff alleged that INA and TCM made payments on the Copeland bills, that neither INA nor TCM ever told the plaintiff that they were not liable for present or future orders, that plaintiff and plaintiff's assignor would not have furnished materials or services to the job had they been notified that neither INA nor TCM was liable on the bills, and that INA and TCM should be estopped from denying *721 liability for materials and supplies delivered to the job site.[2] In actions at law, if the trial court's findings of fact are supported by any evidence, the appellate court is powerless to overturn the finding or to reverse a judgment entered on such finding.[3] We believe that there is evidence to support the trial court's finding. Even though we might have found otherwise, were we sitting as the trier of fact, we are powerless to change the result. The Court of Appeals was mindful of this limitation. We quote from the majority opinion: The Court of Appeals concluded: The Court of Appeals based its conclusion upon a rule of law that a surety, by assuming the principal's role in the actual performance of the principal's contract "* * * becomes responsible for performance of the principal contract and for all obligations incurred in connection with performance, notwithstanding the limits of liability in the bond.[4] However correct that rule may be, the record does not show, as a matter of law, that INA assumed the performance of R & W's contract. We agree with the analysis of Chief Judge Schwab, dissenting: Beyond the analysis made by Chief Judge Schwab, the testimony relative to the dealings between the plaintiff and TCM is in marked conflict. There is evidence from which the trier of fact could have found (as did the trial judge), that although the surety was taking an active role in order to protect itself, the supplier, after September 1, 1974, was still dealing with R & W, not with INA or TCM. Reversed. [1] A third claim for $336 for money had and received is apparently not involved in this appeal, for neither party referred to it, other than to say that "no record was made at trial" regarding this claim. [2] Plaintiff makes no claim on the bond itself. The parties stipulated that the amount of the bond "has been exhausted." Both of the plaintiff's theories of recovery are based upon alleged conduct of INA and TCM. [3] Article VII, section 3, of the Oregon Constitution provides: "In actions at law, where the value in controversy shall exceed $200, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. * * *" The findings of fact of the trial court sitting as the trier of fact have the same legal effect as a jury verdict. Troutman v. Erlandson, 287 Or. 187, 197 n. 8, 598 P.2d 1211 (1979); Saga Enterprises, Inc. v. Coldwell, Banker and Co., 287 Or. 169, 180, 598 P.2d 285 (1979); Hendrix v. McKee, 281 Or. 123, 125-126, 575 P.2d 134 (1978); ORS 17.435. [4] 40 Or. App. at 834-835, 596 P.2d at 625. The Court of Appeals cited Ausplund v. Aetna Indemnity Co., 47 Or. 10, 81 P. 577, 82 P. 12 (1905); Suetter v. Cornwall et al., 102 Or. 220, 201 P. 1072 (1921); Caron v. Andrew, 133 Cal. App. 2d 402, 284 P.2d 544 (1955). We took review of this case because of its potential significance in such a context, but we need not otherwise discuss the principle in view of our disposition of the cause.

62f89084d0116dbaa8dc4fd0fa51f8c877f5f42cc0c99a249213e9bed4c1c39e

1980-01-16T00:00:00Z

c1a677f0-5da3-4548-b982-bbe22c225607

Application of Easton

289 Or. 99, 610 P.2d 270

oregon

Oregon Supreme Court

610 P.2d 270 (1980) 289 Or. 99 In the matter of the Application of Thomas D. EASTON, for Admission to Practice Law in the State of Oregon. SC 25802. Supreme Court of Oregon. Argued and Submitted April 8, 1980. Decided May 6, 1980. Thomas Easton, applicant pro se, argued the cause and filed the briefs. Marcus K. Ward, Eugene, argued the cause for the Oregon State Bar. With him on the brief was Richard E. Miller, Eugene. Before DENECKE, C.J., and HOWELL, LENT, PETERSON and TANZER, JJ. PER CURIAM. Applicant seeks admission to the practice of law and the Oregon State Bar has filed objections thereto. A trial board conducted a hearing and recommended that the applicant be denied admission to the bar. A disciplinary review board also recommended denial. This case comes under ORS 9.220, which requires: The objections to admission are in the form of allegations of specific acts by applicant which purportedly demonstrate lack of good moral character. Although the statute places the burden upon the applicant, the Oregon State Bar went forward and proved the various events upon which it relies. The allegations all arise from the tumultuous break-up in 1978 of applicant's nine-and-one-half-year marriage and the resulting dissolution proceedings. Applicant was then a 43-year-old third-year law student. There are several allegations regarding false accusations made against lawyers and judges directly and peripherally involved in the proceedings, but we do not dwell on these allegations because there are two fundamental allegations which are dispositive. The underlying facts of the dispositive allegations are generally not disputed, although much of the hearing was concerned with applicant's motivation. *271 The first allegation is that the applicant took his three-and-one-half-year-old son to California in violation of an order awarding temporary custody to the mother. Over a period of time prior to taking the child, he researched the law and consulted others to determine in which states he would be able to obtain a custody order contrary to the custody order in Oregon. He expressed interest in the state of Montana where he felt he could find employment in the woods and not be discovered. He thereafter took the child and, three weeks later, he was apprehended in California. Upon return to Oregon, he was convicted of custodial interference in the first degree under ORS 163.257, a felony, and was held in contempt by the domestic relations court. The second dispositive allegation is of perjury. During the course of the dissolution proceedings, the applicant disposed of property which was to be distributed to his wife. When questioned as a witness, he admitted that he had given the property to friends. When asked the identity of the friends, he declined to answer on the ground that he did not wish to reveal their identity and subject them to difficulties. Upon being ordered to answer, he stated that he did not remember the identity of the friends to whom he had given possession of the property. In fact, he did remember. These incidents of custodial interference and perjury demonstrate a lack of good moral character as that term relates to fitness to practice law. They both arise from deliberate decisions to violate criminal law and to disobey orders of court. The applicant attempts to morally justify his conduct: his custodial interference, he asserts, was out of love for his son; his perjury was to protect his friends from harassment. His justification, however, is simply an admission that the applicant believes it morally correct to obey a higher personal ethic than to conform his behavior to the law and to orders of court. Applicant's belief directly undermines his ability to represent and advise clients, particularly in situations of stress and emotional conflict. Moreover, it is directly inconsistent with a lawyer's function as an officer of the court. We do not hold that every act of disobedience of law automatically disqualifies one for the practice of law. Some unlawful acts are not of a nature or magnitude which reflect adversely on character traits which are deemed essential to the practice of law. We conclude that a lack of good moral character under ORS 9.220(2) has been established. Next, we address the subject of reformation. We recognized in In re Jolles, 235 Or. 262, 383 P.2d 388 (1963), that once an applicant has demonstrated a willingness to act in accordance with his personal convictions rather than with the law of the state, the next question is whether he has undergone a reformation of character between the time of such conduct and his application for admission to the bar. Here, we conclude that there has been no such reformation. Our conclusion is based upon the nature and circumstances of the offensive conduct and upon the applicant's attitude toward that conduct as expressed during this proceeding. First, the conduct was that of a 43-year-old person, rather than a youngster in his formative years. We assume that the applicant, as a third-year law student, had been exposed to professional concepts of rule of law and legal ethics. We regard his conduct not as the isolated acts of a naive young person, but rather as the reaction of a generally unstable person faced with a stressful situation. By contrast, the conduct in In re Jolles reflected the applicant's intellectual conviction which was subject to reconsideration. Moreover, applicant's conduct was deliberate rather than impulsive. The custodial interference was researched and planned over a period of time. The perjury occurred as a matter of conscious decision. The most persuasive factor bearing on reformation is the applicant's lack of appreciation of the moral and legal implications of his conduct as reflected in his testimony before the trial board and in his argument before this court. Applicant has demonstrated *272 that he continues unchanged in the moral rationalization he made at the time. He testified, "I have grown. But I have not changed my character." Regarding custodial coercion, applicant testified that he is familiar with Oregon cases in which custody has been changed, but indicates that he would nevertheless again, in a similar situation, resort to self-help rather than adjudication. For example, he testified: In his pro se brief, applicant states: It is patently clear that the applicant still has no understanding of the legal or moral implications of his extra-legal conduct. At the hearing, the applicant's attitude toward possible repetition of his perjury was inconsistent. His testimony explaining why he would not again prevaricate in a similar situation lacks the ring of profound conviction: Applicant still fails to understand the moral quality of his perjury. He testified: Finally, in his argument to the trial board, the applicant contradicted his testimony and acknowledged that nothing has changed: We are mindful of the evidence given by people whose opinions we respect that applicant is possessed of good moral character suitable for the practice of law. We are also mindful that applicant has many excellent qualities to commend him. We conclude nevertheless that the positive evidence is overcome by evidence of applicant's conduct as well as his testimony and professions during the course of this proceeding. Application denied.

6e7f29bc12de299979c8599b2375750d64c0e17e99bebc10f02ca8278ab2942e

1980-05-06T00:00:00Z

cd53a359-6404-4d11-8a46-b1c18e4c4717

Stevens v. American Sav. Institution, Inc.

289 Or. 349, 613 P.2d 1057

oregon

Oregon Supreme Court

613 P.2d 1057 (1980) 289 Or. 349 H.B. STEVENS; Merl G. Tucker and Verla M. Tucker, Husband and Wife, Respondents, v. AMERICAN SAVINGS INSTITUTION, Inc., a Washington Corporation; and Dr. Antonio Fernandez, Aka Antone Fernandez, Aka Dr. Anthony Fernandez, Defendants, Publishers Paper Co., a Delaware Corporation, Petitioner. CA 11582, SC 26673. Supreme Court of Oregon. Argued and Submitted March 4, 1980. Decided July 15, 1980. *1058 William B. Crow, of Miller, Anderson, Nash, Yerke & Wiener, Portland, argued the cause and filed briefs for petitioner. Michael J. Clancy, Canby, argued the cause for respondents. With him on the brief were Raymond R. Reif, and Bettis & Reif, Canby. Before DENECKE, C.J., and TONGUE, HOWELL, LENT and PETERSON, JJ. HOWELL, Justice. Plaintiffs, grantors, filed this suit to rescind a conveyance to American Savings Institution, Inc. (American Savings), relating to 85 acres of timber and farmland. The suit also sought rescission of a mortgage and promissory note executed by American Savings in favor of plaintiffs concerning the same property and rescission of a conveyance by American Savings to Publishers Paper Company (Publishers) of the timberland only. The trial court found that the president of American Savings, defendant Fernandez, had fraudulently obtained the conveyance from plaintiffs to American Savings, and entered a decree rescinding both conveyances and the mortgage from American Savings to plaintiffs. The decree also provided that Publishers have judgment against defendants American Savings and Fernandez for the amount Publishers paid for the timberland. Only Publishers appealed the decision of the trial court, contending that, because it had purchased the timberland for value and without notice of plaintiffs' claims, it should be declared owner of the timberland. The Court of Appeals affirmed the trial court, 43 Or. App. 191, 602 P.2d 669 (1979), and we granted review. Plaintiffs Merl and Verla Tucker, together with plaintiff H.B. Stevens, acquired the 85-acre parcel of land in 1964. About 56 acres of the parcel were timberland; the balance was cleared and used for farming. The Tuckers lived in a house on the land until they moved in 1972. Stevens lived in a trailer home situated close to the main home and continued to live there throughout the land transactions and this suit. The two houses, along with barns and sheds, were located on the cleared portion of the 85-acre parcel. Plaintiffs decided to sell the 85 acres and contacted Publishers. Robert Booth, a Publishers employee, inspected and appraised the property and offered Stevens $85,000 for the timberland only. Plaintiffs rejected the offer because they did not want to divide the property and sell just the timberland. Booth then decided to purchase the farmland for himself as an accommodation to Stevens and offered an additional $15,000 for the farmland. Plaintiffs eventually rejected the offer and sought another independent land appraisal. They then listed the entire property with several realtors at a sale price of $155,000. On January 20, 1976, defendant Fernandez visited Stevens, inspected the property and, on behalf of American Savings, offered to purchase the entire 85 acres for the full price of $155,000. Fernandez executed a written offer, entitled "Deposit Receipt and Agreement of Sale," by the terms of which American Savings would pay $30,000 as a *1059 down payment and $125,000 in five equal annual payments; the contract of sale would contain a "standard timber restriction" clause (i.e., no timber would be cut until one-half of the purchase price is paid); the transaction would be closed through escrow, and Stevens would have the right to remain on the property up to 90 days after closing of the escrow. Plaintiffs accepted Fernandez's offer the next day. Over the next couple of days Fernandez met with Stevens and the Tuckers and discussed arrangements for their splitting of the proceeds from the sale. He drafted and plaintiffs signed a document that specified how plaintiffs would share in the proceeds. But that document, entitled "Agreement," also provided the following: American Savings agreed that Stevens would have 90 days to remove his house trailer from the premises; the total sales price would be $155,000 in payments as arranged in the first Agreement of Sale (dated January 20, 1976); the first Agreement of Sale and all its conditions and restrictions are null and void; and "title and possession are in the grantee, by virtue of deed executed by grantors and herewith handed to grantee." On January 31, 1976, plaintiffs signed a warranty deed conveying to American Savings the entire parcel of property, and they and Fernandez, on behalf of American Savings, signed a mortgage prepared by Fernandez whereby American Savings promised to pay $155,000 for the land as per the agreed payment schedule. Neither the deed nor the mortgage contained the conditions the plaintiffs had intended, i.e., the 90-day permissive occupancy for Stevens and the standard timber restriction clause. On the contrary, the mortgage specifically provided: Plaintiffs deny that they knew or agreed to this provision. Plaintiff Merl Tucker testified that the mortgage he signed did cover the timberland and that Fernandez must have altered the mortgage afterward. Fernandez recorded his deed from plaintiffs on February 4, 1976, but he did not record the mortgage until February 23, 1976, after he had sold the timberland to Publishers. Prior to February 4, 1976, after he had begun negotiating with plaintiffs, Fernandez contacted Publishers and offered to sell the timberland. He told Publishers that he wanted to close the timberland sale by February 14, 1976. Booth, the Publishers employee, reappraised the land without an inspection but merely relying on his knowledge of logging activity in the area and on his previous appraisal. He determined that Publishers should pay only $80,000 for the timberland. Fernandez asked $85,000 for the timberland but quickly assented to a sale price of $80,000. Publishers then obtained a preliminary title report on February 5, 1976, that showed that American Savings had purchased the entire parcel (timberland and farmland) from plaintiffs and held title as of February 4, 1976. Fernandez, on behalf of American Savings, executed a deed on February 10, 1976, conveying the timberland to Publishers. That deed was recorded on February 13, 1976. Receiving his money from Publishers, Fernandez paid plaintiffs their down payment on February 13, 1976. Stevens continued to live on the property and continued to be in contact with Fernandez. Plaintiffs did not suspect any irregularities in their transaction with Fernandez until April of 1976 when they read newspaper accounts of criminal and civil charges pending against Fernandez. Plaintiffs then investigated and discovered that Fernandez, on behalf of American Savings, had conveyed the timberland to Publishers. The trial court held that the conveyance from American Savings to Publishers should be rescinded because Publishers failed to prove its affirmative defense that it was a bona fide purchaser without notice. Publishers argues that because plaintiffs, by their own negligence, vested title in their grantee, plaintiffs made the fraud possible and should bear the loss as *1060 against Publishers, an innocent subsequent purchaser. Publishers relies on our decision in Webb v. Stewart, 255 Or. 523, 469 P.2d 609 (1970), in which we held that if a grantor fails to use the escrow device as a means of minimizing the fraudulent use of his deed, the grantor "should bear the loss as against a purchaser who has no knowledge of the fraud or of facts which would put him on inquiry." Id. at 533, 469 P.2d at 614. The facts of this case do indicate that plaintiffs failed to use the escrow device and also failed to use reasonable care in handling the transaction to protect their interests. Nevertheless, the rule in Webb will only apply if Publishers can qualify as a purchaser who had no knowledge of the fraud or of facts which would put it on inquiry. In Murray v. Wiley, 169 Or. 381, 405, 127 P.2d 112, 129 P.2d 66 (1942), we held that, in suits in equity, the claim of a bona fide purchaser for value is an affirmative defense and the burden of proof is on the party asserting the defense. Therefore, Publishers, which asserted the affirmative defense of being a purchaser without notice, had the burden of proof at trial as to its defense. The Court of Appeals held that, because plaintiff Stevens remained in possession of the entire property throughout the period of the land transactions, Publishers had a duty to make a reasonably diligent inquiry as to plaintiff Stevens' interest in the land. Because Publishers failed to make an inquiry, the Court of Appeals held that Publishers is charged with knowledge of all facts it might have learned had a diligent inquiry been made. Therefore, the Court of Appeals concluded, Publishers failed to prove that it was a bona fide purchaser without notice. 43 Or. App. at 196-98, 602 P.2d 669. Publishers argues that the Court of Appeals erroneously concluded that plaintiff Stevens was in actual possession of the premises. Actually, Publishers contends, the property owned by plaintiffs and deeded to Fernandez was divided into two distinct tracts: farmland and timberland. Publishers concedes that Stevens was in continued possession of the farmland but argues that Stevens was not in possession of the timberland, because Stevens cut no timber, built no logging roads and took no steps to show subsequent purchasers that he had a continued interest in the timberland. Publishers explains that it had no interest in the farmland and had no duty to inquire of Stevens' possession of the farmland. It was only concerned with purchasing the timberland, and, as long as plaintiffs were not in possession of the timberland, Publishers argues that it had no notice of plaintiffs' interest and no duty to inquire of plaintiffs. In support of its arguments Publishers cites the following from 1 Merrill on Notice 177, § 148 (1952): Before we answer Publishers' specific arguments, we should briefly explain the law on notice and possession. According to Merrill, supra at 68, § 66, there is no general duty on the part of a purchaser to inquire. The duty to inquire arises, however, when facts exist that would provoke a reasonable and prudent person to investigate his prospective purchase. Possession of real property by a prior grantor or by someone other than his seller is a fact that provokes the duty on the part of a purchaser to inquire. See Webb v. Stewart, supra 255 Or. at 536-38, 469 P.2d 609; Merrill, supra at 122 § 97. Merrill explains: Essentially, Publishers argues that, even if it had known that Stevens was in continued possession of the farmland, it would not have been under a duty to inquire whether Stevens had any interest in the timberland. The basis of this argument is Publishers' contention that the farmland and the timberland are two separate and distinct tracts of land. The facts of this case clearly show, however, that the farmland and the timberland should not be considered as two separate and distinct tracts and that Publishers was aware of the unity of the entire property. First, when Booth, Publishers' employee, originally offered to purchase just the timberland, Stevens informed him that the plaintiffs would not break up the property but wanted to sell the entire premises. Second, when Publishers investigated the title to the timberland they discovered that the deed from plaintiffs to American Savings covered the entire premises and that the farmland and timberland were in one single undifferentiated parcel. Therefore, we must reject Publishers' contention that the timberland was distinct from the farmland. Finally, as to the quality of the plaintiffs' continued possession, we must agree with the trial court and the Court of Appeals that Stevens did continue to possess the entire premises. Stevens had obtained the right to continue possessing the entire premises in his original agreement with Fernandez. Stevens, in fact, continued to use the premises in the same manner as he had done during the previous years. The fact that Stevens did not build logging roads or cut timber in the timberland area is irrelevant. Prior to the sale to American Savings, Stevens possessed the entire premises, farmland and timberland, without performing those acts. Had anyone actually seen Stevens on the land after the sale to American Savings, it would have appeared that Stevens' possession had not changed, and that he had not conveyed possession and ownership to American Savings. We can only conclude that if a prospective purchaser, seeking to buy a timberland portion of what it knows to be an entire single tract, would discover that the prior grantor is still in possession of the entire tract, then that purchaser would be under a duty to inquire of the prior grantor the nature of his continued possession. Therefore, because Publishers is deemed to have known of Stevens' continued possession, Publisher was under a duty to inquire. In the present case, had Publishers made a reasonable inquiry and informed Stevens that the inquiry was in preparation for its purchase of the timberland from Fernandez, then Stevens would have informed Publishers that plaintiffs held a mortgage on the timberland and had a "standard timber restriction" clause covering the land. The discovery of these facts would have immediately informed both parties that Fernandez was defrauding plaintiffs. Publishers is therefore charged with knowledge of the fraud because it would have learned of the fraud had it made a reasonable inquiry. Murray v. Wiley, supra 169 Or. at 407, 127 P.2d 112. We therefore, conclude that Publishers failed to sustain its burden of proving its affirmative defense. Publishers was not entitled to the status of a bona fide purchaser without notice. Affirmed.

95c7d19503aef9a22ca75941f314dad576ca1b73f74f181221fe0128611b8f8a

1980-07-15T00:00:00Z

81c9f185-9d21-43b7-a86e-b9ac7bf86202

Adams v. Oregon State Police

289 Or. 233, 611 P.2d 1153

oregon

Oregon Supreme Court

611 P.2d 1153 (1980) 289 Or. 233 Steve ADAMS, Petitioner, v. OREGON STATE POLICE, an Agency of the State of Oregon, and Greg Dawson and Nancy Dawson, Bda Cedar Hills Towing, Respondents. TC 76-06-08194; CA 11811; SC 26367. Supreme Court of Oregon, In Banc.[*] Argued and Submitted October 1, 1979. Decided June 3, 1980. *1154 Ron D. Ferguson, Tualatin, argued the cause and filed the brief for petitioner. Michael A. Lehner, Portland, argued the cause for respondent Oregon State Police. With him on the brief were Bruce L.Mowery and Hershiser, Mitchell, Mowery & Davis, Portland. No brief was filed for respondent Cedar Hills Towing. LENT, Justice. Two issues are presented in this action under ORS 30.260 to 30.300 (Tort Claims Act) for damages resulting from negligence of the Oregon State Police (herein "OSP").[1] The first issue is whether the 180 day notice period prescribed by ORS 30.275(1) commences from the date of the incident precipitating plaintiff's injury or from the date plaintiff discovers the identity of the tortfeasor. We hold it commences on the date of discovery.[2] The second issue is whether the allegation that "demand was made upon the Oregon State Police * * * for damages incurred" is sufficient to plead that notice was caused to be presented under ORS 30.275(1) and (3). We hold that it is sufficient. ORS 30.275(1) provides that one who claims damages under the Tort Claims Act ORS 30.275(3) provides: Plaintiff appealed from a judgment for OSP entered when plaintiff declined to plead over after OSP's demurrer to plaintiff's third amended complaint (herein "complaint") was sustained. On appeal, sustaining of the demurrer was assigned as error. The Court of Appeals affirmed. Adams v. Oregon State Police, 40 Or. App. 721, 596 P.2d 588 (1979). We allowed plaintiff's petition for review, ORS 2.520, 287 Or. 355 (1979), primarily to consider the first issue posed above. The facts are established by the complaint as admitted by the demurrer. On May 6, 1975, OSP caused plaintiff's vehicle to be towed without his knowledge. On May 6, 1975, plaintiff "contacted" OSP, who denied that OSP was responsible for the towing. The vehicle was returned to plaintiff on January 23, 1976, which was the first date plaintiff knew of OSP's part in the towing. On February 24, 1976, plaintiff made demand upon OSP for damages arising from the towing and storage of his vehicle during the eight months and eighteen day period involved.[3] OSP's demurrer was on the grounds that it appeared from the face of the complaint OSP contends, in support of the demurrer, that the 180 day period commenced either on May 5, 1975, the date of towing, or on May 6, 1975, the date OSP denied responsibility for the towing. In either event January 23, 1976, the date plaintiff discovered OSP's part in the matter, was more than 180 days after the event; consequently, the sustaining of the demurrer has the effect of foreclosing plaintiff's claim under the Tort Claims Act before he knew he had a claim under that Act. The Court of Appeals reached that result by holding: (a) that the "loss or injury" occurred the date of towing or the day after; (b) that the 180 day period from "loss or injury" in ORS 30.275(1) should commence at the same date as the two year period of limitations in ORS 30.275(3); (c) that under the Court of Appeals' decision in Dowers Farms, Inc. v. Lake County, 39 Or. App. 685, 593 P.2d 1207, 40 Or. App. 647, 595 P.2d 1385 (1979) the two year period was not tolled to allow discovery, but commenced *1156 upon the "accident or occurrence;" and (d) that the 180 day period is not delayed to give a plaintiff a reasonable period for discovery. Subsequent to the Court of Appeals' decision in the case at bar we allowed review of Dowers Farms, Inc. v. Lake County, supra, and held that the two year statute of limitations in ORS 30.275(3) does not begin to run until there is a reasonable opportunity for plaintiff to discover his injury resulting from defendant's negligence. Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980). We found no reason to construe the Tort Claims Act narrowly and therefore applied the body of law previously developed by this court in US Nat'l Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976) and Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). In Berry we stated: In US Nat'l Bank v. Davies, supra, we extended the period in which the statute of limitations is tolled to such time as it appeared probable that plaintiff's "damage actually suffered" was caused by defendant. See, also, Niedermeyer v. Dusenberry, 275 Or. 83, 549 P.2d 1111 (1976). In Schiele v. Hobart Corporation, 284 Or. 483, 587 P.2d 1010 (1978), we held that the statute of limitations begins to run when a reasonably prudent person perceives the role which the defendant has played in the plaintiff's injury. The notice of claim provision preserves for public bodies a special protection from action and, as such, is a vestige of the former doctrine of governmental immunity. In Dowers Farms v. Lake County, supra, we noted that the legislature largely abolished governmental tort immunity when it passed the Tort Claims Act and that a narrow construction of that legislation would be contrary to its remedial purposes. The logic of allowing a reasonable discovery period in the statute of limitations in ORS 30.275(3) is equally applicable to the 180 day notice period in ORS 30.275(1). OSP has candidly urged in the brief on appeal that the 180 day notice period and the two year statute of limitations should commence to run from the same date. The Court of Appeals was of like disposition in Hall v. City of Hillsboro, 29 Or. App. 161, 562 P.2d 597 (1977). We agree and hold that the 180 day period and the period of limitations does not commence to run until plaintiff has a reasonable opportunity to discover his injury and the identity of the party responsible for that injury. Upon the facts presented by this record, therefore, the 180 day period began to run on January 23, 1976, the date when plaintiff discovered that OSP was in fact the party responsible for his injury. ORS 30.275 provides that no action may be "maintained" unless written notice was caused to be presented in the manner statutorily prescribed within 180 days of the loss or injury. On February 24, 1976, plaintiff made "demand" upon OSP for damages incurred by reason of the towing and storage of his vehicle. On oral argument before this court plaintiff took the position that his allegation of such "demand" was the pleading upon which he relied to satisfy his right to "maintain" this cause. It is under that allegation that plaintiff contends that he will prove that written notice was caused to be presented as required by the Tort Claims Act. This court has not been entirely consistent in its assessment of the sufficiency of allegations tested by general demurrer. At one end of the spectrum are cases such as Sponseller v. Meltebeke, 280 Or. 361, 363-364, *1157 570 P.2d 974, 975 (1977), in which we have stated and applied the strict rule: At the other end of the spectrum is Mezyk v. National Repossessions, 241 Or. 333, 337, 405 P.2d 840, 842 (1965), where we held that sufficiency of an allegation to withstand attack by general demurrer must be decided In a very recent case, Davidson v. Wyatt, 289 Or. 47, 609 P.2d 1298 (1980), we stated that not only is plaintiff entitled to the benefit of all well-pleaded facts, but also to the benefit of inferences that can properly and reasonably be drawn from those facts. Obviously, in the cases just mentioned, the end of the journey was preordained by the gate chosen for entry upon the journey. We do not regard this case as a particularly suitable vehicle for trying to select a firm rule, i.e., to choose the gate through which entry should always be made. In disposing of the case before us, we do draw attention to a statute in effect when this case was filed, ORS 16.120: That statute has since been repealed. Or. Laws 1979, ch. 284, § 199. In its place we find ORCP 12: We quote ORCP 12, not to apply it to this case, but to indicate a legislatively directed trend away from strict construction of pleadings. In Perkins v. Standard Oil Co., 235 Or. 7, 19, 383 P.2d 107, 383 P.2d 1002 (1963), where we dealt with a somewhat similar pleading issue, we said of the function of pleadings: As to the particular matter of construction of the allegations of a complaint tested by demurrer, we said (235 Or. at 22-23, 383 P.2d at 115): The same remarks might well be made concerning the complaint at bar. As counsel conceded on oral argument, it is not an "artful" pleading. All things considered, we hold that the complaint does state facts sufficient to constitute a cause of action. Defendant OSP and the trial court are sufficiently *1158 apprised that plaintiff relies upon Paragraph VI of his complaint, in which he alleges the "demand" as the pleading basis upon which he will introduce his evidence of compliance with the requirement that written notice was caused to be presented to the proper party. Compare, Mezyk v. National Repossessions, supra. We are not here concerned with the adequacy of any evidence, but only with the adequacy of the pleading to permit the introduction of evidence.[5] Reversed and remanded for further proceedings in the trial court consistent with this opinion. [*] Holman, J., retired January 20, 1980, and did not participate in this decision. [1] The action was also prosecuted, but not under the Tort Claims Act, against two other persons doing business as a towing company. The cause was tried against those defendants, who had verdict and judgment. Plaintiff appealed, assigning error in the giving of a certain instruction to the jury. The Court of Appeals affirmed, holding that if the claimed error is assumed, it was harmless. Adams v. Oregon State Police, 40 Or. App. 721, 721-729, 596 P.2d 588 (1979). We agree and give no further consideration to that claim of error. [2] In written argument in the trial court in support of the demurrer and in its brief in the Court of Appeals, OSP urged that plaintiff should have expended time and money to discover the identity of the party responsible for the towing. This argument is not a part of the demurrer itself. The argument attempts to urge that plaintiff cannot prevail because the "should have known" the tortfeasor's identity earlier than he did. The facts of this case as established by the general demurrer to the complaint do not present a question as to whether plaintiff, in the exercise of reasonable care, should have identified the tortfeasor earlier than he did. We have no occasion to consider the effect that factor would present if present. [3] It is unnecessary to our decision to set forth the charges of negligence. They may be found in Adams v. Oregon State Police, 40 Or. App. at 723-724, 596 P.2d at 590 (1979). [4] The expressed grounds of the demurrer were in terms of ORS 16.260(6) and did not include the terms of ORS 16.260(1): "The defendant may demur to the complaint * * * when it appears upon the face thereof: "(1) That the court has no jurisdiction of * * * the subject of the action; "(6) That the complaint does not state facts sufficient to constitute a cause of action; In argument in support of the demurrer, in both the trial court and Court of Appeals, OSP contended that the pleading of the 180 day notice requirement was jurisdictional, yet OSP did not demur on that basis. We have no occasion on this record to determine whether pleading fulfillment of the notice requirement is "jurisdictional." In this case the Court of Appeals did at one place flatly state that it is jurisdictional, 40 Or. App. at 724, 596 P.2d at 590, but we find the statement, on this record, to be gratuitous. See what we said in leaving the question open in Urban Renewal Agency v. Lackey, 275 Or. 35, 40, 594 P.2d 657, 660 (1976) and the Court of Appeals' recognition in Robert Randall Co. v. City of Milwaukie, 32 Or. App. 631, 633, 575 P.2d 170, 171 (1978) of the position of this court in Urban Renewal Agency. ORS 16.260 has been repealed. Or. Laws 1979, ch. 284, § 199. For new procedure, see, ORCP 13 C and 21 A. [5] Having accepted plaintiff's contention that his pleading is sufficient for him to introduce his evidence of compliance with the notice requirements of ORS 30.275, we need not, and do not, reach the question of whether the filing and service of the complaint upon OSP within the 180 day period satisfies the statute without a separate presentation of written notice. See, Yunker v. Mathews, 32 Or. App. 551, 577, 574 P.2d 696 (1978).

5eff73711c2af8d06c3ec75e1004407f3429724acb50779a95b4bcb754afc722

1980-06-03T00:00:00Z

a21beb81-57ab-430a-9da6-d7b7b18cf213

Wheeler v. Huston

288 Or. 467, 605 P.2d 1339

oregon

Oregon Supreme Court

605 P.2d 1339 (1980) 288 Or. 467 Cliff WHEELER, Respondent, v. Gerald A. HUSTON and Carl D. Huston, Petitioners. No. 21902; CA 10795; SC 26124. Supreme Court of Oregon, In Banc. Argued and Submitted September 6, 1979. Decided January 22, 1980. *1340 Edward H. Warren, Portland, argued the cause for petitioners. With him on the briefs were Lauren M. Underwood, and Acker, Underwood, Beers, Smith & Warren, Portland. Robert L. Nash, Bend, argued the cause for respondent. With him on the brief was Panner, Johnson, Marceau, Karnopp & Kennedy, Bend. PETERSON, Justice. This is a personal injury negligence case in which the jury returned a verdict for the exact amount of special damages claimed. Following reinstruction by the trial court, the jury returned a verdict for a larger amount. Judgment was entered thereon. The defendants claim that the trial court erred in failing to receive the first verdict. We agree and reverse. The plaintiff, a milkman, fell while making a delivery to the defendants, and sued for damages. The defendants denied responsibility for the fall, denied that the plaintiff sustained injury, and claimed that the plaintiff was also at fault. The plaintiff prayed for general damages and for special damages of $9,120.25 (lost wages of $6,000 and medical expenses of $3,120.25). The defendants also disputed the correctness of the amount of lost wages claimed to have been sustained. The jury returned a special verdict in the form customarily used in comparative fault cases. ORS 18.480. They found that the plaintiff was 45 percent at fault, that the defendants were 55 percent at fault, and that the plaintiff's "total money damages" were $9,120.25, the exact amount of the claimed special damages. The verdict form made no apportionment between special damages and general damages.[1] The trial court asked the foreman of the jury if the verdict of $9,120.25 was intended to award only the special damages pertaining to medical care and lost wages and nothing for general damages, or if the jury intended to include some amount for general damages in the award. The foreman of the jury responded that the jury intended to award medical expenses and lost wages. Over defendants' objections that the first verdict should be received, the court then reinstructed the jury that under the law of the state of Oregon the jury could not award special damages without an award of general damages, and sent out the jury for further deliberations.[2] *1341 After further deliberations, the jury returned with a verdict which again found defendants 55 percent at fault, plaintiff 45 percent at fault, and assessed plaintiff's "total money damages" in the sum of $20,000. Judgment was entered on this verdict. The defendants appealed to the Court of Appeals, which affirmed per curiam,[3] citing Mullins v. Rowe, 222 Or. 519, 353 P.2d 861 (1960), and State ex rel. Nilsen v. The Shalimar, Inc., 28 Or. App. 61, 558 P.2d 1251 (1977). In Eisele v. Rood, 275 Or. 461, 551 P.2d 441 (1976), we held that a verdict for only special damages was valid if the "plaintiff's evidence of injury is merely subjective in nature" or if there is evidence that the plaintiff's injury "was not caused by the accident." 275 Or. at 467, 551 P.2d at 444. We granted review to reconsider the Eisele rule. The issue presented in this case has been before this court at least 20 times in the past 27 years,[4] and continues to create confusion within the appellate courts, the trial courts, and among trial lawyers. A brief overview of the cases is in order. Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952), was a personal injury action resulting from an automobile collision. The total special damages claimed were $1,006.40. The jury returned a verdict in favor of the plaintiff for "One Dollar as General Damages, and the further sum of $1,006.40 Special Damages." The trial court refused to receive the verdict and instructed the jury that if it found for the plaintiff, it must award an amount which would reasonably compensate her for the damages sustained. After further deliberation the jury returned a verdict for "$300 as general damages and the further sum of $707.40 special damages." The trial court received the second verdict and entered judgment thereon, but thereafter set the judgment aside and granted a new trial. We affirmed, stating that the jury Mullins v. Rowe, 222 Or. 519, 353 P.2d 861 is a 1960 case involving a claim for general and special damages on a cause of action arising out of an automobile accident. There was evidence that the plaintiff had incurred $332 for medical services, but there was evidence that all the bills were not chargeable to the accident. The verdict was for the plaintiff in the sum of $332 general damages and "special damages in the sum of $ None." The trial court received the verdict and entered judgment thereon, but thereafter granted a new trial. This court reversed. Justice Goodwin also observed: Also in 1960, Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410 reached this court. Baden was an action at law for personal injuries allegedly sustained as a result of the defendant's negligence. The plaintiff testified that she incurred a doctor's bill of $155.50 and a wage loss of $300, making total special damages of $455.50. The jury returned a verdict for $100 general damages and $455.50 special damages. The trial court refused to accept the verdict and "advised the jury that the general damages awarded were nominal and inadequate and instructed the jury to return and deliberate again and either modify that verdict or return a verdict for the defendant." 225 Or. at 118, 357 P.2d at 411. The jury retired and thereafter returned a verdict awarding plaintiff $400 general damages and $155.50 special damages. This verdict was received and a judgment entered thereon. Thereafter, upon plaintiff's motion, the trial court set aside the judgment and granted a new trial. On appeal, we reversed, holding that the original award of $100 general damages was more than nominal and that the first verdict should have been received. We further held that because the second verdict was in the same total amount as the first verdict, the plaintiff had not been prejudiced by the resubmission of the case to the jury, and ordered that judgment be entered on the first verdict. Sedillo v. City of Portland, 234 Or. 28, 380 P.2d 115 (1963), involved a rear end collision in which the plaintiff sought special damages of $537.85 plus general damages. The verdict form did not segregate special damages from general damages, and the jury returned a plaintiff's verdict in which there was inserted in the blank for the amount of damages "$537.85." The plaintiff objected to the verdict and the jury was again sent out to deliberate. Thereafter, the jury returned with the same verdict form with the "$537.85" crossed out and "$500" inserted. Under this amount was inserted the word "general." This verdict was received and judgment was entered thereon. On plaintiff's appeal, this court affirmed. We held that the first verdict was proper, but that because the plaintiff was responsible for the trial court rejecting the first verdict, "he should not profit by its reinstatement." 234 Or. at 34, 380 P.2d at 118. In reaching this conclusion, we noted that "* * * there was an important question of whether or not much of plaintiff's medical expense was occasioned by the collision * * *." 234 Or. at 33, 380 P.2d at 117. Flansberg v. Paulson, 239 Or. 610, 399 P.2d 356 (1965), also involved a claim for personal injuries allegedly sustained in a rear-end automobile collision. The plaintiff sought general damages of $10,000 and special damages of $315.65. The jury first returned a verdict for the plaintiff and assessed no general damages and special damages of $315.65. Following reinstruction, the jury retired again and returned a verdict assessing general damages of $315.65, with no special damages. The trial court refused to accept the verdict and declared a mistrial. The defendant appealed. We affirmed in an opinion written by Chief Justice McAllister, who stated: Justice O'Connell dissented, saying: Justice O'Connell reasoned that special damages no more flow from general damages than general damages flow from special damages that both measure "a distinct type of invasion of the plaintiff's interest." 239 Or. at 619, 399 P.2d at 360. He also criticized the reasoning in earlier cases, saying that "if a verdict allowing special damages and no general damages is unacceptable, a verdict allowing general damages and no special damages should also be unacceptable." 239 Or. at 620, 399 P.2d at 361. Conversely, he argued: Finally, Justice O'Connell pointed out that, in a sense, the established rule created a "game of numbers" that if the jury "makes the right move [i.e., calling the damages `general damages'] the court can do nothing about it because in that event there is no way to detect how the jury reached its conclusion." He concluded: Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971), was also a rear-end automobile accident case in which the plaintiff claimed special damages of $4,443.33. However, the defendant had paid $4,093.33 of this amount prior to trial, leaving net specials of $350. The jury verdict for $1 in general damages and $350 in special damages was set aside by the trial court, and the defendant appealed. We reversed and ordered that the original verdict be reinstated, saying: Justice Tongue concluded the majority opinion, saying: *1344 In 1971, Brannan v. Slemp, 260 Or. 336, 490 P.2d 979, reached this court. Brannan claimed to have sustained personal injuries in a rear-end accident, including special damages of $5,553. The jury verdict was for no general damages and $5,553 special damages. The trial court denied the defendants' motion to accept the first verdict and reinstructed the jury, following which the jury returned a second verdict for $22,000 general damages and $5,553 special damages. The defendants appealed, claiming that the first verdict should have been received. We were equally divided, and the trial court judgment was therefore affirmed. ORS 2.111(5). Justice Howell wrote the opinion for the three justices who favored affirmance: Finally, in Eisele v. Rood, 275 Or. 461, 551 P.2d 441 (1976), we clearly enunciated a rule to the effect that whether a verdict in the amount of the claimed special damages was proper would be determined by the sufficiency of the evidence to prove, as a matter of law, that general damage resulted from the accident. Eisele was also an action for personal injuries allegedly received in a rear-end automobile accident. The verdict was for no general damages and $1200 special damages. The plaintiff appealed, contending that the trial court erred in accepting the verdict. There was evidence that the plaintiff's symptoms were primarily subjective or nonexistent. Justice Howell again wrote the opinion for the majority, and he stated the rule to be as follows: Justice O'Connell by this time had apparently abandoned any hope of convincing the court that his dissenting opinion in Flansberg v. Paulson should be the law, and he specially concurred, stating: The rulings of this court have not gone without criticism. Justice O'Connell dissented in Flansberg, supra, and in other cases. Professor Frank R. Lacy has also urged that this court adopt a rule validating specials-only verdicts. Lacy, Chief Justice O'Connell's Contributions to the Law of Civil Procedure, 56 Or.L.Rev. 191, 213 (1977). His rationale: "The departure from perfect justice in an occasional case seems a *1345 reasonable tradeoff for freedom from post-trial motions, appeals, and retrials." The solution proposed by Justice O'Connell and Professor Lacy has the virtues of ease of administration, certainty, and to some extent recognizes the power of a jury to afford "rough justice,"[5] but no court has gone so far as to validate all jury verdicts for only the specials. We confess that this "verdict for the claimed specials" issue raises thorny problems, and our protracted labors for a satisfactory solution have not entirely solved the problem. In reconsidering the applicable rules and in considering other solutions incident to the decision in this case, we have examined opinions from other states and countries, including nineteenth century English reports. We have studied the historical bases for the distinctions between general damages and special damages. The rules set forth below may be criticized as well. Perhaps nothing short of a capitulation to judicial expediency and carte blanche approval of verdicts in the amount of the claimed specials will end the repeated appeals in this area. We have considered such a solution and reject it. We are persuaded that the Eisele rule (as restated below) should be retained. However, in Eisele we did not consider the situation in which the amount of special damages incurred was in dispute. An unsegregated verdict in such a case for the exact amount of the claimed specials might well include general damages. We therefore restate the rule applicable to verdicts for only the amount of the claimed specials as follows: 1. If there is a question whether any general damages were sustained, the jury may conclude that the plaintiff suffered no general damages but did reasonably incur wage loss and/or medical expense. Such verdicts are valid and include cases in which (a) the plaintiff's evidence of injury is subjective, (b) there is evidence that the plaintiff's injuries for which general damages are claimed were not caused by the accident, and (c) the objective evidence of a substantial injury sustained by plaintiff is controverted by other competent evidence, or could be disbelieved by the trier of fact.[6] 2. Even in the case where the jury must award some general damages, if there is a substantial dispute as to the amount of the special damages to which the plaintiff is entitled, an unsegregated verdict in the exact amount of the claimed specials will be upheld. Such an award may reflect a decision by the jury not to award the total amount of the claimed special damages but rather to award part of the claimed specials and some general damages. The mere identity between the award and the specials claimed would not exclude a conclusion that the verdict included an award for general damages. For example, plaintiff might claim medical expenses and wage loss totalling $6,000. If the defendant produces evidence that some medical expenses were not due to the accident or that the wage claim was inflated, an unsegregated verdict for only the claimed specials could well include an award of general damages. Such a verdict would only be valid, however, if the amount of special damages in dispute was more than a nominal amount.[7] One further aspect of this question requires discussion. Since the decisions in Saum and Eisele, it has been clear that the validity of a verdict in the amount of the claimed specials only is determined by the evidence. In a jury trial, questions concerning the sufficiency of the evidence are normally addressed prior to the judge's instructions to the jury. This gives the trial judge the *1346 opportunity to rule on evidentiary matters prior to verdict, thus avoiding many post-verdict hassles as to evidentiary matters. For example, if a plaintiff alleges that a wrist was fractured in an accident, and if the evidence fails to establish a fractured wrist, the defendant's attorney should move to strike that allegation from the complaint prior to the jury deliberations. Absent such a motion, a verdict for the plaintiff is immune from attack on the ground that the trial court submitted an allegation of injury which was not proved. Similarly, if the evidence in a personal injury case is such that reasonable people could not disagree that the defendant is legally liable for any injuries sustained by the plaintiff in an accident, the plaintiff should appropriately request that the jury be instructed that the defendant's liability has been established. In the absence of such a request, a verdict for the defendant is immune from attack by the plaintiff on the ground that the trial court failed to instruct the jury that the defendant's liability had been established and that the defendant was liable for all injuries resulting from the defendant's fault. There is no reason why the question of the plaintiff's right to recover general damages or uncontroverted special damages should be treated any differently. We hold, therefore, that if the plaintiff claims that the right to recover general damages has been established as a matter of law, and that the jury must therefore award some general damages if they find defendant liable, the plaintiff should request that an appropriate instruction be given to that effect. Such an instruction might read as follows: Or if the plaintiff claims that the right to recover special damages in a certain amount has been established as a matter of law, an appropriate request for an instruction should be made. Such a requested instruction might well include the following paragraph: If the plaintiff's attorney claims that the plaintiff has established, beyond question, the claim to general damages, per Eisele and this opinion, or the claim to a specific amount of special damages, per this opinion, but fails to bring these matters to the attention of the trial judge by appropriate motion or requested instruction, any objection to a verdict in the amount of only the claimed specials will be deemed waived.[8] This rule (requiring timely request to the trial court) will apply to cases tried after the publication of this opinion in the advance sheets. Whether the plaintiff in the instant case sustained any general damages as a result of the fall was disputed, as was the amount of the claimed special damages. The plaintiff claimed lost wages at the rate of $1,200 per month. The record does not support the claim that plaintiff averaged earnings of $1,200 per month.[9] On the question of whether the plaintiff's complaints were due to an injury caused by the accident or were due to pre-existing back problems, the plaintiff's doctor, on direct examination, testified that the plaintiff's *1347 injuries were permanent, but the doctor was not asked if the injuries were caused by the accident. The doctor further testified, on direct examination, to a "dismal history" of problems with the plaintiff's back seven years before, of low back pain and that a back brace was required. On cross-examination, the doctor testified that the plaintiff had degenerative lumbar disc disease, that the damage to the disc "could have been at the time of the injury or before," and that the decreased disc space "could have been two months before or seven years before." The defendant claimed (and argued to the jury) that the plaintiff's back problems were not caused by the fall. In determining, per Eisele, whether there is evidence from which the jury could find that the injury was not caused by the accident, we must look at the evidence in the light most favorable to the defendant. Beyond any question, the amount of the claimed special damages was strongly disputed. We believe that the jury could properly have found that the plaintiff's injuries were not caused by the accident. Considering the entire record, we are persuaded that the initial verdict should have been received. We therefore reverse with instructions to the trial court to enter judgment in accordance with the first verdict returned. APPENDIX Cases in which the Supreme Court has faced the issue at bar include: Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952); Snyder v. Amermann, Jr., 194 Or. 675, 243 P.2d 1082 (1932); Fischer v. Howard, 201 Or. 426, 271 P.2d 1059 (1954); Stein v. Handy, 212 Or. 225, 319 P.2d 935 (1957); Edmonds v. Erion, 221 Or. 104, 350 P.2d 700 (1960); Mullins v. Rowe, 222 Or. 519, 353 P.2d 861 (1960); Locatelli v. Ramsey, 223 Or. 238, 354 P.2d 317 (1960); Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410 (1960); Sedillo v. City of Portland, 234 Or. 28, 380 P.2d 115 (1963); Flansberg v. Paulson, 239 Or. 610, 399 P.2d 356 (1965); Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971); Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971); Null v. Siegrist, 262 Or. 264, 497 P.2d 664 (1972); Chopp v. Miller, 264 Or. 138, 504 P.2d 106 (1972); Moore v. Drennan, 269 Or. 189, 523 P.2d 1250 (1974); Beranek v. Mulcare, 269 Or. 324, 524 P.2d 1214 (1974); Skourtis v. Ellis, 272 Or. 149, 535 P.2d 1367 (1975); Eisele v. Rood, 275 Or. 461, 551 P.2d 441 (1976); Storey v. Madsen, 276 Or. 181, 554 P.2d 500 (1976); Kriner v. Weaver, 276 Or. 741, 556 P.2d 652 (1976); Davis v. Hinman, 39 Or. App. 171, 591 P.2d 417, rev. allowed, 287 Or. 1 (1979). Court of Appeals cases on the same subject are: State ex rel. Nilsen v. The Shalimar, Inc., 28 Or. App. 61, 558 P.2d 1251 (1977); Calvert v. Ourum, 40 Or. App. 511, 595 P.2d 1264 (1979). [1] The verdict was similar to a "single-slot" verdict form. A single-slot verdict commonly is in a form such as: "We find for the plaintiff and award damages of $ ____." A "double-slot" verdict commonly reads: "We find for the plaintiff and award general damages of $ ____ and special damages of $ ____." The form of the verdict used is within the discretion of the trial court. ORS 17.415. In comparative fault cases, upon the request of any party, "special questions" must be submitted to the jury. ORS 18.480. [2] The defendants also assign error, claiming that the trial judge, under (Amended) Article VII, section 3, of the Oregon Constitution, was prohibited from making such inquiry. We need not and do not decide this issue. [3] 39 Or. App. 3, 593 P.2d 527 (1979). [4] A list of cases in which this issue has been presented to the Supreme Court and Court of Appeals is appended. See also, Annot., 20 A.L.R.2d 276 (1951). [5] According to Roscoe Pound [as quoted in L. Moore, The Jury, at v (1973)] "* * * jury lawlessness is the great corrective of law in its actual administration." [6] On the issue of whether a question is for the court to decide and not the jury, see Rickard v. Ellis, 230 Or. 46, 51-55, 368 P.2d 396 (1962); Palmer v. Van Petten Lbr. Co., 265 Or. 347, 349-351, 509 P.2d 420 (1973); and Rogers v. Hill, 281 Or. 491, 493-496, 576 P.2d 328 (1978). [7] See Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410 (1960). [8] We take note of Uniform Instructions 30.02 and 30.03. The first sentence of 30.02 reads: "If you find that plaintiff is entitled to recover, you will first determine the amount of general damages caused by the defendant." The first sentence of 30.03 reads: "If you have found that the plaintiff is entitled to general damages, you shall then determine the amount, if any, of the special damages caused by defendant." We recommend the discontinuance of such language in all cases, except as set forth above in this opinion. [9] Average monthly earnings per Exhibit 11 were: during 1975, $1,054.79; in the first six months of 1976, $1,055.59.

97d8eea3d67f68684c6389d8c552caaab5eb8469a9bebcd3d34e5cd910754ba0

1980-01-22T00:00:00Z

8171c6a9-8475-454b-95b4-323ca5f90c92

Menges v. BOARD OF COUNTY COM'RS, ETC.

290 Or. 251, 621 P.2d 562

oregon

Oregon Supreme Court

621 P.2d 562 (1980) 290 Or. 251 Doris MENGES, Bernice Shanabrook and Alyce Criss, Petitioners, v. BOARD OF COUNTY COMMISSIONERS OF JACKSON COUNTY, and City of Gold Hill, an Oregon Corporation, Respondents. No. 78-3111-E-2; CA 14406; SC 27039. Supreme Court of Oregon. Argued and Submitted December 2, 1980. Decided December 23, 1980. *564 Frank J. Van Dyke, Medford, argued the cause for petitioner. With him on the briefs was E.R. Bashaw, Medford. William G. Carter, Medford, argued the cause for respondents. With him on the brief was Grant, Ferguson & Carter, Medford. Before DENECKE, C.J., and TONGUE, LENT, LINDE, PETERSON and CAMPBELL, JJ. TONGUE, Justice. This case involves the granting of a conditional use permit for construction of a sewage treatment plant over the protest of nearby landowners that to do so would reduce the market value of their property. The Jackson County Hearings Council and the Board of Commissioners of Jackson County, after hearings at which the petitioners appeared, granted the City of Gold Hill a conditional use permit to build a sewage treatment plant near the banks of the Rogue River on a 3.46 acre parcel in an area zoned F-5 (farm residential; 5-acre minimum lot size). Petitioners, who own homes in the area of the proposed plant site, then filed a writ of review in the circuit court, which was denied. Petitioners then appealed to the Court of Appeals, which affirmed the denial of the writ of review. 44 Or. App. 603, 606 P.2d 681 (1980); 45 Or. App. 797, 609 P.2d 847 (1980). A petition for review was then allowed by this court, primarily because of its concern whether petitioners were improperly denied an opportunity to offer evidence to support their contention that construction of the sewage treatment plant would impair the market value of their property and whether, because of that contention, the Hearings Council and Board of Commissioners were required to make a finding of fact on that question. Article VI, § 1.2 of the Jackson County Zoning Ordinance authorizes the Hearings Council to approve a conditional use permit if it finds: On June 19 and 22, 1978, the Jackson County Hearings Council held a hearing on the application of the City of Gold Hill for a conditional use permit to build the sewage treatment plant. Extensive testimony was received at that hearing, including testimony to support findings and conclusions by it that the plant was "not designed to cause any odors, however, occasionally there may be odor which can usually be corrected"; that "odor will be a non-existent or negligible problem"; that "the nearest residence is approximately 400 feet from the proposed sewage treatment plant"; that "the site will be landscaped to make it more aesthetically pleasing"; and that the proposal satisfied requirements of the Comprehensive Plan and had been approved by the Environmental Protection Agency and the Department of Environmental Quality. A considerable number of landowners in the area appeared at that hearing to object to the issuance of a permit for construction *565 of the plant. By letters or oral statements some of these landowners contended that the construction of the plant would impair the market value of their property. The only evidence directly to the contrary was a statement made in presenting the "staff recommendation" that "we discussed this application" with Harley Finney, the chief appraising officer of the Assessor's Department, who The engineer who designed the proposed plant also stated at the hearing that the plant would not be "detrimental" to homes of people living in the area, and that "[i]f it's operated properly there won't be any odor problem." The protesting landowners were not represented by an attorney at that hearing and no contention was made by them at that hearing that the Hearings Council should or must make a finding on the question whether the market value of nearby property would or would not be impaired by construction of the plant. At the conclusion of that hearing one of the members of the Hearings Council made the following statement: Another member of the council then said: The chairwoman also said: An attorney representing petitioners then filed a notice of appeal to the Jackson County Board of Commissioners. By that notice of appeal he contended that there were errors in some of the findings of fact. He also objected to some of the various "conclusionary findings," including a finding that "odor will be a non-existent or negligible problem"; that it would "not degrade environmental quality" and to a finding that Harley Finney had "indicated that it is unlikely the proposed water treatment plant would adversely affect the value of nearby property" on the ground that Harley Finney had not testified and no written statement by him had been offered. The notice of appeal did not, however, contend that the Hearings Council had erred in failing to make a finding on the question whether construction of the plant would or would not impair the market value of nearby property. A hearing on the matter was then held by the Jackson County Board of Commissioners on July 20, August 2 and August 4, 1978. At that hearing the attorney representing the petitioners not only presented argument in support of the various contentions *566 made in the notice of appeal but also offered additional evidence, including the testimony and materials prepared by an appraiser, in support of the contention by petitioners that the market value of their lands would be impaired by construction of the proposed sewage treatment plant. The attorney representing the City of Gold Hill objected to additional evidence upon the ground that under the procedural rules of the Board of Commissioners an appeal from an order by the Hearings Council is limited to argument by the parties unless there is some showing that additional evidence is required in the public interest or that such evidence could not have been produced with due diligence before the Hearings Council. He contended that evidence relating to market value could have been produced with due diligence at that hearing. That offered evidence, as well as other evidence offered by petitioners, was then rejected. The chairman of the board noted, however, that: The attorney for petitioners also objected, as in the notice of appeal, to the finding by the Hearings Council referring to the hearsay statement by Mr. Finney on the subject of land values. That finding by the Hearings Council was omitted by the Board of Commissioners in the findings, conclusions and order which it then issued on August 23, 1978, and which otherwise adopted most of the findings and conclusions as previously made by the Hearings Council. Commissioner Moore dissented upon the ground that the city had not met its burden of proving that the use would not be injurious to property and improvements in the area. Petitioners then filed a petition for writ of review in the circuit court. The petition alleged, among other things, that the Board of Commissioners had "declined to consider any additional evidence outside the record of the Hearings Council"; that the Board "failed to make any finding of fact that the operation of the sewage treatment plant, including odors and noise from it, would not be * * * injurious to residential properties in the area"; that the Board had granted the permit and that: No contention was made in that petition that the Board of Commissioners was required to make a finding of fact upon the question whether construction of the proposed sewage treatment plant would or would not impair the market value of adjacent property. Upon the denial of a writ of review by the circuit court petitioners appealed to the Court of Appeals, which affirmed the circuit court, as previously stated. Petitioners rely upon ORS 215.422, which then provided: *567 A first impression from reading the last sentence of this statute may be that in view of the words "not limited to" a party appealing to a county board of commissioners from an action by a hearings council, as in this case, cannot be "limited to" the record of the action by the Hearings Council, but has a right to offer additional evidence. If this be correct, then it must follow that petitioners had a right to offer additional evidence relevant to the issues to be decided by the Board of Commissioners, and counsel for the city of Gold Hill conceded in oral argument before this court that evidence that market value of adjacent property would be impaired by construction of the sewage treatment plant is relevant to the question whether the use allowed by the approval of a permit for such a plant would "be injurious to property and improvements in the area." We conclude, however, that this contention by petitioners is not well taken. First of all, such an interpretation of the words "but not limited to" would appear to be inconsistent with the previous provision of that statute that "the procedure and type of hearing for such an appeal shall be prescribed by the governing body." This would appear to permit a county board of commissioners to decide for itself whether appeals such as this are to be heard on the record, rather than "de novo." If, however, an appealing party has the right to offer additional evidence, such a "procedure and type of hearing" could not be "prescribed." As a result of this apparent inconsistency, we believe that ORS 215.422(1) is ambiguous, at least when read as a whole, requiring a consideration of its legislative history in an effort to determine the intent of the legislature in its use of the words "but not limited to." Upon examination of the legislative history of ORS 215.422(1), we find that prior to 1977 that section read as follows: At the 1977 session of the Oregon Legislature SB 846 was offered and would have provided: That bill was apparently sponsored by the Association of Oregon Counties (AOC), which explained the purpose of this change to be as follows: An "alternative proposed amendment" to the last sentence of ORS 215.422(1) was then submitted by the Associated Oregon Industries (AOI), which would have provided that: At a hearing on SB 846 on June 2, 1977, before the Senate Environment and Energy Committee, Mr. Hawes, representing AOI, stated that: Mr. Mattis, representing AOC, then responded as follows: After some further discussion, including suggestions that some changes be made in the last sentence of the amendment proposed by AOC in order to satisfy the objections by AOI, the following appears: A motion was then made and carried to amend SB 846 by the adoption of that proposal. From the foregoing, we believe it to be clear that the intent of the 1977 legislature in its adoption of the amendment proposed by AOC was not to confer upon any appealing party an unlimited right to offer any relevant new evidence, but rather to further accommodate the desire of the counties to be permitted flexibility in deciding for themselves the procedure and type of hearing to be held in such an appeal, including the question whether new or additional evidence should be permitted or excluded at such a hearing. As previously noted, Jackson County adopted rules of procedure for such appeals under which new or additional evidence could be offered only upon a showing that consideration of such evidence is required by the public interest or that such evidence could not have been offered to the Hearings Council in the exercise of due diligence. That rule of procedure was proper under the provisions of ORS 215.422 and was not improperly applied by the Board of Commissioners in this case, in view of the discretion reserved by it under the provisions of that rule. It is also of interest to note that the 1979 session of the Oregon legislature removed this ambiguity in the provisions of ORS 215.422(1) by further amending that section to read as follows: According to "explanatory comments" appearing as a part of the record of a hearing on SB 435 on March 14, 1979, before the Senate Legislative Committee on Trade and Economic Development: *569 For these reasons we hold that petitioners were not entitled as a matter of right under ORS 215.422 to offer additional evidence at the hearing before the Jackson County Board of Commissioners and that it could decide for itself, as its rules permit, whether or not to reject the additional evidence offered by the petitioners at that hearing upon finding that the public interest did not require it to consider such evidence or that the evidence could have been produced with due diligence at the hearing before the Hearings Council. Petitioners make no contention the Board could not properly make such findings in this case. Petitioners also complain that they were told at the conclusion of the hearing before the Hearings Council that they should "get some expert testimony" to offer at the hearing on appeal to the Board of County Commissioners. Obviously, any such statements by members of the Hearings Council were not binding upon the Board of Commissioners and could not impose upon that Board the duty to receive such evidence. Also, as previously noted, no attempt was made by petitioners (who were not then represented by an attorney) to offer expert testimony at the hearing before the Hearings Council and they were not precluded by it from offering such evidence. As previously noted, counsel for the City of Gold Hill, in oral argument before this court, conceded that the effect of the construction of this sewage treatment plant upon the market value of property in the area was a relevant consideration in determining whether, under Article VI, $ 1.2 of the Jackson County Zoning Ordinance, that proposed use "will not be injurious to property and improvements in the area of the request."[1] Petitioners contended in their brief on appeal to the Court of Appeals that: The question raised by this contention is an important one. In Sunnyside, supra, this court held, at page 21, 569 P.2d 1063: In addition, ORS 215.416(6) now provides that: *570 If this court were to hold not only that these rules are applicable in a case such as this, but that upon the application of such rules both the Hearings Council and the Board of Commissioners were required to make a specific finding upon the question of the effect of construction of the proposed sewage treatment plant upon the market value of property in the area, it would be necessary to remand this case with instructions requiring the making of such a finding. Had the petitioners in this case requested in 1978 that the Hearings Council or the Board of Commissioners make such a finding, either the Council or the Board might well have done so. And had petitioners in their writ of review proceeding before the circuit court in October 1978 contended that the record of the proceedings before either the Council or the Board was defective because of the absence of such a finding that court perhaps might have remanded this case with instructions requiring that such findings be made. We need not decide in this case whether a request for such a special finding must have been made before the Hearings Council or on appeal to the Board of Commissioners in order to raise on writ of review or appeal to the Court of Appeals the failure to make such a finding. In this case petitioners also failed to contend in their petition for a writ of review to the circuit court that the Hearings Council and Board of Commissioners erred in failing to make such a finding. Because petitioners made that contention for the first time on appeal to the Court of Appeals, it would be improper for this court, at this late date, to remand this case for such findings. Cf. Sunnyside Neighborhood v. Clackamas Co. Comm., supra, 280 Or. at 10, 569 P.2d 1063. Petitioners also contend that there was no "reliable, probative and substantial" evidence to support the finding by the Hearings Council and by the Board of Commissioners that approval of the conditional use permit for construction of the sewage treatment plant "will not be injurious to property and improvements in the area," as required by Article VI, § 1.2 of the Jackson County Zoning Ordinance. The question to be decided, however, is whether there was "substantial" evidence to support that finding, and this court is precluded from setting aside that finding if it is supported by substantial evidence. In Western Amusement v. Springfield, 274 Or. 37, 40, 545 P.2d 592 (1976), this court held that the words "reliable, probative and substantial" as then used in the writ of review statute, ORS 34.040, "mean `substantial' evidence." Indeed, ORS 34.040(3) has been amended so as to now refer to findings "not supported by substantial evidence in the whole record." "Substantial evidence," for the purposes of review of findings by an administrative agency, has been defined as: Davis, Administrative Law Text (3d ed. 1972), § 29.02, pp. 527-28, quoting from Consolidated Edison Co. v. N.L.R.B, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938). See also ORS 183.482(8)(c). In considering this contention we must assume that evidence that construction of the plant would impair the market value of property in the area is relevant to a determination of the question whether such a use would be "injurious" to such property, as conceded by counsel for the City of Gold Hill. It does not necessarily follow, however, that because some owners of property in the area testified that construction of the plant would impair the market value of their property, the Hearings Council and Board of Commissioners would be precluded from the making of a finding that such a use would "not be injurious to property" in the area if there was "substantial evidence in the whole record" to support such a finding. This is particularly true on the record in this case because the testimony of the property owners was indefinite as to the amount *571 or extent of any such impairment to the market value of their property. Thus, the Hearings Council and Board of Commissioners could properly have found, in accordance with the testimony of the engineer who designed the plant, that although out of concern over the possible odor emanating from the proposed plant there might be some temporary impairment of the market value of some of the adjacent property to some extent, once the plant was in operation and was demonstrated to be odor free, there would be no substantial continuing impairment of the market value of property in the area. In addition, there was evidence in this case, although hearsay in nature, on the specific question of whether such a plant would cause a reduction in the market value of adjacent property. That evidence consisted of a statement before the Hearings Council by the staff member who presented the staff recommendation for construction of the plant that he had discussed the application with Harley Finney, the chief appraising officer of the Assessor's Department, who stated that "it is unlikely in his opinion that this proposed use would have any adverse effect on property values in the area." It is well established that at least when hearsay evidence is not objected to, as in this case, such evidence is "competent evidence sufficient to support a verdict" in an action at law. See Laubach v. Industrial Indemnity Co., 286 Or. 217, 222, 593 P.2d 1146 (1979), and cases cited therein. Similarly, in administrative proceedings hearsay evidence is commonly received and accorded probative value, at least when received without objection, as in this case. See Davis, Administrative Law Text (3d ed. 1972), § 14.05, p. 276. See also ORS 183.450(1). The Hearings Council apparently gave some consideration to that hearsay evidence, which is referred to in its findings and conclusions. The Board of Commissioners, however, apparently in response to the motion by counsel for petitioners to strike all reference in the record to that hearsay evidence, omitted any reference to such evidence in its findings and conclusions. Upon examination of the record we conclude that even without regard to such hearsay evidence there was sufficient other evidence, although perhaps somewhat scanty, to satisfy the requirement that there must be "substantial evidence" to support the finding by the Board of Commissioners that construction of the sewage treatment plant would "not be injurious to property and improvements in the area." That evidence includes the following: Petitioners also make some other contentions in their brief in the Court of Appeals and in their petition for review to this court, including the following: We have not overlooked these and other contentions by the petitioners, but conclude *572 that they are not well taken and that the Court of Appeals reached the correct result in its disposition of these three contentions, although we do not necessarily agree with all of its reasoning in doing so. Finding no error, we affirm the order by the Jackson County Board of Commissioners and the decision by the Court of Appeals affirming that order. Affirmed. [1] It might be contended, however, that the words "injurious to property and improvements" were intended to apply only to physical injury and not extend to injury to market value.

1042308cd352f15d584473a8da62e8571f60a4621f4e40c3bbc397eb078b7de8

1980-12-23T00:00:00Z

c1245fce-ecf4-451e-a993-2b72ece8b548

Matter of Brown

289 Or. 455, 616 P.2d 457

oregon

Oregon Supreme Court

616 P.2d 457 (1980) 289 Or. 455 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 and SC 26671. Supreme Court of Oregon, In Banc. Argued and Submitted June 2, 1980. Decided July 23, 1980. Thomas A. Caruso, St. Andrew Legal Clinic, Portland, argued the cause for petitioner. With him on the brief was Douglas S. Green, of Welch, Bruun & Green, Portland. Margaret H. Leek Leiberan, of Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland, argued the cause and filed a brief for respondents. LINDE, Justice. Petitioner's claim for workers' compensation was denied by her employer, and the denial was affirmed by the Workers' Compensation Board on the ground that she had not requested a hearing within the time prescribed by ORS 656.319(1) as construed in this court's opinion in Sekermestrovich v. SAIF, 280 Or. 723, 573 P.2d 275 (1977). The Court of Appeals affirmed without opinion, 44 Or. App. 1, 604 P.2d 461 (1980). We allowed review to examine whether the Board and the Court of Appeals had unduly extended the principle of the Sekermestrovich case. We hold that they did. ORS 656.319(1) provides: Sekermestrovich v. SAIF, supra, was this Court's first interpretation of that section. There the claimant offered as "good cause" for a delayed filing of her request for hearing that her original attorney had negligently failed to file the request within the statutory 60-day period. The Court affirmed the Board, the Circuit Court and the Court of Appeals in denying relief on that ground. The decision established two points. One was that "good cause" in ORS 656.319(1)(b), supra, would be read to refer to the same kind of "mistake, inadvertence, surprise or excusable neglect" that permits relief from a default judgment under ORS 18.160.[1] The second was that the personal negligence of the claimant's attorney as a matter of law would not be "good cause" for a delayed filing under ORS 656.319(1)(b). The claimant in Sekermestrovich contended that the remedial provisions of the Workers' Compensation Law should be interpreted more generously than the rules of civil litigation and that a claimant should not be disqualified from this no-fault social insurance by being held to the carelessness of an attorney. The Court stated its conclusion as follows: 280 Or. at 727, 573 P.2d at 277. Although the equation of "good cause" with the "mistake, inadvertence, surpise or excusable neglect" of ORS 18.160 did not go unchallenged, see 280 Or. at 728, 735-736, 573 P.2d 275 (Lent and Tongue, JJ., dissenting), we do not reexamine that premise here.[2] The issue before us is whether the claimant is disqualified as a matter of law when neither she nor her attorney has carelessly neglected to make a timely request for hearing but the failure to do so is attributable to someone in the attorney's office. The referee found the following facts. Claimant advised her employer of the claimed injury on August 16, 1978. On August 30, 1978, the claim representative of the employer's insurance carrier, respondent EBI Companies, advised her that the claim would be denied, and this denial was confirmed by letter a day or two later. Claimant then telephoned her attorney and was instructed to mail the denial letter to him, which she did. The attorney did not see this letter at that time. On September 14, 1978, he sent EBI a request for copies of medical reports and other pertinent material in its files. Only on November 28 did he learn that the denial letter had reached his office in early September but (in the referee's words) "for some unexplained reason had not been brought to his attention or that of his secretary." The attorney filed the request for hearing the next day, November 29, 1978. From the referee's findings, we take it as established that the written notice of denial was misplaced by someone responsible for handling mail in claimant's attorney's office, *459 though not by the attorney himself. Thus the question, as already stated, is whether negligence in the chain of communication as a matter of law is beyond excuse, as the negligence of the attorney himself was held to be in Sekermestrovich. This Court's decisions under ORS 18.160 demonstrate that this is not so. We refer only to the cases discussed in the Sekermestrovich dissent. We need not repeat the facts reviewed there in this opinion. In two of the cases, failure of mailed notice to reach persons who would take responsibility for the defense was held sufficient not only to justify setting aside a default judgment in the judge's discretion but to require it as a matter of law. Hiatt v. Congoleum Industries, 279 Or. 569, 569 P.2d 567 (1977); Wager v. Prudential Ins. Co., 276 Or. 827, 556 P.2d 658 (1976). In a third case, we affirmed a trial judge who had reached the same result as a matter of discretion. Bella v. Aurora Air, Inc., 279 Or. 13, 566 P.2d 489 (1977). These decisions, contemporaneous with Sekermestrovich, show that once "good cause" under ORS 656.319(1)(b) is equated with the excuses stated in ORS 18.160, it is at least within the range of discretion to relieve a claimant from a default caused by the mistake or neglect of an employee who is not charged with responsibility for recognizing and correctly handling the message that constitutes the legally crucial notice from which the time to respond is measured. The reasons why a party who chooses an attorney to represent her is bound by that attorney's action or neglect to act do not extend so far that she is indirectly bound as a matter of law by every negligent mistake of anyone employed by her attorney. We do not hold in turn that on the facts of this case the claimant had "good cause" for the delayed filing as a matter of law. We hold only that a finding of "good cause" was not foreclosed by our decision in Sekermestrovich v. SAIF, as the Board appears to have thought. This judgment was for the referee and the Board to make in the first instance.[3] Because the referee and the Board concluded that Sekermestrovich required dismissal of petitioner's claim, they did not reach other issues bearing on its timeliness or its merits. These cannot be initially decided by the Court of Appeals on remand. It is therefore necessary to return this case to the Board. Reversed and remanded to the Workers' Compensation Board. TONGUE, Justice, specially concurring. I concur in the decision by the majority in this case, but would also hold that our previous decision in Sekermestrovich v. SAIF, 280 Or. 723, 573 P.2d 275 (1977), was wrongly decided and should be overruled for reasons stated by the dissent in that case. LENT and TANZER, JJ., join in this concurring opinion. [1] ORS 18.160: "The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect." [2] The standard of "good cause" in the Workers' Compensation Law, as construed in Sekermestrovich v. SAIF, may be reconsidered by the Legislative Assembly, and it is not inconceivable that the Council on Court Procedure may rewrite ORS 18.160 in light of the perennial problems arising under its present form. Either change would reopen the question of the equivalence of the two rules. [3] One difference between ORS 18.160 and ORS 656.319(1)(b), noted in Sekermestrovich v. SAIF, supra, is that ORS 18.160, wisely or not, states relief from default judgments as a matter of the trial court's "discretion," while "good cause" under ORS 656.319(1)(b) is not a matter of "discretion" but of agency judgment in the sense stated in McPherson v. Employment Division, 285 Or. 541, 591 P.2d 1381 (1979).

55f17dc82f8e487197df11e47c1a2b95cac59fc9444d12eb758603882f227afb

1980-07-23T00:00:00Z

aad27848-768e-4575-a39f-82b2abdeb630

In Re Conduct of Tonkon

292 Or. 660, 642 P.2d 660

oregon

Oregon Supreme Court

642 P.2d 660 (1982) 292 Or. 660 In re Complaint As to the CONDUCT OF Moe M. TONKON, Accused. OSB 78-69; SC 28190. Supreme Court of Oregon, In Banc.[*] Argued and Submitted February 9, 1982. Decided March 16, 1982. Joe D. Bailey, Portland, argued the cause for accused. With him on the briefs were David C. Landis and Landis, Aebi & Bailey, P.C., Portland. William F. Hoelscher, Beaverton, argued the cause for the Oregon State Bar. With him on the brief was David J. Edstrom, Portland. PER CURIAM. By a disciplinary complaint heard before a trial board and reviewed by the Disciplinary Review Board, the Oregon State Bar brings before the court the issue whether an attorney violates the Code of Professional Responsibility whenever he prepares a will that contains a bequest for himself without advising the testator to obtain independent legal advice. We hold that this action in itself does not constitute a violation and that the accused committed no violation in this case. The Oregon State Bar's complaint alleged two causes of complaint, both arising out of the accused's representation of Alvin E. Gunderson. The events giving rise to the first cause of complaint, as stated by the bar and admitted by the accused, may be summarized as follows. The accused represented Alvin E. Gunderson for many years until the date of Gunderson's death. He prepared a number of wills and codicils for Gunderson during the years from 1963 to 1971. The final will, prepared on December 13, 1971, made a bequest of $75,000 to the accused. At the time of the execution of the will, Gunderson had been seriously ill for some time. He was physically unable to sign the will, and his mental capacity was somewhat diminished. Gunderson died in 1972, leaving a gross estate of approximately $6,000,000. Apart from the pleadings, it is undisputed that Mr. Gunderson on his own initiative instructed the accused to prepare the 1971 will in order to include the bequests to the accused and another close associate, and to add a charity to the beneficiaries under the residuary clause. The accused was not only Gunderson's lawyer but also a close personal friend and managed Gunderson's personal financial transactions under a power of attorney. It also is undisputed that the *661 accused did not advise Gunderson to consult another lawyer concerning the bequest to himself. The bar relies primarily on Canon 5 ("A lawyer should exercise independent professional judgment on behalf of a client") and Disciplinary Rule DR 5-101(A), along with certain other rules and this court's decision in In re Jones, 254 Or. 617, 462 P.2d 680 (1969).[1] The bar also cites Ethical Consideration 5-5 of the Code of Professional Responsibility as originally proposed by the American Bar Association and argues that conduct contrary to its terms should be held a violation of DR 5-101(A). EC 5-5 states: The Trial Board rejected this argument. It found: The Trial Board also found, "under the evidence, that the Accused did not violate a Disciplinary Rule or engage in conduct that adversely reflects on his fitness to practice law." The Disciplinary Review Board disagreed with the Trial Board. Without citing any disciplinary rule, it rested its conclusion on this court's opinion in In re Jones, supra. We deal with these issues in turn. The Trial Board was correct with respect to EC 5-5. The Ethical Considerations of the ABA's draft Code of Professional Responsibility were not included as part of the Code of Professional Responsibility proposed by the Oregon State Bar and adopted by this court on August 11, *662 1971. ORS 9.490.[2] They were intended as guides to professional conduct but not as tests for disqualifying or otherwise disciplining members of the bar, which explains the careful use of "should" instead of the "shall" of the Disciplinary Rules.[3] The Ethical Considerations have no official status as grounds for disciplinary action. In re Jones, supra, reached this court before the adoption of the Code of Professional Responsibility. Jones had prepared a will for a single woman which left him the entire estate subject only to a testimentary trust for her mother. The Board of Governors, which then was the hearing body, found that by failing to advise the testatrix to obtain independent legal advice and referring her to a lawyer employed in his office for execution of the will, the accused had exercised undue influence on the testatrix. The accused pleaded that his failure was only an "error in judgment." The court noted that the accused was not charged with actually persuading his client to leave her property to him, as had been true in prior cases,[4] but it stated that "[a]ny lawyer should know, without being told" to withdraw from the preparation of a will which includes a disposition for the lawyer's benefit: "Poor judgment does not excuse such an inflexible ethical rule." 254 Or. at 618, 462 P.2d 680. Therefore Jones's conduct was deemed to deserve a reprimand. So far as the foregoing quotation implies that one may be disbarred, suspended, or otherwise penalized for what "any lawyer should know without being told" without reference to any disciplinary rule, this approach to professional discipline was superseded by codification of the disciplinary rules. Cf. Megdal v. Board of Dental Examiners, 288 Or. 293, 307, 605 P.2d 273 (1980). The rule of In re Jones survived the adoption of the Code of Professional Responsibility only if it can be based on one of the code's disciplinary rules. We therefore examine the most directly relevant rule cited by the bar, DR 5-101(A). It states: We do not find in DR 5-101(A) an unvarying prohibition against participating in the preparation of an instrument that makes a gift to the lawyer unless the donor has first been advised to obtain the services of another lawyer. The rule refers to refusing professional employment if the exercise of the lawyer's professional judgment on behalf of his client either "will be" affected by the lawyer's interest or if it "reasonably may be" so affected. In either event, the lawyer may proceed only "with the consent of his client after full disclosure." "Will be affected" is a prediction with a high degree of certainty. It plainly requires a determination on the facts of each case. "May be affected" contemplates a much lower degree of certainty; a substantial risk suffices. It might state an absolute prophylactic rule but for the qualifying adverb "reasonably," which implies that the apprehension of impaired professional judgment must be reasonable under the circumstances.[5]*663 This will be selfevident in many dealings between lawyers and clients in which the lawyer has other than a professional interest. When these involve business transactions, in which both the client and the lawyer have personal financial objectives, DR 5-104 restricts the lawyer in entering into the transaction rather than in accepting a professional assignment, as DR 5-101 does, and the restriction in DR 5-104 is not qualified by the word "reasonably." In such cases we have held that the client's consent "after full disclosure" requires that the lawyer's disclosure include the advisability of obtaining independent legal advice. See In re Bartlett, 283 Or. 487, 584 P.2d 296 (1978). The difference between the two rules suggests that when the client has a business or other financial objective differing from that of the lawyer, DR 5-104 always requires that this advice be given, whereas in situations in which the client does not have a differing objective, such as in making a proposed gift to the lawyer, DR 5-101 requires disclosure and consent unless the lawyer's professional judgment on behalf of the client may not "reasonably" be found to be endangered by his interest in the transaction. Such a danger is a "reasonable" inference on facts such as those of In re Jones, supra, unless the evidence leads to a contrary result on the facts of a concrete case.[6] We find that this is such a case. Mr. Tonkon had over several years prepared a series of wills and codicils for Mr. Gunderson under which Tonkon was not a beneficiary. The execution of Gunderson's directive to add bequests to himself along with two other beneficiaries, in sums which, though substantial, represented a minor fraction of the estate, did not require the kind of professional judgment that would be threatened by a gift. There was no doubt of "consent of his client after full disclosure" within the opening qualification of DR 5-101(A); obviously the client knew that the bequest was in his lawyer's financial interest and consented to it, for that was its intended purpose. In this instance the advice to consult another lawyer apparently would have been an idle gesture, which is not to say that it should not have been made. On these facts, the trial board found, as quoted above, that the accused's professional judgment on behalf of his client neither was nor reasonably might have been impaired. The Disciplinary Review Board similarly found "that the testator originated the bequest, that the Accused did not in any way suggest or solicit the bequest [or] practice any undue influence or overreaching, that the testator was competent when he executed the will, and that the testator doubtless would have spurned any advice the Accused might have given regarding obtaining independent counsel," and also that the accused was the testator's close personal friend and "a natural object of the testator's bounty." As stated above, the Disciplinary Review Board nevertheless concluded that the accused's conduct was unprofessional under the rule of In re Jones, supra. For the reasons we have stated, we agree with the Trial Board that the Bar's first cause of complaint should be dismissed. The second cause of complaint concerned the accused's role in having Mr. Gunderson's will admitted to probate. It alleged that the accused previously had represented Mr. Gunderson's daughter-in-law Saundra and her children and that the accused inadvertently failed to mention the children as heirs in the petition for probate of the will and failed to notify them of the petition, and that he continued to represent Saundra without disclosing his potential conflict of *664 interest as a beneficiary under the will.[7] In answer, the accused states that his representation of Saundra Gunderson concerned only matters other than Alvin Gunderson's will, and that the lawyer's preparation of a will for a client cannot by itself disqualify him from serving everyone potentially interested in the testator's estate in matters unrelated to the will. The accused answers the charge of failure to notify the children of the petition to probate the will by arguing that, although lawyers have been disciplined for neglect of their client's affairs, none has been censured for an isolated instance of inadvertent oversight. The Trial Board and the Disciplinary Review Board both found the accused not guilty of the charges stated in the second cause of complaint. The Oregon State Board's brief in this court states that in view of these findings, the bar would not pursue the charges of neglect and of representation of clients with conflicting interests. We agree with the decision of the Trial Board and the Disciplinary Review Board. The charges against the accused are dismissed. [*] DENECKE, C.J., did not participate in the decision in this matter. [1] DR 5-101(A) states: "Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests." The other sources cited for the bar's first cause of complaint are ORS 9.480(1) and Canon 1, DR 1-102(A)(1) and (6). They provide: ORS 9.480: "The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that: "(1) He has committed an act or carried on a course of conduct of such nature that, if he were applying for admission to the bar, his application should be denied; ...." Canon 1: "A lawyer should assist in maintaining the integrity and competence of the legal profession" "DR 1-102 Misconduct. "(A) A lawyer shall not: "(1) Violate a Disciplinary Rule. * * * * * * "(6) Engage in any other conduct that adversely reflects on his fitness to practice law." [2] See, In re Bartlett, 283 Or. 487, 494 n. 4, 584 P.2d 296 (1978). [3] The chairman of the committee that drafted the Code of Professional Responsibility wrote of the difference between Ethical Considerations and Disciplinary Rules: "The Canons are single-sentence generalizations which state the basic duties of lawyers. Following each Canon are Ethical Considerations and Disciplinary Rules derived from the Canons. The Ethical Considerations set forth the level of professional activity and conduct to which the conscientious practitioner should aspire; such activity and conduct cannot be commanded but only encouraged. In contrast, the Disciplinary Rules are proscriptive in character and define minimum standards of conduct which a lawyer must observe or be subject to disciplinary action." Wright, The Code of Professional Responsibility: Its History and Objectives, 24 Ark.L.Rev. 1, 1-2 (1970). [4] In re Kneeland, 233 Or. 241, 377 P.2d 861 (1963); In re Moore, 218 Or. 403, 345 P.2d 411 (1959). [5] We assume that "reasonably may be affected" was not intended to mean literally that the effect may be reasonable, but that it was a careless shortening of "reasonably may be expected to be affected." [6] EC 5-5, supra, similarly is qualified by recognition of "exceptional circumstances." While the parties have focused on briefing what may be meant by "exceptional circumstances," we hold that the text needing interpretation is "reasonably may be affected," but the question under DR 5-101 similarly is whether the facts negate the inference of potentially impaired professional judgment. [7] The complaint cited the following: ORS 113.035(5): "The names, relationship to the decedent and post-office addresses of persons who are or would be his heirs upon his death intestate, and the ages of any who are minors." ORS 113.145(1): "Upon his appointment a personal representative shall deliver or mail to the devisees and heirs named in the petition for appointment of a personal representative, at the addresses therein shown, information that shall include: ...." Canon 1: "A lawyer should Assist in Maintaining the Integrity and Competence of the Legal Profession." "DR 1-102: Misconduct. "(A) A lawyer shall not: "(1) Violate a Disciplinary Rule. * * * * * * "(6) Engage in any other conduct that adversely reflects on his fitness to practice law." Canon 5: "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client" "DR 5-105: Refusing to Accept or Continue Employment if the Interest of Another Client May Impair the Independent Professional Judgment of the Lawyer. "(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C). "(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C). "(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. "(D) If a lawyer is required to decline employment or to withdraw from employment under a disciplinary rule, except DR 2-110(B)(3), no partner or associate of his or his firm may accept or continue such employment." Canon 6: "A Lawyer Should Represent a Client Competently" "DR 6-101 Failing to Act Competently. "(A) A lawyer shall not: * * * * * * "(3) Neglect a legal matter entrusted to him." ORS 9.480: "The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that: "(1) He has committed an act or carried on a course of conduct of such nature that, if he were applying for admission to the bar, his application should be denied; ...."

8a26c3db97761c819507939ce555eb8e414e892a86329dac5f1a2aa7dc3a09a5

1982-03-16T00:00:00Z

3716c63f-a8ad-4dd0-91c3-fa9175e9eaa6

State v. Stroup

290 Or. 185, 620 P.2d 1359

oregon

Oregon Supreme Court

620 P.2d 1359 (1980) 290 Or. 185 STATE of Oregon, Respondent, v. Randy Lee STROUP, Petitioner. No. 78-32999; CA 16139; SC 27010. Supreme Court of Oregon, In Banc.[*] Argued and Submitted October 7, 1980. Decided December 9, 1980. *1360 Elizabeth A. Baldwin, Staff Atty., Public Defender Services of Lane County, Inc., Eugene, argued the cause and filed the brief for petitioner. John C. Bradley, 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. TONGUE, Justice. Defendant was convicted of driving a motor vehicle while his operator's license had been suspended, in violation of ORS 487.560(1).[1] He appealed to the Court of Appeals, 45 Or. App. 543, 608 P.2d 625 contending, among other things, that the evidence was insufficient to support his conviction in that the state had failed to prove that the Motor Vehicle Division had previously mailed to the defendant notice that his operator's license had been suspended, as required by its own rules, by ORS 482.570,[2] and also as a matter of constitutional due process. *1361 In response, it was contended by the state that under the provisions of ORS 487.560(1) it had the burden to prove in its opening case only (1) that defendant was driving upon a highway and (2) that at the time his license was suspended; that under the provisions of ORS 487.560(2)(b) it is an affirmative defense, to be proved by defendant, that he had not received notice of his suspension,[3] and that, in any event, requirements of due process were satisfied because the license of this defendant had been suspended for "failure to appear in court" under ORS 484.210[4] and after receiving notice by a Uniform Traffic Citation, as then required by ORS 484.150(7), to the effect that if he failed to appear in court his license was subject to suspension.[5] The Court of *1362 Appeals affirmed defendant's conviction without opinion. We allowed defendant's petition for review because of the importance of the questions raised by these conflicting contentions. Prior to trial defendant gave the state notice in writing of his intention to rely on the defense of lack of notice of suspension. A jury was waived and the case was tried to the court. In its opening case the state offered the testimony of a police officer who testified that on October 7, 1978, he observed defendant slumped over the steering wheel of a car in a parking lot; that he asked defendant for identification, and that defendant then produced an expired driver's license with an incorrect address. A tape recording of an exchange between the defendant and the officer was admitted into evidence in the state's case in chief in which the officer asked defendant if he had been receiving his mail; that upon being told "Yeah" the officer asked defendant if he was "aware that (his) license (was) suspended," and that defendant said "No." The defendant told the officer that he had moved from Springfield to Eugene in March or April (1978); that he "just never got around to" having the address changed on his license and that the reason why he had not done so was that he had been working six to seven days a week. It was stipulated that defendant had been driving on a public street. The state offered in evidence a certified copy of the order of suspension, which was dated August 3, 1978, and stated that defendant's license was "suspended, effective (August 23, 1978) for an indefinite period * * * based upon * * * failure to appear in court," and that "You may request a hearing on this suspension order before a representative of the Motor Vehicles Division." The certificate attached to the copy certified not only that it was a true copy, but that "Our records reveal that this was in full effect on 10-07-78 and was mailed to the official address of record as recorded on the Motor Vehicle Division records." Defendant's address, as stated in the order, was "4980 Main St., Gen. Del., Springfield, Oregon, 97477." Defendant objected to the suspension order on the ground that no evidence had been offered by the state to show that it had been mailed as required by ORS 482.570.[6] That objection was overruled. The state also offered in evidence a mailing envelope to show that the suspension order had been mailed to defendant's address as shown on that order. Defendant objected, challenging the correctness of the address. The court then ruled that the exhibit was not relevant until the defendant put on his affirmative defense that he had not received notice of the suspension. The state then withdrew that exhibit. When the state rested, defendant moved for a judgment of acquittal on the ground that there was no evidence that the suspension order had been mailed to defendant as required by agency rule, statute, and due process and upon the ground that ORS 487.560(2) was unconstitutional. That motion was denied. Defendant's wife then testified that she and the defendant had never "had an address of 4980 Main Street, Gen. Del., Springfield, Ore.," as shown on the suspension order. She admitted, however, that defendant had lived at 4980 Main Street in Springfield Oregon. Defendant also offered in evidence a motor vehicle registration in defendant's name showing an address of 4980 Main Street, Springfield, Oregon, 97477 (without the reference to General Delivery). The court sustained an objection by the state on the ground of relevance. Defendant himself did not testify. *1363 The trial court found the defendant to be guilty, and held that the affirmative defense had not been proved. Defendant then filed a Motion in Arrest of Judgment, which was denied. Defendant contends that a suspension of a driver's license under ORS 487.560 is not valid until notice has been mailed as required by ORS 482.570. Defendant also contends that proof of suspension is necessary in order for the state to prove its case in chief; that failure of the state to prove the mailing of notice means that it has not proved an element necessary for the crime of "driving while suspended" and that the defendant must therefore be found not guilty. Defendant urges three separate grounds to support those contentions: (1) The Motor Vehicles Division must comply with its agency rules, which require notice; (2) the Motor Vehicles Division must comply with statutory provisions governing it, which require the mailing of notice of a suspension and failure to do so makes agency action invalid; and(3) due process requires that notice of a suspension be mailed before a suspension is valid.[7] Defendant contends that the Motor Vehicles Division regulations require that notice of suspension of a driver's license be provided and that failure to follow those rules makes a suspension invalid. However, the rule cited to us by defendant, OAR 137-03-000, does not require notice of the entry of an order of suspension. That rule provides: The rule states only that notice of a contested hearing (one in which a right or privilege might be suspended or revoked) be given. In this case the driver's license of this defendant was suspended "for failure to appear" in court. In such a case notice that the driver's license might be suspended for "failure to appear" would be provided by the mailing of a notice pursuant to ORS 484.210, as discussed below.[8] The rule does not require the mailing of notice after the entry of an order of suspension and therefore does not support defendant's contention that notice of the entry of the order of suspension must be mailed to the driver in order for the suspension to be valid. Defendant also contends that an agency must act in accordance with statutes governing it; that failure to do so makes an agency action invalid, and that the statutory scheme as set out in ORS 487.560 and ORS 482.570 requires that notice of the entry of an order of suspension be mailed to the driver before an order suspending a driver's license can become a valid order. Thus, it is contended that State v. Lawrence, 36 Or. App. 733, 585 P.2d 727 (1978), *1364 which appears to hold to the contrary, must be "overruled" because ORS 482.570 requires that when a driver's license is suspended by the Motor Vehicles Division it shall "give notice of such action" to the driver. Therefore, the failure of the Motor Vehicles Division to do so makes the suspension invalid, and it therefore follows that in order to prove a valid suspension under ORS 487.560 the state must prove the mailing of such a notice in accordance with ORS 482.570. The principal case relied upon by defendant in support of this contention is State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969). In that case this court held (at page 275, 459 P.2d 873) that the results of a breath test were inadmissible in a negligent homicide case arising out of an automobile accident because the state had not properly tested the equipment, as required by statute. By the same reasoning, it is contended that unless the Motor Vehicles Division proves compliance with ORS 482.570 the suspension of a driver's license should also be held invalid. Fogle, however, is clearly distinguishable. The statute construed in that case, ORS 483.644(1), (2)(c), provided specifically that in order for the chemical analysis of a person's breath "to be valid" the equipment must be approved by the State Board of Health and that the Board shall make tests of the equipment every 60 days. There is no such language in ORS 487.560 stating that for an order suspending a driver's license "to be valid," notice of the suspension must be subsequently mailed pursuant to ORS 482.570. Defendant also relies on State v. Leathers, 271 Or. 236, 531 P.2d 901 (1975), in which this court held (at page 240, 531 P.2d 901) that a sentence not "in conformity with its governing statute" is "without legal effect." Defendant contends, by analogy, that failure of the Motor Vehicles Division to comply with the mailing provisions of ORS 482.570 makes an order of suspension ineffective. Analysis of Leathers makes it clear, however, that it was the imposition of a sentence different from that allowed by statute that made the sentences invalid in that case, not failure to comply with notice requirements. The more proper approach to the question of whether an order suspending a driver's license is invalid under ORS 487.560 unless the Motor Vehicles Division has complied with the mailing requirements of ORS 482.570, is to inquire whether the legislature intended that an order suspending a driver's license, if otherwise a valid order, must then be mailed to the driver before there can be a valid suspension of his license and that in a prosecution for driving with a suspended license the state must prove the mailing of the order of suspension as a part of its case in chief. Cf. Anaconda Company v. Dept. of Rev., 278 Or. 723, 727, 565 P.2d 1084 (1977). Defendant's strongest contention on this question is that the affirmative defense provided for by ORS 487.560(2)(b) concerns the defendant's failure to receive actual notice, while ORS 482.570 concerns the mailing of notice. Thus, defendant contends that the legislature must have intended that in order for there to be a valid suspension the state must prove mailing of notice, but that the defendant can still raise as an affirmative defense that he did not receive the notice and thus had no actual notice. Although the statutes make such a distinction, we do not believe that it necessarily follows that the legislature intended that after the Motor Vehicles Division had entered an otherwise valid order suspending a driver's license, it must then mail a copy of that order to the driver before the order is a valid order and that the state must prove this as a part of its case in chief.[9] *1365 First of all, ORS 487.560 does not appear to require such a result. That statute defines the offense of "Driving while suspended" as follows: In State v. Lawrence, supra, it was held by the Court of Appeals that: Although that decision is not controlling on this court, we believe it to be of some significance in support of that analysis that the only mention of notice in ORS 487.560 is in subsection (2)(b), which provides that the defendant may raise as an affirmative defense the fact that he has not received notice as required by ORS 482.570. Although perhaps not controlling, the fact that notice is not in any way mentioned in ORS 487.560 except as an affirmative defense is some indication that the legislature did not intend to require the state to prove the mailing of notice as a part of its case in chief in order to make a prima facie case to prove the offense of "driving while suspended." We also find it significant that by making the failure to receive notice an affirmative defense, the legislature has by ORS 487.560(2)(b) provided defendants with a remedy when the state fails to comply with ORS 482.570. Had not such a defense been provided, it could be argued more effectively by the defendant that the mailing of notice was necessary for a valid suspension because otherwise the state could arbitrarily follow or ignore that section's notice requirements. Furthermore, ORS 482.570, the notice statute so heavily relied upon by defendant, appears to make the subsequent giving of notice an act or "action" separate from that of the suspension of a driver's license. It provides: The reference to "such action" is at least some further indication that the legislature considered the suspension of a driver's license to be an "action" complete in itself apart from the giving of "notice of such action." A final indication of legislative intent that the subsequent mailing of notice pursuant to ORS 482.570 is not required for a valid order of suspension is that in cases such as this, involving persons whose licenses have been suspended for "failure to appear," the legislature had already provided *1366 for notice and a hearing sufficient to satisfy constitutional due process. As discussed below, due process may require that notice and hearing be provided before a driver's license is terminated. In the case of those suspended for failure to appear in court for a hearing on a traffic offense, such notice and hearing is required by ORS 484.210. That section provides that prior to such a hearing the court is to mail notice to the defendant which shall "set forth a warning that for failure to appear for the hearing the defendant's license is subject to suspension unless bail is deposited in the amount set in the summons." We believe it reasonable to assume that in view of these efforts by the legislature to provide a statutory scheme consistent with the due process requirements of notice and hearing prior to a license being suspended, the legislature did not also intend that the validity of an order suspending a driver's license be dependent also upon notice to the driver after his license has been suspended. Such an additional requirement would appear to be both constitutionally unnecessary and also an unnecessary duplication of effort. In our opinion, it is more reasonable to conclude that the notice and hearing provided by ORS 484.210 is a provision intended by the legislature to satisfy constitutional requirements of due process before such a driver's license is suspended, at least in cases involving persons suspended for "failure to appear," as in this case, and that the subsequent mailing of a copy of such an order of suspension was not intended by the legislature to be required for the order of suspension to be valid. For these reasons, we do not interpret these statutes, including ORS 487.560(1), to require the state to prove the mailing of notice under ORS 482.570 as a part of its case in chief, at least in cases involving orders of suspension for "failure to appear," as in this case.[10] Defendant contends that in a prosecution for driving while suspended under ORS 487.560 due process requires that the state must prove compliance with the mailing requirements of ORS 482.570 in order to prove a valid suspension. Defendant supports this contention by citing Bell v. Burson, 402 U.S. 535, 540, 91 S. Ct. 1586, 1589, 29 L. Ed. 2d 90 (1971), and decisions by the Oregon Court of Appeals. Bell v. Burson, supra, does not hold that unless a copy of an order suspending a driver's license is then mailed to the driver the order of suspension is invalid. Instead, the court in that case addressed the issue of the right to notice and hearing prior to a determination that the license should be suspended. The court stated that due process The notice required by Bell is therefore notice of a hearing at which it will be decided whether the license should be suspended. At least for drivers whose licenses are suspended for "failure to appear," as in this case, Oregon's statutory scheme provides for notice and hearing prior to suspension. As previously noted, ORS 484.210, the statute providing for the suspension of a driver's license for "failure to appear" at a hearing on a traffic offense, provides that the court "shall at least five days in advance of the hearing mail notice of the date and time so fixed," and that "[t]he notice *1367 shall set forth a warning that for failure to appear the defendant's license is subject to suspension unless bail is deposited in the amount set in the summons."[11] In addition, ORS 484.150(7)(a), repealed in 1979 but in effect at the time of defendant's arrest and conviction, provided that a summons to appear in court shall include language that failure to appear may result in a suspension.[12] It follows, in our opinion, that the statutory scheme regarding notice and hearing for those suspended for "failing to appear" at the time of defendant's suspension satisfied the requirements of due process set forth in Bell. Most of the decisions by the Oregon Court of Appeals cited by petitioner, although not binding on this court, also have held that notice and hearing must be given prior to suspension, but did not hold that due process requires that notice be given of the suspension itself. In State v. Figueroa, 30 Or. App. 803, 586 P.2d 691 (1977), the Court of Appeals summarized its earlier holdings on the issue by stating: See also Floyd v. Motor Vehicles Div., 27 Or. App. 41, 554 P.2d 1024 (1976); Boykin v. Ott, 10 Or. App. 210, 498 P.2d 815 (1972). But see State v. Buen, 13 Or. App. 426, 509 P.2d 865 (1973), and State v. Gartzke, 35 Or. App. 151, 580 P.2d 1062 (1978). Defendant further contends that "where constructive notice is required as a matter of due process, shifting the burden of proof on that issue to the defendant is unconstitutional," citing this court's decisions in State v. Stockett, 278 Or. 637, 565 P.2d 739 (1977), and State v. Stilling, 285 Or. 293, 590 P.2d 1223 (1979). In Stockett, this court held that under the rule as stated in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), an Oregon statute which placed upon a defendant the burden of proving partial responsibility or diminished intent was unconstitutional in that it attempted to shift the burden of proof regarding the defendant's mens rea to the defendant. This court reasoned that in a specific intent crime the existence of the required mental state was an "essential element" of the crime and the burden of proof of that element could not be shifted to the defendant. 278 Or. at 642-43, 565 P.2d 739. In State v. Stilling, supra, this court quoted Stockett with approval for its statement of that rule. In this case, defendant's due process argument under this court's decision in Stockett is dependent upon a determination that "constructive notice" of the order suspending defendant's driver's license was an "essential element" of the offense of driving while suspended. If it was such an "essential element," then shifting the burden of proof on that issue to defendant by requiring him to disprove "notice" would be unconstitutional under our analysis in Stockett. Subsequent to its decision in Mullaney, and also subsequent to the decision by this court in Stockett, the United States Supreme Court decided Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), in which it greatly narrowed the *1368 rule announced in Mullaney. Because the Oregon Constitution does not have a due process clause of its own, any pronouncement made by this court concerning due process, as discussed in Stockett, must rest upon the due process clause of the Constitution of the United States.[13] Thus, because the decision of this court in Stockett was based upon its understanding of the requirements of due process as stated in Mullaney, the decision by the Supreme Court of the United States in Patterson is binding on this court in its application of the rule announced by it in Stockett. In Patterson the Supreme Court recognized initially that: The Supreme Court also made it clear in Patterson that just because a statute provides that proof of a certain fact constitutes an affirmative defense, it does not follow that those facts are an element of the crime with the burden of proof upon the state. The Court stated: See also 432 U.S. at 214, n. 15, 97 S. Ct. at 2329, n. 15. The Supreme Court then noted that in Mullaney it had held that the state may not shift the burden of proof of an element of a crime to the defendant. The Court in Patterson, however, narrowly defined what constitutes an "element" of the crime for purposes of due process, as "a fact which the State deems so important that it must be either proved or presumed." 432 U.S. at 215, 97 S. Ct. at 2329. The Court then went on to state that under the facts of Mullaney such a shifting of an element existed because under the Maine statutes "malice aforethought" was "mentioned in the statutory definition of the crime" so as to be an "element of the crime," and yet that element of malice was "presumed and could only be rebutted by the defendant by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation." 432 U.S. at 215-16, 97 S. Ct. at 2329-30. In this case the fact of "notice" does not appear in the definition of the offense of "driving while suspended," which is defined by ORS 487.560(1) simply as the act of driving a motor vehicle during a period when the driver's license has been suspended. Also, although the fact of mailing notice of an order of suspension is required by ORS 482.570, it is specifically provided by ORS 487.560(2) that the fact that the driver did not receive notice is an affirmative defense. As previously noted, we do not believe that it was the intent of the legislature in writing ORS 487.560 and 482.570 to require that notice of the order of suspension be mailed for that order to be valid. It follows, in our opinion, that proof of the mailing of a copy of the order of suspension, as provided by ORS 482.570, was not intended by the legislature to be an "essential element" of the offense of driving while suspended, in violation of ORS 487.560(1). It also follows, in our opinion, that proof of such notice was not required by due process either under the rule of Stockett or under the rule of Patterson.[14] *1369 As also previously stated, this is a case in which defendant's driver's license was suspended for "failure to appear." Whether the same result would follow in cases in which drivers' licenses are suspended for other reasons and whether in such cases the state would be required by due process to offer evidence of constructive notice as a part of its case in chief is not before the court for decision in this case. Defendant assigned as error the rejection by the trial court of defendant's offer in evidence of a motor vehicle registration showing an address somewhat different from that listed on the suspension order. Defendant contends that the motor vehicle registration was the last official address of the defendant that the Motor Vehicle Division had, with the result that the Motor Vehicle Division's mailing of the order of suspension to a different address did not properly comply with ORS 482.570, which requires that notice be mailed "to the person's address as shown by division records."[15] The trial court's reason for sustaining the state's objection to admitting the vehicle registration was that it was irrelevant because only the address on the defendant's driver's license is relevant proof under ORS 482.570. Defendant contends that because due process requires that notice be reasonably calculated to reach the person intended, all possible records must be considered that would provide the greatest possibility of reaching the defendant, and that such a record in this case was the motor vehicle registration, citing People v. Yount, 174 Colo. 462, 484 P.2d 1203 (1971), for the proposition that the order must be mailed to the last address found anywhere in the Motor Vehicle Division's records. The trial court held that the vehicle registration was irrelevant and that only the address on the defendant's driver's license is relevant proof under ORS 482.570. Assuming that the correctness of the address to which the notice was sent had any relevance to the issues of this case, we believe that this ruling by the trial court was correct for two reasons. First, ORS Chapter 482 (which includes the statutory provision now in dispute, ORS 482.570) contains only provisions concerning operators' and chauffeurs' licenses; provisions concerning vehicle registration are found in an entirely separate chapter, ORS Chapter 481. It is reasonable to assume that by the term "division records" in ORS 482.570, the legislature meant those records relating to the subject matter of the statutory chapter within which ORS 482.570 is found, which would be driver's license records and not vehicle registration records. Second, ORS 482.290(3) requires that persons holding driver's licenses must notify the division of any change of residence from that noted on their license as issued by the Motor Vehicles Division. This requirement indicates an intent that driver's license records be kept current and that they be a current and reliable source of information. It would be unreasonable to require the Motor Vehicles Division to search out other records immaterial to a driver's license suspension when the legislature has set out a scheme to make driver's license records themselves current and reliable. This is particularly true in light of the fact that the Motor Vehicles Division's driver's license records will be current and reliable unless a driver fails to comply with ORS 482.290(3), which requires drivers to notify the Motor Vehicles Division of a *1370 change in address. In our opinion, this court should not place an extra burden upon the Motor Vehicles Division to search out other records solely to compensate for a driver's own neglect. For these same reasons, we reject the reasoning of the Colorado Court in Yount, supra, upon which defendant relies in support of his contention that the Motor Vehicles Division must search all records, including vehicle registration records, to comply with ORS 482.570. Defendant also contends that the evidence was insufficient to support a verdict of guilty because: (1) the state failed to prove the mailing of notice as required by ORS 482.570; (2) the state failed to prove that the suspension order was in effect at the time of defendant's arrest for driving while suspended; and (3) even if the state is not required to prove mailing of notice in its case in chief, but the defendant can assert lack of receipt of notice as an affirmative defense, the evidence at trial was sufficient to prove that the defendant had carried the burden of proof to establish that defense. Defendant's contention that the state failed to prove the mailing of notice has already been disposed of by our holding that in this case the state was not required to prove mailing of notice in its case in chief. We do not consider defendant's second contention that there is insufficient evidence to prove that the suspension order was still in effect at the time of defendant's arrest because it does not appear that such a contention was made either at the time of trial or on appeal to the Court of Appeals. But see State v. Harris, 288 Or. 703, 609 P.2d 798 (1980), decided after the trial of this case. For similar reasons, we must reject defendant's final contention that the evidence was insufficient to support a verdict of guilty because the evidence at trial was sufficient to prove that defendant had carried the burden of proof of the affirmative defense that he had not received notice of the suspension of his driver's license. Defendant has not shown either by his petition for review or by proper assignment of error in his brief to the Court of Appeals that any such contention was made in the trial court. Both his motion for acquittal and his motion for arrest of judgment were based upon other grounds. In State v. Long, 246 Or. 394, 425 P.2d 528 (1967), the defendant contended on appeal, as in this case, that the evidence was insufficient to support a finding of guilt. In rejecting that contention this court said (at 396-97, 425 P.2d 528): There may be some exceptions to this rule, but not in this case.[16] For all of these reasons, we hold that the Court of Appeals properly affirmed defendant's conviction. Affirmed. LINDE, Justice, concurring. In order not to misconstrue the import of the holding on this record for other cases, something more needs to be said about the elements of the crime of driving a motor vehicle when one's driver's license has been suspended and the significance of the "affirmative defense" that one has not received the statutory notice of the suspension. *1371 This case has been argued on the issue whether the proper mailing of notice of the suspension is a prerequisite of the suspension and an element of the offense of driving while suspended. If so, it might be unconstitutional to make failure to receive notice an affirmative defense to be raised and proved by the defendant. Even under Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), 14th amendment due process does not let the state shift to the defendant the burden of disproving an element of the crime with which he or she is charged. It only permits assigning to the defendant the burden to show "affirmative defenses" that are recognized as "mitigating circumstances," 432 U.S. at 206, 209, 97 S. Ct. at 2324, 2326, i.e., circumstances that to some specified degree "exculpate or mitigate" conduct which otherwise includes all elements of the crime.[1] 432 U.S. at 207, 97 S. Ct. at 2325. The question, therefore, is what is an element of the offense and what is an "exculpatory" or "mitigating" circumstance under the laws governing the crime of driving while suspended. The legislature's answer is found in the following statutes. ORS 161.095(2), as part of the 1971 revision of Oregon's criminal law, enacted the principle that criminal guilt requires a culpable mental state except as stated in the next section.[2] That exception, ORS 161.105, is stated as follows: We recently discussed these sections in State v. Wolfe, 288 Or. 521, 605 P.2d 1185 (1980). In short, they provide that a culpable mental state is required for all offenses except those that are punishable only as violations.[3] Violations require a culpable mental state only when expressly included in the definition of the offense. When an offense created outside the criminal code "clearly" is intended to require no culpable mental state, that offense is punishable only as a violation. These rules are designed *1372 to carry out the "general purpose" to "limit the condemnation of conduct as criminal when it is without fault." ORS 161.025.[4] How does "driving while suspended" fit into this framework? First, it is an offense "defined by a statute outside the Oregon Criminal Code." ORS 487.560. The second question under ORS 161.105(1)(b), above, is whether the statute clearly dispenses with any culpable mental state requirement. ORS 487.560 does not clearly specify or clearly dispense with such a requirement. It is silent on the point. However, the context indicates that a culpable mental state is an element of driving while suspended. ORS 487.560(1) provides: It defines the offense as a "crime." By subsections (5) and (6), the crime is either a Class A misdemeanor or a Class C felony. The legislative assembly in ORS 161.025, supra, has said, and we ordinarily assume, that it does not intend to make a criminal of one who has no reason to know the facts that make his conduct unlawful. Cf. State v. Wolfe, supra. That applies to one who drives in good faith on a license issued by the state without reason to suspect that the license has been suspended or otherwise terminated. It is borne out by the various provisions for notice discussed by the Court. Moreover, if ORS 487.560 were read to dispense with a culpable mental element, then ORS 161.105(2), quoted above, would reduce the offense of driving while suspended from the crime which it purports to define to a violation.[5] If ORS 487.560 indicates anything, it is that the legislature was more intent on making driving while suspended a serious offense than to eliminate any culpable element and make violators of people who have no reason to doubt the continued validity of their drivers' licenses. Nevertheless, even though the statute does not dispense with a culpable mental state as an affirmative element of the crime, and as a practical matter the prosecution may prove the sending of notice as the most likely evidence to show that element, it does not follow that sending notice of the suspension itself is such an affirmative element. Thus the question what degree of knowledge or careless failure to inquire into the status of one's license constitutes the required element of culpability is properly left to an occasion when it is briefed and argued.[6] It only deserves to be pointed out that the present case does not decide that question. [*] Howell, J., retired effective November 30, 1980. Tanzer, J., did not participate in this decision. [1] ORS 487.560(1) provides: "A person commits the crime of driving while suspended if he drives a motor vehicle upon a highway during a period when his license or permit to drive a motor vehicle or his right to apply for a license to drive a motor vehicle in this state has been suspended by a court or by the division * * *." [2] ORS 482.570 provides: "When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail restricted delivery, return receipt requested, to the person's address as shown by division records, or, by personal service in the same manner as a summons is served in an action at law." [3] ORS 487.560(2) provides: "In a prosecution under subsection (1) of this section, it is an affirmative defense that: "* * * "(b) The defendant had not received notice of his suspension or revocation as required by ORS 482.570 or in the manner provided in paragraph (c) of subsection (3) of this section." [4] ORS 484.210 provides: "(1) If the defendant requests a hearing, or if pursuant to ORS 484.220 the court directs that a hearing be had, the court shall fix a date and time for the hearing and, unless notice is waived, shall at least five days in advance of the hearing mail to the defendant notice of the date and time so fixed. The notice shall set forth a warning that for failure to appear for the hearing the defendant's license is subject to suspension unless bail is deposited in the amount set in the summons. "(2) If the defendant fails to appear for the hearing at the time and place fixed by the court and no bail has been deposited, the court may notify the Motor Vehicles Division of the defendant's failure to appear. In the notification the court shall certify that notice was given the defendant as prescribed by subsection (1) of this section and that the defendant failed to appear for the hearing. Upon receipt of such notification, together with a fee of $5, the division shall suspend the defendant's license for an indefinite period. If the defendant thereafter makes his appearance before the court, the court shall notify the division of the fact and the division shall thereupon terminate the suspension ordered pursuant to this subsection. Notifications by the court to the division shall be in a form prescribed by the division. A suspension ordered under this section shall not be used by the division in any subsequent consideration of the defendant's driving record under ORS 482.450. "(3) As used in this section, `license' has the meaning given that term by ORS 482.010." [5] As of the time of defendant's arrest in 1978, ORS 484.150(7) provided: "The summons shall also contain a notice to the person cited that the complaint will be filed. The reverse side of the summons shall contain the following: "(a) A form substantially as follows: "READ CAREFULLY "You must appear in court at the time mentioned in this citation if you are charged with any of the following offenses: "1. Reckless driving. "2. Driving while under the influence of intoxicants. "3. Leaving the scene of an accident. "4. Operating a motor vehicle while your driver's license was suspended or revoked. "5. Attempting to flee or elude a police officer. "If you are charged with any OTHER offense, you MUST do ONE of the following: "1. Appear in court at the time mentioned in this summons and request a hearing. The court will then set a time for a hearing. "2. Mail to the court this summons, together with a check or money order in the amount of the bail indicated on the other side of this summons and tell the court you request a hearing. This summons and the bail must reach the court before the time when this summons requires you to appear in court. If you don't want a hearing, but wish to explain your side, send your explanation with the summons and bail. The court will then consider your explanation and may forfeit your bail, or part of it, on the basis of your explanation and what the officer tells the court. "3. Sign the plea of guilty below and send this summons to the court, together with check or money order in the amount of bail indicated on the other side of this summons. If you wish to explain your side, you may send your explanation with guilty plea, summons and bail. "This summons and the bail must reach the court before the time when this summons requires you to appear in court. "NOTE: If you have already given bail or other security for your appearance, proceed as mentioned above but do not send in any additional sum as bail. For the purpose of determining whether grounds exist for revoking or suspending your operator's or chauffeur's license, an unvacated forfeiture of bail equals a conviction. "IF YOU FAIL TO COMPLY WITH THESE INSTRUCTIONS, THE COURT IS AUTHORIZED TO ISSUE A WARRANT FOR YOUR ARREST OR BY NOTICE TO THE MOTOR VEHICLE DIVISION TO CAUSE YOUR OPERATOR'S LICENSE TO BE SUSPENDED, OR BOTH. "THE COURT MAY IN ANY CASE, AFTER NOTICE, REQUIRE YOU TO APPEAR FOR A HEARING." [6] For the provisions of ORS 482.570, see note 2. [7] Defendant also made some other related contentions, as discussed separately below. [8] For the provisions of ORS 484.210, see note 4. The order of suspension in this case states that defendant's license was suspended for "failure to appear in court." It does not state specifically that defendant was suspended for failure to appear at a hearing pursuant to the provisions of ORS 484.210. That defendant was suspended for failure to appear at such a hearing logically flows from ORS 484.220(2), however. ORS 484.220(2) provides: "A recommendation for suspension of the defendant's driver's license shall not be made unless a hearing has been ordered, but the failure of the defendant to appear at the hearing shall not preclude such a recommendation." [9] We have not overlooked defendant's reference to the Commentary on the Proposed Oregon Vehicle Code, § 92 (Committee on the Judiciary, January 1975). That Commentary notes that in proposing what is now ORS 487.560, the interim committee that prepared the code relied upon the recent Court of Appeals case of State v. Buen, 13 Or. App. 426, 509 P.2d 865 (1973). Defendant contends that Buen requires the mailing of notice before a suspension is valid and therefore the legislature intended that ORS 487.560 also make that requirement. This contention must be rejected for several reasons. First, Buen did not clearly state that notice must be mailed for a suspension to be valid, but stated that it is unnecessary to show actual notice in order to prove compliance with ORS 482.570, and that when statutory duties are followed, such as the requirement of the mailing of notice, it is presumed that due process has been complied with. Second, the Commentary's primary reliance upon Buen is to show that § 92 is consistent with Buen in allowing a conviction in some cases despite the defendant's assertion that he did not receive actual notice. More importantly, legislative history subsequent to the preparation of the Commentary shows a contrary legislative intent than that contended by defendant. Mr. Donald Paillette, Project Director of the Proposed Oregon Vehicle Code, explained the provisions of the proposed code to the Judiciary Committee. On January 23, 1975, testifying before the Senate Judiciary Committee and explaining § 92, Mr. Paillette stated: "What is being put forth in this section is that the burden is going to be shifted so long as there has been a showing that there is a suspension and that the defendant in question was driving at a time when he was suspended or revoked." Minutes, Senate Committee on Judiciary, January 23, 1975, page 5. This supports the conclusion that the legislature intended that the state need only prove suspension and driving while suspended, rather than an intent that proof of mailing must also be shown by the state in its case in chief. [10] The analysis proposed by the concurring opinion, including its reliance upon ORS 161.105, was not argued or suggested by either party in this case. Indeed, as noted by the concurring opinion, the contentions submitted by the parties in this case, and decided by this opinion, were quite different. For that reason, as also stated by the concurring opinion, the questions raised by it must be left to an occasion when they are briefed and argued. [11] For the provisions of ORS 484.210, see note 4. [12] For the provisions of ORS 484.150(7), see note 5. It should be noted that although 484.150(7)(a) seemed to say that failure to appear at an initial court appearance pursuant to a summons might result in a suspension, we have been unable to find any authority that would grant a court the power to recommend a suspension in such a case. As discussed in footnote 8, ORS 484.220(2), also in effect at the time of defendant's arrest, provides that a court cannot recommend a suspension unless it has ordered a hearing pursuant to ORS 484.210. Thus, despite the language of ORS 484.150(7)(a), it appears that a court could not have suspended a person's license simply for failing to appear at an initial court appearance set by summons without a hearing being set. It should be noted, however, that even though a driver's license would not be actually suspended in the absence of a further hearing pursuant to ORS 484.210, the notice given to a driver that his license might be suspended might well have provided defendant with notice for purposes of constitutional due process. [13] See Linde, Without Due Process, 49 Or.L. Rev. 125, 145-46, 159 (1970). [14] Defendant has not contended in this case that he is denied due process by the failure of ORS 487.560 to require a culpable mental state to support a conviction for "driving while suspended," thus making it a strict liability crime. Other Supreme Court cases on related issues have language strongly supporting the constitutionality of strict liability crimes, at least where "public welfare offenses," such as traffic violations, are involved. See Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 242, 2 L. Ed. 2d 228 (1957); Morissette v. United States, 342 U.S. 246, 262 and n. 20, 72 S. Ct. 240, 249 and n. 20, 96 L. Ed. 288 (1952). This is in contrast to the recognition of a strong presumption that crimes having their origin in the common law must have a mens rea element. See United States v. United States Gypsum Co., 438 U.S. 422, 436-38, 98 S. Ct. 2864, 2873-74, 57 L. Ed. 2d 854 (1978). [15] For the provisions of ORS 482.570, see note 2. [16] Defendant also contends that the trial court erred in failing to hold that the defense or affirmative defense of lack of notice had been properly raised. Again, defendant has not shown by any proper assignment of error in his brief to the Court of Appeals that he objected to the failure of the trial court to make such a finding. [1] I do not here pursue the conundrum how the presence or absence of a specified fact can excuse or reduce a defined crime without thereby making the absence or presence of that fact an element of guilt of that crime. That this is a conundrum is plain once we focus on the question of the actor's guilt of the crime at the time of his act (for instance, when driving without notice that one's license has been suspended) rather than on the procedure at the time of trial. However, as the Court says, on this 14th amendment issue we take the word of the Supreme Court. [2] ORS 161.095(2): "Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." [3] "Violations" are not "crimes." "An offense is either a crime or a violation or a traffic infraction." ORS 161.505. An offense is a violation if it is so designated or if it is punishable only by a fine, forfeiture, or other civil penalty. ORS 161.565, 161.575. [4] ORS 161.025(1): "The general purposes of chapter 743, Oregon Laws 1971, are: ..... "(d) To define the act or omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault...." [5] This is so unless ORS 487.560, which is "a statute enacted after January 1, 1972" "otherwise provides." But again, ORS 487.560 does not expressly "otherwise provide"; it is silent on the point. [6] Cf. ORS 161.085(6) to (10), defining the different kinds of "culpable mental state."

d7a8cd2c15c7fe63a6d2438d9ee20dd1c5842aa7c8a31c73d84a07e25d40d82f

1980-12-09T00:00:00Z

1bf83101-6fad-45a5-827f-9c5b69086b34

State v. Wolfe

605 P.2d 1185

oregon

Oregon Supreme Court

605 P.2d 1185 (1980) STATE of Oregon, Respondent, v. Garrette Caner WOLFE, Jr., Petitioner. TC 107610; CA 13215; SC 26462. Supreme Court of Oregon. Argued and Submitted January 8, 1980. Decided February 6, 1980. *1186 Paul J. DeMuniz, Salem, argued the cause for petitioner. On the brief were Gary D. Babcock, Public Defender, and Gary L. Hooper, Deputy Public Defender. Thomas H. Denney, 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. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE, and PETERSON, JJ. LINDE, Justice. ORS 166.275 makes it a felony for a person committed to a penal institution to have possession or custody of certain weapons or dangerous instruments listed in the statute, including a "sharp instrument." Defendant, a prisoner at the Oregon State Penitentiary, was convicted on a stipulation of facts on a charge of unlawful possession of a knife. The issue before us concerns the mental state required for culpability under ORS 166.275. The statute provides: The indictment charged defendant with possessing the knife "knowingly, unlawfully and feloniously ... [and] not having any lawful authority to possess said weapon." *1187 If the statute requires a culpable mental state, and "knowing" possession satisfies the requirement, the conviction must be affirmed. Defendant finds himself in the position, unusual for a defendant, of arguing that the law which defines his conduct as a felony does not require a culpable mental state at all. He makes this argument in order to invoke one of the general provisions of the criminal code which states that "an offense defined by a statute outside the Oregon Criminal Code that requires no culpable mental state constitutes a violation." ORS 161.105(2).[1] The trial court stated its view to be that ORS 166.275 must be understood to require a culpable mental state, either "knowingly" or "intentionally," although neither term appears in its text. Since the court overruled defendant's demurrer and entered a conviction on the indictment, the court apparently concluded that "knowing" possession, as charged in the indictment, satisfied the requirement. In affirming defendant's conviction, the Court of Appeals relied on subsection (3) of ORS 161.105, supra note 1, which provides that even when an offense requires no culpable mental state, the culpable commission of the offense may nevertheless be charged and proved and a sentence imposed accordingly. 41 Or. App. 79, 596 P.2d 1322 (1979). We allowed review to consider the court's assumption that ORS 166.275 is one of the class of statutes referred to in ORS 161.105(3). We conclude that it is not, but we affirm the conclusion reached by the trial court. ORS 161.105, on which defendant relies to reduce his offense to a violation, deals with exceptions to the general requirement that all offenses required a culpable mental state. ORS 161.095.[2] He could bring himself within its terms only if the offense is defined by a statute which is "outside the Oregon Criminal Code" and which "clearly indicates a legislative intent to dispense with any culpable mental state requirement." It is arguable whether ORS 166.275, which antedates the revision of the criminal laws in 1971 and was not included in that revision, satisfies the first condition.[3] But in any *1188 event, ORS 166.275 does not "clearly indicate" that the legislature intended to create an offense without any culpable mental element. This would be an improbable and artificial construction of a crime defined as a felony and carrying a potential 20-year sentence. The culpable mental state implicit in the definition of this crime may be determined from the conduct and the circumstances with which it deals. The prohibited conduct is to "possess" the forbidden objects or to "carry them on one's person" or to have them in one's "custody or control." We do not believe these were meant to include unknowing acts. If no mental element were required, an inmate might be charged under the statute if a forbidden item were placed in his cell without his knowledge or if it were in the pocket of someone else's jacket that he picked up by mistake. Such a reading would not correspond to the gravity indicated by creating a felony punishable by a heavy sentence. On the other hand, the setting of the prohibited conduct is a penal institution, or transit to or from such an institution. We think that a prisoner who knows that he has one of the listed items in his possession, custody, or control without authorization and does not act to dispose of it in a manner required or appropriate under the circumstances has met the required degree of culpability. In this setting, we do not believe the legislature meant to make an additional issue of the inmate's "intention" in the sense of acting "with a conscious objective to cause the result or to engage in the conduct so described."[4] Accordingly, the trial court did not act on an erroneous view of the law. The indictment alleged defendant's knowledge that he had possession of the knife. It is not disputed that he in fact knew he had the knife or that it was a "sharp instrument" within the meaning of the statute. The judgment is affirmed. Affirmed. [1] ORS 161.105: "(1) Notwithstanding ORS 161.095, a culpable mental state is not required if: "(a) The offense constitutes a violation, unless a culpable mental state is expressly included in the definition of the offense; or "(b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof. "(2) Notwithstanding any other existing law, and unless a statute enacted after January 1, 1972, otherwise provides, an offense defined by a statute outside the Oregon Criminal Code that requires no culpable mental state constitutes a violation. "(3) Although an offense defined by a statute outside the Oregon Criminal Code requires no culpable mental state with respect to one or more of its material elements, the culpable commission of the offense may be alleged and proved, in which case criminal negligence constitutes sufficient culpability, and the classification of the offense and the authorized sentence shall be determined by ORS 161.505 to 161.655." [2] ORS 161.095: "(1) The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is capable of performing. "(2) Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." [3] The legislative history indicates that the provision for offenses "outside the Oregon Criminal Code" was designed to cover the great variety of regulatory statutes that contain provisions for enforcement by criminal prosecution, and particularly to avoid strict liability for offenses potentially punishable by imprisonment. See Minutes of the Criminal Law Revision Commission, June 17, 1969, pp. 40-42, and September 12, 1969, pp. 2-3. The sections of ORS chapter 166 dealing with weapons, of which ORS 166.275 is one, were eventually excluded in the process of getting the criminal law revision ready for legislative enactment, but not because they were regarded as extraneous to the criminal code. Thus although they are among those sections that were not made part of the "Oregon Criminal Code of 1971," see ORS 161.005, it does not necessarily follow that they are "statutes outside the Oregon Criminal Code" as referred to in ORS 161.105. [4] ORS 161.085 defines the words as follows: "(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."

8f14984c9ed93f126af0d8e5335a4ed721ab19ca061e78cc9965f17708e5fc77

1980-02-06T00:00:00Z

8d0f5372-38b9-431b-9b64-ea8d6211dec3

Burke v. Children's Services Division

288 Or. 533, 607 P.2d 141

oregon

Oregon Supreme Court

607 P.2d 141 (1980) 288 Or. 533 Sandra BURKE, Individually and On Behalf of All Others Similarly Situated, Petitioner, v. CHILDREN'S SERVICES DIVISION, J.N. Peet, Administrator, and Department of Human Resources, Richard A. Davis, Director, Respondents. TC 414-115; CA 10501; SC 26253. Supreme Court of Oregon. Argued and Submitted November 8, 1979. Decided February 20, 1980. *142 Gary Roberts, Legal Aid Service, Portland, argued the cause for petitioner. With him on the briefs were Michael H. Marcus and Robert B. Johnstone, Legal Aid Service, Portland. Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondents. With her on the briefs were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Before DENECKE, C.J., and HOLMAN, TONGUE, LENT and PETERSON, JJ.[*] TONGUE, Justice. This is a class suit in equity on behalf of families with dependent children asking for a declaratory judgment that defendants had improperly terminated a program for federally funded payments to them and for an order requiring the resumption of such payments. On a motion by the plaintiffs for partial summary judgment the trial court: (1) ordered the defendants to resume making child care payments on behalf of the plaintiffs in accordance with policies in effect prior to February 15, 1975; (2) held that the plaintiffs were entitled to judgment against defendants in the amounts by which their net available incomes were reduced by the Children's Services Division's discontinuance of its payment program on that date; and (3) ordered the defendants to identify the class members, determine the amounts due them, remit those amounts to the class members, and account to the court for all class members who could not be located. The Court of Appeals reversed, *143 holding that under the circumstances of this case the trial court did not have authority to grant the relief embodied in its order. Burke v. Children's Services Division, 39 Or. App. 819, 593 P.2d 1262 (1979). We allowed plaintiffs' petition for review because this case raises significant issues of administrative law and of the relief available for improper action by administrative agencies. This case arises from a decision by the Division (CSD) to terminate, because of a projected shortage of funds, a program of direct payments to providers of child care for certain recipients of Aid to Families with Dependent Children (AFDC). Plaintiff Burke, whose child care payments had been made by CSD under the program, received notice of its termination on February 15, 1975, the date the change in policy went into effect. On February 16, 1975, the Public Welfare Division of the Department of Human Resources adopted rules providing that child care expenses paid by recipients would be taken into account in computing the amount of AFDC grants. The combined effect of these two changes in policy was to reduce plaintiff Burke's net available income because the amount of the increase in her AFDC grant was less than the cost of her child care which had been paid by CSD. On March 20, 1975, plaintiff Burke filed this lawsuit on behalf of herself and others similarly situated. On March 25 CSD adopted a temporary rule terminating its day care payment program, but has never, so far as the record shows, adopted a permanent rule to that effect. Upon a prior appeal the Court of Appeals held that the termination of the benefit program could not be accomplished by internal management directive, ORS 183.310(7)(a), but must be done by the promulgation of a rule according to the procedures prescribed in ORS 183.335, including notice of the intended action and opportunity for interested persons to present their views. Burke v. Children's Services Division, 26 Or. App. 145, 552 P.2d 592 (1976). The defendants did not seek review of that decision. CSD's temporary rule of March 25, 1975, was adopted without the notice and comment procedures described above. Subsection (2) of ORS 183.335 provided at that time that a temporary rule could be adopted without prior notice and opportunity for comment if Effective May 16, 1975, CSD repealed its first temporary rule and adopted in its place a second temporary rule to the same effect insofar as it affected persons of plaintiffs' class.[2] Both rules, as filed with the Secretary of State, were accompanied by statements intended to meet the requirements of ORS 183.335(2), quoted above. Temporary rules expire by force of statute 120 days after their adoption. ORS 183.335. Plaintiffs contend that because CSD has never taken any steps to effect a permanent repeal of its day care payment program after providing the required notice and opportunity to be heard, the trial court properly ordered the defendants to pay restitution in the amounts by which their net incomes have been reduced to date by the termination of the program and also to resume making such payments. The Court of Appeals found it unnecessary to decide whether, as a general proposition, the trial court had the power to do either of these things. Instead it held that it was not authorized to do so under the facts of this case for two reasons. First, the original benefit program had not been embodied in a validly promulgated prior rule. Second, CSD's program was replaced, the day after its termination, by a substitute *144 program administered by another agency. (39 Or. App. at 823, 593 P.2d 1262). In our opinion, neither reason will support the Court of Appeals' conclusion. Prior to 1977,[3] ORS 183.310(7) defined a "rule" as: The statute goes on to list certain exceptions to the broad language of this definition, but none of them are applicable here. We need not in this case explore the outer reaches of the statutory definition. Certainly the original "directive" or "statement" adopting CSD's day care payment program, whatever its precise form and whatever informality attended its promulgation, constituted an implementation of agency policy within the meaning of the definition and was therefore a rule. It is true that a rule may be declared by a court to be invalid if it was adopted without the proper procedures. See ORS 183.400. In the absence of such a declaration, however, it remains an effective statement of existing practice or policy, binding on the agency, until repealed according to procedures required by the Administrative Procedures Act. An agency may not rely on its own procedural failures to avoid the necessity of compliance with its rules. Defendants contend that the adoption of a substitute benefit program by the Public Welfare Division (now the Adult and Family Services Division, 1977 Or. Laws ch. 267 § 5) effectively terminated the CSD program without the necessity of CSD adopting a permanent rule to that effect. The substitute program was embodied in two temporary rules which were later promulgated as permanent rules effective May 25, 1975. Or.Adm. Rules XXX-XX-XXX-XXX.[4] The agency ultimately responsible for the provision of day care assistance to AFDC recipients is the Department of Human Resources. That department is directed by ORS 184.750 to provide services relating to "public assistance, children and families" through its various divisions including CSD and the former Public Welfare Division. It has been designated by the legislature as the recipient of all federal funds provided for such services. ORS 184.750(4). Under the applicable federal regulation, federal funds may be used for child care for AFDC recipients in the form of either direct payments to providers or increased assistance grants. 45 CFR 220.61(e)(11). The *145 defendants argue that through the change in the rules of the Public Welfare Division and the termination, at the same time, of the CSD payment program the Department of Human Resources, the responsible agency, was simply exercising its authority to change from one permissible method of providing child care services to another permissible method. Plaintiffs do not dispute the authority of the Department of Human Resources to make such a choice.[5] They challenge only the procedure by which its accomplishment was attempted. We need not consider whether such a change could have been accomplished by a rule adopted by the Department of Human Resources itself, or whether an attempt by the Public Welfare Division, by a valid rule, to terminate a program previously administered by CSD could ever be effective.[6] Neither method of change was attempted in this case. The rules of the Public Welfare Division upon which defendants rely do not purport to terminate the CSD program. They provide only that child care expenses will be taken into account in determining the amount of assistance grants to AFDC recipients except in situations where child care programs are provided by CSD. They do not specify what those situations are or will be in the future. By their terms they simply do not accomplish what the Court of Appeals, in the first appeal of this case, held can be accomplished only by the proper adoption of a rule. Because we conclude that neither CSD's failure to initiate the child care payment program with proper rule-making procedures nor the adoption by the Public Welfare Division of the rules discussed above obviated the need for CSD to terminate the program by rule, we must consider the more general questions of the trial court's authority which the Court of Appeals did not find it necessary to reach. The trial court awarded monetary relief, although the prayer of the complaint specifically requested only a declaratory judgment that the program had not been properly terminated and an order requiring the resumption of the payments. The complaint also prays, however, for "such other and further relief as the Court may deem equitable." Defendants have not contended that the monetary award of damages is beyond the scope of the complaint. See Dennison v. Doreen, 281 Or. 89, 95-96, 573 P.2d 1242 (1978); Kerschner v. Smith, 121 Or. 469, 473-74, 236 P. 272, 256 P. 195 (1927). The defendants contend that the circuit court was without authority to award money damages because the Oregon APA makes no provision for the award of damages for failure to comply with the Act's rule-making provisions. We hold that monetary relief cannot be granted in this proceeding. At the time this case was filed the APA authorized judicial review of agency action in several ways. Two of them are clearly not involved in this case: judicial review of an agency's declaratory ruling[7] and review by the Court of Appeals of an order in a contested case.[8] Two other possibilities must be considered here. One is a declaratory judgment proceeding to determine the validity of a rule, authorized by ORS 183.400. The other is the review of a final order other than in a contested case. See ORS 183.480. At the time this case was *146 filed, proceedings of both kinds were within the jurisdiction of the circuit court.[9] Although the question is not directly addressed by the parties, their briefs appear to be written on the assumption that this is a proceeding for a declaratory judgment to determine the validity of a rule under ORS 183.400 which, at the time this suit was filed, provided: It may seem incongruous, at first blush, for plaintiffs to initiate a proceeding under this section when the essence of their complaint is that the defendants never attempted to adopt the required rule at all. However, CSD's announcement of the termination of the payment program falls within the statutory definition of a rule which we have quoted above at page 144. It is appropriate, then, to challenge the validity of that announcement by a proceeding under ORS 183.400. Actions by the trial court in this case are consistent with treating this case as a proceeding under ORS 183.400 and inconsistent with treating it as an attempt to obtain review of an order under ORS 183.480. We adopt, therefore, the apparent understanding of the parties and the trial court and treat the case as one brought under the terms of ORS 183.400.[10] The 1973 version of the statute, in effect when this case was filed, did not authorize any relief other than declaratory relief. It provided that upon petition for a declaratory judgment the validity of a rule "may be determined" and described certain circumstances under which "[t]he declaratory judgment may be rendered." Plaintiffs argue, however, that the legislative authority for additional relief in such a proceeding may be found in the provisions of ORS chapter 28, the Uniform Declaratory Judgments Act, to which ORS 183.400 at that time referred. ORS 28.080 then, as now, provided: This provision authorizes coercive and monetary relief in actions or suits for declaratory judgments. Lowe v. Harmon, 167 Or. 128, 136, 115 P.2d 297 (1941). It does not appear, however, that the legislature intended, by its provision in ORS 183.400(1) that a petition to have the validity of a rule determined may be "filed as provided by ORS chapter 28," to incorporate that chapter in its entirety, including the provisions for additional relief in ORS 28.080. The relief authorized by ORS 183.400 was solely declaratory. The Administrative Procedures Act has, however, been amended since this case was filed. ORS 183.400(1), as amended by 1975 Or. Laws ch. 759 § 9, now provides: We have recently expressed our uncertainty as to just what is meant by this provision. See Megdal v. Oregon State Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 *147 (1980), at footnote 24.[11] In contrast with the earlier version, which provided for the determination of validity upon a petition "filed as provided by ORS chapter 28," the amended statute provides that validity may be "determined * * * in the manner provided for review of orders in contested cases." It is at least arguable that the "manner provided" for such review includes the remedies which the court is authorized to grant. In 1979 the legislature added the following provision to the Administrative Procedures Act: Paragraph (b) clearly authorizes monetary relief in proceedings to review orders if the court finds that such relief is "necessary to redress the effects of official action wrongfully taken or withheld." It is less clear whether the legislature intended also to authorize monetary relief in proceedings to review the validity of a rule. If it did, we would be faced with the additional question whether the legislature intended paragraph (b), insofar as it authorizes monetary relief, to apply to cases which were pending on appeal or review on its effective date. We do not have to reach that issue, however, because we conclude that the 1975 and 1979 amendments do not authorize monetary relief in proceedings to determine the validity of a rule. ORS 183.400(1) as amended in 1975 still provides that the purpose of the proceeding is to determine the validity of a rule. The 1979 amendments made no changes in that subsection. The 1979 provisions which we have quoted above refer expressly to the statutes providing for review of orders, but not to ORS 183.400(1). The 1979 legislation does provide that the court "shall provide whatever relief is appropriate irrespective of the original form of the petition," but this directive is limited by the terms of the statute to proceedings for the review of orders. Review of contested cases is, with limited exceptions, on the record made before the agency. ORS 183.482(5). Review of orders other than in contested cases originates in the circuit court and the record is made there. ORS 183.484. Since the effective date of the 1975 amendment to ORS 183.400(1), a proceeding to determine the validity of a rule originates with a petition filed in the Court of Appeals. It does not appear that the legislature contemplated that the kind of factual record necessary to determine contested issues of fact such as the extent of damage caused by adoption or enforcement of an invalid rule would be made before that court. Neither the 1975 nor the 1979 amendment contains provision for making such a record. This may not be conclusive of the legislative intent. If the 1979 amendment is applicable to proceedings under ORS 183.400(1) the Court of Appeals could, under paragraph (a), order the agency to take evidence and make the necessary factual determinations if the rule were found to be invalid. It does, however, seem unlikely that the legislature intended to establish such a bifurcated procedure by indirection. *148 The validity of a rule may be determined in proceedings to review orders as well as in proceedings brought specifically to review the rule. ORS 183.400(2). Under the 1979 amendment monetary relief can be obtained, if appropriate, in such proceedings. Because the legislature has clearly provided for such relief, if appropriate, when an invalid rule forms the basis for an order, and considering the statutory language and the procedural complications we have noted above, we conclude that the legislature did not intend to provide for monetary relief in proceedings under ORS 183.400(1) to determine the validity of a rule. Plaintiffs rely on a number of federal cases in which monetary awards were based on violations of the federal APA, although the federal act contains no specific authority for such relief. Dean v. Butz, 428 F. Supp. 477 (D.Haw. 1977); Aiken v. Obledo, 442 F. Supp. 628 (E.D.Cal. 1977); Lewis v. Weinberger, 415 F. Supp. 652 (D.N.M. 1976); Saint Francis Memorial Hospital v. Weinberger, 413 F. Supp. 323 (N.D.Cal. 1976). In none of these cases does it appear that the court's authority to grant monetary relief was challenged, and in none of the opinions is any authority cited. Other federal courts have concluded that the APA does not authorize monetary relief. See, e.g., Armstrong & Armstrong, Inc. v. United States, 356 F. Supp. 514, 521 (E.D.Wash. 1973), aff'd 9th Cir., 514 F.2d 402 (1975); Hooper v. United States, 331 F. Supp. 1056, 1057 (D.Conn. 1971). We find nothing in the cases cited by plaintiffs which is helpful to us in the construction of the Oregon APA. Plaintiffs also contend that they may obtain damages under the provisions of ORS 30.260-.300, the tort claims act. In support of this position they cite Urban Renewal Agency v. Lackey, 275 Or. 35, 38, 549 P.2d 657, 659 (1976), in which this court said: See also Gray v. Hammond Lumber Co., 113 Or. 570, 576, 232 P. 637, 233 P. 561, 234 P. 261 (1925). Even if we assume, however, that a state agency's failure to follow required APA rule-making procedures can constitute a tort within the meaning of the tort claims act, that assumption does not assist the plaintiffs here. ORS 30.265(3)(f) retains the state's immunity from tort liability under the circumstances of this case. That statute provides: CSD, when it terminated its benefit program without prior rule-making procedures, relied on the statutory exemption of internal management directives from the APA procedural requirements. The Court of Appeals, on the first appeal in this case, held that exemption to be inapplicable but there is no showing that the defendants' claim of its applicability was made maliciously or in bad faith. The case falls squarely within the quoted immunity provisions. Plaintiffs also rely on Tupper v. Fairview Hospital, 276 Or. 657, 556 P.2d 1340 (1976), in which we held that a state employee who was discharged without the notice and opportunity for hearing required by the Fourteenth Amendment to the United States Constitution was entitled to back wages and other benefits until his employment was properly terminated. Tupper came before the appellate courts for review of an administrative order in a contested case. We held that we had the power to order the reviewing agency, PERB, to award back wages, relying in part on the statutory powers of the courts when reviewing contested-case orders and in part *149 on the "constitutional nature of the deprivation involved." 276 Or. at 665, note 5, 556 P.2d at 1345, note 5. In this case Tupper could be relevant only to plaintiffs' contention that they were entitled to advance notice of CSD's proposed termination of the program and an opportunity to comment on that proposal by virtue of the due process clause of the Fourteenth Amendment. They have not, however, cited us to any decisions by the United States Supreme Court which support the conclusion that affected persons are constitutionally entitled to notice and an opportunity to be heard before a state agency changes a policy of general rather than individualized application. The cases upon which they rely deal with adjudicative-type decisions in individual cases. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Such guidance as we find in the decisions of the United States Supreme Court indicates that there is no such due process right. See Bi-Metallic Invest. Co. v. State Bd. of Equalization, 239 U.S. 441, 445, 36 S. Ct. 141, 142, 60 L. Ed. 372 (1915), cited with apparent approval in recent decisions including, e.g., New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 108, 99 S. Ct. 403, 411, 58 L. Ed. 2d 361, 375 (1979); United States v. Florida East Coast R. Co., 410 U.S. 224, 245, 93 S. Ct. 810, 821, 35 L. Ed. 2d 223 (1973). Tupper is not in point. The injunctive relief awarded by the trial court presents a different problem. Defendants' objection with respect to that relief goes not to the trial court's power to issue an injunction, but to the content of the injunction that was issued. They argue that the trial court's order "substituted the court's judgment for that of the agencies in determining which of the authorized procedures for paying for day care should have been adopted." If the language of the trial court's order is objectionable on that ground, it is only because the order did not expressly state what was implicit in the trial judge's reasoning as disclosed by his opinion letter: that CSD was obliged to resume making child care payments on the date stated in the order only if it had not, in the meantime, adopted a valid rule terminating the payment program. The objection could be met by modification of the trial court's order to include that qualification. That would, however, leave unresolved the question of the trial court's authority to provide injunctive relief in this proceeding. The parties have not addressed that issue, and we do not believe it is necessary to resolve it at this time. Plaintiffs are, as we have shown above, entitled to a declaration that CSD's termination of the child care payment program was ineffective because CSD did not properly adopt a rule to that effect. We will not assume that the defendant agencies of the State of Oregon will, in the absence of an injunction, refuse to follow the law as we have stated it. In this case declaratory relief is sufficient. Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341, 34 A.2d 188, 200 (1943); Borchard, Declaratory Judgments, supra, at 438 and 967. In summary, then, we hold that under the relevant provisions of the APA, CSD could terminate the benefit program which it administered prior to February 15, 1975, only by proper promulgation of a rule to that effect. We also hold that the trial court was not authorized to enter a money judgment in this proceeding. Finally, we hold that an injunction is not necessary in this case. Although plaintiffs were entitled only to declaratory relief, the trial court's order does not in terms include a declaration of the invalidity of CSD's action. Plaintiffs, however, have not complained about that omission. In view of what we have said in this opinion, we believe that it would serve no purpose to remand the case for entry of a formal declaration to the same effect by the trial court. For the reasons stated in this opinion, the Court of Appeals properly reversed the order by the trial court in this case. *150 The decision of the Court of Appeals is affirmed. [*] Holman, J., did not participate in this decision. [1] These provisions are now found in subsection (5) of the statute. [2] The purpose of the replacement rule was to make changes with respect to other AFDC recipients whose rights are not involved in this case. [3] A minor amendment in that year, 1977 Or. Laws ch. 798 § 1, has no bearing on the issues in this case. [4] Or.Adm. Rules XXX-XX-XXX-XXX provide: XXX-XX-XXX: "Personal work expenses include costs directly connected with employment. These are income tax deductions or other withholdings from wages authorized by law, union dues, allowances for transportation to and from work, child care expenses, employment allowance, and expenses of a similar nature. Personal work expenses are a deduction from gross income and no additional payment is made for these item. [sic] "Statutory Authority: ORS 411.060, 412.025, 412.520, 413.009, and 418.045. "Hist: Filed and Eff. 6-30-71 as PWC 612 Amended 7-1-74 by PWC 678B, Eff. 7-25-74 Amended 1-27-75 by PWC 709 (Temp), Eff. 2-16-75 Amended 4-30-75 by PWC 720, Eff. 5-25-75" XXX-XX-XXX: "Reasonable and necessary work related child care expenses shall be allowed as personal work expenses for employed ADC recipients. Child care expenses shall be used to determine initial eligibility as well as the amount of the ongoing grant. "Day care programs provided by the Children's Services Division are considered a prior resource for employed ADC applicants. If Day Care is available in these situations, child care shall not be allowed as a work expense." [5] Defendants' position in this case poses, by implication, the problem of whether CSD or the Department of Human Resources is the agency responsible for adopting the rules which initiate and terminate programs of this kind. See McPherson v. Employment Division, 285 Or. 541, 546, 591 P.2d 1381 (1979). Because of the way in which we dispose of this case, it is not necessary for us to address that issue. [6] Both CSD and Adult and Family Services, formerly the Public Welfare Division, have statutory rule-making power. ORS 418.005; 411.116. [7] Authorized by ORS 183.410. [8] Authorized by ORS 183.480 and 183.482. [9] See the 1973 provisions of ORS 183.480(6) and ORS 183.400. [10] Defendants have not contended that plaintiff Burke is a "party to an order" and thereby precluded from bringing such an action. See the definition of an order in ORS 183.310(4). [11] Our uncertainty arises because many of the statutory procedures for review of contested cases have no readily discernable application to the determination of the validity of a rule. Others could apply, but it is not clear whether the legislature intended that they do so. See generally ORS 183.482.

2ebd4dc94f279ca689436e05e258de33086e7a9f45effc2f530bbf1f6b442ec4

1980-02-20T00:00:00Z

e40ca923-c0ef-4d73-9352-83bf4d496041

Complaint of Hershberger

288 Or. 559, 606 P.2d 623

oregon

Oregon Supreme Court

606 P.2d 623 (1980) 288 Or. 559 COMPLAINT As to the Conduct OF Joseph N. HERSHBERGER, Accused. OSB No. 77-4; SC 26484. Supreme Court of Oregon. Argued and Submitted January 7, 1980. Decided February 20, 1980. Edward Joel Clark, Pendleton, argued the cause and filed the brief for the accused. Joseph Larkin, Deputy Dist. Atty., Wasco County, The Dalles, argued the cause and filed the brief for the Oregon State Bar. Before DENECKE, C.J., TONGUE, HOWELL, LENT, LINDE, and PETERSON, JJ., and TANZER, J. pro tem. PER CURIAM. This is a disciplinary proceeding by the Oregon State Bar charging the accused with having an improper conflict of interest in filing a suit to foreclose a contract naming, as two of the several defendants in that proceeding, a husband and wife then represented by him in a bankruptcy proceeding. The Trial Board, with one member dissenting, found the accused guilty of that charge and recommended that the accused be administered a public reprimand; that he reimburse his former clients for $290 paid by them to other attorneys to complete the bankruptcy proceeding and that he certify that he has done certain things.[1] The Board of Disciplinary Review concurred in the finding of fact by the Trial Board that the accused was guilty of that *624 charge, but recommends that "a public reprimand would be an adequate and appropriate sanction." The majority of the Trial Board also found the accused guilty of the charge of handling a legal matter without adequate preparation and found him not guilty of three other charges in the complaint of the Oregon State Bar. The Board of Disciplinary Review, upon review of the record, found the accused not guilty of all four of such charges. After reading the entire record, we agree with the recommendations by the Board of Disciplinary Review. We agree with the Trial Board, however, that the performance by the accused in the bankruptcy proceeding fell below the minimum acceptable standard of competence. We are also of the opinion that it would serve no good purpose to discuss in detail those four charges. The record reveals, however, that the accused was guilty of having an improper conflict of interest in filing a foreclosure proceeding naming, as defendants, persons then represented by him in bankruptcy proceedings, as charged in the complaint of the Oregon State Bar. The accused, after serving in the U.S. Navy from 1942 to 1945 and working for several years thereafter, was admitted to the Oregon State Bar in 1960. Since 1968 he has practiced law in Hermiston. According to the evidence, he has a good reputation for honesty and fairness. Also, according to a Circuit Judge in Umatilla County, he is always well prepared in that court and has never been known by that judge to attempt to take advantage of any party or witness. In October, 1975, the accused, as attorney for Mr. and Mrs. Raymond Harner, prepared a contract for the sale by them of real property and a business being conducted on that property (Husky Truck Stop and Cafe) to Crystal Gollyhorn, who then sold the business and leased the real property to a Mr. and Mrs. Pittman. On or about August 10, 1976, Mr. and Mrs. Pittman conveyed their interest in the business and lease to Mr. and Mrs. Gary Kalteich. On April 18, 1977, the Kalteichs consulted with the accused regarding their deteriorating business and financial affairs. He informed them that he had prepared the original contract of sale for Mr. and Mrs. Harner. At that time, however, he did not represent Mr. and Mrs. Harner as their attorney. The accused was then retained by the Kalteichs to file bankruptcy proceedings. On April 20, 1977, the accused filed a bankruptcy petition for the Kalteichs. That petition disclosed the Kalteichs' liabilities with respect to the Husky Truck Stop and Cafe. The Kalteichs ceased making payments on their Husky Truck Stop obligations. This caused Ms. Gollyhorn to default on her obligations to the Harners. Meanwhile, substantial amounts of unpaid federal and state taxes on the property and business had also accrued. On or about June 3, 1977, while still attorney of record for the Kalteichs in the bankruptcy proceedings, the accused, as attorney for the Harners, filed a suit in the Circuit Court for Umatilla County to foreclose the contract of sale to Ms. Gollyhorn. The complaint in that suit named as defendants the Kalteichs, as well as Ms. Gollyhorn, Mr. and Mrs. Pittman, the United States of America, the State of Oregon, and Umatilla County. The prayer of that complaint sought, among other relief, a judgment of over $100,000 against all of the defendants, including Mr. and Mrs. Kalteich. It appears that in alleging certain liens and facts relating to the possible interest of the Kalteichs in the Husky Truck Stop, the accused may have relied upon information acquired by him in his representation of them in the bankruptcy proceeding. Any claim of interest by them in that property did not appear in a preliminary title report secured by the accused on the Husky Truck Stop property before filing the foreclosure proceeding. Mr. and Mrs. Kalteich then delivered to another attorney the complaint served upon *625 them in the foreclosure proceedings. They also consulted that attorney about problems arising from the fact that the bankruptcy petition, as filed by the accused, did not include some creditors.[2] By letter dated June 22, 1977, that attorney suggested that the accused resign as the Kalteichs' attorney in the bankruptcy proceedings. By letter dated June 24, 1977, the accused replied that his only representation of the Kalteichs was to file the bankruptcy petition and appear at the first meeting of creditors; that if they needed further representation in that matter he would resign as attorney of record. On or about July 3, 1977, the accused (who acknowledged that it was a "mistake" or "inadvertency" to pray for a money judgment against Kalteich in the foreclosure proceeding) filed an amended complaint in the foreclosure suit, still naming them as defendants, but no longer seeking a personal judgment against them. The Kalteichs did not file an appearance in that suit. An order of default was then taken against them and a decree was entered on December 13, 1977, foreclosing any interest claimed by them in the Husky Truck Stop property. Meanwhile, as a result of a complaint by Mr. and Mrs. Kalteich to the Oregon State Bar, a grievance committee held a meeting with the accused on November 30, 1977, to discuss that complaint. At that time members of the grievance committee expressed the view that the accused "was continuing in a conflict of interest situation" and that perhaps the best thing for him would be to resign as attorney for the Harners in the foreclosure proceedings. The accused then consulted a Pendleton lawyer, who advised him by letter dated December 6, 1977, that there was no improper conflict of interest because Kalteich was not a necessary party to the foreclosure; that "the joinder of Kalteich was unfortunate in that it gives the appearance of conflict when in fact none existed"; that "this damage has already been done," but that the accused has "represented the plaintiff through a long series of pleadings, motions, negotiations and settlements," and that the Harners, as his clients, were entitled to his continued representation in the foreclosure proceedings. The accused then notified the grievance committee that "in reliance upon (that) advice" he had "decided that it was in the best interests of the plaintiffs for me to remain in the case"; that "what damage, if any to the Kalteichs has been done and I owe the duty to my clients to finish the matter." Defendant contends by his brief in this court that under the facts of this case he "was not acting in conflict of interest as to Harner or Kalteich"; and "at no point" was "in a position wherein he had to take on behalf of Harner an interest adverse to Kalteich"; that "Kalteich was not a necessary party in the foreclosure" and "naming him was an unfortunate act of jeofaile[3] but certainly was not intentional as judgment was also asked" against all other defendants and "the error was immediately corrected by an amended complaint"; that "the accused was guilty of a single act of ordinary negligence," and that "there should be no public reprimand" but that "the accused should (only) be required to pay the fee of Donald Yokom incurred in filing amended schedules" in the bankruptcy proceedings. We cannot agree with these contentions by the accused. In our judgment the conduct of the accused in this case involved more than ordinary negligence. On the contrary, we agree with the findings by the Trial Board and the Board of Disciplinary Review that the accused had an improper conflict of interest in filing the suit to foreclose the contract on behalf of the Harners, naming, among other defendants, the Kalteichs, who were then being represented *626 by the accused in pending bankruptcy proceedings. Disciplinary Rule 5-105 provides: It is not contended in this case that the Kalteichs consented to the representation by the accused of the Harners in their suit to foreclose their contract of sale, naming the Kalteichs as defendants, among others. In determining whether a conflict of interest exists for the purpose of DR5-105(A), it is instructive to consider the ethical principles on which that rule is based. Ethical Consideration 5-15 of the Code of Professional Responsibility provides: Thus, a lawyer should undertake no representation in which there would be either an actual conflict of interest or a potential conflict of interest. In re Porter, 283 Or. 517, 523, 584 P.2d 744 (1978). See also 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): To the same effect, see Drinker, Legal Ethics, 104 (1953). In recent years this court has not infrequently reprimanded lawyers for conduct involving improper conflicts of interest. See In re Porter, supra; In re Banks, supra; In re Boivin, 271 Or. 419, 423-27, 533 P.2d 171 (1975); In re Mumford, 285 Or. 559, 591 P.2d 1377 (1979); In re Barrett, 269 Or. 264, 524 P.2d 1208 (1974); In re Zafiratos, 259 Or. 276, 486 P.2d 550 (1971), and In re Hedrick, 258 Or. 70, 481 P.2d 71 (1971). Cf. In re Brown, 277 Or. 121, 559 P.2d 884, 277 Or. 731, 561 P.2d 1030 (1977). See also Annot. 52 A.L.R.2d 1243, 1247 (1957), citing cases from other jurisdictions in support of the following rule: This is not a case in which the conflict of interest arose from a business transaction between an attorney and a client or from a law suit by an attorney against a former client. In this case the lawyer, while still representing a present client in one legal proceeding, filed a lawsuit against that client, among others, on behalf of another client. In such a case it is clear that a lawyer must heed the oft-quoted Biblical admonition that "No man can serve two masters." It may or may not be true that the Kalteichs were not necessary parties in the foreclosure suit. They had, however, occupied the Husky Truck Stop on the property which was the subject of that suit and were apparently considered by the accused to be necessary parties to that suit. As such, the interest of the Kalteichs, for whom the accused was still the attorney of record in their bankruptcy proceedings, was clearly adverse to that of the Harners, who the accused undertook to represent in the foreclosure suit. It may also be true that it was a "mistake," as claimed by the accused, to pray for a judgment of over $100,000 against the Kalteichs and other defendants in that proceeding. The fact remains, however, that the interest of the Kalteichs, as parties whose actual or possible interest in the Husky Truck Stop property was sought to be foreclosed in that suit, was adverse to the interest of the Harners, for whom the accused undertook to foreclose that contract against all named defendants, including the Kalteichs. For these reasons, we hold that the accused had an improper conflict of interest when he undertook to represent the Harners in filing the suit to foreclose the Harner contract on the Husky Truck Stop property, naming the Kalteichs, among others, as defendants in that suit. We also hold that under these facts a public reprimand of the accused is required, as recommended by the Board of Disciplinary Review, and this opinion shall stand as that reprimand. We also hold that the accused should pay the fee of $100 incurred on behalf of the Kalteichs for services by another attorney in filing amended schedules in the bankruptcy proceeding, in accordance with the expressed willingness of the accused to do so. In addition, we hold that the accused should also pay the fee of $190 incurred on behalf of the Kalteichs for services by another attorney in subsequent proceedings, as recommended by the Trial Board. Costs and disbursements are also awarded to the Oregon State Bar. [1] The Trial Board recommended that the accused be required to certify in writing that "[h]e has read the Code of Professional Responsibility and Ethical Considerations"; that "[h]e will fully prepare for each matter of employment in the future by reviewing applicable law," and that "[h]e will not accept employment which violates DR5-105. [2] Mr. Kalteich paid $290 to other attorneys to file amended schedules in the bankruptcy proceedings. [3] At common law a "jeofaile" was an error or oversight in pleading, and "statutes of jeofailes" permitted the amendment of pleadings for such errors. Black's Law Dictionary (1951). [4] For the requirements of consent after full disclosure in such cases, see In re Boivin, 271 Or. 419, 423-27, 533 P.2d 171 (1975).

ad4c7fd5a300b1849d8f5d52ec9efd91ce4c37b4ccac9b75d768a4ec03a14a26

1980-02-20T00:00:00Z

09c89683-40e4-4c2f-b627-282182f5715f

City of Rogue River v. DeBoer

288 Or. 485, 605 P.2d 697

oregon

Oregon Supreme Court

605 P.2d 697 (1980) 288 Or. 485 CITY OF ROGUE RIVER, Oregon, a Municipal Corporation, ex rel. Dee Earl Ide, Aka Dee Ide Trucking & Contracting, and Dee Earl Ide, Appellant/Respondent, v. Wayne DeBoer and Roy L. Carlton, Partners, Doing Business As R & W Construction Co., Respondents, Insurance Company of North America, a Pennsylvania Corporation, Respondent/Petitioner. No. 76-2781-L-2; CA 11337; SC 26402. Supreme Court of Oregon. Argued and Submitted November 8, 1979. Decided January 22, 1980. *698 Hugh B. Collins, Medford, argued the cause for respondent/petitioner Ins. Co. of North America. With him on the brief was Collins, Velure & Heysell, Medford. William G. Purdy, Medford, argued the cause for appellant/respondent. With him on the briefs was Frohnmayer, Deatherage, Foster & Purdy, Medford. No appearance for respondents Wayne DeBoer and Roy L. Carlton. Before DENECKE, C.J., and HOLMAN, TONGUE, HOWELL, LENT and PETERSON, JJ. PETERSON, Justice. This is an action by a supplier of granite to recover $3,300 for granite supplied to the City of Rogue River sewer construction project.[1] The plaintiff brought this action against the contractor (a partnership doing business as R&W Construction Company (R&W)) and against its surety, Insurance Company of North America (INA). Plaintiff sought to recover the contract price of the crushed granite or its reasonable value from R&W and INA. He alleged that INA was liable either on its bond or because it assumed the contract and became the general contractor on the project. After the presentation of all of the evidence, INA moved for a directed verdict. INA argued that there was no evidence that it requested or agreed to pay for anything supplied by plaintiff, and that it was not liable on its bond because the evidence failed to show that R&W requested or agreed to pay for any granite. INA also argued that even if R&W had requested or agreed to pay for the materials, the bond penalty had been exhausted, and that it was not liable on the bond beyond the bond penalty of $424,812.[2] Defendant R&W also moved for a directed verdict. The trial court granted both motions for directed verdict. The plaintiff then appealed, assigning as error the granting of the motions for directed verdict and the refusal of the trial court to admit into evidence the minutes of a City Council meeting at which INA's attorney explained INA's position with respect to R&W's problems on the sewer project. The Court of Appeals reversed in a per curiam opinion,[3] citing Copeland Sand v. Ins. Co. of N. Amer., 40 Or. App. 831, 596 P.2d 623 (1979). Only INA petitioned this court for review. We reverse and remand for a new trial. We review the evidence in the light most favorable to the party against whom the motion for a directed verdict was granted. Hemstreet v. Spears, 282 Or. 439, 441, 579 P.2d 229 (1978); Foster v. Schnell Refrigeration Co., 280 Or. 411, 414, 571 P.2d 497 (1977). The verdict was properly directed in this case only if there was no evidence that INA requested or agreed to pay for the granite or if there was no conflict in the testimony and it was capable of only one construction. Brown v. Johnston, 258 Or. 284, 285-286, 482 P.2d 712 (1971); Archer v. Rogers Construction, 252 Or. 165, 169, 447 P.2d 380 (1968); Young v. Crown Zellerbach, 244 Or. 251, 259, 417 P.2d 394 (1966). The first issue before this court is whether there is any evidence that INA requested or agreed to pay for materials delivered by the plaintiff. *699 INA stipulated that plaintiff delivered granite to the project having a reasonable value of $3,300 between November 9 and November 26, 1974. There was also evidence that a bill for that amount was sent by the plaintiff to R&W in care of INA, the bonding company. A partner in R&W, Wayne DeBoer, "okayed" the amount of the bill for the granite. INA did not pay this bill, although it paid other bills received at about the same time. DeBoer's approval of the bill could be construed to constitute an admission that the materials were ordered, were received, and that they were used on the project. The question then becomes: Is there any evidence that the admission of DeBoer is binding on INA? We believe that there was evidence from which a jury could find that DeBoer's admission could be attributed to INA.[4] That evidence, set out in the light most favorable to the plaintiff, is as follows: R&W Construction Company contracted with the City of Rogue River in 1973 to construct a sewer system. INA was the surety on a performance and payment bond for R&W. On June 13, 1974, R&W sent a letter to INA which gave notice of "impending voluntary default upon the * * contract" and requested INA's intervention. INA notified the City of R&W's problems and requested the City to stop paying R&W and begin making progress payments to INA. R&W assigned to INA its right to receive the contract payments from the City. INA then hired another construction company, Tru-Mix Construction Company (Tru-Mix) to "* * * provide supervision and administration for Bonding Company [INA] in the completion of [the] contract * * *." In the recitals of the contract, it was stated that "As a result of certain differences between the City of Rogue River and R&W Construction Co., Bonding Company is undertaking to complete said contract on behalf of R&W Construction Co." Tru-Mix was given authority to "* * * hire on behalf of Bonding Company as surety for R&W Construction Co. such labor and other personnel, as in the judgment of Tru-Mix, shall be required in the completion of said contract, and shall have the right to discharge any personnel employed on the job." (Emphasis added.) Tru-Mix was also given authority to purchase materials and lease equipment and facilities necessary for the project. Tru-Mix remained in this contractual position until September 1, 1974, when by mutual agreement the contract was terminated. At that time Wayne DeBoer, a partner in R&W, returned and began "actively running" the job. There is evidence from which the trier of fact could conclude that when DeBoer returned to the project on September 1 he was administering the job for INA in the same manner in which Tru-Mix had contracted previously, and not as a partner in R&W. In a letter to Tru-Mix in which INA agreed to terminate its contract with Tru-Mix, the manager of casualty claims for INA wrote: The attorney for the City testified that DeBoer "came back to supervise the job." *700 Furthermore, DeBoer's partner in R&W, Roy Carlton, testified that R&W's existence terminated in June, 1974. Carlton testified: DeBoer signed the payroll checks in conjunction with INA's insurance adjuster. Bills were generally sent to INA in care of R&W, and DeBoer approved the bills of suppliers and subcontractors before they were submitted to INA for payment. DeBoer's approval of the plaintiff's bill was evidence from which a trier of fact could conclude that INA requested and agreed to pay for the granite. It follows that because a factual issue existed, it was error for the trial judge to direct a verdict in favor of INA.[5] The Court of Appeals, without opinion, reversed, citing Copeland Sand v. Ins. Co. of N. Amer., 40 Or. App. 831, 596 P.2d 623 (1979). In Copeland Sand, the Court of Appeals held that the plaintiff was entitled to prevail, as a matter of law. Apparently the Court of Appeals intended the same result in this case. Because INA's liability is a factual question, we reverse and remand for a new trial. The plaintiff also asserts that the trial court erred in refusing to receive minutes of a council meeting of the City of Rogue River into evidence. We believe that the trial court properly rejected such evidence. A verbatim transcript of the same meeting was received in evidence, and the tape from which the transcript was made was in the courtroom. The council minutes contained the City Recorder's "interpretation" as to what was said. The rejected evidence was cumulative, and in view of the fact that the verbatim transcript was received, the plaintiff was not prejudiced. See also ORS 41.690. Reversed with instructions to the Court of Appeals to remand for a new trial. [1] In a related case, involving another supplier, we reviewed a judgment in favor of defendant Insurance Company of North America. Copeland Sand v. Ins. Co. of N. Amer., 288 Or. 325, 607 P.2d 718 (1980). [2] In view of our resolution of this case on other grounds, we express no opinion on the question of INA's liability on the bond. [3] 40 Or. App. 733, 595 P.2d 1388 (1979). [4] Hansen v. Oregon-Wash. R & N Co., 97 Or. 190, 218-219, 188 P. 963, 191 P. 655 (1920), held that an admission of an agent will be allowed in an action against his principal in two cases: "* * * (1) Where the agent is authorized to make an admission, as, for example, an attorney in the course of a trial; and (2) `where the admission is in the form of a declaration made by an agent, while acting within the scope of his agency, and about the business of his principal, concerning such business.'" In Top Service Body Shop v. Allstate Ins. Co., 283 Or. 201, 213-214, 582 P.2d 1365 (1978), and Timber Access Ind. v. U.S. Plywood, 263 Or. 509, 516, 503 P.2d 482, 486 (1972), we noted that more recent authorities recognize broader admissibility of admissions by agents. Because the admission of DeBoer falls within the test in Hansen, we need not decide whether the broader rule should be adopted. [5] There was also evidence which supports INA's contention that it neither requested nor agreed to pay for the granite, and remained liable only as the surety, if at all. The resolution of the conflicting evidence is for the trier of fact.

9e25eeb3bddef961abac17fe36706859fdcccbb075eee051ec9630087271e88b

1980-01-22T00:00:00Z

40de21c5-e6fb-48fd-bd45-847d3101474c

State Ex Rel. Redden v. Davis

288 Or. 283, 604 P.2d 879

oregon

Oregon Supreme Court

604 P.2d 879 (1980) 288 Or. 283 STATE of Oregon, ex rel. James A. REDDEN, Attorney General, Plaintiff-Relator, v. Alan F. DAVIS, Judge of the Circuit Court of the State of Oregon for the County of Multnomah, Defendant. SC 26086. Supreme Court of Oregon, In Banc. Heard November 5, 1979. Decided January 8, 1980. Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for plaintiff-relator. With him on the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Catherine Allan, Asst. Atty. Gen. Constance Crooker, Portland, argued the cause and filed the brief for defendant. LENT, Justice. The issue in this case is whether, after a verdict of "guilty" in a criminal case has been ordered received and filed,[1] the trial judge is empowered to order the indictment dismissed because he finds that the evidence presented upon trial was insufficient to sustain a conviction of the crime charged in the indictment. In this exercise of original jurisdiction, Or.Const. Art. VII (Amended), § 2, we directed the issue of an alternative writ of mandamus commanding the trial judge to vacate the order of dismissal and to enter a judgment of conviction or to show cause why he had not done as commanded. The judge's showing for his failure to obey the command essentially amounts to an assertion that his dismissal order is the equivalent of a judgment of acquittal when considered *880 in the circumstances shown by the record of the trial of the underlying case, State v. Frank Norman Eakin, Multnomah County No. C XX-XX-XXXXXX. Eakin was indicted for the crime of "Ex-Convict in Possession of Firearm," ORS 166.270. At the close of the state's case upon trial of the charge Eakin moved for judgment of acquittal, ORS 136.445, on the ground that there was no evidence that he knew[2] he had a weapon. This was urged on the ground that the evidence showed he was too intoxicated and injured in a motor vehicle accident to know he had the gun. The motion was denied. In a colloquy among counsel and the trial judge after the jury had retired to deliberate the judge expressed some misgivings as to whether the evidence was sufficient to show that Eakin had "possession" of the firearm within the meaning of the statute, ORS 166.270, but the judge did not return to that matter as an expressed ground for his later action of dismissal.[3] He then voiced his doubt as to whether the evidence relied upon by the state established the element of the crime that Eakin had been formerly convicted of a felony. The indictment charged that Eakin had been convicted in Multnomah County Circuit Court on February 25, 1974, of the "felony of Ex-Convict in Possession of Firearm." The evidence adduced to support this element on the state's case in chief[4] was the record of a judgment showing that on February 25, 1974, Eakin had "been convicted on his plea of GUILTY of the offense" and showing that it had been adjudged that he be imprisoned for a maximum term of one year in the custody of the Corrections Division of the State of Oregon. The trial judge during the colloquy expressed the legal opinion that the failure to sentence Eakin to more than a year required a holding that Eakin had been convicted only of a misdemeanor and had not been convicted of a felony. The trial judge then informed counsel: Thereafter the jury returned its verdict of guilty. Following the discharge of the jury a further colloquy among counsel and the trial judge ensued and the state's attorney drew to the judge's attention a decision of this court: The judge answered that he had informed the state's attorney of what the judge was going to do before the verdict was returned. He then orally, in substance, ordered a dismissal. The trial judge set aside the verdict and dismissed the indictment because of his conclusion of law that the state had shown a prior conviction of a misdemeanor only rather than a felony. We first determine whether he was in error in that respect. The prior conviction in February, 1974, was on a prosecution under ORS 166.270 as is Eakin's prosecution in the underlying case here. The statute was amended, however, by Oregon Laws 1975, chapter 702, section 1, to its present form. Prior to the amendment it read: Violation of that statute authorized a sentence of imprisonment and was, therefore, either a felony or a misdemeanor, ORS 161.515. On its face ORS 166.270 describes a felony, because ORS 161.525 provided: We do not find ORS 161.705 to have any application here. Not only did violation of ORS 166.270 come within the statutory definition of a felony; it fell without the definition of a misdemeanor, ORS 161.545: The trial judge believed that the fact that Eakin was sentenced only to a maximum of one year automatically meant that he had been accorded misdemeanor treatment. The authority of the sentencing judge to give misdemeanor treatment to a crime punishable as a felony is not without limit. ORS 161.585 provided: There was nothing in ORS 166.270 to indicate that violation of that statute was "also punishable by imprisonment for a maximum term of one year or by a fine." That alone would be enough to make ORS 161.585(1) inapplicable. Even if, however, ORS 166.270 could be so read as to permit alternative punishment of the kind just quoted, the sentencing judge did not impose a "punishment other than imprisonment under subsection (1) of ORS 137.124," which provided: *882 Rather he imposed a sentence of imprisonment by committing Eakin to the "legal and physical custody of the Corrections Division of the State of Oregon." Neither did any of the "events" described in ORS 161.585(2) occur so as to make the conviction one for a misdemeanor. We conclude that on the prior occasion alleged in the indictment in the underlying case Eakin was charged with and convicted of an unclassified felony, ORS 161.535(1)(d). In its brief the relator has argued for that conclusion (although reaching it by a different line of reasoning), and the trial judge does not in this proceeding really contend otherwise. Rather he takes the position that any legal error on his part in that respect is immaterial. The trial judge reasons as follows: Had he, prior to submitting the case to the jury, granted a motion for judgment of acquittal the state would have had no right to appeal even though he had committed legal error in doing so. The right of the state to appeal in a criminal case derives from ORS 138.060. That statute gives the state the right to appeal from three kinds of pre-trial orders and one kind of post trial order (not involved here). Compare State v. De Ford, 120 Or. 444, 464, 250 P. 220 (1927) in which the state had appealed from a judgment of acquittal based upon a directed verdict for the defendant.[5] This court found that the trial judge had erred and, therefore, "sustained" the appeal but refused to remand for trial on the ground that the "defendant having been acquitted cannot be retried for the same offense." See, also, State v. Yarde, 121 Or. 297, 302, 254 P. 798 (1927). These cases involved some rather esoteric provisions of the alcohol prohibition laws which seemed to give the state the right to get a ruling on whether the trial court committed error in certain kinds of rulings but gave the state no true right of appeal because even if the trial court erred the defendant could not be retried. We accept the premise, arguendo, that had the trial court for erroneous reasons granted a motion for judgment of acquittal (even sua sponte) prior to submitting the case to the jury the state would have had no right to appeal.[6] From that premise the trial judge reasons that he can give effect to his unappealable power to err in favor of the defendant from the pre-verdict stage of the proceedings at the post verdict stage. Even if it be true that the state still has no right to complain of his error by direct appeal, that is not to say that the state is without a remedy. In State ex rel. Haas v. Schwabe, 276 Or. 853, 556 P.2d 1366 (1976) this court held that the trial judge had no power to dismiss after the verdict of guilty was received and filed. In Schwabe the trial court (District Court for Multnomah County) had set aside the verdict of guilty and entered a judgment of acquittal despite the fact that defendant had made no motion for such a judgment at any time until invited to do so by the trial judge after the verdict was returned. The Multnomah County Circuit Court directed a peremptory writ of mandamus to issue requiring the trial judge to reinstate the verdict and to enter judgment accordingly. Upon appeal by the trial judge the majority of this court held that the action of the trial judge was, in effect, the entry of a judgment n.o.v. This court found no authority either at common law or under the statutes of this state for the entry of judgment n.o.v. in a criminal case; consequently, it was held that his action was void, that mandamus was the proper remedy and that the circuit court had properly proceeded by way of peremptory writ. *883 In Schwabe we granted the state relief without regard to whether the trial judge had erred. In the case at bar the trial judge did not err when he denied the motion for judgment of acquittal, but he did make an error of law in ruling that there was no evidence upon which a conviction could rest; therefore, a fortiori, the rule of Schwabe should obtain. Even the dissenters in Schwabe did not argue that the trial judge had some inherent power to set aside a valid verdict to dismiss a case for erroneous reasons. Since we have found that there was evidence from which rational factfinders could, and did, find beyond a reasonable doubt that Eakin was guilty as charged in the underlying case, we have no reason to question his conviction under the rules of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) and Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). It is ordered that a peremptory writ shall issue commanding the defendant, the Honorable Alan F. Davis, Judge of the Circuit Court of the State of Oregon for the County of Multnomah to enter an order in the case of State of Oregon, Plaintiff, vs. Frank Norman Eakin, Defendant, Multnomah County No. C XX-XX-XXXXX, vacating his order dismissing the indictment therein and further commanding him to enter judgment in due course upon the verdict received and filed therein. [1] From the bench the judge stated to the jury, "Your verdict is received and filed." In writing later he ordered that the "verdict be received and entered in the record of this court and cause." No one has raised a question as to difference in wording and we here treat the difference as not being significant. [2] The indictment alleged that he "unlawfully and knowingly" had the firearm in his possession. For the definition of "knowingly" see ORS 161.085(8). [3] The record contains ample evidence that Eakin had possession of an operable gun. There was testimony that in a certain apartment he "pulled the gun" and was "holding it and aiming, you know, pointing it at her" and that after leaving the apartment and getting into a car he handed it to his niece. [4] During his own case Eakin testified: "* * * And let's see, 1974 I was convicted for this charge that I am facing now, ex-convict in possession of a firearm." [5] The modern procedure obviates the step of directing a verdict of acquittal and provides for a motion for judgment of acquittal. ORS 136.445. [6] State v. Cartwright, 246 Or. 120, 133-134, 418 P.2d 822 (1967) notes the concern of the court as to whether a defendant may make a motion for judgment of acquittal after the jury has been instructed. Without deciding the question, we shall assume, again for the sake of argument only, that the motion can be made by the defendant (or by the court sua sponte) after the jury has retired to deliberate.

c8e5be73c1f4f003f52ce0bc5a471fcf4365b8527276f9a54b414a634be370c5

1980-01-08T00:00:00Z

896ff1c9-fa6f-46b9-898a-58937a6ee724

Clark v. US Plywood

288 Or. 255, 605 P.2d 265

oregon

Oregon Supreme Court

605 P.2d 265 (1980) 288 Or. 255 In the matter of the Compensation of the Beneficiaries of George CLARK, Deceased, Petitioner, v. U.S. PLYWOOD, Respondent. No. 76-6736; CA 10832; SC 26109. Supreme Court of Oregon, In Banc. Argued and Submitted October 1, 1979. Decided January 2, 1980. *266 Benton Flaxel, North Bend, argued the cause for petitioner. With him on the brief was Flaxel, Todd & Nylander, North Bend. Keith D. Skelton, Portland, argued the cause and filed a brief for respondent. PETERSON, Justice. This case involves a widow's claim for Workers' Compensation benefits. Her husband, George Clark, was killed while retrieving his lunch, which he had left to be warmed atop a hot glue press. The referee denied compensation. The Workers' Compensation Board reversed and ordered acceptance of the claim. The Court of Appeals reversed and denied recovery,[1] and we granted review to consider the extent to which personal comfort activities of a worker will be deemed to arise out of and within the course of employment. ORS 656.005(8)(a). Clark was employed at a Gold Beach plywood manufacturing plant. He worked a shift which began at 11 p.m. and ended at 7 a.m. During this shift Clark was paid for two 10-minute breaks and a 20-minute *267 lunch period. The lunchrooms provided by the employer contained a table and vending machines, but no facilities for heating food brought by the employees. On the night of Clark's death, he had brought a lunch which needed to be warmed. About two hours before his lunch break, he approached the assistant operator of a hot glue press and asked him to place Clark's food container on the top of the press to be warmed. The assistant press operator had done this before for Clark, and testified that two or three times a week he placed food on the press for other employees. The hot glue press was about 100 feet from Clark's work station. Judge Joseph described the hot glue press in the Court of Appeals opinion.[2] Normally the press operator would himself remove a safety chain blocking the three-foot alley between the press and charger, climb the face of the charger, and place the food on a hot ledge on the top of the press. The chain was connected to an electrical switch, and its removal prevented the charger from moving toward the hot press. A sign stating "DANGER, KEEP AWAY" hung from the chain. On this occasion, however, the assistant press operator was eating, and suggested that Clark could climb up the charger as easily as he could. The operator testified that he told Clark to drop the chain and the charger would not move. Clark did so, climbed the face of the charger, and placed his food on the ledge. When Clark returned to retrieve his lunch, the charger had just been loaded and the press operator and his assistant were getting ready to move the load into the press. The assistant press operator noticed that Clark was standing at the foot of a ladder which led to the top of the charger and heard him mention something about retrieving his lunch. The assistant press operator testified that he "didn't pay that much attention" to Clark because he had to go around to the back of the press to straighten panels. Nor could the press operator see Clark, because his control panel was on the opposite side of the charger. Clark possibly climbed the ladder, intending to ride the carriage over to the hot press whereupon he would reach over and retrieve his lunch. The press operator activated the charger and Clark was killed when the charger moved across the top of the carriage, crushing Clark between the charger and a stationary cross beam on the front of the carriage. A "compensable injury," under ORS 656.005(8)(a), is "an accidental injury * * * arising out of and in the course of employment * * * resulting in disability *268 or death * * * whether or not due to accidental means." Contributory fault or contributory negligence is no defense to a claim for compensation benefits, unless due to "the deliberate intention of the worker." ORS 656.156(1). All that a claimant must prove is that the injury arose "out of and in the course of employment." The worker has the burden of proving that the injury arose out of and in the course of employment. Ballou v. Industrial Accident Com., 214 Or. 123, 328 P.2d 137 (1958); Butts v. State Ind. Acc. Comm., 193 Or. 417, 239 P.2d 238 (1951).[3] The compensation act provides broad coverage, the boundaries of which are determined by the meaning of "arising out of and in the course of employment." As with most difficult questions, the delineation of the limits of the coverage is anything but knife-edge clear. But as in all difficult cases (this being one such case) the delineation must be made. The Court of Appeals correctly characterized the issue as being "* * * whether the employee's death arose out of and in the course of his employment, as required by ORS 656.005(8)(a)."[4] The words "in the course of employment" have been repeatedly defined as relating "to the time, place, and circumstances under which the accident takes place."[5] The words "arising out of" normally refer to the requirement of a "causal connection between the employment and the accident."[6] The following example will illustrate the difference: A machinist working at a lathe has an attack of appendicitis. The attack occurred in the course of his employment since it occurred while he was on the job performing his normal activities. On the other hand, it did not arise out of his employment. There was no causal connection between the work and the attack.[7] Most claims for on-premises injuries[8] fall within one of two general categories: Category 1. Injuries sustained while performing one's appointed task; Category 2. Injuries sustained while engaged in other incidental activities not directly involved with the performance of the appointed task, such as preparing for work, going to or from the area of work, eating, rest periods, going to the bathroom, or getting fresh air or a drink of water. Injuries sustained by a worker in doing the appointed task are normally compensable, absent self-inflicted injury. Contributory fault of the employee is no defense. Even when a worker is performing an appointed task in a prohibited manner, injuries are normally compensable. If a worker operates a machine with the guard removed, or fails to stop a machine before reaching into it, or oils machinery while it is running, injuries so sustained are normally compensable even though the specific act causing the injury was prohibited. 1A A. Larson, The Law of Workmen's Compensation § 31.21 (1979). *269 Many premises-related injuries are also normally compensable even though the worker is not engaged in the appointed task. A worker who trips over a step while walking to the bathroom on the employer's premises, or who falls on the way to the company locker room to change clothes, or who trips while going to get a breath of fresh air to escape the heat of working quarters all normally are entitled to compensation. See 1A A. Larson, supra, §§ 21.10 to 21.84. Most courts allow recovery for injuries sustained while engaged in recreational activities during lunch hours or rest periods, if the activity is a normal or accepted one. As to such claims, Professor Larson states: Lunchtime injuries are normally compensable, if they occur on the premises and arise from premises hazards such as building collapse, tripping on a hole in the floor, or falling on slippery steps. 1A A. Larson, supra, § 21.20. In Lamm v. Silver Falls Tbr. Co., 133 Or. 468, 277 P. 91, 286 P. 527, 291 P. 375 (1930), we held that a lumber camp worker returning from a holiday in Silverton was covered by the Workmen's Compensation law when he sustained injury while riding on the company-owned train back to the logging camp. We quoted from Cudahy Co. v. Parramore, 263 U.S. 418, 423-424, 44 S. Ct. 153, 68 L. Ed. 366, 30 A.L.R. 532 (1923) as follows: Respecting the quotation from Cudahy, we stated (133 Or. at 496-498, 277 P. 91): In the case at bar, claimant asserts: We have never had occasion to definitively discuss the bases for the compensability of injuries received during personal comfort activities. As Judge Joseph observed, the Court of Appeals has several times held that "injuries incurred in `personal comfort' activities incidental to employment may be compensable."[9] But the Court of Appeals denied recovery, stating: *271 The Court of Appeals' holding that compensability is determined by the reasonableness of the worker's conduct has no foundation in the Workers' Compensation statutes or in Oregon case law. The rule is generally to the contrary: If an act is within the course and scope of employment, and arises therefrom, reasonableness of the employee conduct is irrelevant. However, as Professor Larson points out, some jurisdictions have held that personal comfort injuries are not compensable if the method chosen is unusual, unreasonable, or abnormal. 1A A. Larson, supra, § 21.80. But Larson admits that the test of reasonableness is at best a "rubbery yardstick," and he argues for the substitution of a "somewhat more manageable concept of implied prohibition as the test applicable to borderline situations such as personal comfort * * *, going and coming, recreation, acts outside regular duties and other categories in which active performance of work is not involved."[10] We reject the "reasonableness" test because it is at variance with the purpose of the Workers' Compensation Law to provide compensation for injuries arising out of and in the course of employment, irrespective of worker fault. Examining other cases in this area has not been productive. Many courts have ceased to try to articulate a rule for compensability when the worker is engaged in an incidental activity as described in category 2, above, saying that "each case must be decided on its own particular facts" or that "argument by analogy is valueless."[11] We reject this approach, as well. Larson opts for a rule that if the injury occurs in a category of activity other than the performance of the task the worker is employed to perform, the injury is compensable unless (1) the employer would have prohibited the method had the subject been addressed, and (2) the employee either knew or should have known of the implied prohibition.[12] We question Professor Larson's "implied prohibition" test for these reasons. First, there is too great an element of hindsight involved. After the accident, the employer will certainly say, in many injury cases, "If Clark had asked or had I known, I would have prohibited him from using the press to heat his lunch." Second, the difficulty of proving an implied state of mind of the worker which is in turn dependent upon the implied state of mind of the employer creates more than a semantic problem. Benefits are payable for some on-premises injuries during the lunch hour, even though the ingestion of food may be no less valuable if consumed at home, because (1) the injuries normally result from some kind of on-premises hazard, and (2) the employee is within the time and space limits of the employment as set by the employer, i.e., the employer has expressly or impliedly allowed the conduct in question. We believe that the compensability of on-premises injuries sustained while engaged in activities for the personal comfort of the employee can best be determined by a test which asks: Was the conduct expressly or impliedly allowed by the employer? Clearly, conduct which an employer expressly authorizes and which leads to the injury of an employee should be compensated whether it occurs in a directly related work activity or in conduct incidental to the employment. Similarly, where an employer impliedly allows conduct, compensation *272 should be provided for injuries sustained in that activity. For example, where an employer acquiesces in a course of on-premises conduct, compensation is payable for injuries which might be sustained from that activity. Acquiescence could be shown by showing common practice or custom in the work place. This test squares with the well established requirement that compensation lies for all activities related to the employment if it carries out the employer's purposes or advances the employer's interests directly or indirectly. Lamm, supra 133 Or. at 497-498, 277 P. 91 and 1A A. Larson supra, § 20. Such a rule is related to the employment environment and the customs and practices of the particular employment and arises from conditions of the employment. Our statement of the test is in positive terms, rather than in the negative terms of the implied prohibition test suggested by Larson. Although the result in many cases would be the same under either test, we do not intend to necessarily restrict compensability to that which would exist under the implied prohibition test. However, the other prerequisite to recovery must be shown, that is, that the injury arises out of the course of employment. Neither the Workers' Compensation Board nor the Court of Appeals considered the facts of this case in the light of the rule we have adopted in this opinion. We have previously decided that this court does not review workers' compensation cases de novo. Sahnow v. Fireman's Fund Ins. Co. 260 Or. 564, 491 P.2d 997 (1971).[13] Unless there is no dispute in the evidence, we cannot say, as a matter of law, that the employer expressly or impliedly allowed the conduct which led to Clark's death. The Court of Appeals said in its opinion that the evidence would not permit a finding that the employer's supervisory personnel knew that employees had continued to use the press to heat lunches after the addition of the charger. 38 Or. App. at 387, 590 P.2d 281. Our review of the record convinces us that there was a conflict of evidence on that issue and that there is a question of fact whether the employer impliedly allowed the use of the press by employees for that purpose. We conclude that we cannot say, as a matter of law, whether the claimant should or should not recover. We therefore remand to the Court of Appeals for further proceedings consistent with this opinion. We leave to the Court of Appeals the decision whether to decide the case or to remand to the Board. Russell v. SAIF, 281 Or. 353, 574 P.2d 653 (1978). Reversed and remanded to the Court of Appeals. HOLMAN, Justice, concurring. It is my conclusion that the rule of implied authorization set forth in the majority opinion is nothing more than the reverse side of the coin of Professor Larson's rule of implied prohibition and that, in truth, the two rules are the same. I prefer the positive way of stating the rule used in the opinion, rather than Professor Larson's negative way of stating it, but that does not make the rule any different. Indicative of the identity of the rules is that the proof used to prove claimant's case would be identical in each instance. The plaintiff would prove that it was usual for workmen to do as the injured person did at the time of his injury, that the circumstances were such that the activity must have been known to management, and that there was no order prohibiting it. The plaintiff could also prove that related or similar activities were engaged in, were probably known to management and were not prohibited. The proof would be the same and would be subjected to the same evaluation regardless of whether the rule is stated in a positive or negative manner. [1] 38 Or. App. 381, 590 P.2d 281 (1979). [2] 38 Or. App. 383 at n. 1, 590 P.2d 282 at n. 1. [3] Overruled in part on other grounds, Woody v. Waibel, 276 Or. 189, 192 n. 3, 554 P.2d 492 (1976). [4] 38 Or. App. at 383, 590 P.2d at 282. [5] Stuhr v. State Ind. Acc. Com'n, 186 Or. 629, 634, 208 P.2d 450, 452 (1949) (quoting Brady v. Oregon Lumber Co., 117 Or. 188, 243 P. 96 (1926)); Larsen v. State Ind. Acc. Com., 135 Or. 137, 139, 295 P. 195 (1931); Lamm v. Silver Falls Tbr. Co., 133 Or. 468, 482-483, 277 P. 91, 286 P. 527, 291 P. 375 (1930). [6] See cases cited in the previous footnote. Also see Ramseth v. Maycock, 209 Or. 66, 71, 304 P.2d 415 (1956). Further, see discussion in Stark v. State Industrial Acc. Com., 103 Or. 80, 88, 204 P. 151 (1922). [7] This example is drawn from Oregon State Bar, Workmen's Compensation § 11.3 (1975). [8] By "on-premises" injuries we mean injuries sustained by a worker on the employer's premises. [9] 38 Or. App. at 384, 590 P.2d at 283, citing Benafel v. SAIF, 33 Or. App. 597, 577 P.2d 99 (1978); Olsen v. SAIF, 29 Or. App. 235, 562 P.2d 1234, rev. den. 280 Or. 1 (1977); Casper v. SAIF, 13 Or. App. 464, 511 P.2d 451 (1973); Jordan v. Western Electric, 1 Or. App. 441, 463 P.2d 598 (1970). [10] 1A A. Larson, supra, § 21.84, page 5-67. [11] Adams v. Compensation Department, 249 Or. 530, 533, 439 P.2d 628 (1968); Ramseth v. Maycock, 209 Or. 66, 70, 304 P.2d 415 (1956); Munson v. State Ind. Acc. Comm., 142 Or. 252, 256, 20 P.2d 229 (1933). [12] 1A A. Larson, supra, § 21.84, page 5-67. [13] See also Hutcheson v. Weyerhaeuser, 288 Or. 51, 602 P.2d 268 (1979); Russell v. SAIF, 281 Or. 353, 359, 574 P.2d 653 (1978).

fcf317bdffa733d3c02b8d8fb5c5b76bfbab8fc4a236ff2dfcdb5f194a525dad

1980-01-02T00:00:00Z

ae8d9823-04aa-4ab8-99ce-fcf7cf2b2796

Burbidge v. Paulus

289 Or. 35, 609 P.2d 815

oregon

Oregon Supreme Court

609 P.2d 815 (1980) 289 Or. 35 Keith A. BURBIDGE, Petitioner, v. Norma PAULUS, Secretary of State, Respondent. Blanche M. Schroeder, Petitioner, v. NORMA PAULUS, Secretary of State, Respondent. Oregon Coalition for Responsible Liquor Laws, an Oregon Non-Profit Corporation, and Jack M. Tuell, Petitioners, v. Norma PAULUS, Secretary of State, Respondent. SC 26842-SC 26844. Supreme Court of Oregon. Argued and Submitted April 1, 1980. Decided April 10, 1980. *817 John R. Faust, Jr., Portland, argued the cause for petitioner Burbidge. Paul R. Romain, Portland, argued the cause for petitioner Schroeder. Don S. Willner, Portland, argued the cause for petitioners Oregon Coalition for Responsible Liquor Laws and Jack M. Tuell. Donald Arnold, Salem, argued the cause for respondent. Before DENECKE, C.J., and HOWELL, LENT and PETERSON, JJ. PETERSON, Justice. Pursuant to ORS 250.085(1), petitioners seek Supreme Court review of a ballot title for a proposed initiative measure. The proposed measure would replace the present system of distilled spirits sales by the Oregon Liquor Control Commission (OLCC) with a system permitting private sales of distilled spirits by liquor stores, grocery stores and wholesalers, all licensed by OLCC. The ballot title prepared by the Attorney General under ORS 250.065(3) provides: Petitions challenging the sufficiency and fairness of the proposed ballot title were filed by Keith A. Burbidge (hereafter Burbidge), by Blanche M. Schroeder (hereafter Schroeder), and by the Oregon Coalition for Responsible Liquor Laws and Jack M. Tuell (hereafter Coalition). We granted respondent Secretary of State's motion to consolidate the petitions for hearing and decision. Following an expedited hearing of the petitions, we certify to the Secretary of State the title set out, infra. ORS 250.085(3), (4). We will first set forth the statutory requirements relating to our review of ballot titles before considering the proposed ballot title prepared by the Attorney General and the petitioners' objections thereto. This court is required to review the challenged ballot title to determine whether it is "insufficient or unfair" and whether it complies with the requirements of ORS 250.035. ORS 250.085(1), 250.085(3). ORS 250.035(1) provides that the ballot title is to consist of "(a) [a] caption of not more than 10 words by which the measure is commonly referred to; (b) [a] question of not more than 20 words which plainly states the purpose of the measure, * * * and (c) [a] concise and impartial statement of not more than 75 words of the chief purpose of the measure." We examine the proposed ballot title against the statutory requirements. We are not concerned with whether petitioners' proposed titles may be better or even whether we could devise a better one ourselves. Pacific Power & Light v. Paulus, 282 Or. 41, 44, 576 P.2d 1252 (1978). We turn, then, to each of the petitioners' objections. Petitioner Burbidge alleges that the ballot title proposed by the Attorney General is insufficient and unfair in three respects. The proposed title contains this phrase: Burbidge's first contention is that the respondent's title unfairly conveys the impression that the number of both retail groceries and retail liquor stores is limited to the number of OLCC agencies. Under *818 the proposed initiative, only the number of retail liquor stores is limited to the number of OLCC agencies in existence as of June 30, 1981. To remedy this, Burbidge proposes that the wording be changed to read: The Attorney General does not object to this suggestion (other than to the use of the word "large"), and we agree that the language, as changed, avoids any possibility of being misunderstood. The second objection raised by Burbidge is to the phrase "Distilled spirits revenue primarily directed to enforcement, licensing, alcoholism rehabilitation and education costs." He argues that this language is inaccurate because it states that all revenues from the sales of distilled spirits will be directed primarily to the stated purposes, when in fact only state tax and licensing revenues will be so used. When the words "distilled spirits revenue" are read in context it is clear that they refer to revenue derived by the state from the $5 per gallon tax on distilled spirits and they do not include profits obtained by the retailers and wholesalers of distilled spirits.[1] Petitioner Burbidge's final contention is that sections 18(3) and 19(2)[2] of the proposed initiative measure significantly change present law by permitting retail liquor licensees to own, control, or have an interest in a business holding a distilled spirits warehouse license and vice versa. He argues that the respondent's ballot title is insufficient because it does not indicate this shift in legislative policy. Until the legislature adopted Oregon Laws 1979, chapter 881, section 7 (codified at ORS 471.456), common ownership or interests between liquor wholesalers and retailers, or "tied houses,"[3] were completely prohibited. The 1979 legislation permits manufacturers or wholesalers to have an interest in retail or restaurant licensees and vice versa, so long as "the interest does not result in exercise of control over, or participation *819 in the management of, the [other's] business or business decisions, and does not result in exclusion of any competitor's brand of alcoholic liquor." ORS 471.456(1), (2). The statutory amendments incorporated in the measure constitute a significant departure from present law. Most significant is that liquor licensees would be able to exercise control over and participate in the management of the business of other licensees in the distribution chain, conduct which was previously prohibited.[4] The Attorney General, without conceding that omission of the "tied house" provision makes the ballot title insufficient or unfair, agrees that "it would be desirable to include a description of the common ownership in the title." He suggests that language indicating this feature of the proposed measure could be incorporated into the ballot title prepared by the Attorney General by deleting the phrase "beginning July, 1981" and by substituting "for" in place of "directed to." The phrase "Permits common warehouse-retail ownership" could then be inserted. To preserve the 75-word limit, however, one additional word would have to be deleted. This could be accomplished by replacing the words "distilled spirits revenue" with "taxes used" and joining the sentence in which these words occur with the sentence preceding it by a semicolon. With this amendment the ballot title is concise and impartial. Without the amendment, the statement is insufficient. Petitioner Schroeder contends that the use of the word "sales" alone in the question and statement prepared by the Attorney General is insufficient and inaccurate because the measure replaces the entire existing system of state sale, purchase, importation and distribution of distilled spirits. She would have us replace the word "sales" with the word "monopoly." We agree with Schroeder that the state's present involvement in the liquor industry within Oregon meets one common definition of a monopoly. The other parties point out, however, that the word "monopoly" may have connotations of unfair and illegal business practice. Monopolizing trade is a crime under the Sherman Antitrust Act, 15 U.S.C. § 1 (1976), punishable by a fine of up to one million dollars and/or imprisonment not exceeding three years. 15 U.S.C. § 2 (1976). Government prosecutions of monopolies as early as 1906, in Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911), have linked the word "monopoly" with illegal restraint of trade. We believe that it would be unfair and partial to use the word "monopoly" in the ballot title. The proposed use of the word "monopoly" is subject to the same criticism as the words "right to work," which we rejected as "obviously argumentative" in Whelan v. Johnson, 257 Or. 238, 240, 478 P.2d 391 (1970). The language proposed by the Attorney General indicates that the present system is "replaced" by one involving private retail and wholesale sales. The extent of OLCC involvement is clearly set forth; the private sales are "OLCC licensed and regulated." We find that the ballot title prepared by the Attorney General is fair and sufficient in this respect. Schroeder's second objection to the ballot title is that the language "Levies $5.00/gallon distilled spirits tax" is unfair and partial without also stating that the new tax replaces the revenues presently obtained by a 94 percent state markup on distilled spirits. We agree that the title should indicate that the $5 per gallon tax will be substituted for the revenues the state receives under the existing law. The words "$5.00/gallon tax substituted for present revenues" convey the change that would be effected by the proposed measure. However, to stay within the 75-word limitation, we delete the word "costs" following the word "education." This deletion works *820 no change in the meaning of the phrase preceding it. Petitioner Coalition objects to the ballot title because it fails to indicate that the number of grocery stores which could obtain Class A distilled spirit retail licenses is "unlimited." While it is true that the measure places no ceiling on the number of grocery stores which could receive liquor licenses, it is not true that the licenses are totally "unlimited." One limitation on both Class A and Class B distilled spirits retail licenses is that applicants must obtain the recommendation of the city council (if the business is located within an incorporated city) or the county commissioners or county court (if the business is outside an incorporated city). Proposed Initiative Measure Section 8. Furthermore, we have altered the language of the ballot title with respect to the order of those entitled to receive licenses so that it is clear that only retail liquor stores are limited in number to the "number of OLCC agencies." The clear inference is that there is no numerical limitation upon either Class A distilled spirits retail licensees (i.e., grocery stores meeting the definition in ORS 472.010(6), as amended) or upon distilled spirits wholesale licensees. We conclude that the language of the proposed ballot title, in this respect, is fair and sufficient. Coalition's other contention is that the ballot title is unfair because it does not mention the "significant loss of revenue" which would result from replacing the present OLCC markup on liquor sales with the $5 per gallon tax. For two reasons, we conclude that the language urged upon us by this petitioner would be inappropriate. First, ORS 250.035(1)(c) provides that the statement in the ballot title is to state concisely and impartially the "chief purpose of the measure." While a loss of state revenue may be an effect of the measure, it is not evident that this is one of its purposes. In Kegg v. Paulus, 282 Or. 47, 50, 576 P.2d 1255 (1978), we stated: Second, when a state measure would reduce state revenues, ORS 250.125 requires that an estimate of the amount involved be printed in the voters' pamphlet and on the ballot.[5] There is no need to reproduce the same information in the ballot title. As required by ORS 250.085(3), we certify to the Secretary of State the following ballot title: [1] A further question arguably raised by Burbidge is whether only that revenue retained by the state, as opposed to that received by the state, must be used for the enumerated purposes. The applicable provision in the measure is section 2(2), which provides: "Except for the revenue provided to the cities of the state by ORS 471.810(1)(d), after June 30, 1981, all revenue derived by the State of Oregon from distilled spirits shall be used primarily to offset the costs of enforcement of liquor laws, control and licensing, rehabilitation of abusers of alcoholic liquor and education on the proper use of such beverages." In addition to this section, section 22 of the measure would delete language from ORS 471.810(1)(a) which permits revenues directed to the state General Fund to be "available for general governmental purposes." Thus, with the exception of ORS 471.810(1)(d), ORS 471.810(1) would not direct how the state, cities or counties are to use the money received from liquor revenues. When sections 2(2) and 22 of the proposed measure are read together, however, it is clear that they require all tax revenues received from liquor sales, except those directed to cities under ORS 471.810(1)(d), to be used for the purposes set out in section 2(2) of the measure. It follows, therefore, that the challenged language in the ballot title is neither insufficient nor unfair. [2] Section 18 of the measure amends ORS 471.455 to provide in part: "(3) Notwithstanding the provisions of subsections (1) and (2) of this section, it shall not be unlawful for a licensee who is a retailer of alcoholic liquor to have any right, title, lien, claim or interest, financial or otherwise, in, upon, or to the premises, equipment, business or merchandise of a holder of a distilled spirits warehouse license." Section 19, amending ORS 471.460, provides in part: "(2) Notwithstanding the provisions of subsection (1) of this section, it shall not be unlawful for the holder of a distilled spirits warehouse license to have any right, title, lien, claim or interest, financial or otherwise, in, upon or to the premises, equipment, business or merchandise of any retailer of alcoholic liquor." [3] The term "tied house," although not used in the Oregon statutes, is the title of a federal provision, similar to ORS 471.455 and ORS 471.460, which prohibits distillers, brewers, producers, importers or wholesalers of certain alcoholic beverages from inducing retail sales through, among other practices, acquiring an interest in the retailer. 27 U.S.C. § 205(b) (1976). See 55 Am.Jur.2d, Monopolies § 727 (1971). [4] See, e.g., Speck Restaurant v. OLCC, 24 Or. App. 337, 545 P.2d 601, review denied, Or. (Apr. 13, 1976), appeal dismissed, 429 U.S. 803, 97 S. Ct. 35, 50 L. Ed. 2d 64 (1976). [5] ORS 250.125 provides: "When a state measure involves expenditure of public money by the state, reduction of state revenues or raising of funds by the state by imposing any tax or incurring any indebtedness, the Secretary of State, with the assistance of the State Treasurer, the Director of the Executive Department and the Department of Revenue, shall estimate the amount of expenditure, reduction in state revenues, tax revenue or indebtedness and interest which will be required to meet the provisions of the measure if it is enacted. The estimate shall state the recurring annual amount involved or, if the measure does not involve a recurring annual amount, the total amount. The estimate shall be certified by at least two of the officials named in this section and, not later than the 90th day before the election at which the measure is to be voted upon, it shall be filed, with the data upon which it is based, with the Secretary of State. The estimate shall be printed in the voters' pamphlet and on the ballot unless the measure involves only administrative expenses not exceeding $50,000 per year."

d100bb996a5af4e6a2c48df5a71c3974be07c7307752b44c44adabdc5553aeee

1980-04-10T00:00:00Z

202d2cea-508d-4cb0-b547-aa1a16b8c0c7

Morgan v. Stimson Lumber Co.

288 Or. 595, 607 P.2d 150

oregon

Oregon Supreme Court

607 P.2d 150 (1980) 288 Or. 595 In the matter of the Compensation of Charlotte MORGAN, Claimant, Petitioner, v. STIMSON LUMBER COMPANY, Employer, Respondent. WCB 77-2922; CA 11451; SC 26190. Supreme Court of Oregon. Argued and Submitted January 7, 1980. Decided February 26, 1980. Rehearing Denied May 6, 1980. *151 R. Kenney Roberts, Portland, argued the cause for respondent. On the brief were Steven R. Reinisch, Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland. David W. Hittle, Salem, argued the cause for petitioner. With him on the brief were Dye & Olson, Salem. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. Rehearing Denied May 6, 1980. See 610 P.2d 830. LINDE, Justice. The issue to be decided is whether the Workers' Compensation Board exceeded its statutory authority when it ordered an employer to pay a claimant a 10 percent penalty and attorney fees for delaying or refusing prompt payment or decision of a claim by failing to honor the claimant's request for certain documents pursuant to a Board rule. The rule in question, OAR 436-83-460, provides: The issue arises from an aggravation claim filed by the claimant after a determination order closed her earlier claim for temporary total disability benefits. The aggravation claim itself was not decided because the referee concluded that the original claim was closed prematurely. Only the award of penalty compensation and attorney fees is in dispute. Claimant presented her claim to the employer's insurance carrier by letter of March 1, 1977. The insurance company denied the claim on April 28. In a letter of May 4, 1977 to the insurance carrier, claimant's attorney requested copies of all medical and rehabilitation records, letters, forms, and other documents relating to the claim. The request was repeated on June 22. No documents were mailed in response to either of these claims. The Board's referee in the claim proceeding concluded that there was no excuse for the failure to comply with claimant's request for documents within 15 days. Finding imposition of a penalty and attorney *152 fees "appropriate for the unreasonable act" of disregarding the obligation to provide claimant copies of the requested documents, the referee awarded claimant 10 percent additional compensation and $350 in additional attorney fees. The Board adopted the referee's order. In its petition for judicial review, the employer asserted two objections to the order: First, that OAR 436-83-460, quoted above, is not a valid rule, and second, that in failing to provide the information requested by the claimant the employer, or its insurance carrier, had not unreasonably delayed or refused payment of the claim. The Court of Appeals accepted the employer's argument against the validity of the Board's rule. It apparently did not consider it necessary thereafter to consider the second issue, and that issue is not before us. Having allowed review to consider whether the Board's rule exceeded its authority, we conclude that it did not. We therefore reverse the Court of Appeals and reinstate the Board's order. The issue of the Board's authority divides into two parts. It clarifies the analysis to examine the two sentences of OAR 436-83-460, set out above, as two separate provisions. The first question is whether the Board had authority to require prompt compliance with a claimant's request for the documents listed in the first sentence of the rule in preparation for a hearing. The second question is whether the Board had authority to consider noncompliance a form of unreasonable delay within the statutory sanctions provided for such delay, as stated in the second sentence of the rule. The Workers' Compensation Law, ORS 656.001 to 656.794, gives the Board authority to adopt rules of practice and procedure in connection with hearing and review proceedings. ORS 656.726(5) provides: The discovery provision embodied in the first sentence of OAR 436-83-460 plainly is a rule of practice and procedure to expedite the effective disposition of claims for which the Board is responsible. The employer does not really deny this. It does not contend that the regulation is not a rule of practice or procedure within the authority granted by ORS 656.726(5) standing alone. Rather, it argues that the Board's authority is confined by the presence in the statute of another section which expressly requires that medical and rehabilitation reports furnished to the Evaluation Division of the Workers' Compensation Department be made available to the claimant or the employer upon request. ORS 656.268(2).[1] The argument is unpersuasive. There is no reason to believe that by including one provision for access to relevant *153 reports in the statute the legislature meant to restrict the power it had otherwise given the Board to facilitate expeditious claims procedure by requiring prehearing disclosure of information. More plausibly, the statutory provision simply shows that the legislature recognized a need to assure at least the degree of access provided in ORS 656.268(2), without considering or awaiting what the Board might require by its rules. It would turn the legislature's apparent purpose on its head to read ORS 656.268(2) as if it meant to enact a limitation on required prehearing disclosure. We conclude that the rule stated in the first sentence of OAR 436-83-460 was within the Board's rulemaking authority under ORS 656.726(5). The employer's second attack on the rule is that the statute does not delegate to the Board authority to create financial penalties. The Court of Appeals accepted this contention in holding that the Board had exceeded its rulemaking authority. The court quoted Ore. Newspaper Pub. v. Peterson, 244 Or. 116, 123, 415 P.2d 21 (1966), for the proposition that "an administrative agency must, when its rule-making power is challenged, show that its regulation falls within a clearly defined statutory grant of authority." Such abstract statements about the nature and scope of delegated authority gain meaning from the context in which they appear. In the Oregon Newspaper Publishers Association case, the State Board of Pharmacy had promulgated a rule prohibiting pharmacists to advertise prescription drugs. The rule was a major, substantive intervention into the market place for medicines, affecting consumers and advertising media, including plaintiffs in that case, as well as the regulated pharmacists, and possibly reaching to the constitutional limits of regulation. Cf. Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). It was not merely a means chosen in administering a program concededly assigned to the Board but an important extension of regulation in a controversial area. The court held that the Board could not undertake this unless it could show that it was carrying out a policy entrusted to it by the politically responsible Legislative Assembly in the authorizing statute. The majority found nothing in the legislation to suggest that advertising was contemplated as a subject of regulation by the Board. 244 Or. at 124, 415 P. 21. In U. of O. Co-Oper. v. Dept. of Rev., 273 Or. 539, 542 P.2d 900 (1975), the court similarly recited in general terms that agencies are restricted to the powers granted them by statute, and that the agency may not by its rules alter or enlarge the statute. That was a tax case, in which the taxpayer claimed that a rule of the Department of Revenue interpreted a particular tax exemption too narrowly. The court's opinion stated: 273 Or. at 551, 542 P.2d at 906. All these recitals are, of course, indisputable, but they merely restate the question. They would not lead to one or another decision until the court itself interpreted the specific tax exemption at issue, which it did in favor of the taxpayer's position. The Van Ripper decision, quoted in the foregoing excerpt, sustained regulations of the Oregon Liquor Control Commission that limited licenses to sell liquor by the drink to establishments that obtained 25 percent of their gross income from the sale of food. Like the Pharmacy Board's advertising rule and unlike the rule in this case, the regulation in Van Ripper was a far-reaching substantive policy adopted by the commission under very general statutory terms. Nevertheless, the court concluded that the rule was within the range of policy delegated *154 to the commission.[2] In short, different holdings on the validity of agency rules, as in the three cases reviewed above, do not result from different generalizations about agency rulemaking but from scrutiny of the scope of the responsibilities for substantive policy and for its administration that are assigned to the agency under the particular law at issue. Misunderstanding of the relationship between an agency's statement of a rule and its underlying statutory source can arise from the wide range of different statements that are "rules" in administrative law. The Administrative Procedure Act, ORS 183.310(7) defines "rule" for purposes of that act as follows: subject to exceptions not relevant here. Thus agency rulemaking may be the means prescribed by the legislature for regulating an area of activity, setting rates, standards, requirements, or procedures, or defining specific aspects of a program managed by an agency, in lieu of prescribing such regulations, standards, procedures, or program elements in the statute itself. Since such a rule deliberately makes new law, the authority for such delegated lawmaking must have been granted by the Legislative Assembly. On the other hand, an agency makes a rule, within the broad meaning of that term, when it does nothing more than publish its official position on how it interprets a requirement, standard, or procedure already provided in the governing statute itself, and how it proposes to administer this statutory provision. Such a statement that "interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency" is also a "rule" under ORS 183.310(7), quoted above. Generally, there is no reason why an agency should not state as a rule a policy which the statute authorizes it to adopt and follow without making a rule, unless it appears that the statute means to limit the agency to case-by-case adjudication. This does not depend on a statutory grant of rulemaking authority. Indeed, by virtue of the APA an agency that disclaims having such authority cannot thereby escape the act's provisions governing the making, publication, and judicial review of rules. ORS 183.330 to 183.400. Cf. Burke v. Children's Services Division, 288 Or. 533, 607 P.2d 141 (1980). The prehearing discovery requirements of OAR 436-83-460 are an exercise of delegated rulemaking authority, as stated above. But the Board does not claim any authority to create financial sanctions by rule, as charged by the employer. It relies on the provision for such sanctions in the statute itself. ORS 656.262(8), to which the second sentence of the Board's rule refers, provides: The second sentence of the rule merely announces that failure to respond promptly to a claimant's request for information of the kind specified in the first sentence in preparation for a hearing "may be considered unreasonable delay or refusal" under this sanctions provision. The Board regards this not as delegated rulemaking but as an announcement of how it interprets and intends to administer the statute. *155 Even so, such an announcement is a rule for purposes of the Administrative Procedure Act and therefore had to be so promulgated. The agency policy announced in the second sentence of the rule is not an unreasonable way to interpret and administer the statute. The Board is entitled to take the view, within its responsibility for and experience with administering hearings, that a practice of prompt disclosure of all relevant information to the claimant will generally expedite the disposition of a claim and the eventual payment, and that failure or delay in such disclosure will tend to obstruct or delay a proper disposition and payment of a claim. The Board does not say, in the challenged sentence, that every failure or delay to furnish the requested documents to the claimant automatically entitles the claimant to the extra compensation and attorney fees provided by the statute. On the other hand, when the Board believes this procedure to be necessary for the expeditious determination of claims, it need not let an employer disregard the requirement and wait to litigate whether or not it actually caused a delay. The Board's rule gives notice that noncompliance "may be considered unreasonable delay" under the statute. The rule is consistent with the purpose of the statute, which is to secure promptness in claims disposition, not to invite the parties to speculate on such after-the-event litigation about the actual consequences of noncompliance in the particular case. The referee did not apply the rule as a "per se" entitlement to extra compensation and attorney fees for the claimant. He determined that he found such payments in this case "appropriate." No challenge either to the form or to the factual predicate of that finding is before us. Nor would we examine its factual basis de novo. See Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971). The Court of Appeals did not address that issue in invalidating the Board's rule. For the reasons stated, we hold that the rule itself is within the Board's authority. Accordingly, the decision of the Court of Appeals is reversed and the Board's order is affirmed as it was issued. [1] "When the injured worker's condition resulting from a disabling injury has become medically stationary, unless he is enrolled and actively engaged in an authorized program of vocational rehabilitation, the State Accident Insurance Fund or direct responsibility employer shall so notify the Evaluation Division, the worker, and contributing employer, if any, and request the claim be examined and further compensation, if any, be determined. A copy of all medical reports and reports of vocational rehabilitation agencies or counselors necessary to make such determination also shall be furnished to the Evaluation Division and to the worker and to the contributing employer, if requested by such worker or employer. If the attending physician has not approved the worker's return to his regular employment, the fund or direct responsibility employer must continue to make temporary total disability payments until termination of such payments is authorized following examination of the medical reports submitted to the Evaluation Division under this section." [2] Apart from the Liquor Control Act itself, the court cited the constitutional amendment that had authorized the sale of liquor by the glass in "establishments where food is cooked and served" and which provided that legislation enacted under it "shall be liberally construed." Or.Const. art. I, § 39.

ebc583078c984be5e98a43fc6c2de6c2da70f3c126f88f6be526902b95e5b23e

1980-02-26T00:00:00Z

44f09781-0c72-4f8b-948c-729574629fe3

Shipler v. Van Raden

288 Or. 735, 608 P.2d 1162

oregon

Oregon Supreme Court

608 P.2d 1162 (1980) 288 Or. 735 Tom SHIPLER and Betty D. Shipler, Respondents, v. Kenneth H. VAN RADEN and Susan Lee Van Raden, Nita Wagner, and the Lewelling Corporation, an Oregon Corporation, Petitioners. TC 18-253; CA 11599; SC 26471. Supreme Court of Oregon. Argued and Submitted February 5, 1980. Decided March 25, 1980. *1163 Asa L. Lewelling, Salem, argued the cause and filed the brief for petitioners. H. William Barlow, Salem, argued the cause and filed the briefs for respondents. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE[*] and PETERSON, JJ. LENT, Justice. The issue is whether, in a suit in equity, a party seeking attorney fees under ORS 20.096(1) must adduce his evidence on attorney fees before the trial court has rendered the decision which will determine who is the prevailing party. We hold that is not necessary.[1] That section of the code provides: The contractual provision is: Plaintiffs sought to enforce covenants of the contract by a request for injunction to prevent their neighbors, defendants Van Raden, and Van Radens' builder, Wagner, from completing construction of a house and sought damages. Joined as defendant was the Lewelling Corporation (Lewelling), a party to the contract and the common grantor of the two parcels of real property. All defendants denied plaintiffs were entitled to any relief. Additionally, Van Radens counterclaimed for damages on a cause of action for malicious prosecution and for attorney fees. They alleged they suffered damages of $500 attorney fees by reason of the alleged malicious prosecution but did not plead the contractual provision concerning attorney fees. Lewelling by affirmative answer sought attorney fees of $1,000, pleading the contractual provision as the basis therefor. Wagner's answer had no prayer. Following the presentation of evidence the trial court took the case under advisement. Later the court advised counsel by letter of the decision on the merits, denying the requested injunction and damages and held against Van Radens on their counterclaim for damages. The trial court requested that counsel for defendants prepare a form of decree. Counsel for defendants filed a "Motion for Allowance of Attorney's Fees" supported by affidavit of the lawyer *1164 who acted as counsel for all defendants. By this affidavit he set forth a detailed statement of time spent for all defendants (excluding time spent on Van Radens' counterclaim). The trial court held the motion for several days and then, without hearing thereon, signed the decree prepared by defendant's counsel, inter alia, denying costs and disbursements to all parties but allowing to all defendants judgment for attorney's fees of $2,016, the amount asked for in the motion and affidavit. Plaintiffs filed a motion to amend the decree to eliminate the award of attorney fees, but before the motion was heard, plaintiffs appealed to the Court of Appeals, assigning as error the trial court's decision on the merits of plaintiff's claims, ORS 19.125(3), and the allowance of any attorney fees to the defendants. The trial court entered an order to amend the decree by striking the allowance of attorney fees. Defendants cross-appealed from that order. The Court of Appeals affirmed the trial court on its decision on the merits of plaintiffs' claim. The Court of Appeals agreed with defendants' contention that the trial court had no jurisdiction to delete the award of fees but held that defendants were not entitled to attorney fees because they had neither pleaded nor prayed for attorney fees and had adduced no evidence thereon at trial. Shipler v. Van Raden, 41 Or. App. 425, 599 P.2d 1141 (1979). The Court of Appeals granted defendants' petition for reconsideration and withdrew the portion of its original opinion that found that there was no pleading or prayer for attorney fees. Shipler v. Van Raden, 42 Or. App. 535, 601 P.2d 487 (1979). That court adhered to its decision that defendants were not entitled to attorney fees because: (1) No evidence on that issue was introduced during trial. (2) There was no stipulation that the matter could be considered after determination by the trial court on the merits, whereby the prevailing party would be identified. (3) There was no motion to reopen the case. (4) "In effect, defendants presented a cost bill seeking attorney fees contemporaneously with the judgment order." 42 Or. App. at 537, n. 1, 601 P.2d at 487. The Court of Appeals found this procedure to be impermissible under this court's decision in Pritchett v. Fry, 286 Or. 189, 593 P.2d 1133 (1979). We allowed review, ORS 2.520, 288 Or. 113, to consider the issue posed at the outset of this opinion. Neither Pritchett v. Fry, supra, nor Pacific N.W. Dev. Corp. v. Holloway, 274 Or. 367, 546 P.2d 1063 (1976), upon which we relied in Pritchett, is directly controlling in this suit. Both of those cases were concerned with forcible entry and detainer actions and the fixing and awarding of attorney fees under ORS 91.755: On the other hand Pritchett points to the treatment in our decisions of the difference between those statutes which provide for attorney fees to be awarded in the manner of costs and disbursements and those statutes which do not provide for that mode. Insofar as the language of ORS 20.096(1) and ORS 91.755 is concerned there appears to be no reason to say that, as such, ORS 20.096(1) requires anything different than ORS 91.755.[3] Before examining the holding in Pritchett, we turn to some language in Pritchett that may be overboard. We there said that where attorney fees are properly recoverable, but not as a part of "costs," they (286 Or. at 191, 593 P.2d at 1134) The quoted matter is supported by language in State High. Com. et al. v. Kendrick et al., 227 Or. 608, 363 P.2d 1078 (1961), but that language was not apposite to the case before the court. The Kendrick case was a condemnation proceeding in which attorney fees were recoverable under a statute (227 Or. at 609, n. 1, 363 P.2d at 1079): A jury had awarded defendants damages in an amount which entitled the defendants to attorney fees under that statute. The awarding of attorney fees under that statute was not committed to the jury, which was the trier of facts on the merits of the value of the property taken. The award was not made by the jury based on evidence adduced at trial. Rather, the award was made by the trial judge upon a hearing after verdict. The other case, Draper v. Mullennex et al., 225 Or. 267, 357 P.2d 519 (1960), relied upon in Pritchett for the matter above quoted above does not contain any statement that the issue of attorney fees is to be submitted "as part of the trial." In that case a plaintiff sought to recover attorney fees in an action at law but pleaded no statute or contract as authorization for an award. The issue was whether the allegations and prayer concerning attorney fees were surplusage and could therefore be disregarded in determining whether the cause was within the monetary jurisdiction of the district court. The decision does contain language that if a party seeks to recover attorney fees other than the "costs" provided by ORS 20.070, "then the right to such recovery should be particularly pleaded and proved." 225 Or. at 271, 357 P.2d at 521. It is seen that neither State High. Com. et al. v. Kendrick et al., supra, nor Draper v. Mullennex, supra, involved a situation in which the issue was whether attorney fees had to be proven in the case in chief of the party seeking the fees. Language in those cases which so stated or implied was not necessary to decision. Our attention in Pritchett to that language in those cases was really not necessary to our decision in Pritchett. We now examine the actual holding in Pritchett. That was a landlord's wrongful detainer action to gain possession of the rented premises. ORS 105.105 to 105.160. Defendant tenant's answer denied the detainer was wrongful and, without any affirmative allegation of a right to recover attorney fees, prayed for judgment in her favor and "that defendant be awarded reasonable attorneys' fees and her costs and disbursements incurred herein." Oregon Briefs, vol. 2421, 2/165, Ab. A-2. The trial judge, on plaintiff's motion, struck the prayer for attorney fees. The decision of the trial judge on the merits established defendant as the prevailing party for the purposes of ORS 91.755 and the judge signed a judgment to that effect, which included a "____" for "costs and disbursements." Defendant filed a "Bill of Disbursements" containing an item, "Attorneys' Fees ____," and therewith filed an affidavit detailing counsel's time, an assertion of an hourly rate and an allegation of reasonableness of the amount sought for such fees. There were two "hearings" on the claim for attorney fees but nothing to indicate that evidence was taken other than the affidavit. The trial judge made an award of attorney fees. Upon appeal plaintiff contended that in the absence of his agreement to allow the trial judge to proceed in this manner, defendant was not entitled to an award of attorney fees with no foundation in the pleadings and evidence. Defendant's position was that under ORS 91.755 attorney fees were recoverable in the manner of costs and disbursements and plaintiff had been put upon proper notice of defendant's intent to claim such *1166 fees by the prayer. The Court of Appeals, Pritchett v. Fry, 34 Or. App. 165, 578 P.2d 443 (1978) affirmed, holding that attorney fees under the statute were to be determined procedurally with the cost bill. On review, Pritchett v. Fry, 286 Or. 189, 593 P.2d 1133 (1979), we held that under ORS 91.755 attorney fees were recoverable only if pleaded and proved at trial, rejecting the contention that they were to be treated in the manner of, or as a part of, costs and disbursements. Other than in the overbroad language from Pritchett discussed earlier herein, there is no indication that the evidence must be taken prior to determining which party is entitled to attorney fees. Our precise holding on the record before us in Pritchett was nothing more than that such fees were not to be treated as a part of costs. That holding was dispositive of the case, and we had no occasion to determine whether evidence had to be presented on the issue of fees prior to identification of the prevailing party and, if so, whether the issue of attorney fees had to be submitted to the jury.[4] We turn now to the more recent of prior decisions of this court touching upon the procedure for allowance of attorney fees under ORS 20.096(1). Dean Vincent, Inc. v. Krishell Lab., 271 Or. 356, 532 P.2d 237 (1975) was an action at law in which plaintiff sought attorney fees pursuant to ORS 20.096(1) and defendant counterclaimed for attorney fees. Two days prior to the date fixed for trial plaintiff requested and was granted judgment of voluntary nonsuit. Defendant then unsuccessfully attempted to obtain an award of attorney fees by cost bill. Having failed, defendant filed a petition for the allowance of attorney fees on its counterclaim. The trial judge denied the petition on the ground that the judgment of nonsuit without prejudice did not establish defendant as the prevailing party under ORS 20.096(1). We reversed, holding that defendant was the prevailing party under the statute, that plaintiff was on proper notice of the claim for fees and that, in the circumstances, the petition for allowance of fees filed after the entry of the judgment of nonsuit was procedurally proper. We also held that the words "at trial" in the statute did not mean the trial of an issue of fact, but rather were used by the legislature to distinguish between proceedings at the trial court level and those on appeal. Hiestand v. Wolfard, 272 Or. 222, 536 P.2d 520 (1975) was an action at law in which plaintiff sought a broker's commission and attorney fees pursuant to contract. The case was tried without a jury. Neither party presented evidence on the issue of attorney fees during the trial. There was no stipulation that the court could allow fees without evidence on the issue. After receiving a letter opinion in his favor on the merits concerning the matter of the broker's commission, defendant submitted a motion for allowance of attorney fees. The motion was set for hearing, and defendant adduced evidence, upon which the trial court set and allowed fees. At the hearing plaintiff objected to the taking of any evidence on the sole ground that the defendant was required to introduce such evidence during the "trial on the merits." We noted that the trial judge, in ruling on the objection, had stated that he would not have allowed such evidence during the trial on the merits because it would have been "superfluous" prior to determination that defendant was the prevailing party under the statute. We affirmed, upon the authority of the trial judge to regulate the order of proof, ORS 17.215,[5] and the discretionary power of the trial court to permit reopening of a case to hear additional evidence. Gorman v. Boyer, 274 Or. 467, 547 P.2d 123 (1976) was an action at law on a contract which provided for attorney fees to plaintiff. Both parties requested attorney *1167 fees in their pleadings. The case was tried without jury. There was no stipulation concerning the proof of fees. Neither party offered any evidence on the issue of fees. The trial judge took the case under advisement and by letter opinion informed the parties of his decision for the defendant on the merits. Findings of Fact, Conclusions of Law and Judgment were then entered in favor of defendant, allowing costs to defendant in "____" amount, as the judgment was signed and filed. Defendant then first sought an allowance of attorney fees by cost bill, to which plaintiff objected. Defendant then filed a petition for allowance of fees, based upon a "statement" of time devoted to the case. The trial judge denied the petition on the ground of want of stipulation and want of evidence. On defendant's appeal we held that attorney fees were not to be recovered by way of "costs" under ORS 20.096(1); however, we said that in a case tried without a jury it made little sense to require evidence of fees during the trial on the merits, "even in the absence of a stipulation permitting the trial court to make a subsequent determination of attorney fees." 274 Or. at 471, 547 P.2d at 125. We said that it was "proper" to await decision on the merits and then file a petition for allowance of attorney fees. Hearing could then be held on the petition. We held, however, that such a petition should be filed prior to final judgment. We noted that defendant had not requested the "reopening of the judgment" to file his petition and that the trial court would not be reversed for denying the petition.[6] From the three cases just reviewed appears a construction of ORS 20.096(1), in which, even in the absence of a stipulation to reserve the matter, this court recognizes that in a case tried without a jury evidence on the matter of attorney fees need not be presented until the "prevailing party" has been identified by the trial judge's disposition of the case on other issues. Only in Gorman v. Boyer, supra, of those three did we hold that attorney fees were properly denied by the trial court, and that was on the basis that the prevailing party had not properly invoked the trial judge's attention to the matter. Even in that case we indicated a preference for awaiting the trial judge's identification of the "prevailing party" before requiring evidence on the matter of fees.[7] It appears from the decisions in the actions at law above reviewed that under either ORS 91.755 or 20.096(1) the trial court cannot, in the absence of stipulation to the contrary, award attorney fees in the manner of, or as a part of, costs and disbursements. Rather a basis for an award of fees must be found in the pleadings, and evidence must be taken to support the award. In Pritchett it was unnecessary to decide whether the evidence had to be submitted to the jury, which tried all other issues, because the party objecting to the award of fees prevailed in this court without our reaching that question. All of those actions but Pritchett were tried without a jury, and we have noted that, absent the trial judge's order to the contrary, it is preferable to await identification of the prevailing party before requiring evidence to support the award of fees. There appears to be no reason for a different preference in a suit in equity. It seems unnecessary to burden the parties and the judge with production of evidence by one or more parties who, in the end, will not prevail and will not be entitled to fees under ORS 20.096(1). In many instances in suits in equity post trial briefing is required, which substantially increases the time spent by counsel on the case. If every party in a suit had to produce his evidence on attorney fees before the close of evidence taking, a witness testifying on the matter would generally have to limit his *1168 testimony to the parties' respective prognostications of time to be spent on trial. The matter of post trial but predecision work of counsel would require additional hearing and evidence in any event. On the other hand one might suppose that a party who has not prevailed, within the meaning of the statute, might wish to adduce evidence and to have the trial judge indicate what would be a reasonable attorney fee for that party had that party prevailed. We have in mind that the court to which appeal is taken, ORS 19.125(3), may reverse on the facts, and in such case the trial court will be in the position of having to make an award of attorney fees under the statute to the successful appellant for that party's fees incurred in the trial court. Whether a trial judge should require or allow such evidence by a party not initially prevailing is a decision which, we believe, may be resolved by the trial judge in each case without the imposition of a general rule by this court. We hold, therefore, that in a suit in equity, unless the trial judge shall otherwise request, no party must present evidence on attorney fees for the purposes of ORS 20.096(1) until the trial court's decision shall have identified that party who is the prevailing party under the statute. Having determined that Pritchett is not controlling in this case, we must reach other matters raised by plaintiffs in connection with their assignment of error in the Court of Appeals on the trial court's award. The trial court's judgment for attorney fees was in favor of all defendants. It cannot stand at all in favor of defendants Van Raden and Wagner and the trial court judgment in favor of each of those defendants for attorney fees is reversed. Wagner was not a party to the contract and did not assert in her answer any rights under the contract and ORS 20.096(1).[8] Her answer contained no prayer for any relief in her favor. There is simply no basis in the pleadings for judgment for attorney fees for her. Van Radens did not plead the contract or the statute as a basis for their claim of attorney fees. Their asserted basis for such fees was a claim of damages in their counterclaim for malicious prosecution. The trial court's decision against them on that counterclaim is undisturbed. The claim for damages by way of attorney fees fell with the rest of their claims for damages for malicious prosecution. Lewelling's judgment for attorney fees has a basis in the pleadings but, as yet, none in the evidence. Lewelling has been identified by the trial judge as a prevailing party for the purpose of awarding attorney fees under ORS 20.096(1). There was no stipulation by the plaintiffs, however, that the trial judge might do so without taking evidence. Lewelling and the trial judge apparently took the position that since the plaintiffs filed no objections to the motion to allow fees, they had no objection. That position might be well taken were attorney fees being sought in a cost bill as a part of costs, but attorney fees under ORS 20.096(1) are not a part of costs.[9] Neither do we believe that the affidavit made a part of *1169 the motion will serve as an evidentiary basis for an award of attorney fees to Lewelling in this case. We do not question the truth of the matters asserted in the affidavit, but it is hearsay which the plaintiffs have not stipulated may be considered. Additionally, the affidavit does not segregate the services of counsel for which Lewelling is entitled to claim fees from those of other defendants not entitled to fees. The cause must be remanded to the circuit court to hold a hearing on the issue of attorney fees for Lewelling. Modified and remanded. In this court plaintiffs are awarded costs and disbursements against defendants Van Raden and Wagner, and defendant Lewelling is awarded costs and disbursements against plaintiffs. [*] LINDE, J., did not participate in this decision. [1] There was no petition for review in this case on anything but the matter of attorney fees. We allowed review on that matter only. [2] Plaintiffs do not question the applicability of the statute. [3] We note differences in the two statutes. ORS 20.096(1) is in mandatory terms. See, Stark Street Properties v. Teufel, 277 Or. 649, 562 P.2d 531 (1977). ORS 91.755 is in permissive terms, but cf., Executive Mgt. Corp. v. Juckett, 274 Or. 515, 519, 547 P.2d 603 (1976). Moreover, the former clearly applies to both actions and suits while the latter may be applicable only to actions. [4] Neither this case nor Pritchett v. Fry, 286 Or. 189, 593 P.2d 1133 (1979) is concerned with the issue of whether in an action at law under ORS 91.755 or 20.096(1) a party is entitled to a trial by jury on the matter of attorney fees. [5] ORS 17.215 has been repealed, Or. Laws, 1979, ch. 284, § 199, and is superseded by ORCP 58A. [6] Our statement that the trial judge did not abuse his discretion in declining to reopen for the purpose of considering the petition for attorney fees is somewhat mysterious in light of our observation that defendant had made no such request. [7] In none of these three cases just reviewed did we have reason or occasion to pass upon the right to jury trial on the issue. See n. 4, supra. [8] Plaintiffs assert that Wagner, not being a party to the contract, could assert no right to attorney fees under ORS 20.096(1). Our reversal of her judgment for attorney fees on the grounds set forth in the body of the opinion makes it unnecessary to address her rights under the statute, and we do not address plaintiffs' assertion. [9] The record is not sufficient for us to determine whether the allowance of the motion was in violation of the court's rules, which might also be grounds for setting aside the award: "Time for hearing motions and demurrers and the manner of giving notice: Unless otherwise mutually agreed upon by counsel, motions and demurrers shall be argued before the Court on the next regular motion day following the date filed and if not so argued or supported by written brief shall, upon application of opposing counsel, be immediately considered by Court. "The County Clerk shall, upon filing of a motion or demurrer, give written notice to counsel of the time the same shall come on for hearing, which notice shall be by postcard and in form prescribed by the court, * *." Rule 4, Rules of Court for Tillamook County.

2607dd9e59fbe71f212553750ad076be40bdaee8a17d71dcde2779d359886baf

1980-03-25T00:00:00Z

84339810-b0d0-46e6-a489-4c77c958174b

Davis v. Hinman

288 Or. 505, 605 P.2d 700

oregon

Oregon Supreme Court

605 P.2d 700 (1980) 288 Or. 505 Hannah DAVIS, Respondent, v. Nelson E. HINMAN and Virginia Hinman Dba Skate World, Petitioners. Nos. A7612, 17974; CA 10787; SC 26148. Supreme Court of Oregon. Argued and Submitted September 6, 1979. Decided January 29, 1980. *701 E. Pennock Gheen, Portland, argued the cause for petitioners. With him on the briefs were Chris P. Davis, and Hershiser, Mitchell, Mowery & Davis, Portland. J. Rion Bourgeois, Portland, argued the cause for respondent. With him on the brief was Evans, Anderson, Hall & Grebe, Portland. Before DENECKE, C.J., and HOLMAN,[*] TONGUE, LENT, LINDE, and PETERSON, JJ. PETERSON, Justice. This is another personal injury case in which it is claimed that the jury improperly returned an unsegregated verdict for only the special damages. The verdict was received. Thereafter, on plaintiff's motion for new trial, the trial judge ordered a new trial. Defendants appealed to the Court of Appeals, which affirmed.[1] We granted review in this case and in Wheeler v. Huston, 288 Or. 467, 605 P.2d 1339 (1980), to reconsider the rule applicable to verdicts for only the amount of the claimed specials. Plaintiff's fall resulted in a broken wrist. There was evidence that her medical expenses amounted to $276.95. The trial court instructed the jury that plaintiff was seeking $12,500 general damages and $297.97 special damages. The jury was not instructed that before special damages could be awarded, some amount of general damages must be allowed. The form of verdict submitted did not segregate the damages. The jury answered interrogatories in the form customarily used in comparative fault cases by finding that each party was 50 percent "negligent" [Cf. ORS 18.470 and ORS 18.480(2)] and found that plaintiff's "total money damages were $297.97" (the amount mentioned by the trial court in its instructions). The jury also wrote a handwritten note upon the verdict form: *702 After the verdict was returned, the court and counsel held a conference following which the court received the verdict. Subsequently, the plaintiff moved for a new trial, contending that the verdict was improper because no general damages were awarded, and because it was uncontroverted that the plaintiff suffered some general damages. The motion was allowed and a new trial was granted. After the jury returned its verdict the trial judge asked the jury to "be at ease for just a little" while he conferred with counsel. In chambers the plaintiff's attorney stated: Following this discussion, the judge and lawyers returned to the courtroom, the verdict was received, and the jury was discharged. The defendants claim that the court erred in setting aside the verdict and in granting a new trial. Their first claim is that the verdict should have been received because the "plaintiff failed to properly object to the verdict prior to its receipt." Defendant states that "not only must an objection be made but * * * counsel must * * * ask that the matter be resubmitted to the jury." In Fischer v. Howard, 201 Or. 426, 271 P.2d 1059 (1954), we stated: Fischer also contains this dictum: *703 In the case at bar, the plaintiff's attorney was objecting to the verdict, but made no motion to have the jury sent out for further deliberations under proper instructions. In this respect the case differs from Fischer, for there no objection was made to the receipt of the verdict until after the verdict had been received and the jury discharged. The statement quoted above from Fischer that "[f]ailure to make a motion to have the jury sent back for answers or better answers may operate as a waiver" is dictum. We have never held that the plaintiff's attorney must (1) object to the receipt of the verdict and (2) move to have the matter resubmitted to the jury. In Fischer, we held that the party must make objection or move that the cause be resubmitted prior to receipt of the verdict and discharge of the jury. 201 Or. at 455, 271 P.2d 1059. Here, the plaintiff objected to the verdict immediately following the jury's return. The jury had been out for six hours, the time was 8 p.m., and the defendants' attorney had, in a real sense, invited the court to receive the verdict by saying that plaintiff could thereafter move to have it set aside. Under these facts, we conclude that the plaintiff properly preserved her rights by objecting to the verdict when it was returned. In Wheeler v. Huston, 288 Or. 467, 605 P.2d 1339 (1980), we held: Once liability was established in her favor, the plaintiff at bar was unquestionably entitled to an award of general damages, as a matter of law. Her claims of injuries were not subjective, her injuries unquestionably were caused by the accident, she had a fractured wrist, and there was uncontroverted evidence that she had "a considerable amount of pain and discomfort" and a permanently weak, unstable wrist. No reasonable person could disregard such testimony and find that she sustained no general damages, and defendants make no such claim. Rather (anticipating our holding in Wheeler, supra), the defendants argue that "there was evidence to support the conclusion that the verdict included some amount for general damages." There was no dispute as to the amount of the medical specials in this case: $276.95. Early in his jury instructions, the *704 trial judge said that the plaintiff was claiming "reasonable medical expenses in the sum of $276.95." However, the trial judge later misspoke himself in his instructions, saying that "if you come to the matter of damages, I instruct you that the plaintiff would also be entitled to the reasonable value of medical care and services furnished in the treatment of plaintiff, not to exceed the sum of $297.97." The defendants argue that the jury therefore actually awarded $21.02 in general damages (the difference between $297.97 and $276.95), and that the "* * * award was for an amount in excess of the special damages for which there was proof and necessarily included an award of general damages."[3] This is not a case in which there was "a substantial dispute as to the amount of the special damages to which the plaintiff is entitled." In light of the judge's misstatement, the jury's note, and the evidence, the conclusion is inescapable that the jury returned a verdict that they believed was for the specials only. The evidence compelled a finding that the plaintiff was also entitled to an award of general damages. We therefore reject the defendants' claim that the verdict is valid because the jury may have awarded "some" general damages. Finally, the defendants argue that the jury award of "total money damages of $297.97" is proper under Sedillo v. City of Portland, 234 Or. 28, 380 P.2d 115 (1963). In Sedillo we approved an unsegregated verdict for only the actual special damages because "* * * there was an important question of whether or not much of plaintiff's medical expense was occasioned by the collision." 234 Or. at 33, 380 P.2d at 117. Here there was no real dispute as to the validity of the medical expense claim. The verdict in this case should not have been received. The preferred course of action would have been to send back the jury for further deliberations under appropriate instructions. However, the plaintiff objected to the verdict in a timely fashion and in no way invited the trial court to receive the verdict.[4] The trial court properly ordered a new trial. Affirmed. [*] Holman, J., did not participate in the decision of this case. [1] 39 Or. App. 171, 591 P.2d 417 (1979). [2] We note this statement from Mullins v. Rowe, 222 Or. 519, 524, 353 P.2d 861, 863 (1960): "* * * In Fischer v. Howard, 201 Or. 426, 271 P.2d 1059, 49 A.L.R.2d 1301, this court reviewed most of the earlier Oregon decisions, and pointed out the following: "(1) The time to object to a defective verdict, if it is defective, is while the jury is still on hand so that the trial court can resubmit the matter with proper instructions. "(2) An objection not taken when the verdict is returned into court is waived. "(3) The only correct procedure to follow is to resubmit the matter to the same jury." [3] In the same paragraph of their brief, the defendants admit that "whether the jury was aware of the discrepancy in the court's instructions is a matter of speculation." [4] Note, however, the holding of Wheeler v. Huston, 288 Or. 467, 605 P.2d 1339 (1980): "If the plaintiff's attorney claims that the plaintiff has established, beyond question, the claim to general damages, per Eisele and this opinion, or the claim to a specific amount of special damages, per this opinion, but fails to bring these matters to the attention of the trial judge by appropriate motion or requested instruction, any objection to a verdict in the amount of only the claimed specials will be deemed waived. This rule (requiring timely request to the trial court) will apply to cases tried after the publication of this opinion in the advance sheets." (Footnote omitted.)

467417cca93b85f2d80d25f2e3ac3b4aa332c75c7886749d068c2d58d3a2affc

1980-01-29T00:00:00Z

9795ed40-2af8-4b5c-9d06-d32d432a3428

A. G. v. Guitron

S059166

oregon

Oregon Supreme Court

1 Filed: December 30, 2011 1 2 IN THE SUPREME COURT OF THE STATE OF OREGON 3 4 A.G., 5 Plaintiff-Appellant, 6 Petitioner on Review, 7 v. 8 9 ROBERT GUITRON, 10 Defendant-Respondent, 11 and 12 13 AEROBIC AND DANCEWEAR SHOPPE, 14 LLC, dba Lake Oswego Academy of Dance, 15 Defendant-Respondents, 16 Respondent on Review. 17 18 (CC 060909578; CA A137591; SC S059166) 19 20 En Banc. 21 22 On review from the Court of Appeals. 23 24 Argued and submitted September 20, 2011. 25 26 Jonathan A. Clark, PC, Stayton, argued the cause and filed the brief for petitioner 27 on review. 28 29 Janet M. Schroer, Hoffman Hart & Wagner, Portland, argued the cause and filed 30 the brief for respondent on review Aerobic and Dancewear Shoppe. 31 32 Charles S. Tauman, Corson & Johnson Law Firm, Eugene, filed a brief for amicus 33 curiae Oregon Trial Lawyers Association. With him on the brief was Travis Eiva. 34 35 WALTERS, J. 36 37 The decision of the Court of Appeals and the judgment of the circuit court are 38 affirmed. 39 40 *Appeal from Multnomah County Circuit Court, Adrienne Nelson, Judge. 238 Or 41 App 223, 241 P3d 1188 (2010). 42 43 2 WALTERS, J. 1 In this civil action, we decide that ORCP 44 C required plaintiff to deliver 2 to defendants, at defendants' request, a copy of all written reports of examinations related 3 to the psychological injuries for which plaintiff sought recovery, including, specifically, 4 the report of an examination by a psychologist retained by plaintiff's counsel for the 5 purpose of the litigation. Because defendants requested and plaintiff failed to deliver that 6 report, the trial court entered an order, pursuant to ORCP 44 D, precluding the 7 psychologist from testifying at trial, and defendants ultimately prevailed. The Court of 8 Appeals affirmed the decision of the trial court. A.G. v. Guitron, 238 Or App 223, 241 9 P3d 1188 (2010). We affirm the decision of the Court of Appeals and the judgment of 10 the trial court. 11 The facts underlying plaintiff's claim for damages are not relevant to the 12 issue of statutory interpretation that we decide, and we need not repeat them in detail 13 here.1 It is sufficient to explain that plaintiff sought damages for psychological injuries 14 and, before trial, defendants requested that plaintiff produce the following: 15 "Copies of any and all detailed written narrative reports of all treatments 16 and examinations of the Plaintiff which have been conducted by any 17 1 Plaintiff alleged that she was sexually abused by her dance instructor (Guitron) at Lake Oswego Academy of Dance (Academy) when she was 14 and 15 years of age. Plaintiff raised three claims: sexual battery, intentional infliction of emotional distress, and negligence (against defendant Academy only). One of the issues in the case was whether plaintiff's claims were barred by the statute of limitations. Resolution of that issue depended on when plaintiff had discovered or should have discovered the alleged abuse or the damages caused by the alleged abuse. 3 healthcare professional setting forth the examiner's findings, including 1 results of all tests made, diagnoses, and conclusions, together with like 2 reports of all earlier treatments and examinations for the same condition 3 which relate to the Plaintiff's claimed injuries. This is a continuing 4 request." 5 Plaintiff produced the reports of her treating psychologist, Dr. Puma, but did not produce 6 the reports of Dr. Green, a psychologist whom plaintiff's counsel had retained for 7 purposes of the litigation. 8 At trial, plaintiff called Green to testify. Defendants objected on the 9 grounds that Green had conducted an examination of plaintiff and that plaintiff had failed 10 to provide the reports of that examination. As a result, defendants argued, plaintiff 11 should not be permitted to call Green as a witness. Plaintiff responded that Green's report 12 was not discoverable because he was an expert witness retained for the purpose of 13 litigation, and the Oregon Rules of Civil Procedure do not require disclosure of the 14 reports of such experts. Plaintiff argued that defendants could have retained their own 15 expert to examine plaintiff, but had not done so. 16 The trial court agreed with defendants and excluded Green's testimony.2 17 The court then entered a directed verdict in favor of one of the defendants, and the jury 18 2 Green testified through an offer of proof made outside the presence of the jury. Green opined that plaintiff "has many of the characteristics consistent with someone who has been sexually abused" and that he did not believe that plaintiff had discovered the connection between the abuse or the damages it had caused until she entered treatment in February 2004. 4 returned a verdict in the other defendant's favor.3 After entry of judgment for defendants, 1 plaintiff appealed.4 The Court of Appeals affirmed, and we allowed plaintiff's petition 2 for review. 3 As noted, the question presented in this court is one of statutory 4 interpretation -- specifically, whether ORCP 44 C required plaintiff to produce the report 5 of an expert who examined plaintiff for purposes of litigation and not for purposes of 6 treatment. ORCP 44 C provides: 7 "In a civil action where a claim is made for damages for injuries to 8 the party * * *, upon the request of the party against whom the claim is 9 pending, the claimant shall deliver to the requesting party a copy of all 10 written reports and existing notations of any examinations relating to 11 injuries for which recovery is sought unless the claimant shows inability to 12 3 At the close of plaintiff's case, both defendants moved for directed verdicts. The trial court directed a verdict in favor of defendant Academy because plaintiff had not presented any evidence that defendant Academy knew of the sexual abuse. The trial court allowed the claims against defendant Guitron to proceed to the jury. The jury returned a verdict in favor of defendant Guitron. In response to the first question on the verdict form -- "Did plaintiff * * * discover the connection between the abuse and her injuries after September 12, 2003?" -- the jury answered "[y]es." In response to the second and third questions, whether Guitron engaged in conduct constituting a sexual battery or intentional infliction of emotional distress, the jury answered "[n]o" and awarded no damages. 4 On appeal to the Court of Appeals, plaintiff raised two assignments of error. First, plaintiff assigned error to the trial court's grant of a directed verdict in favor of defendant Academy. Second, plaintiff assigned error to the trial court's exclusion of Green's testimony. The Court of Appeals concluded that the trial court did not err in excluding Green's testimony, and, in light of its resolution of that issue and the jury verdict in favor of defendant Guitron, the court also concluded that, if there was any error in directing a verdict for defendant Academy, that error was harmless. On review in this court, plaintiff does not ask that we review the Court of Appeals decision on defendant Academy's motion for directed verdict. 5 comply." 1 The text of ORCP 44 C supports the decision of the trial court. ORCP 44 C 2 required plaintiff, the party making a claim for injuries, to deliver to defendants, the party 3 against whom the claim was pending, at defendants' request, a copy of "all written 4 reports" of "any examinations" relating to plaintiff's injuries.5 Defendants requested that 5 plaintiff produce all reports of "examinations for the same condition which relate to the 6 Plaintiff's claimed injuries." Green had examined plaintiff, and that examination was 7 related to her claimed injuries. Plaintiff failed to provide Green's written reports to 8 defendants, and, under the plain terms of ORCP 44 D(2), the trial court had authority to 9 exclude Green's testimony.6 10 Plaintiff argues, however, that ORCP 44 C cannot be read in isolation. 11 Read in context, plaintiff argues, ORCP 44 C governs only the reports of experts who 12 examine and treat a plaintiff (treating experts). It is ORCP 44 B, plaintiff asserts, that 13 5 Although either party may seek and obtain the examination of the other party, the party seeking the examination will ordinarily be the defendant, and the party who makes a claim for injuries and who will be subjected to the examination will ordinarily be the plaintiff. For simplicity, we will refer to those parties, respectively, by those terms -- defendant and plaintiff. 6 ORCP 44 D(2) provides: "If a party fails to comply with sections B and C of this rule, or if a physician or psychologist fails or refuses to make a detailed report within a reasonable time, or if a party fails to request that the examining physician or psychologist prepare a written report within a reasonable time, the court may require the physician or psychologist to appear for a deposition or may exclude the physician's or psychologist's testimony if offered at the trial." 6 addresses production of the reports of experts who examine claimants for the purpose of 1 litigation (litigation experts). ORCP 44 B provides: 2 "If requested by the party against whom an order is made under 3 section A of this rule or the person examined, the party causing the 4 examination to be made shall deliver to the requesting person or party a 5 copy of a detailed report of the examining physician or psychologist setting 6 out such physician's or psychologist's findings, including results of all tests 7 made, diagnoses and conclusions, together with like reports of all earlier 8 examinations of the same condition. After delivery the party causing the 9 examination shall be entitled upon request to receive from the party against 10 whom the order is made a like report of any examination, previously or 11 thereafter made, of the same condition, * * *. This section applies to 12 examinations made by agreement of the parties, unless the agreement 13 expressly provides otherwise." 14 Under ORCP 44 B, a defendant who has a plaintiff examined by a litigation 15 expert must provide the plaintiff with a copy of that expert's report. After delivery, the 16 defendant has the right to request and receive "like" reports from the plaintiff, i.e., reports 17 of the plaintiff's litigation experts. ORCP 44 C, plaintiff contends, is intended to address 18 a different subject -- production of the reports of treating experts. According to plaintiff, 19 ORCP 44 C requires a plaintiff to disclose the reports of his or her treating experts 20 without regard to whether a defendant has had or will have the plaintiff examined by the 21 defendant's own litigation experts. If ORCP 44 C were to also require a plaintiff to 22 produce the reports of his or her litigation experts, plaintiff asserts, it would be redundant 23 of ORCP 44 B and inconsistent with that section's more particular exchange 24 requirements. 25 As further context for that interpretation of ORCP 44 C, amicus curiae 26 Oregon Trial Lawyers Association points to the fact that, in the absence of specific 27 7 authorization, the Oregon Rules of Civil Procedure do not permit expert discovery. See 1 Stevens v. Czerniak, 336 Or 392, 404, 84 P3d 140 (2004) (so stating). In deciding 2 whether such authority exists, amicus argues, this court should be cognizant that the 3 physician-patient, psychologist-patient, and attorney-client privileges protect the 4 confidentiality of expert communications. Amicus urges that we consult the legislative 5 history of ORCP 44 and its predecessor, former ORS 44.620 (1974), repealed by Or 6 Laws 1979, ch 284, § 199, contending that that history establishes that the legislature 7 intended to limit the reach of ORCP 44 C to the reports of treating experts. 8 ORCP 44 C is a rule "to which we apply the usual method of statutory 9 interpretation." Pamplin v. Victoria, 319 Or 429, 433, 877 P2d 1196 (1994). Plaintiff 10 and amicus are therefore correct that, to determine its meaning, we look to its context as 11 well as its text, and that, to the extent we deem appropriate, we may also consider 12 legislative history. See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009); PGE 13 v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) (explaining 14 statutory interpretation methodology). Existing case law forms a part of a statute's 15 context, SAIF v. Walker, 330 Or 102, 108-09, 996 P2d 979 (2000), and we begin our 16 analysis with a review of the law as it existed in 1973 when the legislature enacted the 17 predecessors to ORCP 44, former ORS 44.610 through 44.640 (1974), repealed by Or 18 Laws 1979, ch 284, § 199. 19 At that time, this court had decided that a defendant in a personal injury 20 action could request, and a trial court had "inherent general power" to order, that the 21 plaintiff submit to a physical examination by medical experts selected by the defendant or 22 8 designated by the court. Carnine v. Tibbets, 158 Or 21, 27, 74 P2d 974 (1937). In 1 reaching that conclusion, the court rejected the minority view. Id. at 31. That view was 2 described and rejected in a Washington case that this court cited with approval. Id. at 28- 3 29. In Lane v. Spokane Falls & N. Ry. Co., 21 Wash 119, 121, 57 P 367, 367 (1899), the 4 Washington court summarized the minority view that 5 "it is abhorrent to the principles of liberty to compel a party to submit to 6 such an examination; that it invades the inviolability of the person, is an 7 indignity involving an assault and a trespass, and an impertinence to which 8 a modest woman would not consent." 9 Instead, this court agreed with the majority view identified by the Washington court. 10 Carnine, 158 Or at 29-31. In Lane, the Washington court explained that "[c]ourts should 11 not sacrifice justice to notions of delicacy, and knowledge of the truth is essential to 12 justice." Lane, 21 Wash at 121, 57 P at 367.7 13 7 This court also expressly rejected the view that the plaintiff's gender was a justification for denying the defendants' motion for an examination. The court quoted the following: "'As already shown, where the inherent power of a court to order a physical examination of a party is recognized, no exception is made in favor of women. And in statutes conferring the power women are not exempted. As against the contention that a physical examination is an impertinence to which a modest woman would not consent, it has been observed that the demands of justice not infrequently occasion private inconvenience and annoyance, and that a witness is frequently required to answer questions which shock modesty and offend the sense of delicacy; and that if she has submitted to an examination by her own physicians, even of organs peculiar to female functions, it is no greater indignity to be examined by other doctors. A woman's delicacy and refinement of feeling, though of course entitling her to the most considerate and tender treatment consistent with the rights of others, cannot be permitted to stand between 9 As of 1973, this court also had decided that a plaintiff could obtain a copy 1 of the report of the defendant's examining expert. Nielson v. Brown, 232 Or 426, 374 2 P2d 896 (1962). In Nielson, the court considered whether the plaintiff could call, as a 3 witness in her case, a physician who had been retained by defense counsel to examine the 4 plaintiff. The defendant objected to the physician's testimony on the ground that it was 5 confidential under the attorney-client privilege and was part of defense counsel's "work 6 product." The court answered the former argument by pointing out that there was no 7 attorney-client relationship between plaintiff and defense counsel. Whatever 8 communication the plaintiff had with the physician retained by defense counsel was not 9 confidential communication between the plaintiff and her lawyer, and, thus, was not 10 protected by the attorney-client privilege. 11 The court responded to the defendant's argument that it would be unfair to 12 permit the plaintiff to benefit from the "work product" for which the defendant had paid 13 by observing that there would be a competing unfairness in suppressing the evidence that 14 the plaintiff had supplied by submitting to the defense examination. "On balance," the 15 court said, "we think that the problem should be resolved by letting the evidence in, no 16 matter at whose instance or whom it hurts, as an aid in the 'search for truth and justice.'" 17 Id. at 444 (quoting Oregon v. Cahill, 208 Or 538, 582, 293 P2d 169, 298 P2d 214, cert 18 the defendant and a legitimate defense against her claim of a considerable sum of money.'" 158 Or at 33 (quoting 14 R.C.L., Inspection and Physical Examinations § 17 (1916)). 10 den, 352 US 895 (1956)). The court also noted that it was the practice in some Oregon 1 counties for trial courts to order that defendants provide a copy of the report of the 2 examination to plaintiffs, "as the [f]ederal rules require." The court concluded that there 3 was no reason that such orders should not be issued. Id. at 443. 4 Under the federal rules to which the court referred in Nielson, a defendant 5 could obtain an examination of the plaintiff and, on request, was required to deliver a 6 copy of a report of that examination to the plaintiff. After delivering the report, the 7 defendant could request, and was entitled to receive, a copy of "a like report" from the 8 plaintiff. Former FRCP 35(b)(1) (1937).8 9 8 At the time Nielson was decided, FRCP 35 provided: "(a) Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons to whom it is to be made. "(b) Report of Findings. "(1) If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such report the court may exclude his testimony if offered at the trial. 11 In 1973, the Oregon State Bar (Bar) drafted House Bill (HB) 2101 (1973), 1 which the legislature passed without amendment and which provided: 2 "Section 1. In a civil action where a claim is made for damages for 3 injuries to the party or to a person in the custody or under the legal control 4 of a party, the court in which the action is pending may order the person 5 claiming to be injured to submit to a physical or mental examination by a 6 physician employed by the moving party. The order may be made only on 7 motion for good cause shown and upon notice to the persons to be 8 examined and to all parties. The motion and order shall specify the time, 9 place, manner, conditions, and scope of the examination and the person or 10 persons by whom it is to be made. 11 "Section 2. Upon the request of any party the party causing the 12 examination to be made shall deliver to him a copy of a detailed written 13 report of the examining physician setting out his finding, including results 14 of all tests made, diagnoses and conclusions, together with like reports of 15 all earlier examinations of the same condition. 16 "Section 3. Upon the request of the party against whom the claim is 17 pending the claimant shall deliver to him a copy of all written reports of 18 any examinations relating to injuries for which recovery is sought unless 19 the claimant shows that he is unable to comply." 20 Or Laws 1973, ch 136, §§ 1 - 3. In 1974, section 1 was codified as ORS 44.610, and 21 sections 2 and 3 were codified as ORS 44.620(1) and (2), respectively. 22 "(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition." Former FRCP 35 (1937). 12 Sections 1 and 2 reflected the court's rulings in Carnine and Nielson and 1 addressed only the rights and duties of a party who seeks and obtains an examination of 2 another party. Section 1 permitted a defendant to obtain an examination of a plaintiff, 3 and section 2 required the defendant to deliver a copy of the examining physician's report 4 and "like reports of all earlier examinations of the same condition" to the plaintiff. 5 Unlike the federal rule,9 section 2 did not provide that, after delivering those reports, the 6 9 When the Oregon statutes at issue here were enacted in 1973, FRCP 35 provided: "(a) When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. "(b)(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at trial. "(2) By requesting and obtaining a report of the examination so 13 defendant had the right to request and receive from the plaintiff "a like report of any 1 examination, previously or thereafter made, of the same condition[.]" (Emphasis added.) 2 See former FRCP 35(b)(1). Instead, section 3 provided that, at the request of a defendant, 3 the plaintiff must deliver to the defendant copies of "all written reports of any 4 examinations relating to injuries for which recovery is sought." (Emphasis added.) 5 Two representatives of the Bar, Austin Crowe and David Landis, testified 6 in favor of HB 2101. Their testimony, amicus argues, demonstrates that the legislature 7 intended section 3 to require plaintiffs to produce only the reports of treating experts. 8 At the February 12, 1973, meeting of the House Judiciary Subcommittee, 9 Crowe and Landis explained that they had drafted sections 1 and 2 of the bill to codify 10 ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition. "(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule." The current version of FRCP 35 contains a similar exchange provision. FRCP 35(b)(3) provides: "Request by the Moving Party. After delivering the reports, the party who moved for the examination may request -- and is entitled to receive -- from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them." 14 existing case law. As recorded in the minutes of the meeting, Crowe identified section 1 3's purpose as follows: 2 "[T]his bill is designed to correct a situation which has existed in this state 3 for several years; namely, that medical reports of the private treating 4 physician of an injured person filing a lawsuit are not subject to being 5 produced by the plaintiff, whereas if defendant orders an independent 6 medical examination of plaintiff, such a report is required to be produced." 7 Minutes, House Judiciary Subcommittee II, HB 2101, Feb 12, 1973, 1 (statement of 8 Austin Crowe) (emphasis added). However, the tape recording of the meeting reveals 9 Crowe as having used the term "doctors," not "private treating physician." Tape 10 Recording, House Judiciary Subcommittee II, HB 2101, Feb 12, 1973, Tape 6, side 1 11 (statement of Austin Crowe). 12 Crowe then stated, according to the minutes and the tape recording, that "it 13 has been decided by both the plaintiffs' and defense bar in Oregon that it would be more 14 fair and appropriate if there were an exchange between the parties of any doctor's report 15 dealing with a specific action or suit." Minutes, House Judiciary Subcommittee II, HB 16 2101, Feb 12, 1973, 1 (statement of Austin Crowe) (emphasis added); Tape Recording, 17 House Judiciary Subcommittee II, HB 2101, Feb 12, 1973, Tape 6, side 1 (statement of 18 Austin Crowe). He explained that such an exchange would promote settlement and 19 reduce the costs of litigation. 20 Landis related a particular incident that had occurred in a case that he had 21 15 tried.10 Landis said that he had requested a treating physician's report from plaintiff and 1 that the plaintiff's attorney had declined, stating that he "preferred the sporting theory of 2 justice." Minutes, House Judiciary Subcommittee II, HB 2101, Feb 12, 1973, 3 3 (statement of David Landis). The court had then denied Landis's motion seeking to 4 compel discovery of that report, and Landis testified that, under current law, a plaintiff 5 could "thumb his nose at us." Tape Recording, House Judiciary Subcommittee II, HB 6 2101, Feb 12, 1973, Tape 6, side 1 (statement of David Landis). 7 When the Senate Judiciary Committee heard the bill, Crowe and Landis 8 again testified. At a hearing on May 2, 1973, Crowe explained that, "[u]nder the present 9 status of the law, a person who brings a personal injury case does not have to divulge any 10 of the information concerning the nature of the claim until such a time as she or he gets 11 on the witness stand." Minutes, Senate Judiciary Committee, HB 2101, May 2, 1973, 4 12 (statement of Austin Crowe). Crowe testified that the Bar had drafted the bill to promote 13 settlements and eliminate unnecessary medical examinations. The Bar had incorporated 14 existing law and provided "some additional tools so the medical reports will come out in 15 the beginning and at the start of a lawsuit, everyone will find out what the nature of your 16 claim is." Id. The act, Crowe said, "intends to make the report of the treating physician 17 available to the defense lawyer in the case." Id. (emphasis added). 18 In his testimony, Landis reiterated that sections 1 and 2 of HB 2101 would 19 10 Landis provided the legislative committees with the motion and memorandum that he had filed in that case. 16 codify existing case law and that section 3 was a new provision. Landis further testified 1 that the bill would help to alleviate the "inequities in the exchange of material between 2 the lawyers before a trial." Section 3 would require the plaintiff's attorney to forward 3 "copies of [his or her] reports" to the defense attorney. Minutes, Senate Judiciary 4 Committee, HB 2101, May 2, 1973, 5 (statement of David Landis). 5 In hearings before both committees, Landis answered questions from 6 legislators. One question from Representative Stults was whether section 3 contemplated 7 "that monthly forms filled out [by] a doctor regarding the continuation of a disability 8 would be included[.]" Landis replied that he "doubted whether it would include those 9 monthly check-off forms saying a claimant was still unable to return to work, but that the 10 examination report of the injured worker would be subject to discovery." Minutes, 11 House Judiciary Subcommittee II, HB 2101, Feb 12, 1973, 3 (statement of David Landis) 12 (emphasis added). 13 In response to a question from another legislator, Landis said that sections 2 14 and 3 did not require delivery of reports until after a lawsuit had been filed, but that 15 "[t]here is no timing provision that the plaintiff can wait on the independent examination 16 until he has to deliver copies of the report. Then you get into playing games if you are 17 going to have an independent medical examination." Minutes, Senate Judiciary 18 Committee, HB 2101, May 2, 1973, 5 (statement of David Landis). Landis also 19 explained the difference between sections 2 and 3 by saying that the intent of section 2 20 was to give the report of the examination to the plaintiff's attorney, if the examination 21 was done at the defendant's request. In that instance, Landis said, the defendant could go 22 17 to court and get a similar report from the plaintiff under section 3, but a defendant also 1 could get the report from the plaintiff under section 3, notwithstanding sections 1 and 2. 2 Tape Recording, Senate Judiciary Committee, HB 2101, May 2, 1973, Tape 28, side 2 3 (statement of David Landis). 4 That testimony demonstrates that the drafters of HB 2101 contemplated 5 that, on request, at any time after initiation of an action for personal injuries, a plaintiff 6 would be required to produce the reports of his or her treating experts. The drafters 7 anticipated that early disclosure of such reports could eliminate the need for a defense 8 examination, promote settlement, and reduce costs. Whether the drafters, and, more 9 importantly, the legislature, intended to limit the bill's disclosure requirements to that 10 circumstance is, however, far less clear. We therefore consult the legislature's later 11 discussion and amendment of those statutes for assistance. 12 In 1978, the Council on Court Procedures (Council) promulgated the 13 Oregon Rules of Civil Procedure. Under ORS 1.735, those rules became effective on 14 January 1 of the following year unless the legislature amended, repealed, or 15 supplemented them. One of the rules that the Council promulgated in 1978 was ORCP 16 44. The legislature made certain amendments to that rule,11 none of which are pertinent 17 11 The legislature amended ORCP 44 A to add "agent[s]," "employee[s]," and "spouse[s]" to the list of individuals who may be subject to an examination under the rule. The legislature amended the portion of ORCP 44 A permitting an examination when the "blood group" of such an individual is in controversy, to permit an examination when "the blood relationship" is in controversy. Or Laws 1979, ch 284, § 27. The legislature also amended ORCP 44 E, providing for access to hospital records, to clarify 18 here, and the rule, as amended, became effective on January 1, 1979. ORS 1.735. When 1 the Council promulgated ORCP 44, the new rule included the substance and much of the 2 text of ORS 44.610 and ORS 44.620. The legislature therefore repealed those statutes. 3 Or Laws 1979, ch 284, § 199. 4 To interpret ORCP 44, we look to the text and context of the rule and the 5 Council's intent. Waddill v. Anchor Hocking, Inc., 330 Or 376, 382 n 2, 8 P3d 200 6 (2000), adh'd to on recons, 331 Or 595, 18 P3d 1096 (2001) ("unless the legislature 7 amended the rule at issue in a particular case in a manner that affects the issues in that 8 case, the Council's intent governs the interpretation of the rule"). See also Lake Oswego 9 Review v. Steinkamp, 298 Or 607, 610-12, 695 P2d 565 (1985) (referring to Council's 10 legislative history to interpret rule). 11 Through ORCP 44 A, the Council extended the applicability of former 12 ORS 44.610 beyond personal injury actions. ORCP 44 A mirrored former FRCP 35(a) 13 and permitted a court to order the examination of a party in any case in which a "mental 14 or physical condition * * * is in controversy."12 15 the scope of that provision and to provide for notice to the party whose records are sought. Or Laws 1979, ch 284, § 28. 12 As promulgated in 1979, ORCP 44 A provided: "When the mental or physical condition or the blood relationship of a party, or of an agent, employee, or person in the custody or under the legal control of a party (including the spouse of a party in an action to recover for injury to the spouse), is in controversy, the court may order the party to submit to a physical or mental examination by a physician or to 19 In ORCP 44 B, the Council added the report exchange provisions of former 1 FRCP 35(b)(1) to former ORS 44.620(1). ORCP 44 B provided: 2 "If requested by the party against whom an order is made under 3 section A of this rule or the person examined, the party causing the 4 examination to be made shall deliver to the requesting person or party a 5 copy of a detailed report of the examining physician setting out such 6 physician's findings, including results of all tests made, diagnoses and 7 conclusions, together with like reports of all earlier examinations of the 8 same condition. After delivery the party causing the examination shall be 9 entitled upon request to receive from the party against whom the order is 10 made a like report of any examination, previously or thereafter made, of the 11 same condition, unless, in the case of a report of examination of a person 12 not a party, the party shows inability to obtain it. This section applies to 13 examinations made by agreement of the parties unless the agreement 14 expressly provides otherwise." 15 In the commentary to the first draft of ORCP 44, included in the Council's "Legislative 16 History,"13 the Council explained that 17 "ORS 44.620(1) provides for a delivery of a copy of a report on request of 18 the examined party when the examination is pursuant to a court order, and 19 ORS 44.620(2) * * * provides for delivery of the claimant's reports but not 20 related to any request for defendant's reports or even a court-ordered 21 examination." 22 produce for examination the person in such party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." 13 The Council on Court Procedures published bound volumes entitled Legislative History Relating to the Promulgation of the Oregon Rules of Civil Procedure (1979). Those volumes include, inter alia, meeting minutes, committee reports and internal memoranda, draft rules and commentary, and the final draft rules. We use this legislative history as we would use comparable history from the Oregon Legislature. See Lake Oswego Review, 298 Or at 610-12 (using Council's legislative history to interpret rule). 20 Comment, Discovery Committee Draft Rules, Council on Court Procedures, Mar 27, 1 1978, 57.14 In contrast, the comment stated, the new rule imposes the exchange 2 procedure found in the federal rule such that "[i]f no request for a report is made by the 3 examined party, no right to reports from the examined party arises for the examining 4 party." Id. In choosing to adopt that federal procedure, the Council's stated aim was to 5 "choose the best rule, with some deference to recent legislative enactment." Introduction, 6 Discovery Committee Draft Rules, Council on Court Procedures, Mar 27, 1978, 1. 7 Finally, in ORCP 44 C, the Council retained the text of former ORS 8 44.620(2). ORCP 44 C provided: 9 "In a civil action where a claim is made for damages for injuries to 10 the party or to a person in the custody or under the legal control of a party, 11 upon the request of the party against whom the claim is pending, the 12 claimant shall deliver to the requesting party a copy of all written reports of 13 14 The commentary to the final draft rules is consistent with, albeit less detailed than, the Discovery Committee's commentary. It provides: "This rule is a combination of ORS sections and Federal Rule 35. Section 44 A comes from the federal rule and extends the possibility of a medical examination from personal injury cases to any situation where the mental and physical condition of a party is at issue. * * * "Section 44 B is also adapted from the federal rule. It provides for a more complete exchange of reports than that contemplated by the existing ORS sections. In one respect the rule is narrower than existing practice; it only allows the examined party to secure a copy of the report, as opposed to any party. "Section 44 C is based on ORS 44.620(2)." Comment to Rule 44, Final Draft, Proposed Oregon Rules of Civil Procedure, Council on Court Procedures, Nov 24, 1978, at 129-30. 21 any examinations relating to injuries for which recovery is sought unless 1 the claimant shows inability to comply." 2 The Council's commentary explained that ORCP 44 C was taken from ORS 44.620(2) 3 and did not exist in the federal rule. It was "expressly designed to create a duty on the 4 part of plaintiffs in personal injury cases to furnish medical reports apart from any 5 exchange with the defendant or any court-ordered examination." Comment, Discovery 6 Committee Draft Rules, Council on Court Procedures, Mar 27, 1978, 58 (emphasis 7 added). The Council's commentary quoted an earlier comment by the Practice and 8 Procedure Committee of the Bar to the 1973 bill, HB 2101, that is not included in the 9 legislative history of that bill. That comment included the statement that "[t]he purpose 10 of this bill is to require plaintiff to produce copies of the medical reports of his treating 11 physician." Id. (emphasis added). 12 While the Council was considering ORCP 44, it also was considering a rule 13 that would have permitted much broader discovery of expert reports. That rule, 14 designated as draft rule 36 B(4), and referred to as the Bodyfelt rule, would have required 15 the mandatory exchange of all expert reports, "somewhat equivalent to the existing 16 provisions following a physical examination of an opponent." Fredric Merrill, 17 Memorandum on the Discovery of Experts 1, Council on Court Procedures (1978). In 18 discussing the overlap between draft rule 36 and ORS 44.620, Professor Merrill said: 19 "The rule [draft rule 36] is not clear what happens in situations 20 where there is a medical examination of an opponent, presently covered by 21 ORS 44.620-630. The report specified under those statutes appears to be 22 more detailed and also there is a specific provision dealing with the 23 medical reports of the experts of the claiming party whether or not the 24 claiming party plans to call these doctors as witnesses. It is suggested that 25 22 the Bodyfelt rule, if used, be specifically made subject to whatever rule is 1 adopted that is the equivalent of ORS 44.620 to ORS 44.640." 2 Id. at 18 (emphasis added). Draft rule ORCP 36 B(4) was controversial, and the 3 legislature declined to adopt it. See Stevens v. Czerniak, 336 Or 392, 403-04, 84 P3d 140 4 (2004) (discussing legislative history of ORCP 36 B(4)). Since 1979, the legislature has 5 made some minor changes to ORCP 44, but has not further discussed the purpose or 6 effect of its provisions.15 7 The history that we have laid out is not definitive on the issue before us, but 8 it is informative. First, that history reveals that, when the Oregon Legislature rejected a 9 broad expert discovery rule in 1978, it had already decided, in 1973, to permit limited 10 discovery of the reports of examining experts. The fact that the legislature declined to 11 expand the discovery permitted by former ORS 44.610 and ORS 44.620 to permit 12 discovery of all expert reports does not assist us in determining the meaning of those 13 existing statutes and their successor, ORCP 44 C. However, it is important to recognize 14 and emphasize that former ORS 44.610 and ORS 44.620 permitted discovery of the 15 reports of a narrow class of experts -- those who examine claimants. 16 Second, the legislative history that we have reviewed reveals that the 17 redundancy that plaintiff finds in ORCP 44 B and C, and that is the lynchpin of her 18 15 In 1986, the legislature amended ORCP 44 C to require that a plaintiff produce "all written reports or existing notations of any examinations relating to injuries for which recovery is sought." Former ORCP 44 C (1987). In 1988, the legislature substituted "and existing notations" for "or existing notations." ORCP 44 C. 23 argument that we must construe ORCP 44 C to be limited to reports of treating experts, 1 did not exist in former ORS 44.620. Former ORS 44.620(1) required a defendant to 2 produce the reports of his or her litigation experts, but did not require plaintiffs to 3 produce "like" reports. Thus, there could be no argument that, if former ORS 44.620(2) 4 required a plaintiff to produce the reports of his or her litigation experts, it was 5 duplicative of former ORS 44.620(1). Unless former ORS 44.620(2) required a plaintiff 6 to produce the reports of his or her litigation experts, the plaintiff could obtain the reports 7 of the defendant's litigation experts under former ORS 44.020(1), but refuse to disclose 8 his or her own "like" reports. 9 The legislative history of former ORS 44.620 does not demonstrate an 10 intent to require such an unequal exchange. In fact, Landis, one of the drafters of that 11 statute, considered the existing case law -- requiring defendants and not plaintiffs to 12 produce the reports of their examining experts -- to be objectionable and informed the 13 legislature of his objection. In this case, plaintiff concedes that the legislature intended to 14 address that problem, but argues that it did so by requiring only that plaintiffs produce the 15 reports of their treating experts. However, there is little evidence that the legislature 16 intended a limited rather than a more complete remedy to the expressed problem. 17 Although both Landis and Crowe referred to a plaintiff's duty to produce the reports of 18 treating experts, Landis also told legislators that the bill permitted defendants to obtain 19 reports from plaintiffs that were "similar" to the reports that defendants were required to 20 provide, and defendants were required to provide the reports of their litigation experts. 21 Both Crowe and Landis generally referred to an "exchange" of reports and emphasized 22 24 their interest in moving away from the "sporting theory of justice" and the gamesmanship 1 that existing law permitted, and toward early disclosure of all relevant facts. 2 When the Council promulgated ORCP 44 some five years later, it stated, in 3 the commentary to ORCP 44 B, that, "[i]f no request for a report is made by the 4 examined party, no right to reports from the examined party arises for the examining 5 party." However, the Council also stated, in the commentary to ORCP 44 C, that that 6 rule required plaintiffs to produce reports of examinations "apart from any exchange with 7 the defendant or any court-ordered examination." That commentary is consistent with an 8 intent to adopt, in ORCP 44 B, the specific exchange procedure of former FRCP 9 35(b)(1), but does not establish that the Council intended to restrict discovery of the 10 reports of litigation experts to that procedure. The Council retained the wording of ORS 11 44.620 in ORCP 44 C, and there is a good argument that the text of ORS 44.620 required 12 plaintiffs to produce, on request, the reports of all examining experts, including litigation 13 experts. 14 Although plaintiff has raised a substantial question about the meaning of 15 ORCP 44 C, the contextual clues and history that she has provided and that we have 16 reviewed are not convincing, particularly given the text of the rule which, on its face, is 17 unambiguous. ORS 44.620(2) required, and ORCP 44 C requires, plaintiffs to produce 18 copies of "all written reports * * * of any examinations" relating to the injuries that 19 plaintiffs' claim. The words of statutes and rules of civil procedure are the best indication 20 of the intent of those who promulgate them. See State v. Gaines, 346 Or 160, 171, 206 21 P3d 1042 (2009) (words used by legislature to give expression are best evidence of 22 25 intent). Here, those words are encompassing rather than limiting. The words "all written 1 reports * * * of any examinations" encompass the reports of both litigation and treating 2 experts who examine a plaintiff. Those words do not define or limit the experts whose 3 reports are subject to discovery, as long as those experts have examined the plaintiff. 4 Plaintiff in this case may well be correct that that interpretation of ORCP 5 44 C requires plaintiffs to disclose reports of litigation experts that, in the absence of 6 ORCP 44 C, would be protected by the physician-patient, psychotherapist-patient, or 7 attorney-client privileges. The response to that argument is that the legislature created 8 those privileges and, in adopting ORCP 44, limited their reach. Plaintiff agrees that 9 ORCP 44 B requires that the parties exchange the reports of their litigation experts and 10 thereby requires the production of reports that otherwise might have been considered 11 confidential. There is no reason that ORCP 44 C should not have the same effect. In 12 fact, HB 2101 included an amendment of the physician-patient privilege that made that 13 privilege "subject to" the provisions of that act. Or Laws 1973, ch 136, § 6. Crowe told 14 the legislature that he had obtained the "full approval" of the Oregon Medical Society for 15 that change. Minutes, House Judiciary Subcommittee II, Feb 12, 1973 (statement of 16 Austin Crowe). OEC 504 and OEC 504-1 also provide that there is no psychotherapist- 17 patient or physician-patient privilege for communications in the course of an ORCP 44 18 examination, except as provided in ORCP 44 and OEC 503. The lawyer-client privilege 19 defines "representative of the lawyer" to exclude a physician making a physical or mental 20 26 examination under ORCP 44.16 The legislature has recognized that the discovery that 1 ORCP 44 permits and requires is an exception to the privileges that the legislature has 2 created. 3 We conclude that, in adopting ORCP 44 C, the legislature, as did this court 4 in Carnine and Nielson, considered the "search for truth and justice" to be paramount and 5 required plaintiffs to produce, on request, the reports of the experts who examine them 6 for purposes of litigation as well as for treatment. Therefore, we also conclude that, in 7 this case, the trial court was correct that plaintiff was required to produce the report of 8 Green, and did not err by excluding his testimony under ORCP 44 D. 9 The decision of the Court of Appeals and the judgment of the circuit court 10 are affirmed. 11 16 Or Laws 1973, ch 136, § 6, provided that the physician-patient privilege of former ORS 44.040(1)(d) (1974), repealed by Or Laws 1981, ch 829, § 98, was subject to the provisions of HB 2101. When the legislature enacted the Oregon Evidence Code, it repealed former ORS 44.040 and replaced it with the cited provisions of the Oregon Evidence Code. As originally enacted, and today, OEC 503, OEC 504, and OEC 504-1 contain express exemptions for examinations conducted under ORCP 44.

553806211da3be913751be5b8e833a494c72cb0d802514ebc7c05a543fa247b2

2011-12-30T00:00:00Z

1b1d279f-b04f-4ee2-8be8-94b710232237

Firebaugh v. Boring

288 Or. 607, 607 P.2d 155

oregon

Oregon Supreme Court

607 P.2d 155 (1980) 288 Or. 607 L. David FIREBAUGH and Irene Firebaugh, Husband and Wife, Petitioners, v. Edwin L. BORING and Lorna L. Boring, Husband and Wife, Respondents. No. CC 77-578; CA 11050; SC 26139. Supreme Court of Oregon. Argued and Submitted October 3, 1979. Decided February 26, 1980. *156 Thomas E. Sweeney, Cannon Beach, argued the cause and filed a brief for petitioners. Dan Van Thiel, of Anderson, Fulton, Lavis & Van Thiel, Astoria, argued the cause and filed a brief for respondents. Before DENECKE, C.J., and HOLMAN,[*] HOWELL, LENT, LINDE,[**] and PETERSON, JJ. PETERSON, Justice. In 1977 the defendants deposited a load of dirt in a private roadway, preventing the plaintiffs from using the roadway to reach their house, which was then under construction. The plaintiffs removed the dirt and thereafter filed this suit to (1) quiet title to a claimed prescriptive easement in the plaintiffs over the defendants' land, and (2) to enjoin defendants permanently from blocking or interfering with the easement. The trial court granted the requested relief, and the defendants appealed. The Court of Appeals reversed, holding "that the easement over defendants' land was for the special purpose of access to and from the water reservoir, and that when the reservoir property was sold and was no longer used as a reservoir, the easement was terminated." 39 Or. App. 189, 192, 591 P.2d 421, 423 (1979). We granted review to consider this question: Is a prescriptive easement extinguished by reason of a change in the condition or use of the dominant estate, absent any increased burden upon the servient estate? For over 40 years the plaintiffs and their predecessors in interest used a roadway over the defendants' property for access to a water storage reservoir on the plaintiffs' property. The Cannon Beach Water Company, plaintiffs' predecessor, first used the road in the early 1920's and continued to use the road until the water company and its assets were purchased by plaintiff Firebaugh and his father in the mid-1930's, who continued to use the roadway. In 1972, the reservoir and property were sold to the City of Cannon Beach, but thereafter Cannon Beach built a new reservoir, discontinued use of the old reservoir, and reconveyed the property to the plaintiffs. The plaintiffs then built a residence upon the property, using part of the old reservoir as a foundation for their new home. The roadway, which was about 100 feet long and 18 to 20 feet wide, was regularly used by passenger cars and trucks traveling to and from the reservoir throughout the 40-year period. The road was described as an "all-weather road" and was used on a daily basis much of the time, sometimes "many times a day." The plaintiffs and their predecessors maintained the road with gravel and rock. In addition, a waterline was laid beneath the roadway. The plaintiffs intended to continue to use the roadway for vehicular access to and from their home, and were so using the road at the time of trial. Neither the frequency *157 of use nor the type of use was materially greater after the house was built than during the period the reservoir was in use. The trial court wrote a memorandum opinion in which it found: A decree was thereafter entered which provided that We agree with the trial court that the plaintiffs had established, by clear and convincing evidence, "that their use of the roadway in question has been open, exclusive, continuous, under claim of right for the appropriate statutory period and in a manner sufficiently hostile * * *." Therefore, a prescriptive easement existed over the defendants' property. Remaining for decision is the question whether a prescriptive easement is extinguished by reason of a change in condition or use of the dominant estate, absent any increased burden upon the servient estate. Most courts have adopted a rule that the extent of a prescriptive easement is limited by the use which created it.[1] The term "extent," in this context, means the scope of the privilege of use arising from an easement as against the owner of the servient tenement. Within the scope of the privilege of use are included the elements of time, place, manner and purpose of use. 5 Restatement of the Law of Property 2991 (1944). This is the rule in Oregon. Walter v. Martinson, 276 Or. 411, 414, 555 P.2d 21 (1976). In the instant case the trial court found that a prescriptive easement existed upon the land now owned by the defendants in favor of the plaintiffs, the length and width of the easement being that which was in existence on the day of trial. The decree also provided: "* * * said easement to be permanent until abandoned by the plaintiffs * * *." Had there been no change in the condition or use of the dominant tenement, the easement would have existed indefinitely.[2] But here there has been a change in the condition and use of the dominant estate. The defendants claim, and the Court of Appeals held, that if the condition or use of the dominant estate is altered, the appurtenant prescriptive easement is extinguished. We turn to a discussion of that question. Some authorities contain language which appears to support the proposition that a prescriptive easement is extinguished when the condition or use of the dominant tenement is altered. Section 8.69 of II American Law of Property (1952) contains such language: 4 H. Tiffany, The Law of Real Property 1041, § 1208 (3d ed. 1975), upon which the Court of Appeals relied, states: Note, however, that neither Tiffany, supra, nor the American Law of Property, supra, hold that the easement is extinguished by reason of a change in condition of the dominant estate alone. Tiffany indicates that one of the reasons for the limitation of use of the prescriptive easement is the imposition of a "greater burden upon the servient estate." An analysis of the cases cited in those texts reveals that in almost every such case there existed a substantial increase in the burden upon the servient tenement and one or more of the following: (a) termination of the need for access to the dominant estate; (b) a change in the nature of use of the easement; or (c) a substantial change in the condition of the dominant tenement not involving a normal evolution of the use of the dominant estate.[3] In its opinion, the Court of Appeals relied on 4 H. Tiffany, supra, and Hahn v. Baker Lodge, No. 47, 21 Or. 30, 27 P. 166 (1891). Hahn is distinguishable from the case at bar. There the plaintiff owned a two-story building, and conveyed a room within the second floor to the defendant, including an easement for ingress and egress. The room was used for lodge meetings until the building *159 was substantially destroyed by fire and the room was wholly destroyed. The defendant claimed that it had a right to reconstruct the upper story in order to recreate a room to be used as a lodge hall in place of the one destroyed by fire. On plaintiff's suit for an injunction this court held that Based upon the complete destruction of the dominant estate, there being no practical use for an easement to an empty air space, the court held that the easement expired with the destruction. There, the dominant estate was destroyed. Here the only change in the dominant estate was a change in use. As stated above, the quotation from 4 H. Tiffany, supra, appears to require, in addition to a change in condition or use of the dominant estate, a "greater burden upon the servient estate." 3 H. Tiffany, The Law of Real Property 346, § 809 (3d ed. 1939) states the rule as follows: Most courts hold that even where there has been a change in the condition or use of the dominant estate, if the changed condition of the dominant tenement results from a normal development of the dominant tenement the prescriptive easement continues to exist, albeit limited in scope to the use during the prescriptive period.[4] Section 478 of the Restatement of Property (1944) considers permissible changes in use of prescriptive easements: In Comment a to section 478, it is stated: Section 479 deals specifically with changes in condition of the dominant tenement: Comment a to section 479 states: Pipkin v. Der Torosian, 35 Cal. App. 3d 722, 111 Cal. Rptr. 46 (1973), is illustrative. There, previous owners of the dominant tenement had a prescriptive easement over the servient tenement for agricultural and cultivation purposes. During the prescriptive period the only use had been for agricultural purposes. The dominant estate was thereafter sold to the plaintiffs, who built a residence on the property. The defendants claimed, and the trial court held, that the easement should be limited to usage "as an easement and right-of-way * * for agricultural and cultivation purposes" and that the easement "was not for residential use * * *." The practical effect of the trial court's holding was to bar access to the plaintiffs' house over that roadway. The California appeals court stated the issue as follows: The court held that the use of the dominant tenement during the prescriptive period is only one of the germane factors. The court adopted the Restatement analysis[6] that in ascertaining the extent of permissible usage of a prescriptive easement, consideration should be given to (a) the character of use, (b) the purpose of use, and (c) the relative burden caused by the proposed and former uses on the servient tenement. Quoting from Gaither v. Gaither, 165 Cal. App. 2d 782, 332 P.2d 436, 438 (1958), the court stated: The court concluded its discussion as follows: We are persuaded that an approach which considers only the use made of the dominant tenement for measuring the permissible use of a prescriptive easement inappropriately precludes consideration of the "needs which result from a normal evolution in the use of a dominant tenement." 5 Restatement of Property § 479 (1944). We hold that in determining whether a particular use of a prescriptive easement is permissible, a comparison should be made between (A) the use by which the easement was created, and (B) the proposed use considering these factors: (1) the relative burdens upon the servient tenement; (2) the nature and character of the uses of the easement; and (3) the purposes achieved through the uses of the easement. In the case at bar, the plaintiffs intend to use the roadway in the same way as in the past to provide ingress and egress to their property by motor vehicles. There is no change in the nature and character of the proposed use of the roadway. There is no evidence of any substantial increase in burden upon the servient estate. The only arguable difference between the proposed use and the former use is in the purpose achieved through the use of the easement. The former use provided access to a reservoir; the proposed use provides access to a residence.[7] Moreover, the use of the plaintiffs' property for construction of a residence appears to be a normal evolution in use of the property.[8] *162 We conclude that the Court of Appeals erred in holding that the easement terminated "when the reservoir property was sold and was no longer used as a reservoir." Reversed. [*] HOLMAN, J., retired January 20, 1980. [**] LINDE, J., did not participate in the decision of this case. [1] See 5 Restatement of the Law of Property § 477 (1944); 3 R. Powell, The Law of Real Property § 416 (1979); 2 G. Thompson, Real Property § 349 (1961). [2] "A right acquired by prescription is as good as one acquired by deed or grant," 2 G. Thompson, Real Property 290, § 349 (1961); 3 R. Powell, The Law of Real Property 34-251, § 423 (1979). [3] See cases cited in footnotes 17 and 18, 4 H. Tiffany, The Law of Real Property 1046, § 1208 (3d ed. 1975). For example, in Parks v. Bishop, 120 Mass. 340 (1876), the Massachusetts court opined that an easement to remove wood from land, which was afterward cultivated and built upon, would not extend to the latter use, because a greater burden would be imposed upon the servient estate. See also Baldwin v. Boston & Maine Railroad, 181 Mass. 166, 63 N.E. 428, 429-430 (1902): "* * * But in all these cases there has been a substantial change in the nature of the use, and a consequent increase of burden upon the servient estate. In the case before us the judge has found that there has been no such increase. No case has been shown to us, nor are we aware of any, where the change in the use of the land has been only in degree, and not in kind, in which it has been held that the way could not be used to the land in the changed condition, especially if there was no increased burden upon the servient estate. To base a distinction upon such a change would be unwise in theory, and impracticable in practice. * * *" [4] 3 R. Powell, The Law of Real Property 34-210 n. 17, § 416 (1979). [5] See also 3 R. Powell, The Law of Real Property 34-207 34-209, § 416 (1979): "* * * In determining whether a specific use is within the pattern of the establishing uses, courts consider (1) their similarity or dissimilarity of purpose; (2) their respective physical attributes; and (3) the relative burden caused by them upon the servient parcel. * *" (Footnotes omitted.) [6] 5 Restatement of Property § 478 (1944). [7] Note this comment to 5 Restatement of Property § 478(b) (1944): "The purpose sought to be served by an asserted use may be so different from the purpose of the adverse use by which the easement was created as to be a controlling factor in a holding that the claimed use is not permissible. Thus, a diversion of water for power purposes is not, ordinarily at least, justifiable under an easement created by a diversion of water for purposes of irrigation. Yet, some degree of variation in the purpose of a use made under a prescriptive easement from the purpose of the use by which it was created must be permitted for the two cannot be quite identical though, as the degree of difference in purposes becomes smaller, it becomes necessary to take greater account of variance in physical use and increases in the burden upon the servient tenement * * *." See 2 G. Thompson, Real Property 285, § 349 (1961). See also Bartholomew v. Staheli, 86 Cal. App. 2d 844, 195 P.2d 824 (1948) (change in use of dominant estate from farm to nudist colony impermissibly increased use of easement); Annot., 5 A.L.R.3d 439 (1966). [8] A tabular analysis of the rule as applied to the facts is set forth below:

b0d44315917c60746874497513b8bf081ddf1a7d3974d3ded83ce692d50f53fc

1980-02-26T00:00:00Z

5006b070-e896-455c-af64-11488307c7db

State v. Bishop

288 Or. 349, 605 P.2d 642

oregon

Oregon Supreme Court

605 P.2d 642 (1980) 288 Or. 349 STATE of Oregon, Respondent, v. Donald Eugene BISHOP, Petitioner. Nos. C77-08-12166; CA 10219; SC 26032. Supreme Court of Oregon, In Banc. Argued and Submitted September 6, 1979. Decided January 22, 1980. J. Marvin Kuhn, Deputy Public Defender, argued the cause for petitioner. With him on the petition and brief were Gary D. Babcock, Public Defender, and B. David Thomas, Certified Law Student, Salem. Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. HOLMAN, Justice. Defendant was convicted of burglary in the first degree. The conviction was affirmed by the Court of Appeals, 37 Or. App. 909, 587 P.2d 1057 (1978). This court allowed review. Four police officers went to the house of defendant's mother for the purpose of arresting defendant. They went there because it was his mother's home and an automobile thought to be defendant's was parked in front. Defendant was living with his mother but this was unknown to the police at the time. The police had knowledge that a warrant had issued for defendant's arrest and they claimed to have probable cause to arrest him for the burglary of *643 which he was ultimately convicted in this case and which had no connection with the issuance of the warrant. One officer went to the rear of the dwelling and the three other officers went to the front door. Two of the officers who went to the door were in uniform. Defendant's wife answered the door and the police identified themselves as police officers and the one in plain clothes disclosed his badge. They asked if her husband was there and said they wished to speak to him. She told them that he was not there and stepped out on the porch to talk with them further. As she did so, the officer in plain clothes stepped behind her and through the doorway because he was aware that there was a man in the room behind her. This person was not her husband, but, as the officer was talking to this individual, he saw a door close which opened off of the room. The officer drew his revolver and moved into that room where he found defendant, who had just removed himself from the bathtub. After being taken into custody, defendant soon thereafter confessed to the burglary in question. Defendant filed a motion to suppress the confession as being the fruit of an illegal arrest because, although the officers identified themselves, they failed to announce the purpose for their entry. The trial court denied the motion, and, as stated previously, this ruling was affirmed by the Court of Appeals. This issue is the only one before this court as it was the sole basis for the appeal and the only matter urged in the petition for review to this court. Thus, there is no issue of the officers' right to enter the only issue is their failure to announce their purpose before they did so. ORS 133.235(5) and (6) provide as follows: There is no doubt that the officers violated the provision of the statute requiring them to announce their purpose before entry. However, the statute says nothing concerning the consequences of this or any kind of a violation, and this court, in State v. Valentine/Darroch, 264 Or. 54, 66-69, 504 P.2d 84 (1972), cert. denied, 412 U.S. 948, 93 S. Ct. 3001, 37 L. Ed. 2d 1000 (1973), decided that in a search for the truth, a violation of a similar predecessor statute was not, in that case, of sufficiently serious consequence to justify the exclusion of otherwise competent evidence. The opinion did not say that the court would never exclude evidence if the circumstances were particularly aggravated or if violations of the statute became commonplace. In Valentine/Darroch, an undercover agent left the defendant's apartment for the ostensible purpose of securing the money to pay for drugs which were present in defendant's apartment. Upon doing so, he left the door slightly ajar and informed other officers who had a search warrant for the premises. These officers then opened the door without either knocking or announcing. The present entry was considerably less aggravated than that in Valentine/Darroch. We, therefore, hold the motion to suppress was properly denied insofar as the statutory prohibition is concerned. This does not mean that the statute need not be obeyed, but means only that the evidence is not suppressed. The statute could have been obeyed in this instance with little chance of danger or inconvenience to the police officers. If such disregard of the statute becomes prevalent, this court may well be convinced that suppression of the evidence is necessary to require compliance. We are reluctant to jeopardize the public's protection by suppression of otherwise competent evidence unless police officers, by their disregard of statutory rules of conduct, make it necessary. In Valentine/Darroch this court also held that the provisions of Article I, section *644 9, of the Oregon Constitution,[1] which is the Oregon counterpart of the Fourth Amendment to the United States Constitution, were not violated by the entry. We there discussed the reasons given for the knock and announce rule and concluded that they were two-fold: (1) to protect persons involved from harm from violence because of an unexplained entry; and (2) to protect the interest of householders in the privacy of their homes. At common law there was a third reason, and that was to prevent the destruction of property. We concluded "that an otherwise lawful search and seizure accomplished by an entry which was made without an announcement of presence and purpose is not an unreasonable search and seizure within the meaning of the Oregon Constitution." 264 Or. at 65-66, 504 P.2d at 89. Such being the case where there is neither an announcement of presence nor of purpose, there could be no violation where there was an announcement of presence but not of purpose. While this court has the final say in the interpretation of the Oregon Constitution, it does not enjoy this position in relation to the Constitution of the United States and more particularly the Fourth Amendment thereto.[2] There is no doubt in this case that the entrance without an announcement of the purpose in doing so was an invasion of the rights of the privacy of those persons residing within the premises. We have very little authority to which we can refer concerning whether the entrance in the present case would be considered by the United States Supreme Court as one sufficiently unreasonable to offend against the Fourth Amendment. The scope of the Fourth Amendment is currently defined in terms of the protection of an individual's expectation of privacy. The United States Supreme Court in Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1973), its most recent discussion of the Fourth Amendment in relation to a violation of the knock and announce rule, clearly indicated that the knock and announce rule is one of Fourth Amendment constitutional magnitude. In Ker the officers entered the apartment of the defendants without a warrant for the purpose of arresting one of them for the crime of the possession of marijuana. They secured a passkey from the manager of the apartment house and entered without either knocking or announcing. The entry was held not to be unreasonable by four members of the Court because the evidence might have been destroyed and the occupants might have been expecting the police. A fifth member thought the Fourth Amendment was not applicable. Four members of the Court dissented and thought the entry unreasonable. The four members approving the entry said little concerning the reasons for the knock and announce rule but the dissenters recognized that danger to those concerned was a "compelling consideration." This is confusing because the danger to the persons involved is not a privacy consideration. In addition, the privacy involved is necessarily limited since the knock and announce rule comes into play only when the officers have the legal right to enter the premises. The right of the occupants of the premises which is protected by the rule is really their right to be warned that their privacy is about to be legally invaded. Even the dissenter in Valentine/Darroch, Justice O'Connell, who believed that the basis of the rule was privacy, had difficulty "in seeing the knock and announce rule as having constitutional proportions, * * *." 264 Or. at 69, 504 P.2d at 91. *645 It is our conclusion that the danger to persons in the present case was minimal. At the door were two uniformed policemen plus a third in plain clothes who displayed his police badge. This is not a situation in which unidentified persons enter. Where there is no doubt that the persons at the door are police, there is no need for the occupants to feel unduly threatened by their entry and, therefore, to offer resistance. If the occupants are of the desperate kind who, in any event, will offer resistance, the officers have already assured the probability of violent and dangerous resistance just by announcing that they are police officers. In most instances, while the announcement of the purpose of the entry is highly desirable in a civilized society, as long as police identify themselves we doubt that danger of injury to police or persons within is materially increased by failure to announce the purpose of the entry. In Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958), two ununiformed officers forced the door of defendant's apartment at 3:45 a.m. for the purpose of arresting him. The Court held the validity of the arrest was to be determined by the law of the District of Columbia where the occurrence took place and that the knock and announce law of the District was similar to that set forth by 18 U.S.C. § 3109[3] which governed the execution of search warrants. It determined that because there was no announcement of purpose and likely no audible identification of them as police, the entry was unlawful. The evidence which was found as the result of a search pursuant to defendant's arrest was suppressed. There was no mention in the opinion of the Fourth Amendment. The thrust of the opinion is invasion of privacy, but danger to the police is also mentioned. In Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968), the officers entered through an unlocked door without knocking or announcing for the purpose of arresting the defendant. The Court invalidated the entry on the basis of a rule analogous to section 3109. 391 U.S. at 588-589, 88 S. Ct. 1755. There was no mention of the Fourth Amendment other than an oblique footnote concerning exceptions to "* * * any possible constitutional rule relating to announcement and entry [having] been recognized * * *" in Ker. 391 U.S. at 591 n. 8, 88 S. Ct. at 1759 n. 8. (Emphasis added.) We conclude that there is no basis for determining whether the United States Supreme Court would invalidate the entry in the present instance on the basis of the Fourth Amendment. Our conclusion, when left to our own analysis, is that in the absence of a substantial danger of violence, the privacy protection afforded by the rule is so momentary as not to rise to federal constitutional consequences. In State v. Valentine/Darroch, supra, 264 Or. at 64-65, we held that before the illegal entry would violate the Fourth Amendment, both the purpose in the prevention of harm to persons and the protection of privacy must be offended in a particular case. As stated by Justice Traynor in People v. Maddox, 46 Cal. 2d 301, 294 P.2d 6, 9 (1956): The decision of the Court of Appeals is affirmed. [1] "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." [2] "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [3] "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."

0c915b4b58f82e879c9ade1a86a7e46f0606fcd968612934ec2040247792ac9e

1980-01-22T00:00:00Z

9ff06c62-7265-40dc-a0fa-02335909a583

Miller v. City of Portland

288 Or. 271, 604 P.2d 1261

oregon

Oregon Supreme Court

604 P.2d 1261 (1980) 288 Or. 271 Darlene M. MILLER, Plaintiff, v. CITY OF PORTLAND and Donald R. Lind, Defendants. CITY OF PORTLAND and Donald R. Lind, Third Party Plaintiffs/Respondents, v. David L. ALHADEFF and Carolyn Alhadeff, dba Dave's Rallye, Third Party Defendants/Petitioners. No. A7602-02459; CA 10332; SC 26194. Supreme Court of Oregon. Argued and Submitted October 1, 1979. Decided January 8, 1980. *1262 Elizabeth K. Reeve, Portland, argued the cause for third party defendants/petitioners. With her on the petition were Wayne A. Williamson, Ridgway K. Foley, Jr., and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland. On the brief were Ridgway K. Foley, Jr., Steven H. Pratt, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland. John S. Cavanagh, Portland, argued the cause for third party plaintiffs/respondents. With him on the briefs were Andy Griffith, and Jones, Lang, Klein, Wolf & Smith, Portland. Before DENECKE, C.J., and HOLMAN, HOWELL, LENT, LINDE and PETERSON, JJ. HOLMAN, Justice. This is a third party action brought by the City of Portland and one of its police officers against the operators of a tavern. The city and the officer (hereinafter the City) were sued for damages resulting from personal injuries arising out of a traffic accident in which a police car, driven by the officer, collided with a motorcycle operated by Brian Kolibaba and on which Darleen Miller was a passenger. Miller sued the City, and the City made the Alhadeffs, the tavern operators, third party defendants. The City settled with Miller and seeks contribution from the Alhadeffs on the basis that they were also responsible for the accident. The trial court struck all the allegations of negligence made by the City in its third party complaint against the Alhadeffs and, when it refused to plead further, entered judgment for the Alhadeffs. The City appealed and the Court of Appeals reversed the trial court, holding that all the allegations of negligence were proper. 39 Or. App. 389, 592 P.2d 276 (1979). This court allowed the Alhadeffs' petition for review. The City's third party complaint is brought upon the basis that the Alhadeffs were negligent in selling liquor to Miller and Kolibaba when they were under age and visibly intoxicated, which negligence combined with that of the police officer in causing the accident in which Miller was injured. The allegations of negligence were, as follows: In a suit for contribution, the third party defendant is liable to the original defendant-third party plaintiff for a portion of the total liability only if the original plaintiff could have recovered against the third party defendant. ORS 18.440(1).[1] The Alhadeffs, then, can be liable to the City only if they would have been liable to Miller had she brought an action against them. Therefore, in determining the adequacy of the City's allegations of negligence, we must treat them as if Miller were alleging them against the Alhadeffs. The second and fourth allegations of negligence relate to making available alcoholic liquor to Kolibaba. The second allegation is that alcoholic liquor was furnished to Kolibaba when defendants knew or should have known he was under the age of 21 years; the fourth allegation is that it was furnished to him when they knew or should have known he was visibly intoxicated. We agree with the Court of Appeals that these two allegations are sufficient to state a cause of action in favor of Miller against the tavern operators. In Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977), we held that the proprietors of a bar could be liable to third parties who were injured in an automobile accident resulting from the selling of alcoholic liquor to a customer who was visibly intoxicated when it was known or should have been known that the customer would leave the premises by operating a motor vehicle. The liability was based upon common law negligence and not as the result of the adoption of any statute. In Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 587 P.2d 75 (1978), we held that the proprietors of two taverns who allegedly each sold a keg of beer to persons under 21 years of age could be liable for the death of a third party who was killed as the result of an automobile accident caused by an intoxicated minor who consumed the beer. The liability was based upon negligence per se for the violation of ORS 471.130(1),[2] which makes it unlawful for a licensee to sell alcoholic beverages without taking certain precautions regarding anyone about whom there is any doubt of his having reached 21 years of age.[3]Davis was decided subsequent to the ruling of the trial court in this case. It is apparent from the two cases discussed above that allegations of negligence two and four of plaintiff's complaint are each sufficient to state a cause of action. Defendants contend that plaintiff should not be allowed to recover because she participated with Kolibaba in his drinking and inebriation, and she is therefore not in the position of an innocent third party. The court is not in a position to address this question because the issue is not raised by the pleadings. The complaint alleges only that they were both patrons of the tavern and that after both had been drinking beer, Kolibaba gave Miller a ride on his motorcycle. There are no allegations from which it must necessarily be concluded that they were partying together. The Court of Appeals concluded that the first allegation of negligence, asserting Miller's lack of age, if true, established negligence based upon the tavern's violation of *1264 ORS 471.130(1).[4] While we have held in Davis, supra, that an action may be maintained against a commercial purveyor of liquor for the death of a third party killed by a minor who received liquor in violation of ORS 471.130(1),[5] we have not held that a violation of the statute can be used as a basis for recovery by the underage customer. The two conventional tests for finding a right of action under the negligence per se doctrine are (1) whether the injured person is a member of the class intended by the legislature to be protected, and (2) whether the harm is of the kind which the statute was intended to prevent. Stachniewicz v. Mar-Cam Corporation, 259 Or. 583, 586, 488 P.2d 436 (1971). The holding in Davis indicates that the harm to be prevented includes injuries from traffic accidents caused by the minor's drunkenness, but we have not yet held that the inebriated minor is within the class of persons intended to be protected. It is appropriate at this time to discuss in a broader context the effect which the enactment of statutes (and administrative regulations) has upon tort liability in negligence. Courts may, of course, recognize common law causes of action where they conclude that a defendant owes a duty of due care to plaintiff; in such cases, the standard of conduct is that of a reasonably prudent person under the same or similar circumstances. If courts believe in given circumstances there should be a common law cause of action, and there also are criminal or regulatory statutes which delineate the defendant's conduct under such circumstances, courts may adopt the conduct required by the statutes as that which would be expected of a reasonably prudent person providing courts believe the statutorily required conduct to be appropriate for establishing civil liability. When the statutes are not enacted for the purpose of determining civil liability, there is no requirement that courts do so. When courts thus adopt the statutory standard for a cause of action that would be common law negligence, the violation of the statute is said to be negligence per se. The test previously set forth in this opinion from Stachniewicz is the one usually used by courts to determine whether the criterion of the statute should be substituted for that of the reasonably prudent person. Its most common application is seen in automobile accident cases. Courts have decided that operators of vehicles owe a duty of due care to others in the operation of their vehicles. The legislature has enacted a code governing operation of vehicles and courts have adopted these statutes as being the required conduct of a reasonably prudent vehicle operator for the purpose of determining civil liability, even though the statutes were not enacted for that purpose. However, criminal or regulatory statutes are frequently enacted to cover situations in which no common law right of action has ever been established by courts.[6] One of the most usual situations concerns injuries incurred by a person who has been given and has used alcohol.[7] The statutes may *1265 have express provisions for a tort right of action. When such statutes exist, courts must, of course, comply. On the other hand, regulatory and criminal statutes most often contain no express provision for a right of action and, where courts have established no common law rights under the circumstances governed by the statutes, a different kind of problem is posed from the negligence per se situation. In such cases, courts attempt to determine legislative intent as to civil liability from whatever sources are available to them; and, if determinable, courts follow that intent. The most usual sources of information are the language of the statute itself including the title and preamble, as well as the legislative history. If these sources fail to disclose legislative intent, courts usually come to the conclusion that the problem was not contemplated by the legislature and that it had no specific intent. In such a state of affairs, courts must still make a decision and they then attempt to ascertain how the legislature would have dealt with the situation had it considered the problem. This is usually done by looking at the policy giving birth to the statute and determining whether a civil tort action is needed to carry out that policy. In this latter instance, if action is taken by the court establishing a cause of action, it is in furtherance of legislative purpose, but the modification of the law is judicial rather than legislative.[8] An example of consideration of prohibitory statutes which provided for no civil liability and where no common law cause of action existed was Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978). In that case it was decided that the legislative policy was such that a cause of action by children against their mother for emotional damage caused by the mother's abandonment was inappropriate.[9] In view of the above discussion, we believe it is inappropriate to use ORS 471.130(1) as a basis for civil liability by licensees to the underage minor. ORS 471.430 prohibits minors, under the circumstances here, from purchasing or acquiring alcoholic liquor[10] and provides a penalty for the violation (a fine). It would be inconsistent with apparent legislative policy to reward the violator with a cause of action based upon the conduct which the legislature has chosen to prohibit and penalize.[11] This court has never previously recognized a common law cause of action in favor of a person who suffers injury resulting from his or her own consumption of alcohol. Nor have most other courts. Because it would be contrary to apparent legislative policy, we also consider it inappropriate to create a common law cause of action for physical injury to minors caused by their illegal purchase of alcoholic liquor. The third specification of negligence also concerns the furnishing of liquor to Miller by the Alhadeffs. It alleges they are responsible because they made liquor available *1266 to Miller when she was visibly intoxicated. Despite our previous holding in Campbell, supra, that the proprietors of a bar could be liable at common law to third parties who were injured in an automobile accident resulting from the selling of alcoholic liquor to a customer who was visibly intoxicated, we believe it is inappropriate to create such a common law cause of action for the benefit of the intoxicated person because Oregon had at the time in question what was known as the "Dram Shop Act," ORS 30.730, which provided: When the legislature has considered the liability to the inebriate's immediate family which should result from the giving of alcoholic liquor to him but has refrained from giving him a cause of action, we conclude it is probable it must have considered the matter and rejected any cause of action for him. We, therefore, consider a cause of action for his benefit inappropriate.[13] The decision of the Court of Appeals is affirmed insofar as it sustained a cause of action based upon allegations two and four of third party plaintiff's last amended complaint. It is reversed insofar as it sustained allegations one and three. The case is remanded to the trial court for further proceedings in conformance with this opinion. HOWELL, J., concurs in the result. PETERSON, J., specially concurs and files opinion. PETERSON, Justice, specially concurring. I agree with the foregoing opinion with this caveat: The theory of recovery pleaded in this case was that the Alhadeffs were negligent in selling liquor to Miller and Kolibaba. Analysis of a potential civil tort action based upon some other theory is unnecessary to the result. I therefore question the necessity, in this negligence case, of discussing the application of a theory of recovery based upon Restatement (Second) of The Law of Torts § 874A, relative to the statements contained on pages 277-279 of the opinion discussing such potential civil tort action. [1] "Except as otherwise provided in this section, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. There is no right of contribution from a person who is not liable in tort to the claimant." [2] licensees and permittees of the commission, before selling or serving alcoholic liquor to any person about whom there is any reasonable doubt of his having reached 21 years of age, shall require such person to produce his identification card issued under ORS 471.140. However, if the person has no identification card, the permittee or licensee shall require such person to make a written statement of age and furnish evidence of his true age and identity." [3] See also Wiener v. Gamma Phi, ATO Frat., 258 Or. 632, 643, 485 P.2d 18 (1971), which indicates a common law duty. [4] See note 2 supra. [5] We also have held that an action may not be maintained by a third party for damages suffered as a result of violation of ORS 471.410(2), which provides that "no person other than a parent or guardian shall sell, give or otherwise make available any alcoholic liquor to any person under the age of 21 years * * *." Wiener v. Gamma Phi, ATO Frat., 258 Or. 632, 485 P.2d 18 (1971). This was decided on the basis that the statute was not for the purpose of protecting third parties from drunken minors. [6] The specially concurring opinion seems to infer that the discussion in this opinion is inappropriate concerning what courts do when prohibitory or regulatory statutes are violated in situations in which there is no underlying common law cause of action. This discussion was deemed necessary because there was no underlying common law cause of action for a person who is injured as the result of his or her consumption of alcohol purveyed by another and the statute prohibited defendant from purveying alcohol to such a person as plaintiff. Whether the claimed cause of action was based upon negligence (as this one was) or some other kind of action, the discussion was necessary for a reasoned decision. [7] This statement may be inaccurate if applied to a young child. [8] This case was brought in negligence. In a negligence action, the manner in which violation of a statute is treated is important only as it affects the manner in which the court goes about determining whether the statute should be used as a criterion for a civil recovery. It does not affect instructions to a jury, and a Barnum v. Williams, 264 Or. 71, 504 P.2d 122 (1972) instruction concerning justifiable violation of a statute is proper if justified by the circumstances. However, it should be recognized that a tort action based upon violation of a statute in some circumstances may be brought upon other than a negligence basis. Where such is the case, the instructions to which a defendant is entitled are dependent upon how the court construes the statute. [9] For a further and more detailed discussion of the entire subject, one should see the comments under Restatement (Second) of the Law of Torts § 874A. [10] No person under the age of 21 years shall attempt to purchase, purchase or acquire alcoholic liquor. Except when such minor is in a private residence accompanied by his parent or guardian and with such parent's or guardian's consent, no person under the age of 21 years shall have in his possession alcoholic liquor. "* * *." [11] ORS 472.310(3) also makes it unlawful for any person to serve, sell, or dispense alcoholic liquor to any person under the age of 21 years. However, subsection (8) thereof makes it unlawful for anyone under that age to purchase alcoholic liquor, and ORS 472.990 makes a violation subject to fine and imprisonment. [12] Repealed by Or. Laws 1979, ch. 801, § 4. [13] In Wiener v. Gamma Phi, ATA Frat., 258 Or. 632, 638 n. 2, 485 P.2d 18 (1971), we said the dram shop statute did not prescribe the sole civil remedy against persons who furnish liquor to others because it provided a remedy for a very limited class of plaintiffs. We agree with this statement as it applied to the facts of that case in which the plaintiff was an unrelated third party who was injured by the intoxicated person. We do not believe the statement is applicable in a situation in which the intoxicated person himself is the claimant because of his close relationship to the named class. It would have been the natural thing to include him as a beneficiary of the statute with the rest of his immediate family had the legislature desired to do so.

1215cb51c6da9a61367265d2f3accbdf301145f0e47ec46ebaafb2992d7093cc

1980-01-08T00:00:00Z

7400b33f-8e8e-4404-965c-81e08b0e6182

Matter of Marriage of Lemke

289 Or. 145, 611 P.2d 295

oregon

Oregon Supreme Court

611 P.2d 295 (1980) 289 Or. 145 In the matter of the Marriage of Edward Paul LEMKE, Petitioner, and Anna Louise Lemke, Respondent. TC 78-2967; CA 14997; SC 26772. Supreme Court of Oregon. Argued and Submitted April 8, 1980. Decided May 20, 1980. *296 John M. Biggs, Eugene, argued the cause and filed the brief for petitioner. E. Scott Lawlor, Eugene, argued the cause and filed the brief for respondent. Before DENECKE, C.J., and HOWELL, LENT, PETERSON and TANZER, JJ. TANZER, Justice. The husband appeals from those provisions of a decree of dissolution awarding to the wife $70 per month permanent spousal support and a judgment of $10,500. We granted review to consider the appropriateness of such an award where the dissolution is preceded by a long period of separation. The parties were married in 1950, had seven children and separated in 1958, dividing their scant property between them. The wife raised the children, supporting herself and the family with public assistance, employment for a minimum wage and child support payments. The husband has paid support as ordered in welfare recovery proceedings of $21 and then $40 per month for all the children. The wife has a ninth grade education. She has worked at least since 1971 in factory jobs for minimum wages. At the time of trial she earned $107 per week take-home pay. She has accumulated no assets and has no net worth. The husband has had a succession of laboring jobs and unsuccessful small businesses. He and the woman with whom he has lived since 1960 have acquired and sold property together and have accumulated a net worth of $14,400, by husband's evaluation, or $22,300 by wife's evaluation. Husband earned $15,000 gross income in 1978, augmented by $3,000 from a hog business run primarily by the woman with whom he lives. At the time of trial he received $675 monthly take-home pay. He supports one child by his present union. Awards of alimony and divisions of the marital state are discretionary acts of the domestic relations court. Discretion, however, is not absolute or unfettered. Its exercise must be in accordance with legal principles and may be reviewed on appeal for conformity to such principles. The statute providing for division of marital assets is general, but, as we observed in Grove and Grove, 280 Or. 341, 346, 571 P.2d 477, reh. den. 280 Or. 769,572 P.2d 1320 (1977), it "indicates a legislative intent that the homemaker spouse * * * be recognized as an economic contributor to the marriage rather than as a passive recipient of economic benefits provided by the breadwinner." ORS 107.105(1)(e) provides: Here, the fact that the parties have led separate lives for 20 years rebuts the presumption of equal contribution to the marital estate. We conclude that it is "just and proper" within the policy of the statute that a spouse who acquires property during an extended period of mutual financial independence preceding a dissolution is to be allowed to retain that property. ORS 107.105(1)(c) lists unvalued factors for the court to consider in determining how much support, if any, is "just and equitable" for one spouse to pay to the other. In Grove and Grove we recognized that economic self-sufficiency of each spouse is to be the objective of a spousal support order pursuant to the statute. Thus, a spousal support order must recognize the effect of the marriage upon the capability of a spouse for economic self-sufficiency. We summarized the objectives of such an order: Here there is no indication and no reason to infer that the wife's earning capacity was adversely affected by the marriage. During the 20 years of separate living she supported herself without the assistance of the husband and theirs has not been a support-dependency relationship. In such circumstances, there is no purpose to be served by requiring spousal support. It can be argued that it is appropriate to take into account the wife's contribution to the marriage by raising the children with only token financial assistance by the husband. There are timely remedies available, however, for the enforcement of a parent's obligation to support his or her children. Spousal support and property division should not be regarded as a delayed compensation for the inadequacy of or failure to avail oneself of procedures to enforce greater contemporaneous child support. Property division and spousal support should be determined on their own merits at the time of the dissolution. Accordingly, we conclude that the provisions of the decree awarding property and spousal support in this case were unwarranted and should be stricken. Affirmed as modified. No costs to either party.

78dda2c72e6bb7e878a97eac76b569ad650f0a10b94933343f291e60df0eb0b2

1980-05-20T00:00:00Z

9a4c533d-fc91-4062-974e-587183b5f14d

Vaughn v. Pacific Northwest Bell Tel. Co.

289 Or. 73, 611 P.2d 281

oregon

Oregon Supreme Court

611 P.2d 281 (1980) 289 Or. 73 Sandra VAUGHN, Respondent, v. PACIFIC NORTHWEST BELL TELEPHONE COMPANY, a Washington Corporation, Petitioner. TC A7803-03484, CA 11708; SC 26385. Supreme Court of Oregon. Argued and Submitted February 6, 1980. Decided May 6, 1980. *282 *283 Jonathan T. Harnish, of Bullard, Korshoj & Smith, P.C., Portland, argued the cause and filed the brief for petitioner. Robert K. Udziela, Portland, argued the cause for respondent. With him on the briefs were Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland. Before DENECKE, C.J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. LENT, Justice. The issue in this case is the proper relationship between two possible remedies available to a discharged employee: (a) the grievance and arbitration remedy in the collective bargaining agreement and (b) the suit pursuant to ORS 659.121(1)[1] for injunctive relief from unlawful employment practices. The plaintiff, Sandra Vaughn, on March 3, 1978, filed a complaint in circuit court alleging that on August 30, 1977, she sustained an injury compensable under the Workers' Compensation Law in the course of her employment with defendant, Pacific Northwest Bell Telephone Company, that on February 1, 1978, she presented defendant with a physician's certificate which approved her return to her regular employment, and that defendant committed an unlawful employment practice by refusing to reemploy her. The plaintiff sought a money judgment for lost wages, an order *284 reinstating plaintiff to her job, an order restraining defendant from engaging in the unlawful employment practice, punitive damages, and attorneys' fees. The defendant in its answer admitted that plaintiff sustained an injury and that in February, 1978, she presented a physician's certificate which indicated she could return to work. The defendant alleged as affirmative defenses: (1) that on or about December 8, 1977, the plaintiff had failed to accept proffered work on a restricted basis which was suitable to her physical conditions, and (2) that defendant terminated plaintiff effective December 30, 1977, because plaintiff had misrepresented her physical condition and the extent of disability. The defendant moved for summary judgment on the ground that the circuit court lacked jurisdiction[2] to grant the relief requested by the plaintiff. An affidavit submitted by defendant asserted the following additional facts. The plaintiff is a member of a bargaining unit represented by the Communication Workers of America (hereinafter "Union"). The defendant and Union are parties to a collective bargaining agreement dated August 7, 1977. The plaintiff received a termination letter on January 28, 1978, notifying plaintiff she was terminated as of December 30, 1977. The plaintiff initiated the grievance procedure on February 1, 1978. Grievance hearings were held on February 7, February 13, and March 3, 1978. The final grievance hearing provided for in the agreement had not been held when plaintiff commenced her suit. The defendant argued that the plaintiff's discharge is a matter covered by the collective bargaining agreement,[3] therefore the grievance procedures constitute plaintiff's *285 exclusive remedy. The plaintiff argued that the grievance procedures in the collective bargaining agreement are irrelevant because her claim is based on an independent statutory scheme for relief from unlawful employment practices pursuant to ORS 659.121, 659.410, and 659.415.[4] The circuit court granted the defendant's motion for summary judgment and the plaintiff appealed to the Court of Appeals. The Court of Appeals reversed the summary judgment order, holding that plaintiff's statutory claim was an independent remedy which is not foreclosed by the availability of grievance procedures under a collective bargaining agreement. Vaughn v. Pacific NW Bell, 40 Or. App. 427, 432-433, 595 P.2d 829 (1979). This court allowed review, ORS 2.520; 288 Or. 81 (1979). The defendant raises three basic contentions on appeal: first, that because the plaintiff was discharged prior to her demand for reinstatement, she cannot bring suit for injunctive relief pursuant to ORS 659.121(1); second, that under both federal and state law, the collective bargaining agreement constitutes plaintiff's exclusive remedy; and third, that the plaintiff is required to exhaust the grievance remedy before she can seek judicial relief. The defendant first claims that because the plaintiff was discharged in January, 1978, prior to her demand for reinstatement in February, 1978, she cannot bring suit for injunctive relief pursuant to ORS 659.121(1) and 659.415, and therefore she is limited to the grievance and arbitration remedies in the collective bargaining agreement. ORS 659.415 provides that a worker who has sustained a compensable injury "shall be reinstated." The defendant argues that the statute forbids only "nonreinstatement" of a worker after the worker has made a demand for reinstatement. The defendant concludes that because the plaintiff was discharged prior to a demand for reinstatement, she is left only the remedies in the collective bargaining agreement. We reject this argument because "nonreinstatement" and "discharge" mean the same thing to a worker, and the timing of such a discharge should not by itself determine the worker's forum for seeking a remedy. The scenario of worker discharges following a compensable injury and lost time can fall into two patterns: (1) the worker loses time due to a compensable injury, demands reinstatement, and is refused reinstatement, that is, is "discharged" after the demand; or (2) a worker loses time due to a compensable injury, is notified during this time that he is discharged, and then demands reinstatement. It might *286 seem that ORS 659.415 requires reinstatement of the worker even if the employer has just cause to "discharge" by refusing to reinstate but as will appear later nothing in ORS Chapter 659 prevents an employer from discharging a worker for just cause. If the worker is discharged for just cause, the employer can prove this in the grievance proceeding or as a matter of defense in a suit pursuant to ORS 659.121. The worker's right to bring suit for injunctive relief pursuant to ORS 659.121(1) must be based on reasoned policy rather than fortuitous timing. The defendant claims that the grievance and arbitration procedures under the collective bargaining agreement provide plaintiff's exclusive remedy. The defendant argues that federal law favoring exclusivity of arbitration remedies preempts the state statutes in this case. The defendant also argues that even if the statutes are not preempted, state law also requires exclusivity of the arbitration remedies. The plaintiff as a member of the Union is subject to the collective bargaining agreement executed by the Union. The Union represents the employees in an industry affecting interstate commerce. NLRA § 301(b), 29 U.S.C § 185. The defendant is an "employer" within the meaning of and subject to the National Labor Relations Act, NLRA § 2(2), 29 U.S.C. § 152. The claim in this case involves an employee discharge, which is a matter covered by the collective bargaining agreement. The defendant argues that these undisputed facts require that federal law be applied, and that federal law favoring exclusivity of grievance remedies preempts the state laws in this case. The defendant characterizes this lawsuit as an employee's suit to enforce rights under the collective bargaining agreement, that is, the right not to be discharged except for just cause. In Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S. Ct. 912, 917-918, 1 L. Ed. 2d 972 (1957), the Supreme Court held that federal law must be applied in actions to enforce rights under a collective bargaining agreement. We could answer the defendant's preemption argument by construing plaintiff's lawsuit as a suit to enforce independent statutory rights, not a suit to enforce rights under the collective bargaining agreement, therefore federal law does not preempt. Our examination of federal law, however, leads us to conclude that even if federal law is applied, the statutes in this case are not preempted. In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965), the Supreme Court cited the legislative policy in § 203(d) of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 173(d), which states in effect that contract grievance procedures are a preferred method for settling labor disputes.[5] The Court stated, "If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement." 379 U.S. at 653, 85 S. Ct. at 617. The Court pointed out that the Union's handling of grievance procedures complements its status as exclusive bargaining representative. The Court also pointed out that a rule favoring exclusivity gives the union and the employer the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. 379 U.S. at 653, 85 S. Ct. at 616. The Court held that the federal rule favoring exclusivity of grievance remedies preempted a state law which did not require resort to grievance procedures in an action for workers' severance pay. 379 U.S. at 657, 85 S. Ct. at 618. *287 The Supreme Court has stated that federal labor law will preempt state law when the exercise of state power over a particular area of activity threatens interference with clearly indicated federal labor policy. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243, 79 S. Ct. 773, 778, 3 L. Ed. 2d 775 (1959). The Court, however, has also stated that states do have power to regulate activity which is a "peripheral concern" of the Labor Management Relations Act, or where the regulated conduct touches interests "deeply rooted in local feeling and responsibility." San Diego Building Trades Council v. Garmon, supra, 359 U.S. at 243-244, 79 S. Ct. at 779. The Court has also left states free to act "where the particular rule of law sought to be invoked before another tribunal is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the interests promoted by the federal labor statutes." Motor Coach Employees v. Lockridge, 403 U.S. 274, 297-298, 91 S. Ct. 1909, 1923, 29 L. Ed. 2d 473 (1971). Cf., Farmers v. Carpenters, 430 U.S. 290, 300, 97 S. Ct. 1056, 1063, 51 L. Ed. 2d 338 (1977). The statutes in this case, ORS 659.121, 659.410, and 659.415, are part of ORS Chapter 659, which, in toto, is concerned with enforcement of civil rights and with unlawful employment practices. These particular statutes protect employees receiving workers' compensation benefits from retaliatory discrimination by employers. These statutes apply whether or not the employee is subject to a collective bargaining agreement. The prevention of employment discrimination against workers receiving a state administered compensation award is a matter of particular state responsibility and concern. Cf., Brown v. Transcon Lines, 284 Or. 597, 607-609, 588 P.2d 1087 (1978). The state has a substantial interest in protecting the integrity of its workers' compensation system. The claim asserted in court by this plaintiff is that the defendant has unlawfully retaliated against her for assertion of her rights under the Workers' Compensation Law. Judicial supervision and determination of such a claim does not disserve the interests promoted by federal labor relations law. Cf., Franklin Mfg. Co. v. Iowa Civil Rights Com'n, 270 N.W.2d 829 (Iowa 1978); Goodyear Tire and Rubber v. Dept. of Industry, 87 Wis.2d 56, 273 N.W.2d 786, 796-799 (1978). We agree with the conclusion of the Court of Appeals that these statutes are not preempted by federal law. 40 Or. App. at 434-435. The defendant argues that even if the state statutes in this case are not preempted by federal law, state law prohibits injunctive relief in this case and requires the remedies in the collective bargaining agreement to be exclusive. The defendant argues that ORS 662.040[6] prohibits any injunction in this case. ORS 662.040 provides that no injunction shall issue in a case involving a labor dispute, except in limited situations not applicable to this case. We need not decide whether this involves a "labor dispute" because we reject defendant's argument on the ground that the legislature provided the suit for injunctive relief in ORS 659.121 after it enacted the broad prohibition against injunctions in ORS 662.040. The court assumes that the legislature was presumably aware of the general prohibition in ORS 662.040 when it subsequently enacted the specific provision for injunction in ORS 659.121. This court will avoid a construction which creates a conflict between statutes or renders one statute ineffective. Thompson v. IDS Ins. Co., 274 Or. 649, 653-654, 549 P.2d 510 (1976). The defendant also argues that legislative policy and Oregon case law state *288 that the remedies in a collective bargaining agreement should be exclusive. ORS 662.405[7] provides that the best interests of employers and employees can most satisfactorily be secured by the settlement of issues through collective bargaining and arbitration. Cf., § 203(d) (LMRA), 29 U.S.C. § 173(d). This statute reflects a policy favoring resort to collective bargaining remedies but does not mandate absolute exclusivity of these remedies. In State ex rel. Nilsen v. Berry, 248 Or. 391, 434 P.2d 471 (1967), this court followed the reasoning of the United States Supreme Court in Republic Steel Corp. v. Maddox, supra, and held that the policy favoring resort to collective bargaining agreement remedies requires that a worker must first utilize the grievance procedures before the Labor Commissioner may institute an action in circuit court for overtime pay pursuant to ORS 652.330. In Wagner v. Columbia Hospital Dist., 259 Or. 15, 485 P.2d 421 (1971), this court stated that in the "normal situation" employees are bound by the terms of their labor agreement which requires all disputes over discharges to be submitted to arbitration. The court stated that in such situations any legal proceeding may be abated, and an arbitration award would not be reviewed by the court for errors of either fact or law. 259 Or. at 24, 485 P.2d 421. The plaintiff in Wagner, however, had alleged facts which indicated that the arbitration remedy would be "useless and futile," and the court, therefore, concluded the arbitration remedy was not exclusive. 259 Or. at 27-28, 485 P.2d 421. In Gilstrap v. Mitchell Bros. Truck Lines, 270 Or. 599, 529 P.2d 370 (1974), this court restated the general rule that in the ordinary situation an employee who is subject to a collective bargaining agreement must utilize the contract procedures as the vehicle for redress. 270 Or. at 606, 529 P.2d 370. The court reviewed three recognized exceptions to the rule of exclusivity: (1) when the union breaches its duty of fair representation, 270 Or. at 607, 529 P.2d 370 (cf., Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967)); (2) when recourse to grievance procedures would be futile, 270 Or. at 612, 529 P.2d 370; and (3) when the employer repudiates or is otherwise estopped from relying on the grievance procedures, 270 Or. at 612, n. 8, 529 P.2d 370. The court held that the plaintiffs in Gilstrap had shown that their situation came within the first two exceptions and therefore they could seek a remedy in court for damages for breach of the collective bargaining agreement. The pleadings in the present case do not plead any of the exceptions outlined in Gilstrap, supra. Rather, the present case involves a statutory scheme which gives an employee a personal judicial remedy, thus challenging ORS 662.405 and any other policy favoring exclusivity of collective bargaining agreement remedies. The defendant argues, however, that the state policy favoring exclusivity of collective bargaining agreement remedies requires that the statutes in this case be construed to apply only to workers not covered by a collective bargaining agreement. *289 In U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 362, 91 S. Ct. 409, 415, 27 L. Ed. 2d 456 (1971), Justice Harlan in his concurring opinion characterized the strong policy concerns which support exclusivity of arbitration procedures as a "presumption of comprehensiveness." 400 U.S. at 361-362, 91 S. Ct. 414-415. He then concluded that the presumption of exclusivity or comprehensiveness can be rebutted when a plaintiff asserts an independent federal statutory claim. 400 U.S. at 362, 91 S. Ct. at 415. The Court's duty then was to fashion the relationships between the arbitral and judicial forums according to an analysis of the policies underpinning the arbitration remedies and the statutory scheme. 400 U.S. at 363, 91 S. Ct. at 415. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974), the Supreme Court discussed the exclusivity of the collective bargaining agreement remedies in the context of a discharged employee's statutory claim. The plaintiff, a black employee, was informed by the company that he was being discharged for producing too many defective parts. He invoked the grievance procedure under his union's collective bargaining agreement and an arbitrator ultimately determined that Alexander had been discharged for just cause. Alexander then brought an action under Title VII of the Civil Rights Act of 1974, 42 U.S.C. § 2000e et seq., claiming he was the victim of racial discrimination. The district court granted summary judgment for the company holding that the collective bargaining agreement was the worker's exclusive remedy. In a unanimous opinion, the Supreme Court held that plaintiff was entitled to a trial de novo because the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under Title VII. The Court concluded that the statutory scheme provided a personal cause of action which supplemented existing remedies in a collective bargaining agreement. 415 U.S. at 49, 94 S. Ct. at 1020. The Supreme Court decisions in U.S. Bulk Carriers v. Arguelles, supra, and Alexander v. Gardner-Denver Co., supra, are not controlling in this case, but nonetheless provide helpful analogies. Justice Harlan's analysis in U.S. Bulk Carriers of the "presumption of exclusivity" which can be overcome by evidence of an independent statutory scheme offers a useful analogy in this case. This court and the legislature have articulated a policy of exclusivity of collective bargaining agreement remedies. Cf., Gilstrap v. Mitchell Bros. Truck Lines, supra, Wagner v. Columbia Hospital Dist., supra, State ex rel. Nilsen v. Berry, supra, ORS 662.405. This court has also recognized exceptions to the policy of exclusivity, or stated in similar terms, factors which will overcome a "presumption of exclusivity." Cf., Gilstrap v. Mitchell Bros. Truck Lines, supra. The statutory scheme in ORS 659.121(1), 659.410, and 659.415 providing a personal action for an employee claiming discrimination is similar to the statutory scheme in Title VII, as outlined in Alexander v. Gardner-Denver Co., supra. We conclude that the existence of this statutory scheme in ORS 659.121, 659.410, and 659.415 providing a personal cause of action is sufficient to override the preexisting policy favoring exclusivity of the collective bargaining agreement remedies in this case. Although our legislative history does not clarify the relationship of these statutes to collective bargaining agreement remedies, we conclude that these statutes were intended to afford an alternative or to supplement existing remedies in a collective bargaining agreement.[8] Cf., Alexander v. Gardner-Denver Co., supra; Bald v. RCA Alascan, 569 P.2d 1328, 1334 (Alaska 1977); Moss-American, Inc. v. Fair Employment Practices *290 Com'n, 22 Ill. App.3d 248, 317 N.E.2d 343 (1974). The defendant argues that the claim of racial discrimination in Alexander should be distinguished from the plaintiff's claim in this case, therefore the analysis in Alexander is not applicable. The defendant urges that the compelling policy considerations behind Title VII to prohibit racial or other antiminority discrimination are not present in this case. The defendant also cites ORS 659.020(2) which declares that the opportunity to obtain employment without discrimination because of race, religion, color, sex, marital status, or national origin is a civil right in Oregon. The defendant argues that the legislature has not attached similar importance to employment discrimination on the basis of receipt of workers' compensation benefits. We reject this argument because ORS 659.410 and 659.415 make it an unlawful employment practice to discriminate against a worker because that worker has utilized the workers' compensation system. These statutes were sections 4 and 5 of Oregon Laws 1973, chapter 660, entitled, "An Act relating to handicapped persons." Although these statutes protect employees' rights to utilize the workers' compensation system without employer retaliation, we construe these statutes to be an integral part of the legislative scheme to prohibit employment discrimination on the basis of physical or mental handicap. Cf., Or. Const. Art. IV, § 20; House State and Federal Affairs Committee, HB 3057, Exhibits of May 23, 1973, June 12, 1973. ORS 659.121(1) provides a civil suit for injunctive relief for unlawful employment discrimination on nine different grounds: (1) race, religion, color, sex, national origin, marital status, age (ORS 659.030); (2) application for workers' compensation benefits (ORS 659.410, 659.415); and (3) physical or mental handicap which does not prevent performance of the work involved (ORS 659.425(1)). The Oregon legislature in ORS 659.121(1) did not assign priorities to the various types of employment discrimination. We conclude that a worker claiming any type of unlawful employment discrimination listed in ORS 659.121(1) is entitled to bring suit for injunctive relief pursuant to that statute, notwithstanding the availability of a remedy under the collective bargaining agreement. We reject defendant's argument that workers who have a remedy under a collective bargaining agreement are limited to that exclusive remedy. We hold that the state policy favoring exclusivity of collective bargaining agreement remedies does not foreclose the plaintiff's right to seek injunctive relief in this case. We have concluded that the plaintiff's suit for injunctive relief pursuant to ORS 659.121 is not foreclosed because of the timing of the discharge, is not preempted by federal law, and is not precluded by a state rule favoring exclusivity of collective bargaining agreement remedies. The defendant's final argument is that the state policy favoring resort to collective bargaining agreement remedies requires the plaintiff to exhaust her remedies in the collective bargaining agreement before filing a suit pursuant to ORS 659.121(1). A rule of exhaustion in labor law cases was established in Republic Steel Corp. v. Maddox, supra, 379 U.S. at 652, 85 S. Ct. at 616, where the Supreme Court stated that federal labor policy favoring resort to grievance procedures required individuals wishing to assert contract grievances to attempt use of the procedures in the collective bargaining agreement as the mode of redress. This court cited the Maddox rule in State ex rel. Nilsen v. Berry, supra, 248 Or. at 395-396, 434 P.2d 471; Wagner v. Columbia Hospital Dist., supra, 259 Or. at 21-22, 485 P.2d 421; and Gilstrap v. Mitchell Bros. Truck Lines, supra, 270 Or. at 606, 529 P.2d 370. In Alexander v. Gardner-Denver Co., supra, the Supreme Court was not faced with an exhaustion issue because the plaintiff had already completed the grievance and arbitration procedures. An arbitrator had *291 concluded that the plaintiff had been discharged for just cause and the sole issue before the Court was whether the plaintiff was entitled to a trial de novo on the discrimination claim under Title VII. The Court stated that the trial court should not defer to an arbitrator's determination because an arbitrator's task is necessarily limited to effectuating the terms of a collective bargaining agreement; an arbitrator cannot decide a statutory discrimination claim involving public law concepts. 415 U.S. at 56-59, 94 S. Ct. at 1023-1025. The Court concluded that in instituting the statutory discrimination claim, the employee is not seeking review of the arbitrator's decision, rather he is asserting a statutory right independent of the arbitration process. 415 U.S. at 54, 94 S. Ct. at 1022. We have previously concluded that the suit for injunctive relief in ORS 659.121(1) was intended to supplement or to provide an alternative to existing remedies in a collective bargaining agreement. The plaintiff's statutory claim, like a Title VII claim, is an independent remedy for vindication of statutory rights. The scope of an arbitrator's powers are determined by the agreement of the parties, and in this case, the parties have limited the arbitrator's authority to resolution of controversies regarding commitments made in the collective bargaining agreement.[9] An arbitrator in this case therefore has no authority to decide the merits of plaintiff's statutory claim. Cf., M. Trotta, Labor Arbitration, pp. 81-84 (1961); Swanson v. Van Duyn Choc. Shops, 282 Or. 491, 466-497 n. 3, 579 P.2d 239 (1978). An exhaustion requirement is therefore inapplicable in these circumstances. Cf., Kewin v. Board of Ed. of Melvindale, 65 Mich. App. 472, 237 N.W.2d 514, 517-518 (1975). The plaintiff in her statutory claim asserts that the discharge was for an unlawful cause. The employer must defend on the merits of that claim. The question then is what effect the employer's evidence of just cause for discharge has on the court's remedial authority in ORS 659.121(1). We start with the recognized rule that in the absence of a contract or statute to the contrary, an employer may discharge an employee for any cause. Yartzoff v. Democratic-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978). A collective bargaining agreement usually contains a provision implying that an employer can discharge only for just cause. Cf., Swanson v. Van Duyn Choc. Shops, 282 Or. 491, 495, 579 P.2d 239 (1978). It is implicit in the collective bargaining agreement in this case that the employer can discharge an employee only if just cause is shown.[10] We find a useful analogy in employee discharge cases before the National Labor Relations Board (NLRB) and the State Employment Relations Board (ERB). Neither the State Labor Management Relations Act, ORS 663.005-663.295, nor the National Labor Relations Act, 29 U.S.C. § 141 et seq. interfere with an employer's right to discharge unless the discharge is inspired by a discriminatory motive proscribed by statute. ORS 663.195(3) and Section 10(c) of the NLRA, 29 U.S.C. § 160(c), each state that no order of reinstatement or back pay can be made where a discharge was "for cause." Therefore, an employer may discharge for cause and not violate the statutory discrimination provisions. But an employer may not discharge if the motivation is discrimination proscribed by statute. A discharge motivated by unlawful discrimination is not a discharge "for cause." NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S. Ct. 1099, 8 L. Ed. 2d 298 (1962). The record in many discharge cases indicates that an employee discharge was motivated in part by a poor work record or misconduct, and in part by unlawful discrimination by the employer. R. Gorman, Basic Text on Labor Law 138 (1976). In such cases, the labor relations board as the *292 party charging discrimination has the burden of proving by a preponderance of the evidence that the employer has engaged in or is engaging in an unfair labor practice. ORS 663.195(1), § 10(c) NLRA, 29 U.S.C. § 160(c). Although there is no clear consensus as to what is the necessary quantum of improper motive to constitute a statutory violation in an employee discharge case, the board usually must prove that the employee would not have been fired but for the unlawful, discriminatory motive of the employer. Therefore, an employer can have "dominant motives, mixed motives, equal motives, concurrent motives, and a bewildering combination of these." NLRB v. Whitford Pickle Co., 374 F.2d 576, 582 (5th Cir.1967). Unless the board can show, however, that the employee would not have been discharged but for the unlawful motive, the employer is free to discharge upon any showing of just cause. There is no indication that the legislature in allowing the suit for injunctive relief in ORS 659.121 intended to change the existing law regarding an employer's right to discharge an employee for cause. The standards in ORS 663.195 for holding an employer responsible for an unfair labor practice are applicable by analogy to the suit for injunctive relief in ORS 659.121. The court cannot order reinstatement or back pay unless it finds that the employee would not have been discharged but for the unlawful discriminatory motive of the employer. It remains for the circuit court in this case to receive the evidence and make its own findings as to the reasons for plaintiff's discharge. The decision of the Court of Appeals reversing the summary judgment order for the defendant is affirmed. [1] ORS 659.121(1) provides: "(1) Any person claiming to be aggrieved by an unlawful employment practice prohibited by ORS 659.024, 659.026, 659.030, 659.410, 659.415 or subsection (1) of 659.425 may file a civil suit in circuit court for injunctive relief and the court may order such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employes with or without back pay. Back pay liability shall not accrue from a date more than two years prior to the filing of a complaint with the Labor Commissioner, pursuant to ORS 659.040, or if no such complaint has first been filed, then, more than two years prior to the filing of the civil suit provided for in ORS 659.040, 659.045, 659.095 and this section. In any suit brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees." This subsection has been amended, Or. Laws 1979, ch. 813, § 2, in particulars not important to this decision. [2] Although the defendant argues that the circuit court lacked "jurisdiction," the defendant is actually arguing that the grievance and arbitration procedures in the collective bargaining agreement provide plaintiff's exclusive remedy, therefore the circuit court should abate the suit pending the outcome of the arbitration proceeding. [3] The collective bargaining agreement provides in relevant part: "ARTICLE 8 "Arbitration "Section 8.1 Except as otherwise provided in this Contract, if a grievance has been handled in accordance with the provisions of Article 7 of this Contract and has not been satisfactorily adjusted, the Union within thirty (30) days after the Company has given its final answer at the Vice President-Personnel level, may request that the grievance be arbitrated. After such request has been made, the grievance shall be arbitrated subject to the following conditions: "(a) The provisions for arbitration shall apply only to controversies brought by the Union against the Company regarding the true intent and meaning of any provisions of this Contract, or regarding a claim that a commitment made in this Contract has not been fulfilled. "* * * * *." "Section 8.2 The decision of the arbitrator shall be final and binding on both parties and the Company and the Union agree to abide by such decision. "* * * * *." "ARTICLE 9 "Suspensions and Dismissals "Section 9.1 The Company recognizes the right of the Union to assist an employee who has been suspended pending investigation or who has been given notice of dismissal, or who has been dismissed, in presenting and/or appealing his or her case to the Company, subject to the following: "* * * * * "(b) Any suspended or dismissed employee shall have his or her case investigated by successive levels of management in his or her particular department, up to and including the General Department head or an authorized representative, provided the employee makes a written request of the Company within twenty (20) calendar days of the notice of suspension or dismissal. "* * * * * "(d) If a regular employee having six (6) months or more net credited service is dismissed, the matter will be subject to the grievance procedure set forth in Article 7, provided the dismissed employee makes written request to the Company for such procedure within twenty (20) calendar days of the dismissal. If the dismissed employee has one (1) year or more net credited service and the matter has not been settled under the grievance procedure set forth in Article 7, the Union may require that the matter be submitted to arbitration pursuant to the provisions of Article 8. If the dismissed employee has less than one (1) year net credited service, the matter shall not be subject to arbitration. "(e) The arbitrator shall determine whether the suspension or the dismissal was for just cause, but the judgment of the arbitrator may be substituted for that of the Company only if the arbitrator finds that the Company acted without making a reasonable investigation or that it acted upon evidence that would not have led a reasonable person to take such action." [4] ORS 659.121 is quoted in relevant part at note 1. At the time this suit was commenced ORS 659.410 and 659.415 were as follows: ORS 659.410: "It is an unlawful employment practice for an employer to discriminate against a workman with respect to hire or tenure or any term or condition of employment because the workman has applied for benefits or invoked or utilized the procedures provided for in ORS 656.001 to 656.794 and 656.802 to 656.824, or of 659.400 to 659.435 or has given testimony under the provisions of such sections." ORS 659.415: "A workman who has sustained a compensable injury shall be reinstated by his employer to his former position of employment or employment which is available and suitable upon demand for such reinstatement, provided that the workman is not disabled from performing the duties of such position. A certificate by a duly licensed physician that the physician approves the workman's return to his regular employment shall be prima facie evidence that the workman is able to perform such duties." ORS 659.415 was amended, Or. Laws 1979, ch. 813, § 3, to add a subsection (2): "(2) Any violation of this section is an unlawful employment practice." This amendment appears to be merely a clarification of ORS 659.415, since ORS 659.121 in its original and present form refers to the "unlawful employment practice" prohibited by ORS 659.415. Or. Laws 1977, ch. 453, § 6. [5] Section 203(d) of the Labor-Management Relations Act of 1947, 29 U.S.C. § 173(d) provides: "Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement." [6] ORS 662.040 provides: "No court, nor any judge thereof, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict conformity with ORS 662.010 to 662.130, nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in ORS 662.020." [7] ORS 662.405 provides: "It hereby is declared to be the public policy of the State of Oregon that the best interests of the people of this state are served by fostering collective bargaining and by the prevention of or the prompt settlement of labor controversies, strikes and lockouts; that sound and stable industrial peace and the advancement of the general welfare of the state and of the best interests of employers and employes can most satisfactorily be secured by the settlement of issues between employers and employes through the processes of conference and collective bargaining between employers and employes; that the settlement of issues between employers and employes through collective bargaining may be advanced my making available full and adequate government facilities for conciliation, mediation and voluntary arbitration to aid and encourage employers and employes to reach and maintain agreements concerning rates of pay, hours and working conditions and to make all reasonable efforts to settle their differences by mutual agreement reached through conferences and collective bargaining." [8] We note that the Oregon AFL-CIO spoke in favor of the recent amendments to ORS 659.121 and ORS 659.415 which clarified that violation of ORS 659.415 was an unlawful employment practice. 1977 Or. Laws, ch. 813; Senate Committee on Labor, Consumer and Business Affairs, SB 199, Exhibit B, May 8, 1979. This indicates that organized labor supports the existence of the private cause of action in ORS 659.121. No mention was made of the exclusivity of the collective bargaining agreement remedies. [9] See Section 8.1(a) of the collective bargaining agreement in this case, quoted at note 3 supra. [10] See Section 9.1(e) of the collective bargaining agreement in this case, quoted at note 3 supra.

dc9c16fae19ee0c5ac40e629248f0825b74a42038ea0fec4e8f13bcaac3b4346

1980-05-06T00:00:00Z

cb53bec1-a862-4f25-a897-286360dda83c

In re Steffen

S059555

oregon

Oregon Supreme Court

Filed: September 22, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of the Application for Admission to Practice Law: JUSTIN ROBERT STEFFEN, Applicant. (SC S059555) En Banc On review from a recommendation of the Board of Bar Examiners. Submitted on the record June 27, 2011. No appearance for the Oregon State Bar. No appearance contra. PER CURIAM Application denied. 1 PER CURIAM 1 Justin Robert Steffen (applicant) seeks admission to the Oregon State Bar. 2 Applicant submitted his admission application to the Board of Bar Examiners (board) in 3 November 2010. On his application, he indicated that he had past-due debts and 4 judgments. The board asked applicant for additional information about those debts and 5 judgments. Applicant did not respond to that request for about three months, at which 6 point applicant advised the board that he had filed for bankruptcy. Applicant took the 7 position that the board could not inquire about his past-due financial obligations, because 8 to do so would violate federal law.1 The board made further efforts to investigate the 9 circumstances of applicant's debts and financial obligations, and applicant continued not 10 to cooperate fully. The board now recommends that this court deny applicant's request 11 for admission to the Oregon bar based on applicant's failure to cooperate with its 12 investigation. As we will explain, we agree with the board's recommendation and deny 13 applicant's admission. 14 Under ORS 9.210, the board is authorized to examine applicants for 15 admission to the bar and recommend that this court admit those who are qualified under 16 the law and the court's rules. See also Rules of Admission (RFA) 2.10(4) (board shall 17 recommend to Supreme Court whether applicants should be admitted). One such 18 1 Applicant relied on 11 USC section 525(a), a federal statute that prohibits a licensing body from denying a license to a person solely because the person has filed for bankruptcy or failed to pay an obligation that was discharged in bankruptcy. 2 qualification is that the applicant be "a person of good moral character and fit to practice 1 law." ORS 9.220(2). This court has charged the board with investigating and evaluating 2 an applicant's character and fitness. See RFA 2.10(2) (board shall investigate and 3 evaluate moral character and fitness to practice law of each applicant); RFA 6.05 (board 4 has authority to conduct investigations, convene evidentiary hearings, and issue 5 subpoenas). Concomitantly, this court has charged applicants with a duty to cooperate 6 and comply with the board's investigation and requests for information. See RFA 4.25(1) 7 (specifying duty). To enforce that duty, our rules specifically provide that an applicant 8 may be denied admission for failing to cooperate or refusing to provide the board with 9 information material to the board's inquiry regarding the applicant's character and fitness 10 to practice law. RFA 6.05(4). 11 Applicants for bar admission, like all lawyers, are expected to scrupulously 12 honor their financial obligations. In re Scallon, 327 Or 32, 39, 956 P2d 982 (1998). In 13 addition, because lawyers frequently hold client funds in trust, an applicant's problems 14 handling money (either the applicant's own or funds belonging to others) raises concern 15 about the applicant's ability to handle client funds with "scrupulous probity." Cf. In re 16 Stodd, 279 Or 565, 567, 568 P2d 665 (1977) ("Nothing less than the most scrupulous 17 probity in dealing with the funds of others is compatible with admission to the practice of 18 law."). An applicant's handling of his or her financial affairs, therefore, is appropriate for 19 the board and this court to consider in determining the applicant's fitness to practice law. 20 Scallon, 327 Or at 39; see also In re Taylor, 293 Or 285, 293-94, 647 P2d 462 (1982) (so 21 stating). The fact that an applicant has a bankruptcy in his or her history is not in and of 22 3 itself disqualifying. Scallon, 327 Or at 39. The circumstances of the bankruptcy, 1 however, are highly relevant to consider. See Taylor, 293 Or at 293 (considering 2 circumstances surrounding bankruptcy "as these circumstances illustrate an applicant's 3 judgment in handling serious financial obligations"). A bankruptcy that results from 4 extraordinary hardship generally will not reflect adversely on an applicant's character and 5 fitness, while one arising from selfishness, a disregard of fiscal and moral 6 responsibilities, or other irresponsible conduct generally will. See In re Gunter, 344 Or 7 368, 385-87, 182 P3d 187, modified on recons, 344 Or 540 (2008) (so observing 8 generally; concluding that, in particular case before the court, bankruptcy reflected 9 adversely on applicant's fitness where circumstances suggested it was not a remedy of 10 last resort for unforeseen expenses, but rather was a convenient means of escaping 11 inability to manage finances). For those reasons, in this case, applicant's handling of his 12 debts and unpaid judgments was well within the scope of the board's investigatory 13 mandate, and applicant had a duty to cooperate with the board's requests. 14 In its letter recommending that this court deny applicant's admission to the 15 bar, the board relied on the above principles and several of the same cases we have cited. 16 On review, applicant expresses his disagreement with the board's recommendation, but 17 does not provide us with any argument that engages the board's reasoning to explain why 18 the board's recommendation is wrong or inconsistent with our prior cases. Instead, 19 applicant has waived filing a brief and rests on his various earlier communications with 20 the board in which he protested the board's requests for information. Ultimately, 21 applicant does not dispute that he has not cooperated fully with the board's investigation. 22 4 He disputes only whether the board is entitled to ask him about the circumstances of his 1 past-due financial obligations, raising an argument based on the federal bankruptcy 2 statute that we have previously rejected. Gunter, 344 Or at 385 (bankruptcy statutes do 3 not prevent court from examining circumstances surrounding the bankruptcy). Beyond 4 that, the only argument in applicant's earlier communications to the board that is 5 potentially responsive to the principles outlined above is appellant's assertion that an 6 applicant's mishandling of finances leading to bankruptcy, even when the circumstances 7 have weighed adversely to admission, has not been the sole reason for denying an 8 applicant's admission in our past cases. 9 That misses the point, however. The fact that none of our reported cases 10 has been one in which financial irresponsibility was the sole reason to deny admission is 11 simply a fact-specific observation about our resolution of those particular cases. There is 12 no legal reason why the circumstances of an applicant's past financial dealings could not 13 be a sufficient basis, without more, to conclude that the applicant does not possess the 14 requisite character and fitness to practice law. Without knowing the circumstances that 15 caused applicant to incur past-due debts and unpaid judgments and to resort to 16 bankruptcy to discharge them, neither the board nor this court can evaluate what weight 17 to give those circumstances in this case. 18 We are satisfied, from our review of the record, that the board's 19 investigatory request was a reasonable effort to determine why applicant has had the 20 financial difficulty that he has had, which in turn bears on applicant's character and 21 fitness to practice law. The board's recommendation is not based on the fact that 22 5 applicant filed for bankruptcy; it is based on applicant's noncompliance with the board's 1 investigation of his character and fitness.2 Applicant has had ample opportunity to 2 comply with the board's requests and, indeed, does not appear to be barred from 3 reapplying for admission and complying prospectively.3 We conclude that, under the 4 circumstances presented by this record, it is appropriate for us to deny applicant 5 admission to the Oregon bar based on his failure to comply with the board's investigation. 6 Application denied. 7 2 In its letter explaining its recommendation, the board emphasized that "the Board is not recommending that [applicant] be denied admission because he filed bankruptcy or failed to pay a dischargeable debt. The Board would have made its inquiry regarding [applicant's] finances regardless of whether he invoked bankruptcy protection. In fact, the Board commenced its inquiry before it even learned that [applicant] had filed a bankruptcy petition." 3 In his letter waiving the filing of a brief, applicant represents that he has obtained some of the information that the board asked him to provide, and that he is making other efforts to comply with the board's requests. Evidently, however, applicant has not yet done so fully. Although the question is not before us, we note that we are unaware of any reason why applicant, if he is prepared to now cooperate with the Board's investigation, cannot reapply for admission based on his current bar exam results, assuming that he pays any fees that might apply to such a reapplication. See generally RFA 4.10 (setting fees and other terms for applications and reapplications for admission to the bar).

0607779add87979fff8a82b81f64aa94353f454c497b04dd0d86d5b8c0909ba8

2011-09-22T00:00:00Z

52f951e9-d22b-4cbe-a6bc-b2b2c008295e

Megdal v. Oregon State Bd. of Dental Examiners

288 Or. 293, 605 P.2d 273

oregon

Oregon Supreme Court

605 P.2d 273 (1980) 288 Or. 293 Phil MEGDAL, Petitioner, v. OREGON STATE BOARD OF DENTAL EXAMINERS, Respondent. CA 9772; SC 26120. Supreme Court of Oregon, In Banc. Argued and Submitted October 2, 1979. Decided January 8, 1980. *274 John R. Faust, Jr., of Hardy, McEwen, Newman, Faust & Hanna, Portland, argued the cause for petitioner. Donald W. McEwen, Portland, on the brief. Al J. Laue, 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. LINDE, Justice. Petitioner, a dentist licensed both in Oregon and in California and maintaining offices in both states, seeks review of an order of the State Board of Dental Examiners which revoked his Oregon license on the ground of "unprofessional conduct." ORS 679.140(1)(c) and (5)(d). The conduct which the board found unprofessional under the statute was that petitioner obtained malpractice insurance coverage for other dentists employed by him in his California practice by a misrepresentation that they were employed in Oregon. Briefly stated, the board found that petitioner had requested this coverage from his insurance brokers on his Grants Pass, Oregon, letterhead, that thereafter he had his California employees submit application forms on which a line asking for their office address had been cancelled out or left blank, purposely leaving the impression that the applicants were employed in Grants Pass, and that upon this misrepresentation the insurance carrier, to its damage, provided liability coverage which it otherwise would not have provided. The issue, in sum, is whether the board may revoke a dentist's license under an unparticularized rubric of "unprofessional conduct" upon an administrative finding that he practiced a fraud on an insurance company. Petitioner objects that before revoking a license for unprofessional conduct other than the kinds specified in the statute itself the board must first adopt rules indicating the forbidden conduct, because the phrase "unprofessional conduct" alone is too vague a standard to be applied directly from case to case. A similar claim by a physician licensed under another statute was rejected by this court in Board of Medical Examiners v. Mintz, 233 Or. 441, 378 P.2d 945 (1963), a decision later followed in the case of a nurse in Ward v. Ore. State Bd. of Nursing, 266 Or. 128, 510 P.2d 554, 55 A.L.R.3d 1134 (1973). Nevertheless, the Court of Appeals was troubled by the problem posed by forbidding a skilled or professional person, once found qualified, to practice his or her occupation on essentially ad hoc determinations of "unprofessional conduct." The panel which first heard this case, with one dissent, distinguished the Mintz and Ward precedents because the unprofessional conduct in those cases was an "inchoate" form of conduct expressly proscribed by the governing statutes, and it concluded that prior rulemaking was required to proscribe other conduct that bears no such relationship to the statute. 37 Or. App. 219, 586 P.2d 816 (1978). However, on reconsideration en banc the court decided that petitioner's challenge to the statutory standard was foreclosed by this court's holding in Board of Medical Examiners v. Mintz, supra, and that the demand for prior rulemaking had not been properly presented; it therefore affirmed the board's order. 38 Or. App. 469, 590 P.2d 745 (1979).[1] We allowed review in order to reexamine the role of broadly stated standards in laws governing disciplinary actions against occupational licensees. For the reasons that follow, we conclude that the board's order must be reversed. Petitioner begins his brief in the Court of Appeals with a constitutional attack on the statutory phrase "unprofessional conduct." The attack is as unspecific as its target. We have had previous occasion to point out that constitutional claims should identify the provisions of the constitution, state and federal, that the governmental action is said to contravene and should show the *275 relevance of these provisions to the claim. See, e.g., Rogers v. Department of Revenue, 284 Or. 409, 412 n. 2, 587 P.2d 91 (1978). Petitioner's brief cites no clause of either constitution for his assertion that "unprofessional conduct" is so vague as to be "constitutionally impermissible." Possibly the seductive alliteration "void for vagueness" is thought to have achieved constitutional status on its own, judging by how often it is invoked. Actually, "vagueness" in a statute, ordinance, regulation, decree, order, or other legal rule is a fault for reasons which differ with the function of the rule at issue, and which must search for footing in still unsettled constitutional premises. But since the constitutional claim in this case, though unspecific, is not frivolous and addresses a significant problem, and since our duty is to credit the lawmaker with intending to act constitutionally,[2] we briefly examine its possible merits. An initial distinction is whether "unprofessional conduct" is attacked as inadequate to guide the Board of Dental Examiners or as inadequate to inform dentists of the conduct expected under their license. Often very broad terms, even broader than "unprofessional conduct," are employed in laws that assign an agency responsibility for managing a program or pursuing a policy whose goals the law indicates only in the most general sense. As recently stated in Anderson v. Peden, 284 Or. 313, 587 P.2d 59 (1978), the constitutional issue in such broad delegations of authority is only whether it remains possible for the agency and for reviewing courts to determine when subsequent agency rules or actions have honored and when they have departed from the general policy indicated by the politically accountable lawmaker.[3] So much necessarily follows from the assignment of the legislative power to the Legislative Assembly (when not exercised directly by the people or by local home rule) and its denial to the other departments. Or.Const. art. IV, § 1; art. III, § 1. But almost always scrutiny of the grant of authority will turn this necessary determination into a question of interpreting the agency's assignment rather than of invalidating the delegation for vagueness. Beyond doubt "unprofessional conduct" is constitutionally adequate as a directive giving the board authority to prescribe standards under which its licensees will be subject to professional discipline. It is another question whether "unprofessional conduct" is adequate by itself as a standard for deciding individual cases. It involves additional considerations which are reflected in different constitutional premises. In criminal cases, one concern about overly general or vague penal laws is that they not only allow a court or a jury to define a crime but to do so after the fact, contrary to article I, section 21 of the constitution. See State v. Blair, 287 Or. 519, 601 P.2d 766 (1979), quoting from State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969).[4]*276 The second concern is that such laws do not give fair notice of what they proscribe in time to let a person conform to the law, so that the imposition of punishment deprives him of liberty or property without due process of law under the fourteenth amendment. See State v. Hodges, supra; Lenzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939). As a premise for a requirement of due process, the right to notice of the law has its own problems.[5] But in any event this principle, like that against ex post facto laws, is generally confined to penal sanctions. No one familiar with the common law expects due process to preserve one either from indefinite standards or from their delegation to juries or judges in civil cases, though one may stand to lose far more than under many criminal laws. See Anderson v. Peden, supra, 284 Or. at 324, 587 P.2d 59. We may assume that petitioner could not be prosecuted for a statutory crime described only as "unprofessional conduct." But the same premises do not obviously apply to a revocation of his professional license under that standard. If loss of the right to practice one's profession were employed as a form of punishment for delinquencies apart from safeguarding proper performance in the professional role, the implications would go beyond the adequacy of the standard to issues of criminal procedure generally, see Brown v. Multnomah County Dist. Ct., 280 Or. 95, 100, 105, 570 P.2d 52 (1977) and cf. Dickinson v. Davis, 277 Or. 665, 670-671, 561 P.2d 1019 (1977), if indeed its use for punishment would be constitutional at all. Cf. Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366 (1867) (invalidating the disqualification of former Confederate supporters from law practice in federal courts). No doubt the disqualified person's loss is equally grave whether it is inflicted as punishment for wrongdoing or as enforcement of professional discipline. But we have no reason to attribute the former rather than the latter objective to laws that allow disqualification for unprofessional conduct. Petitioner cannot rest a constitutional attack on ORS 679.140 on the decisions that hold penal laws unenforceable for vagueness. In common parlance a claimed denial of due process of law may intend simply a claim of illegality, of failure to follow what the claimant asserts to be the law. But when a state law is attacked for failure to provide due process, we are in the realm of the fourteenth amendment, where guidance must be found in the decisions of the United States Supreme Court.[6] Such an attack depends not on our own views but, rather, on the premise that if a state law explicitly *277 directed a board to apply "unprofessional conduct" case by case in disciplinary proceedings, the Supreme Court would reverse the revocation of an occupational license without prior specification of standards as a deprivation of liberty or property without due process of law. There is no lack of suggestion that a prior specification of grounds should be a prerequisite of due process in administrative as well as penal deprivations. See, e.g., Davis, Administrative Law of the Seventies 28, 224 (1976); Note, Due Process Limitations on Occupational Licensing, 59 Va.L. Rev. 1097, 1104-1106 (1973).[7] At least one modern court has held that the grounds to revoke a pharmacist's license for "grossly unprofessional conduct" must be limited to those further spelled out in the statute or in rules, because "revocation of licenses and permits for conduct not specifically defined or prohibited by the statute, would render the statute unconstitutional on grounds of vagueness in violation of the Due Process Clause of the Fourteenth Amendment." Pennsylvania State Board of Pharmacy v. Cohen, 448 Pa. 189, 292 A.2d 277, 282 (1972). To support this conclusion the court took the step of tacking together the two propositions that an individual's exclusion from an occupation requires due process and that penal statutes must give adequate notice of the forbidden or required conduct: 292 A.2d at 282. Perhaps federal "due process" law will move toward the step anticipated by the Pennsylvania court.[8] But, contrary to the sentence last quoted, there has been no clear signal from the United States Supreme Court that the standards for occupational licensing decisions must meet those for penal laws. The Court's later holdings sustaining the adequacy of phrases such as "conduct unbecoming an officer and a gentleman" for military punishment, Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974) and a string of epithets[9] for disciplinary discharge of civil service employees, Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), can be distinguished as dealing with special relationships. Nonetheless, the gravity of the *278 losses there permitted to be inflicted under vague standards leaves the crucial step assumed by the Pennsylvania court in doubt. Again, the factors from which Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), directs us to derive the requirements of due process the private interest affected, the chances of error and of its reduction by better procedures, and the countervailing governmental interests clearly affirm a licensee's right to the kind of adjudicatory procedures of notice, hearing, and findings based on evidence that, in this state, are provided him under the administrative procedure act;[10] but nothing indicates whether this due process calculus extends also to restricting adverse action to the enforcement of previously specified norms. For the moment, at least, support for finding such a requirement in federal due process appears primarily in Soglin v. Kauffman, 418 F.2d 163 (7th Cir.1969), which applied the requirement to standards for expelling university students for "misconduct," and in decisions involving criteria for the bestowing of benefits.[11] In sum, the most that can be said about "due process" as a possible premise for petitioner's constitutional attack on the phrase "unprofessional conduct" is that the state of the federal law is inconclusive and the attack perhaps only premature. Nor is the phrase vulnerable under the state constitution as transferring legislative power to the board or as empowering the board to make laws ex post facto, since the object of the law is not to punish misconduct as such but to confine the practice of the profession to those who maintain professional standards of conduct. However, to conclude that the law is not unconstitutional does not decide what it means. We turn to that question. On review in this court, petitioner changes emphasis to the question whether the board misapplied the statutory term "unprofessional conduct." He contends that the legislature did not mean "unprofessional conduct" to extend to a dentist's dealings with an insurance company, or at least not without prior rulemaking. The argument combines two claims against the board's application of this phrase in the statute, one substantive and the other procedural. In theory, the statutory standard "unprofessional conduct" could be intended in one of three ways. The intended meaning will not be found in cases decided under different laws in this or another state. Occupational licensing is not common law but statutory administration. The meaning to be found is what the statute's drafters, if aware of the problem, could readily have made explicit, and what they can change if they so choose. First, an occupational licensing law might use "unprofessional conduct" to refer to norms of conduct that are uniformly or widely recognized in the particular profession or occupation, apart from the views of the agency itself and in this sense "external" to the law. If this were the intended *279 meaning of the phrase, its application would depend not on interpreting the law or making rules but on finding what the existing standards in fact are. Second, such a phrase might be intended to express the legislature's own licensing standard, though in very general terms. While its contours might have to be derived from the context and legislative history, its meaning would nevertheless be a question of statutory interpretation, not of external sources, and agency interpretive rulemaking would be confined to providing notice of the agency's view of its proper application. Such an agency interpretation of a broadly stated standard entrusted to it is often entitled to judicial respect, see e.g. McPherson v. Employment Division, 285 Or. 541, 591 P.2d 1381 (1979). But it remains an interpretation rather than an execution of a legislative assignment to make new rules. Finally, such a legislative assignment to the agency to make new rules is the third possible role intended for "unprofessional conduct" in the statute. If so, the term itself cannot be applied without prior rule-making, and the issue on review is whether a given rule remains within the scope of the delegated authority. An example is the rule against advertising that was sustained in Angelos v. Bd. of Dental Examiners, 244 Or. 1, 414 P.2d 335 (1966), and compare Ore. Newspaper Pub. v. Peterson, 244 Or. 116, 415 P.2d 21 (1966). Board of Medical Examiners v. Mintz, supra, proceeded on the premise that the legislature, in enacting the statute involved there, meant the general standard of "unprofessional or dishonorable conduct" in the first of the three ways mentioned above, as a reference to standards recognized in the profession external to the board itself. The question seems not to have been made a central issue in the case. The statute defined "unprofessional or dishonorable conduct" as "conduct unbecoming a person licensed to practice medicine or detrimental to the best interest of the public," and the dispute centered on the vagueness of this standard rather than on the proper source from which to give it substance. With its focus on the vagueness issue, the court followed a New York decision which treated "unprofessional conduct" as referring to "the standards of conduct generally accepted by practitioners in the State of New York" and held that these standards were "not so indefinite that they cannot be determined by qualified persons." Matter of Bell v. Board of Regents, 295 N.Y. 101, 110, 65 N.E.2d 184, 189 (1946), quoted in 233 Or. at 446-447, 378 P.2d 945. Accordingly, the court in Mintz continued: 233 Or. at 448-449, 378 P.2d at 948-949. The court later followed the same approach in holding that expert testimony was not needed to establish that a nurse who aided another in violating an express proscription of the licensing statute was herself guilty of "conduct derogatory to the standards of professional nursing." Ward v. Ore. State Bd. of Nursing, supra. We hold to the view that expert testimony is not the proper source for determining the governing standards of "unprofessional conduct," but we do so for somewhat different reasons. Mintz and Ward started from the assumption that the board's task was to determine what the standards of the profession in fact were. Taking this assumption to its logical conclusion, such determinations would presumably have the character of findings, required by *280 ORS 183.470, which would have to be supported by substantial evidence in the record unless the conduct was deemed so clearly unprofessional, as in Mintz and Ward, as to be a matter of official notice under ORS 183.450(4). But upon further reflection, we think that when the legislative assembly delegated authority over professional standards to the Board of Dental Examiners, it intended the board to exercise responsibility for those standards itself rather than to look to private practitioners or associations in order to determine what their standards are. To view the statute as incorporating external professional standards by reference creates needless difficulties. It poses a question whether authority to impose rules, enforced by governmental power to grant or revoke licenses, has been delegated to private associations. See Hillman v. North. Wasco Co. PUD, 213 Or. 264, 323 P.2d 664 (1958). Licensing statutes are a form of public regulation, not organized self-regulation. Although generally members of the regulated occupations are appointed to licensing boards, they are agencies of the government, not representatives of a guild.[12] Their responsibilities are not to their own occupational groups but to the public. Cf. Marbet v. Portland Gen. Elect., 277 Or. 447, 469-470, 561 P.2d 154 (1977). Nor may a board proceed on the assumption today, if it ever could, that all members of the profession should be expected to share unarticulated understandings about professional manners and mores because they were drawn from a few homogeneous ethnic, religious and social origins. And to view the profession's attitude toward particular conduct as a factual issue for decision in disciplinary proceedings might well lead to contradictory results depending on the evidence put in the record on that issue. A decision that Dr. A's conduct was shown to be contrary to prevailing professional standards would not mean that Dr. B's identical conduct might not be shown, on different evidence, to be consistent with prevailing professional standards. We doubt that this is the legislative intent. Indeed, the statute is not wholly silent on the question. Along with "unprofessional conduct," ORS 679.140(1)(c) lists "gross ignorance, incompetence or inefficiency" as grounds for disciplinary action. Subsection (4) of the same section states that in determining what constitutes "gross ignorance, incompetence or inefficiency" the board may take into account such sources as the practices generally followed and accepted by practitioners, current teaching at dental schools, and technical reports.[13] In this subsection the legislature has itself stated that substandard levels of skill and performance may result in disqualification and that these may be measured against the stated sources among others. If rules are promulgated only to indicate that particular skills or practices are considered essential for competence or efficiency, they are interpretive rules. Cf. McPherson v. Employment Division, supra, 285 Or. at 551, 591 P.2d 1381. *281 However, this subsection makes no such reference for determining what constitutes "unprofessional conduct." While current standards of scientific knowledge and of safe and effective technique in a profession or craft may be determinable from such sources, disputed ethical standards often are more an issue of policy and values than of the state of the art. So, at least, the legislature may have thought. No doubt the views of members of the profession itself on standards of professional conduct nevertheless are entitled to weight when the board adopts rules to give content to a general standard under the statute. Cf. Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P.2d 614 (1973) (professional association's code of ethics not applied before adoption by board rule). So, for that matter, are the views of others potentially affected by the conduct in question. But responsibility for the statutory standard and its application rests with the board. Petitioner claims that the meaning of "unprofessional conduct" by dentists was narrowed by amendments of ORS 679.140 adopted after the 1963 decision in Board of Medical Examiners v. Mintz, supra. Like his constitutional claim, this claim is not explained. The history of ORS 679.140 appears to the contrary. Before 1963, the statute provided, apart from other grounds for suspending or revoking a license, that "[u]nprofessional conduct means" any of a list of 12 specified practices, mostly though not exclusively concerned with solicitation and advertising. ORS 679.140(2) (1961). The use of the word "means" clearly was designed to limit "unprofessional conduct" to the specified acts. In 1963, after the decision in Mintz, the legislature amended the section to read: "Unprofessional conduct as used in this chapter includes but is not limited to" essentially the same list of practices.[14] The term remains "not limited to" the listed practices, which now have added a contemporary concern with narcotics to the old preoccupation with advertising.[15] Plainly the significant change made *282 after Mintz was to authorize the board to expand the reach of "unprofessional conduct" rather than to confine it. But how was the board to do this? Since 1939 the statute has authorized the board to "make and enforce rules . . . for regulating the practice of dentistry." ORS 679.250(7).[16] The statute does not expressly state that the expanded grounds for disciplinary action under the rubric "unprofessional conduct" were to be created by board rules. But there are reasons to believe that this is the legislative policy. One is that the legislature should not be assumed to be insensitive to the importance of fair notice of grounds that may lead to loss of one's profession or occupation, whether or not this is a constitutional requirement. More concretely, the legislature made this policy explicit in many similar licensing statutes even if not in this one. Chapter 679 is one of more than 30 such statutes brought together in ORS chapters 670-703. Repeatedly the legislature has specified that the several boards are to exercise their control over professional standards by adopting codes or rules. Thus the State Board of Architect Examiners is authorized to "promulgate reasonable rules prescribing standards of professional conduct for architects." ORS 671.125(2). Accountants may be disciplined for violations of "the Code of Professional Conduct adopted by the board." ORS 673.170(4).[17] Similar provisions are made for professional engineers, ORS 672.255(1)(c), geologists, ORS 672.655, psychologists, 675.110(10), occupational therapists, ORS 675.300(1)(a), audiologists, ORS 681.420(5), and tax consultants, ORS *283 673.730(6). Other licensing statutes simply give the licensing board general rulemaking authority.[18] The drafters' usage has not been consistent. The Board of Dental Examiners, respondents in the present case, itself is directed to specify "by rule or regulation . . . what constitutes unprofessional conduct, gross ignorance, incompetence or inefficiency" for dental hygienists or other dental assistants, ORS 680.100(1)(d), while its rulemaking authority for dentists is phrased in general terms. ORS 679.250(7). Sometimes such differences in statutory drafting represent deliberate differences in policy. We see no reason to believe that this was the case here.[19] The difference of the potential impact, when one occupation is given fair notice of obligatory standards of propriety by prior rulemaking and another occupation is given no such prior notice, is too pronounced to be attributed to the legislature without some showing that it was intended. Thus we doubt that the stylistic differences among 30-odd statutes separately enacted over many years mean that some of the boards are to develop professional standards by rulemaking and others by ad hoc determinations, insofar as they are authorized to add to the express statutory grounds for discipline at all. Rather, we infer from statutes such as those cited above that when a licensing statute contains both a broad standard of "unprofessional conduct" that is not fully defined in the statute itself and also authority to make rules for the conduct of the regulated occupation, the legislative purpose is to provide for the further specification of the standard by rules, unless a different understanding is shown. When such a rule purports to be an interpretation of one of the more specific proscriptions or requirements stated in the statute itself, it is reviewable as an interpretation. See McPherson v. Employment Division, supra; Angelos v. Bd. of Dental Examiners, supra, 244 Or. at 5-6, 414 P.2d 335. When a board lays down a new rule of proscribed or required conduct under delegated authority to do so, this is reviewable to determine whether the rule remains within the intended scope and purpose of the delegated authority. See Ore. Newspaper Pub. v. Peterson, supra, and cf. Neuhaus v. Federico, 12 Or. App. 314, 505 P.2d 939 (1973). The administrative procedure act makes compliance with rulemaking procedure reviewable in either case. ORS 183.310(7), 183.335, 183.400. Doubts are sometimes expressed whether rules can encompass the variety of acts that should be recognized as "unprofessional," or "unethical," or "unbecoming," or otherwise improper. An attempt to "catalogue all the types of professional misconduct" might well seem infeasible, as the court said in *284 Board of Medical Examiners v. Mintz, supra, 233 Or. at 448, 378 P.2d at 948. But rules need not imitate a detailed criminal code to serve the two purposes of giving notice of censurable conduct and confining disciplinary administration to the announced standards.[20] Nor is the only alternative to include some form of catchall clause that is as general as the standard it purports to elucidate. The resources of rulemaking are not so limited. For instance, as this case illustrates, an important question is what relationships are covered by the term "unprofessional conduct" and thus within the range of professional discipline. It might be agreed that the term covers conduct in the course of rendering the professional service on the one hand, and on the other that it excludes the licensee's purely private affairs unrelated to any relevant professional qualification or performance. But between these two poles, there may be questions how far "unprofessional conduct" extends to financial arrangements or to mixing professional with other relationships. There may be disagreement whether the term should extend beyond conduct toward the patient or other recipient of the regulated service so as to cover relationships with employees or suppliers, with other professionals, or perhaps with the regulating agency itself. As stated above, in many licensing statutes the legislature does not itself provide explicit or implicit answers to these and similar questions; it delegates this task, within the limits of each statute's objectives, to the licensing agencies. The answers might well differ in one occupational setting from another. They may change within the same occupation over time, as has occurred in the very issue in Mintz, the issue of abortions. Thus, when the statute itself offers no further definition, the legislative delegation to the agency calls for such questions to be resolved in principle by rules rather than being confronted and disputed for the first time in charging a particular respondent directly under a conclusory term such as "unprofessional conduct." Petitioner contends that his dealings with the insurance company in this case could not in any event be brought within the range of the legislative standard "unprofessional conduct" because it is too unlike the other types of "unprofessional conduct" proscribed in ORS 679.140(2)(a)-(q), for which he invokes the Latin phrase ejusdem generis. The argument is that the listed practices all relate directly to the dentist-patient relationship or to the dentist's physical or mental qualifications. If this were so, or if the statute authorized only interpretive rulemaking under the term "unprofessional conduct," the conclusion might follow. But we do not find all the specific proscriptions to be so limited. As stated above, more of them dealt with advertising than with any other subject, and while advertising is indeed addressed to potential patients, the restrictions do not seem designed exclusively to protect their interests.[21] Nor is it evident that the rules on obtaining drugs are limited to the dentist-patient relationship.[22] We do not mean that "unprofessional conduct" necessarily extends further. But we are not prepared to hold that the board's power to make rules for ethical conduct in the practice of the profession is narrowly limited to the dentist's relationship with a patient. Besides, it would not be farfetched to recognize a concern of patients in a dentist's fraudulent application for malpractice insurance which, in case of need, might not be available without litigation. In summary, we have concluded that ORS 679.140 does not contravene any provision of the state or federal constitution. We have also concluded that when the section was amended to provide that "unprofessional conduct" was no longer limited to the expressly proscribed acts, the legislature did not mean that it had its own conception of what constitutes "unprofessional conduct" which the board was to divine in the form of interpretation, nor did it mean that existing standards of professional conduct were to be determined empirically by taking notice or evidence of prevailing views. Rather it authorized the board to expand the list of conduct deemed unprofessional for disciplinary purposes by rules, without the need to return for legislative amendments. A rule covering fraudulent business practices in the conduct of the professional practice would be within the reach of the statutory delegation, but the board made no such rule before proceeding against petitioner. The question is whether petitioner is now entitled to judicial relief. The proceeding that resulted in the revocation of petitioner's license was a "contested case" under the administrative procedure act, then ORS 183.310(2)(c), see supra note 10, and review is governed by ORS 183.482. The statute was in process of revision when the Court of Appeals decided this case. At that time, the relevant parts of ORS 183.482(8) directed the reviewing court to reverse or remand the order only if it found the order to be "unlawful in substance or procedure," or if it found the "statute, rule or order to be unconstitutional." Petitioner did not argue in the Court of Appeals whether the board's failure to adopt rules defining "unprofessional conduct" rendered its revocation of his license "unlawful in substance" or in "procedure" or both, so the court declined to decide that question.[23] The court limited itself to petitioner's constitutional claim, which it rejected. As amended, ORS 183.482 now provides with respect to the scope of judicial review: Oregon Laws 1979, ch. 593, § 24. The new version separates a challenge based on material procedural error from a challenge based on misinterpretation or misapplication of the governing law. Under subsection (7), failure to follow prescribed procedure or to do so correctly requires a remand to the agency if the correctness of the action, or irrespective of this, if the fairness of the proceedings may have been impaired by the error. But this refers to procedure *286 in the contested case, for the remand ordered by subsection (7) cannot cure a prior error in adopting a substantive rule if the order depends on such a previously adopted rule.[24] Petitioner does not complain of the procedure in the license revocation proceeding. Subsection (8) directs the parties and the court to distinguish between three kinds of claims. One is that a governing provision of law (not limited to statutes) requires the agency to take or to refrain from a particular action. The second is that the law assigns the agency a range of discretion, but that the challenged order transgresses limits imposed on this discretion by the range of the authorizing law, by other statutory or constitutional provisions, or by the agency's own rules or established prior policies.[25] The third is that the order is not supported by substantial evidence in the record. If error is found, the statute provides for reversal, modification, or remand as appropriate to the character of the error and the agency's further role in the matter; subsection (7) forbids the court to substitute its own judgment for that of the agency on issues of fact or agency discretion. The latter restraint on over enthusiastic judicial review is reinforced in a new section, ORS 183.486, enjoining the reviewing court to affirm the agency action unless one of the specified grounds of error can be identified. But the court is not confined within the formal limits of the petition. The court is to provide "whatever relief is appropriate irrespective of the original form of the petition"; it may "decide the rights, privileges, obligations, requirements or procedures at issue between the parties," and it may order ancillary relief when necessary.[26] *287 We conclude that petitioner is entitled to relief. His license has been revoked under a statutory standard of "unprofessional conduct," that was broadened beyond its original list of specifications, which the statute means the board to particularize by rules. Although his original attack was couched in constitutional terms, its target was the same lack of comprehensible and channeling criteria that the rules are meant to provide. No such rule having been made to proscribe the kind of conduct charged against petitioner, there was no legal ground on which to revoke his license. The board "erroneously interpreted a provision of law," namely ORS 679.140(1)(c) and (2), in believing that the standard could be applied ad hoc to facts not covered by a specification in subsection (2) or a rule adopted pursuant to ORS 679.250(7). The error could not be cured on a remand. Thus ORS 183.482(8)(a)(A) requires that the board's order be reversed. Reversed. DENECKE, Chief Justice, specially concurring. The majority opinion holds that ORS 679.140 requires the Oregon State Board of Dental Examiners to promulgate rules defining "unprofessional conduct" and, in the absence of such rules, the Board cannot revoke petitioner's license for "unprofessional misconduct." I agree that the State Board is required to promulgate rules; however, I am of the opinion that it is a fiction to hold that the statutory scheme and legislative history lead to the conclusion that the legislative intent was to require the Board to make such standards. I am of the further opinion that it is more realistic to hold that the court, pursuant to its power to review the decisions of the Board, is empowered to require the promulgation of such standards. There is an involved legislative history of ORS 679.140. The following is a summary: The State Board of Medical Examiners disciplined a Dr. Mintz for "unprofessional conduct." The circuit court held the Board could not do so without first promulgating rules defining such conduct. We decided to the contrary. Board of Medical Examiners v. Mintz, 233 Or. 441, 378 P.2d 945 (1963). During the time of the Mintz litigation, the State Board of Dental Examiners had legislation introduced, which was passed some time after our Mintz decision which expanded the meaning of "unprofessional conduct" for dentists. Or. Laws 1963, ch. 284, § 8. The bill contained no requirement that the Board promulgate rules defining "unprofessional conduct." At the same time the Dental Board also had legislation introduced, which also was passed, concerning dental hygenists. Dental hygenists are also regulated by the Dental Board. This legislation was considered by the same committees at the same time as the legislation relating to dentists. The dental hygenist legislation expressly required the Dental Board to adopt rules defining "unprofessional conduct." Or. Laws 1963, ch. 266. With this history, I am of the opinion that it is more reasonable to conclude that the legislature did not address the issue of whether the Dental Board must promulgate rules defining "unprofessional conduct." If the legislature did not intend that the Board of Dental Examiners be required to promulgate rules defining "unprofessional *288 conduct" what is the basis for a court making such a requirement? There is a growing body of authority that courts do have this power. Davis states the basis as follows: The Oregon Court of Appeals apparently followed this principle in Sun Ray Dairy v. OLCC, 16 Or. App. 63, 517 P.2d 289 (1973). In that case the agency denied the petitioner a liquor license. The statute provided that the agency may refuse to grant a license if it has reasonable grounds to believe there are "sufficient licensed premises in the locality" and the granting of a license is "not demanded by public interest or convenience." ORS 471.295(1). The court vacated the order of denial and directed the agency not to act on the application until it had adopted rules governing the issuance of licenses. I would adopt this common-law principle in deciding this case. Attempting to reach the same result by interpreting the statute in my opinion can result, as I think it has in this case, in a very strained interpretation of a statute. It is not always necessary for an administrative agency to fill in the gaps of its authority by rule making. The gaps can be filled in by deciding individual contested cases; that is, by the adjudicative process. This kind of rule making was expressly approved in Securities and Exchange Com. v. Chenery Corp., 332 U.S. 194, 200-205, 67 S. Ct. 1575, 1579-1582, 91 L. Ed. 1995, 2001-003 (1946). Schwartz summarized the Chenery opinion: In my opinion, for three reasons this is not a proper case for making a rule in the process of deciding a contested case. First, the potential sanction for a violation of the rule is severe, a loss of license to practice a profession. Second, the legislative standard, "unprofessional conduct," is particularly vague. Third, while the conduct on which the charge is based could, as the majority holds, properly be classified as "unprofessional conduct," it does not necessarily fall within a well understood meaning of "unprofessional conduct." TONGUE and PETERSON, JJ., join in this specially concurring opinion. [1] Because of this reconsideration, the Court of Appeals also reached and rejected petitioner's claims that the board's findings were not supported by substantial evidence and that revocation of petitioner's license was an unreasonable sanction. [2] Carden v. Johnson, 282 Or. 169, 174-177, 577 P.2d 513 (1978); Oregon Medical Association v. Rawls, 281 Or. 293, 300, 574 P.2d 1103 (1978), and cases there cited. [3] "The issue ... [is] whether the lawmaker's political responsibility for choosing at least the general direction of public policy among competing alternatives has been abdicated without guidance to administrative officials. It is an issue of the constitutional allocation of powers, not of procedural fairness to particular persons. While it must always be possible to determine what rules can fairly be said to carry out the policy of the delegating legislation under which they are made, such legislation is not unconstitutional merely because the terms of the legislative directive are general and vague." 284 Or. at 325, 587 P.2d at 65. This statement continued by indicating that broad delegation of policy making was least vulnerable when it was given "to an elected local government that itself had political accountability for lawmaking as well as administration." Cf. Warren v. Marion County, 222 Or. 307, 353 P.2d 257 (1960). [4] Or.Const. art. I, § 21: "No ex post facto law ... shall ever be passed,..." "A law that permits the judge and jury to punish or withhold punishment in their uncontrolled discretion is defective as much for its uncertainty of adjudication as for its failure to notify potential defendants of its scope and reach. "... A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule, against ex post facto laws. See Oregon Constitution, Art. I, § 21." 254 Or. at 27, 457 P.2d at 494. [5] The problems include such questions as whether the coverage of a statute must be discernible to one who reads it with general knowledge of its subject matter or may be supplied by a saving judicial construction, whether a concededly vague statute may validly be enforced against one whose conduct falls squarely within even the narrowest reading of the prohibition, and whether a defendant's specific intent to violate the law can replace his right to notice of the forbidden conduct. Many of the Supreme Court's decisions involve laws that arguably infringe first amendment rights. See LaFave and Scott, Criminal Law 89 (1972) and cases cited. Once these are set to one side as presenting a special problem, the Court's answers to the foregoing questions are none too clear. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); Boyce Motor Lines v. United States, 342 U.S. 337, 72 S. Ct. 329, 96 L. Ed. 367 (1952); Williams v. United States, 341 U.S. 97, 101-112, 71 S. Ct. 576, 95 L. Ed. 774 (1951); Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); Lanzetta v. New Jersey, supra; Smith v. Cahoon, 283 U.S. 553, 564-565, 51 S. Ct. 582, 75 L. Ed. 1264 (1931); Connally v. General Const. Co., 269 U.S. 385, 391-392, 46 S. Ct. 126, 70 L. Ed. 322 (1926); and see generally Todd, Vagueness Doctrine in the Federal Courts, 26 Stan.L.Rev. 855 (1974); Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960); Note, 26 Minn.L.Rev. 661 (1942). [6] U.S.Const. Amend. 14, § 1: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; . .." [7] The Note also quotes a respected judge's view: "As an abstract proposition, few would argue that these requirements [to have one's conduct governed by rules which are clearly formulated and publicly promulgated] are limited to the areas of criminal law and constitutional rights.... [I]magine a system under which a man's right to pursue his chosen occupation depends upon his ability to get approval from a board which gives no hint of when it will give such approval and when it will withhold it. Is it really open to question that such schemes would be unconstitutional? Regulatory systems which operate without rules are inherently irrational and arbitrary. The purpose of such a system is presumably to bring primary conduct into conformance with agreed upon societal norms. Yet a system operating without rules cannot possibly achieve this goal, since the people being regulated are not informed of what the societal norms are." 59 Va.L.Rev. at 1104-1105, quoting Wright, Book Review, 81 Yale L.J. 575, 589 (1972). But this was an extrajudicial view. [8] The Pennsylvania court claimed only to follow decisions of the United States Supreme Court under the fourteenth amendment, not the Pennsylvania Constitution, e.g., Pa.Const. art. I, § 9. [9] The statutory phrase was "efficiency of the service"; Civil Service Commission regulations added "criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government," and "any action ... which might result in, or create the appearance of ... [a]ffecting adversely the confidence of the public in the integrity of the Government." 5 U.S.C. § 7501(a), 5 CFR §§ 735.201a, 735.209, quoted 416 U.S. at 140-142, 94 S. Ct. at 1638. [10] ORS ch. 183 requires "contested case" procedures whenever "the individual legal rights, duties or privileges of specific parties are required by statute or Constitution to be determined only after an agency hearing at which such specific parties are entitled to appear and be heard". ORS 183.310(2)(a)(A). Irrespective of due process, subsection (2)(a)(C) requires these procedures in any proceeding for the "suspension, revocation or refusal to renew or issue a license ... where the licensee or applicant for a license demands such hearing". [11] Cf. also Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir.1968) (selection of applicants for limited number of housing units); White v. Roughton, 530 F.2d 750 (7th Cir.1976) (eligibility for public assistance). A greater readiness to insist on articulated criteria in the administrative distribution of such benefits than in imposing sanctions, there phrased as a requirement of "due process," in fact may express yet another constitutional concern a concern about possible favoritism and arbitrariness which in Oregon is expressed in 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." A similar concern in the context of a license denial was expressed in Hornsby v. Allen, 326 F.2d 605, 610 (5th Cir.1964). [12] Many statutes provide that occupational associations may recommend persons to the governor for appointment to an occupational licensing board, but since the governor remains free to make other appointments and therefore politically responsible for them, the statutes escape the charge of delegating governmental power to the occupational groups. See, e.g., ORS 675.310 (Occupational Therapy Licensing Board); ORS 677.235(1) (Board of Medical Examiners); ORS 678.800 (Board of Examiners of Nursing Home Administrators); ORS 679.230 (Board of Dental Examiners); ORS 682.150 (Board of Podiatry Examiners); ORS 686.210(1) (Veterinary Medical Examining Board); ORS 688.160 (Physical Therapist Licensing Board); ORS 689.540 (Board of Pharmacy). The exceptions are nurses, ORS 678.140, and audiologists, ORS 681.400. [13] ORS 679.140(4): "In determining what constitutes `gross ignorance, incompetence or inefficiency in his profession' within the meaning of paragraph (c) of subsection (1) of this section, the board may take into account all relevant factors and practices, including but not limited to the practices generally and currently followed and accepted by persons licensed to practice dentistry in this state, the current teachings at accredited dental schools, relevant technical reports published in recognized dental journals and the desirability of reasonable experimentation in the furtherance of the dental arts." [14] The executive secretary of the Board of Dental Examiners, testifying for the board in support of the 1963 amendments, said with respect to the present issue only that the proposal "clarifies the acts for which a dentist may have a license suspended or revoked, and expands the same in several minor areas." A purpose to "clarify" the standard of "unprofessional conduct" does not suggest an intention to open the standard to ad hoc application without prior rulemaking. See also Campbell v. Henderson, 241 Or. 75, 403 P.2d 902 (1965), for a discussion of this statutory change and of the distinction between rules interpreting the old text and rules adding new specifications. In Campbell the court declined to declare whether the disputed rules were valid because the statute had subsequently been amended. [15] At the time of the hearing, ORS 679.140 provided: "(1) The board may discipline as provided in this section any person licensed to practice dentistry in this state for any of the following causes: "(a) Conviction of any offense for which the court could impose a punishment of imprisonment in a state or federal penal institution if the board makes the finding required by ORS 670.280. The record of conviction or a certified copy thereof, certified by the clerk of the court or by the judge in whose court the conviction is entered, is conclusive evidence of the conviction. "(b) Renting or loaning to any person his license or diploma to be used as a license or diploma of such person. "(c) Unprofessional conduct, or for gross ignorance, incompetence or inefficiency in his profession. "(d) Any violation of ORS 679.170 or 679.176. "(2) Unprofessional conduct as used in this chapter includes but is not limited to the following: "(a) Employing what are known as `cappers' or `steerers' to obtain business. "(b) Obtaining any fee by fraud or misrepresentation. "(c) Wilfully betraying confidences involved in the patient-dentist relationship. "(d) Employing, aiding, abetting or permitting any unlicensed personnel to practice dentistry. "(e) Making use of any advertising statements of a character tending to deceive or mislead the public, or which are untruthful. "(f) Advertising professional superiority or the performance of professional services in a superior manner. "(g) Advertising prices for professional services, unless in accord with rules developed by the board. "(h) Advertising by means of large display, glaring light signs, or advertising containing as a part thereof the representation of a tooth, teeth, bridgework or any portion of the human head. "(i) Employing or making use of advertising solicitors or publicity press agents. "(j) Advertising any free dental work or free examination. "(k) Advertising to guarantee any dental service, or to perform any dental operation painlessly. "(L) Advertising which makes reference to any anesthetic, drug, formula, material, medicine, method or system to be used in treatment. "(m) Advertising extractions, artificial teeth or dentures. "(n) Habitual or excessive use of intoxicants or a controlled substance as defined under ORS 161.705, 167.203 to 167.247, 181.010, 430.325, 430.405, 471.665, 475.005 to 475.285, 475.992 to 475.995, 483.710, 680.100, 689.290, 689.410, 689.620 and this section. "(o) Obtaining or attempting to obtain a narcotic drug or a dangerous drug, as previously defined in this section, in any manner proscribed by the rules of the board. "(p) Prescribing or dispensing drugs outside the scope of the practice of dentistry. "(q) Using, in any advertisement, a portrait cut, photograph or reproduced likeness which is more than five years old of the dentist so advertising. "(3) The proceedings under this section and ORS 679.150 may be taken by the board from the matters within its knowledge, or may be taken upon the information of another, but if the informant is a member of the board, the other members of the board shall constitute the board for the purpose of finding judgment of the accused." ORS 679.170, referred to in ORS 679.140(1)(d), prohibits various fraudulent uses of false names or academic records. ORS 679.176 requires written work orders for technical work. ORS 679.140 was revised in 1979, OL 1979, ch. 142, § 1; ch. 744, §§ 53, 53(a). [16] A sentence added as part of the 1963 amendments, which directs the board in adopting rules to consider "the practices generally and currently followed and accepted" by practitioners as well as certain other sources, might make it appear as if these rules were thought primarily to concern techniques of dentistry. But we do not think this addition was meant to narrow the prior scope of the board's rulemaking authority to these subjects. [17] The pertinent text of ORS 673.170 provides: "The board may revoke or suspend any certificate issued under ORS 673.040 to 673.080, or any registration or license granted under ORS 58.345 or 673.090 to 673.140 or section 16 or 20, chapter 381, Oregon Laws 1951, or may revoke, suspend or refuse to renew any permit issued under ORS 673.150, or may censure the holder of any such permit, for any one or any combination of the following causes: ..... "(4) Violation of any provision of the Code of Professional Conduct adopted by the board under the authority granted by ORS 673.010 to 673.480 after written warning by the board that such a violation would constitute grounds for proceedings under this section." Interestingly, no such authority as there mentioned appears elsewhere in ORS 673.010-673.480. [18] See ORS 671.670 (landscape contractors); ORS 678.820 (nursing home administrators); ORS 682.160 (podiatrists); ORS 684.155(1)(b) (chiropractors); ORS 689.620(2) (pharmacists); ORS 698.730(1) (auctioneers). Still other statutes do not refer to rulemaking authority or to disciplinary action for rule violations. [19] As Justice Frankfurter once put it in deciding whether Congress intended a governmental corporation to be immune from suit: "The Congressional will must be divined, and by a process of interpretation which, in effect, is the ascertainment of policy immanent not merely in the single statute from which flow the rights and responsibilities of Regional, but in a series of statutes utilizing corporations for governmental purposes and drawing significance from dominant contemporaneous opinion regarding the immunity of governmental agencies from suit. "... In spawning these corporations during the past two decades, Congress has uniformly included amenability to law... Such a firm practice is partly an indication of the present climate of opinion which has brought governmental immunity from suit into disfavor, partly it reveals a definite attitude on the part of Congress which should be given hospitable scope.... ..... "To give Regional an immunity denied to more than two score corporations, each designed for a purpose of government not relevantly different from that which occasioned the creation of Regional, is to impute to Congress a desire for incoherence in a body of affiliated enactments and for drastic legal differentiation where policy justifies none...." Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 389-391, 394, 59 S. Ct. 516, 518-519, 520, 83 L. Ed. 784 (1939). [20] Thus we do not in this case need to reexamine the actual holdings of Mintz and Ward, supra, that an offer or an attempt to perform expressly proscribed unprofessional acts or to assist another in doing so could be treated as an inchoate violation of the statute. [21] E.g., ORS 679.140(2)(g), (h), (L), (m), supra note 15. The limitation on nondeceptive advertising may or may not protect a legitimate interest of the profession, but it can be claimed to be protective of patients only in this indirect sense of reducing the pressures of competition on the professional practice. [22] ORS 679.140(2)(o) proscribed: "Obtaining or attempting to obtain a narcotic drug or a dangerous drug, as previously defined in this section, in any manner proscribed by the rules of the board." [23] Although rulemaking to promulgate a substantive standard is a procedure, an order under a standard never promulgated would be unlawful for lack of a substantive predicate, not for error in the revocation procedure. [24] We do not here refer to a petition for review of a rule as such, which ORS 183.400 somewhat cryptically directs to be determined "upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases." Nor do we refer to standards that may properly be adopted at the outset or in the course of a contested case under a statute that does not require prior rulemaking. Cf. Marbet v. Portland Gen. Elect., supra. [25] This provision of ORS 183.482(8)(b)(B), supra, which is new to Oregon law, appears to contemplate that in the absence of rules agencies will articulate their position in making orders or at least in keeping records of their practices, so as to make review under this subsection possible. In a decision interpreting the predecessor of this provision in the Florida Administrative Procedure Act, F.S.A. § 120.68(12)(b), as well as other provisions not present in Oregon's APA, a Florida District Court of Appeal has stated: "By requiring agency explanation of any deviation from `an agency rule, an officially stated policy, or a prior agency practice,' Section 120.68(12)(b) recognizes there may be `officially stated agency policy' otherwise than in `an agency rule'; and, since all agency action tends under the APA to become either a rule or an order, such other `officially stated agency policy' is necessarily recorded in agency orders. All such rules and orders, catalogued by a subject-matter index, must be made available for inspection and copying by the public in an ever-expanding library of precedents to which the agency must adhere or explain its deviation. Sections 120.53(2), 120.68(12)(b). . . . . . "Section 120.57 proceedings, in which the agency's nonrule policy is fair game for a party's challenge both in the public and in his private interest, concludes by a final agency order which explicates `policy within the agency's exercise of delegated discretion,' explains any deviation from `an agency rule, an officially stated policy, or a prior agency practice,' and, in a `licensing' proceeding such as this one, `state[s] with particularity the grounds or basis for the issuance or denial' of the license. Sections 120.57(1)(b)9, 120.57(2)(a) 1 and 2, 120.60(2), 120.68. "Judicial review proceedings under Section 120.68 similarly press for crystalization of agency discretion.... . . . . . "Failure by the agency to expose and elucidate its reasons for discretionary action will, on judicial review, result in the relief authorized by Section 120.68(13): an order requiring or setting aside agency action, remanding the case for further proceedings or deciding the case, otherwise redressing the effects of official action wrongfully taken or withheld, or providing interlocutory relief." McDonald v. Dept. of Banking and Finance, 346 So. 2d 569, 582-584 (Fla.App., 1977). [26] ORS 183.486: "(1) The reviewing court's decision under ORS 183.482 or 183.484 may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is appropriate irrespective of the original form of the petition. The court may: "(a) Order agency action required by law, order agency exercise of discretion when required by law, set aside agency action, remand the case for further agency proceedings or decide the rights, privileges, obligations, requirements or procedures at issue between the parties; and "(b) Order such ancillary relief as the court finds necessary to redress the effects of official action wrongfully taken or withheld. "(2) If the court sets aside agency action or remands the case to the agency for further proceedings, it may make such interlocutory order as the court finds necessary to preserve the interests of any party and the public pending further proceedings or agency action. "(3) Unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or ancillary relief under a specified provision of this section, it shall affirm the agency action."

0e16d5cc20ddcc4ee5acf7801ba96f78db2231ff4d105e1b8318d7b44d81f2c6

1980-01-08T00:00:00Z

405e8606-3204-4447-aa76-0b7b3c8bbe6b

Application of Haynes

290 Or. 75, 619 P.2d 632

oregon

Oregon Supreme Court

619 P.2d 632 (1980) 290 Or. 75 In the Matter of the Application of Lionetti Anita HAYNES for a Writ of Habeas Corpus. Lionetti Anita Haynes, Plaintiff, v. David N. Burks, Sheriff of Lane County, Oregon, Defendant. TC 78-1763; SC 27083. Supreme Court of Oregon, In Banc.[*] Argued and Submitted June 25, 1980. Decided November 4, 1980. *635 Douglas L. Melevin, Eugene, argued the cause and filed a brief for plaintiff. Brian R. Barnes, Deputy Dist. Atty., Eugene, argued the cause for defendant. With him on the brief was J. Pat Horton, Dist. Atty. for Lane County. LINDE, Justice. Plaintiff was arrested on March 13, 1978 and indicted on March 16, 1978, on a charge of murder. For the two and one-half years since her arrest she has been held in the Lane County jail awaiting trial. Her motions to be released on appropriate security were denied on October 6, 1978 and August 30, 1979, and a motion to dismiss or alternatively to set security was denied on February 21, 1980. In the present habeas corpus proceeding, plaintiff asks to be released from imprisonment on two grounds, claiming first that the denial of a security release contravened the governing law, and second, that she has been denied a speedy trial and is entitled to have the charge against her dismissed.[1] The two issues are related as set out below. Security release. The detention of a defendant pending trial is governed by ORS 135.230 to ORS 135.295 and ORS 135.750, within the limits imposed by article I, section 14 of the constitution. A charge of murder is an exception to the general rule that all defendants "shall be released" upon personal recognizance, conditional release, or deposit of security. See Knutson v. Cupp, 287 Or. 489, 601 P.2d 129 (1979). ORS 135.240 provides: The exception in subsection (2) essentially restates the constitutional rule.[2] Shortly before the statutory revision of release procedures in 1973, this court examined the question of denying bail upon "evident proof" or "strong presumption" of murder. State ex rel. Connall v. Roth, 258 *636 Or. 428, 482 P.2d 740 (1971). There defendants charged with murder were admitted to bail when the prosecutor had relied only on the indictment as the basis to deny bail. The prosecutor sought mandamus to set aside the circuit court's orders, but this court dismissed the writ. The fact that a grand jury, in closed proceedings, had been presented sufficient evidence to find probable cause for an indictment was held not to show the level of proof or presumption required to deny bail. Rather, the state's burden is to persuade the magistrate by other competent evidence that the proof or presumption of guilt is evident or strong. 258 Or. at 433, 435, 482 P.2d 740. The responsibility for evaluating the strength of the state's evidence rests on the court hearing the motion for release. 258 Or. at 435, 482 P.2d 740.[3] In the course of stating this holding, the Connall court quoted from a New Jersey opinion the phrase that the evidence must show "a fair likelihood" that defendant would be convicted of murder. The quoted phrase illustrates the risk of the common temptation to explain one set of adjectives by a different one. The words "strong" and "evident" may be said to demand more than "a fair likelihood." So the revisers of the release statutes concluded. The original draft of ORS 135.240 proposed to include the Connall phrase "when circumstances indicate a fair likelihood of conviction," but this was deleted as inconsistent with the constitutional test. See Snouffer, An Article of Faith Abolishes Bail in Oregon, 53 Or.L.Rev. 273, 281-282 (1974) and sources cited in note 69. The likelihood of guilt must be more than "fair," it must be "strong," before release can be denied under ORS 135.240(2). It must, of course, be guilt specifically of murder, not merely of some degree of culpable homicide. While for this purpose guilt need not be shown "beyond a reasonable doubt," as it must for conviction, the evidence should at least be clear and convincing. See Thaler, Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial, 1978 Wisc.L. Rev. 441. Trial delay. Three different sources place legal limits on the lapse of time before a defendant must be tried. Their relationship among themselves and with the law governing pretrial detention is complex. The criminal code commands expeditious prosecution. Once a suspect is held to answer for a crime, an indictment or information must be filed within 30 days or risk dismissal of the prosecution for delay. ORS 135.745. Once charged, a defendant "whose trial has not been postponed upon his application or by his consent" must be tried "within a reasonable period of time" or the court must dismiss the accusatory instrument. ORS 135.747. If sufficient reasons are shown for a failure of timely action under the preceding provisions, then the court may order a continuance and release the defendant from custody "as provided in ORS 135.230 to 135.290." ORS 135.750. In many cases application of these rules will satisfy constitutional requirements and obviate any constitutional issue. However, the statutes allow a new prosecution if the charge dismissed for delay was a felony or Class A misdemeanor. ORS 135.753(2).[4] And the release during continuance prescribed by ORS 135.750 is not available to a murder defendant when the facts meet the statutory and constitutional standard stated above. He or she will be released only *637 when an unreasonable delay leads to an order of dismissal. The constitutional standards governing trial delay are found in article I, section 10, of Oregon's Constitution and in the "speedy trial" guarantee of the federal sixth amendment, part of the due process required of states under the fourteenth amendment.[5] In some respects these provisions are not identical. The Oregon Constitution commands that "justice shall be administered ... without delay" in all proceedings, not only in criminal prosecutions. See Hooton v. Jarman Chevrolet Co., 135 Or. 269, 293 P. 604, 296 P. 36 (1931). Also, unlike the sixth amendment, article I, section 10, states not a "right" of the accused but a mandatory directive not within the disposal of the parties, a difference that can bear on the enforcement of the constitutional command. State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980).[6] "Contrary to the rule in most of the jurisdictions of the country, this court has consistently held that it is not incumbent upon the accused to demand a trial or take affirmative action to enforce his right to a speedy trial." State v. Vawter, 236 Or. 85, 87, 386 P.2d 915 (1963). But the conditions of an unconstitutional "delay" in a criminal prosecution do not differ materially from the denial of a "speedy trial" under the sixth amendment. State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977). As stated in Ivory, a decision under either standard involves consideration of a number of circumstances or "factors" which have been identified in past decisions of this court and of the United States Supreme Court under the sixth amendment. As brought together in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), for purposes of that amendment, they include the length of the delay, the reason for the delay, the prejudicial consequences of the delay, and the evidence of concern about these consequences shown by defendant's assertion of a demand for trial. 407 U.S. at 530-532, 92 S. Ct. at 2191-92, 33 L. Ed. 2d 101. There these elements or "factors" of decision are stated in the current formula of "balancing," but the metaphor should not be taken too literally. We know no scales that provide a common denominator for the "weight" of an extra month's pretrial imprisonment and the "weight" of prosecution neglect, or good faith necessity, or deliberate delay. The point of the formula is that all relevant criteria be examined and none overlooked or ignored. State v. Ivory, 278 Or. at 505, 564 P.2d 1039. The proper disposition in the individual case is not a question of addition and subtraction but of examining the relevance of each element in giving effect to the constitutional guarantee. It is apparent that different factors are important to the substance of the constitutional command and to the remedy of dismissal. As already stated, article I, section 10, addresses the administration of justice and protects interests of the public as well as the rights of defendants. Thus, whether there has been compliance with the constitutional injunction against "delay" does not itself depend on prejudice to the defendant. Nor does it depend on defendant's demand for a trial. State v. Vawter, supra. Compliance as such depends on the length of the delay and the reasons for it. Some cases involve longer periods of preparation and pretrial procedures than others. Even with such reasons, no doubt the passage of time alone can eventually lengthen to unconstitutional dimensions. See State *638 v. Ivory, 278 Or. at 506, 564 P.2d 1039. But short of this, a failure to bring a defendant to trial is a "delay" of justice when it has no reason other than neglect, procrastination, or deliberate choice. The urgency of a speedy trial becomes greater when the accused is jailed while awaiting trial. Both constitution and code recognize pretrial imprisonment itself, sometimes necessary, to be a heavy burden on one not convicted of crime, apart from its possible consequences for the accused's job, or family and community relationships, or her physical or psychological health. ORS 135.230 to ORS 135:290, Or.Const. art. I, § 14 supra. See Thaler, supra, 1978 Wisc. L.Rev. at 450-459, and sources cited therein. Thus pretrial imprisonment bears on the length of the "reasonable time" to bring the accused to trial, ORS 135.747, or the constitutionally impermissible "delay," article I, section 10, even apart from a prejudicial impact on the accused's defense. Similarly, a significant possibility that delay will impair the defense[7] increases the urgency of speedy trial even when the accused is not in custody. Obviously, that urgency is at its highest when both pretrial imprisonment and possible impairment of the defense coincide. Remedies. This case differs from the usual appeal claiming a denial of a speedy trial because it comes to us before trial. This requires a more differentiated consideration of the element of prejudice than is true in the decision of such appeals. For on appeal from a conviction, the question of prejudice resulting from the delay can be examined retrospectively, though perhaps not with absolute certainty, and when a conviction is set aside for that reason, the reason by hypothesis precludes a later retrial. Thus a reasonable possibility that the delay will impair the defense is the proper prospective test for deciding that a case must proceed to trial, while a retrospective claim that a conviction must be reversed for delay reasonably calls for showing a more concrete likelihood that the delay was prejudicial to the defense. In a federal appeal under the sixth amendment, the United States Supreme Court has stated that "dismissal must remain, as Barker noted, `the only possible remedy.'" Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2263, 37 L. Ed. 2d 56 (1973). This is true when one element rendering the delay unconstitutional is prejudice to the accused's ability to defend himself, and perhaps also when dismissal is invoked against purposeful delay by the government even when no actual prejudice is shown. State v. Ivory, 278 Or. at 506, 564 P.2d 1039. The quoted statement in Strunk has been criticized as overly broad. Amsterdam, Speedy Criminal Trials: Rights and Remedies, 27 Stan.L.Rev. 525 (1975).[8] Short of the kind of prejudice, extreme *639 delay, or purposeful prosecution obstruction for which the Supreme Court would require dismissal, there is no reason why pretrial remedies should not include mandatory orders, as in State ex rel. Oregonian Pub. Co. v. Deiz, supra, or release under ORS 135.750, if continued custody is the element that renders further delay unconstitutional, or dismissal without prejudice, as provided in ORS 135.745 and 135.747. In sum, Oregon law requires trial "without delay" and provides for the dismissal of the accusatory instrument if a defendant, without his application or consent, is not brought to trial "within a reasonable period of time." Upon sufficient reasons, the court may substitute a continuance and release from custody. These standards and remedies apply in advance of a constitutional issue. If they did not apply to a delay short of a constitutional violation requiring final dismissal, the statutory provisions for a dismissal subject to renewal of the prosecution would be meaningless. However, prolonged pretrial imprisonment, which can result from denial of release in a murder case when the proof is strong, shortens the constitutionally permissible measure of delay. And insofar as the statutory dismissal of charges does not bar renewed charges in the case of serious crimes, it may not be an adequate remedy when the delay reaches unconstitutional dimensions. The denial of release. Plaintiff's claims for release for denial of a speedy trial and for lack of an evidentiary basis that would preclude a security release are related insofar as her continued detention bears on the "reasonable time" to bring her to trial. We deal with them separately. Plaintiff first contends that she was and is entitled to be released on appropriate security because the proof of her guilt is not so strong as to preclude this. The circuit court's order denying plaintiff's release relied on evidence that the same judge had previously heard in an omnibus hearing under ORS 135.037, and the parties have made the transcript of these several hearings part of the record on habeas corpus. As stated above, primary responsibility for evaluating the strength of the state's evidence rests on the court hearing the motion for release, and this conclusion must reflect the correct standards both as to the command of that section and as to the evidence to be considered. Plaintiff claims that the circuit court's original order in October, 1978, applied the wrong standard when it refused to set security on a finding "that the circumstances presented at the omnibus hearing indicate that the defendant is in danger of being convicted of murder." The state concedes that this finding contains "unfortunate language," but it contends that the court later corrected the error. The difference between the Connall phrase and the statutory and constitutional test, discussed above, was brought to the circuit court's attention when plaintiff renewed her motion to set security in July, 1979. In ruling on this motion on August 27, 1979, the court agreed that the statute requires more than a likelihood of conviction to preclude pretrial release and went on to state that "more than just a fair likelihood" had been shown. This was stated in terms of a probable jury verdict rather than the court's independent assessment of the strength of the evidence that the statute calls for. However, this discrepancy is not decisive on this phase of the case. The case is not before us on appeal from the circuit court, and the question is not one of error as such. Nor has plaintiff sought a writ of mandamus, as in State ex rel. Ricco v. Biggs, 198 Or. 413, 255 P.2d 1055 (1953).[9] On a writ of habeas corpus, *640 when the prisoner is held under an order of the court, the question is whether it appears from the order itself or from undisputed facts that her imprisonment was unlawful or in the course of events has become so. ORS 34.610 (in this case, subsection (2));[10]Owens v. Duryee, 285 Or. 75, 589 P.2d 1115 (1979). That is not the case here. Although there may be some doubt of the circuit court's legal premises, as stated above and as will be mentioned later, this does not appear from the order itself. As to the strength of the evidence of plaintiff's guilt, the facts are not undisputed. From our own examination of the stipulated record, we cannot say that a judge could not reasonably consider the evidence of plaintiff's guilt to be strong. Accordingly, plaintiff is not entitled to release under the writ of habeas corpus on this issue. The speedy trial claim. As stated in Part I, we examine, first, whether there has been unreasonable delay, and if so, whether by virtue or prejudice to the defense or deliberate obstruction by the state the remedy must be a final dismissal of the prosecution. Ultimately the answer depends in part on whether it is certain that plaintiff cannot be released. That answer cannot be given with finality on the present record. Plaintiff has been jailed continuously for two and one-half years while awaiting trial. That is on its face an extraordinary length of time to wait for a "speedy trial," unless, of course, plaintiff herself is responsible for much of the delay. This is an issue because a significant part of the time has been occupied with an appeal taken by the state from the suppression of certain evidence ordered at the omnibus hearing. The pertinent dates are the following: Plaintiff was arrested on March 13, 1978, and indicted on March 16, 1978. On the same day, she filed a motion for an omnibus hearing pursuant to ORS 135.037, demanding the suppression of allegedly inadmissible evidence against her. The hearing was held on June 22 to June 29, 1978, and continued on defendant's motion until September 7, 1978. Meanwhile, two trial dates had been set in July, 1978, and postponed for a mental examination of the accused. On September 11, 1978, the circuit court ordered the suppression of some of the state's evidence, in particular, videotapes of a reenactment of the crime by the other two defendants "and evidence directly related to the showing of the videotapes."[11] On September 14, the state filed notice of appeal of the suppression order under ORS 138.060. While an accused has no direct appeal from an adverse order, ORS 138.060 provides for a cross appeal when the state appeals, and plaintiff filed such a cross-appeal on October 11, 1978. The Court of Appeals decided the appeal nine months later, on July 30, 1979. Its conclusion was that because of "critical inadequacies and ambiguities" in the circuit court's order, the court could not "review *641 the critical portions of the order because we cannot understand them." State v. Haynes, 41 Or. App. 321, 328-329, 597 P.2d 1297 (1979). It therefore remanded those parts of the order to the circuit court for clarification, affirming the rest. Plaintiff petitioned this court for review of that decision, which was denied on October 16, 1979. On November 26, 1979, the circuit court amended its previous order of suppression but again suppressed the videotapes and evidence relating thereto. The state again appealed this order on December 21, 1979, with a cross-appeal by the accused filed on January 18, 1980. This appeal was argued in the Court of Appeals on June 23, 1980, and has not been decided. Meanwhile, on February 15, 1980, the circuit court held another hearing on plaintiff's motion to dismiss the prosecution or in the alternative to release her. It denied the motion on February 21, 1980. It is apparent from this sequence of events that the first six months, until September 14, 1978, were occupied primarily with proceedings on defense motions, including the omnibus hearing. For the two years since that date the trial of the charge against plaintiff has awaited the disposition of the state's appeal from the circuit court's suppression order. If apart from the appeal there might have been other reasons for delay, the record does not show them. The state does not squarely claim in this court that plaintiff has herself to blame for this delay because she triggered the proceeding by her motion to suppress, and we decline such a holding.[12] Rather, the state asserts that plaintiff lengthened the delay on appeal by the time consumed for her notices of cross appeal, by obtaining extensions of time to file briefs, and by petitioning this court to review the July, 1979 decision of the Court of Appeals. Assuming for purposes of the argument that plaintiff thus is responsible for about 151 days of the appeal period, this still leaves an elapsed time of approximately 19 months since the conclusion of the omnibus hearing that cannot be laid to any request of plaintiff, and seven months since she moved for release or dismissal specifically on grounds of delay. From the principles discussed previously, it follows that if the accused continues in custody, any further postponement of her trial will no longer be "trial within a reasonable period of time" in the sense of ORS 135.747. That statute requires dismissal of the accusatory instrument without prejudice to a renewed prosecution, ORS 135.753(2), if the accused cannot be either tried or released on security. And any decision on pretrial release, in turn, depends on the circuit court's assessment of the strength of the evidence that she is guilty of murder. As discussed in the preceding section, the circuit court denied plaintiff's request for security release in the belief that this was precluded by ORS 135.240(2). We there explained that the writ of habeas corpus would not be used to look to the reasons behind the court's order as long as the undisputed facts did not show the order to be contrary to law. But this does not preclude the circuit court itself from reexamining that order upon a further consideration of the applicable standards. *642 The stipulated record shows that the court correctly assumed that something less than a trial of the prosecution's entire case was called for. As stated in Connall, "[t]he bail hearing is not for a determination of guilt or innocence, but rather a determination of the preliminary issue of the right to bail." 258 Or. at 435, 482 P.2d 740. Nevertheless, the evidence adduced at the hearing as precluding pretrial release must be sufficient to support a finding that the "proof" is "evident" or gives rise to a "strong" presumption of guilt.[13] But it is not certain that the court made such a finding entirely on the evidence before it at the hearing. Rather, the judge stated: A prosecutor's assertions about evidence that he "feels" he "may be able to introduce" are not "proof." The magistrate must be shown information at the hearing from which he can make his own independent determination whether there is admissible evidence against an accused that adds up to strong or evident proof of guilt. The same applies to the court's further statement that it took into account the conviction of another defendant, which had been reversed, and the guilty plea of a third. Without an explanation how another person's conviction of a crime could be used against a defendant charged with the same crime, this fact can hardly be part of the "proof" that precludes pretrial release. To repeat, the question is not one of appellate review for error. Rather it is whether this court can assume that the circuit court has reached an independent judgment that evidence which will be admissible at trial, unless met or explained, so strongly shows the accused guilty of murder that the law forbids her pretrial release on adequate security conditions. In view of what we have said, we are confident that the circuit court would make that judgment upon this proper standard and evidence if a motion for security release were to be renewed. As previously noted, plaintiff's continued detention bears on whether she is being brought to trial within a "reasonable period of time" under ORS 135.747. However, we do not now decide that plaintiff is entitled to a final dismissal of the charge against her for lack of speedy trial. As stated above, short of an extreme and wholly unjustified passage of time, that remedy is required when there has been purposeful prosecution delay or probable prejudice to the defense. There is no question of bad faith on the part of the prosecution, but plaintiff has raised the issue that the delay has adversely affected her defense. What evidence we have on that issue appears in the record of February, 1980, hearing. It relates partly to the asserted loss of defense witnesses and partly to the condition of the accused herself. An investigator for the defense testified, without elaboration, that plaintiff's mother, who suffered from terminal cancer, could testify to matters material to the defense. Plaintiff asserts, without contradiction, that her mother has since died. The investigator also testified that other witnesses whom he had previously located had moved and might be difficult to find. Plaintiff herself testified that her lengthy imprisonment had caused her to become depressed with worry about her children and other emotional difficulties and to lose interest in cooperating *643 in her defense, at one point wishing to discharge her attorney. There was supporting testimony from the investigator and from a psychiatrist employed by the county corrections division, who treated plaintiff for anxiety and depression. While this evidence reinforces plaintiff's case for a speedy trial, it does not establish that a fair trial is now no longer possible so as to entitle plaintiff to dismissal of the prosecution upon the present writ. The hearing was held more than seven months ago, and additional or different evidence concerning the potential effect of the delay on plaintiff's defense may have developed. Like the strength of the evidence of guilt to which we have referred previously, this also is the kind of evidence that can best be evaluated by a trial court in the first instance. Plaintiff's claim can be renewed and, if necessary, preserved on appeal. If the delay is found before or at trial to have created a reasonable possibility of prejudice to plaintiff's defense, it is the court's responsibility to dismiss the case. Cf. State v. Jenkins, 29 Or. App. 751, 565 P.2d 758 (1977), applying the rule of State v. Ivory, supra, 29 Or. App. at 760, 564 P.2d 1039. If the accused is neither released nor tried as soon as practical, her petition for a writ of habeas corpus can be renewed. Meanwhile, plaintiff is remanded to the custody of defendant. Plaintiff remanded. TONGUE, J., concurs. TANZER, J., specially concurs with opinion, joined by TONGUE, J. TONGUE, Justice, concurring. I agree with the result reached by the majority and do not necessarily disagree with what the majority seeks to accomplish by its opinion. I do not, however, agree with some of the statements made by the majority in its opinion or with some of its reasoning. I also do not understand some of its reasoning. On the contrary, I find myself more in agreement with the reasoning of the concurring opinion by Tanzer, J. Because of the need that this case, as a petition for writ of habeas corpus, should be decided without further delay, I do not belabor these differences. I am disturbed, however, with the statement by the majority that "* * * If the accused continues in custody, any further postponement of her trial will no longer be `trial within a reasonable time' in the sense of ORS 135.747," so as to require dismissal of this indictment without prejudice. The majority, by its opinion, is critical of the fact that there has been "a time of approximately 19 months since the conclusion of the omnibus hearing that cannot be laid to any request of plaintiff * * *." Unfortunately, the courts, including this court, can hardly disclaim responsibility for much of this delay. This case was argued and submitted to this court for decision on June 25, 1980. Historically, petitions for writs of habeas corpus have demanded not only preferential, but accelerated decision by the courts and should be decided within days, not months, although the issuance of an opinion explaining the reasons for such action may follow later. Yet it has taken the majority more than four months to make a decision denying this petition, despite the fact that members of this court are in agreement that the petition should be denied, and disagree only upon the reasons for doing so. The potential problems resulting from the possible dismissal of the indictment without prejudice unless the accused is released from custody are compounded by the fact that an appeal is now pending before the Court of Appeals involving the allowance by the trial court of defendant's motion to suppress evidence. Aside from the question whether, pending that appeal, the trial court has jurisdiction to do anything, is the fact that upon such a dismissal that appeal would become moot and the issues raised in that appeal would be unresolved and would remain to be resolved in the event that the accused is again indicted for this murder. In such an event, it can be expected that the accused would again make the same motion to suppress; that the trial court would again allow that motion *644 and that the trial of this case would then be again postponed by another appeal by the state. If this self-admitted participant in such a brutal killing is not brought to trial and is eventually turned free for failure to be given a "speedy trial," this court must bear a heavy share of the responsibility. TANZER, Justice, specially concurring. The majority opinion addresses the pretrial release and speedy trial contentions separately and so shall I. The problem with the majority discussion of the pretrial release issue is not that the portion of it necessary to the decision is wrong, but that the opinion says more than it ought. I cannot join in the extraneous discussion and I write separately to point out some of the difficulties inherent in it. The issue presented on a petition for habeas corpus is the legality of the present custody of the plaintiff. Owens v. Duryee, 285 Or. 75, 79, 589 P.2d 1115 (1979). ORS 34.310 provides: The writ presents no issue of what must be done in the future to assure that presently lawful custody remain lawful. The court is empowered only to deal with the situation before it. Under ORS 34.590, the only decision for the court is whether to discharge the plaintiff: Because the plaintiff is in custody by virtue of a judicial order, then he may be released only if one of several statutory conditions exist. None of those conditions refer to the future. They are set out in ORS 34.610: The majority opinion states correctly that ORS 135.240 and Or.Const., Art. I, § 14, require that one accused of murder may only be denied pretrial release if "the proof is evident" or "the presumption strong" that the person is guilty of the crime. The majority opinion then examines the order of August 3, 1979, denying pretrial release. That order concluded that there was "more than a fair likelihood" that defendant would be convicted. The majority apparently concludes that the order is legally sufficient on its face and is supported by the evidence. It is arguable that the order misstates the legal standard, but in light of the context of the proceeding and the order, I concur in the majority's conclusion that the order was lawful. Under ORS 34.610, that conclusion is dispositive and any further discussion is superfluous. It is at this point that the majority opinion goes seriously astray. The majority *645 then does two contradictory things. First, it concludes that the order is regular on its face, that there is sufficient evidence to support the order and that plaintiff is not entitled to release.[1] Then it says that it is not certain that the court applied the proper legal standard of proof because of an oral comment of the court (at page 642), and will not assume that it applied the correct standard. (At page 642). It is fundamental that a written order of the court controls. Where there is a discrepancy between an oral statement of the trial court and its written order, we review the written order. This is because a judge may speak casually when discussing the case or giving guidance to the lawyers as to what his findings or conclusions may be, or, as we observed in State v. Swain/Goldsmith, 267 Or. 527, 517 P.2d 684 (1974), the court may change its mind in the interim. The judicial act subject to our review is the written order signed by the court. As we said in State v. Swain/Goldsmith: The majority upholds the written order. It erroneously bases its conclusion upon what the court said orally. The court said orally that it considered the proof the district attorney's office "feels" they may be able to offer, and the majority holds that what the prosecutor "feels" does not meet the evidentiary standard necessary in a pretrial release hearing. It is obvious that the trial court was referring to the very evidence which the majority holds was properly before it and was sufficient to support the order. Under these circumstances, I cannot join in a conclusion that invalidates an order on the basis of a casual oral statement by the trial judge which is superseded by an order. The most unacceptable portion of this part of the majority opinion, however, is that it is pure dicta. The majority holds that we would not on habeas corpus "look to the reasons behind the court's order as long as the undisputed facts did not show the order to be contrary to law," but then goes on to discuss the trial court's oral statement because, it states, the existence of a lawful order "does not preclude the circuit court itself from reexamining that order upon a further consideration of the applicable standards." It is extraordinary that an appellate court would endeavor to pronounce law to be applicable in the unlikely event that a trial court might spontaneously reexamine its own lawful order. In summary, I concur in the standard for pretrial release stated by the majority and in the majority conclusion that the written order was sufficient. I cannot concur in the additional discussion and holdings. The difficulty with the majority resolution of the speedy trial issue also is not that it errs in its analysis of the issue presented, but that it discusses issues not presented. I cannot join in the extraneous discussion of this issue because this case does not give the opportunity to understand fully its implications. For that reason, dicta should be avoided. The majority commences by observing that the law of speedy trial has statutory and constitutional sources. It continues: *646 The decision of speedy trial challenges often calls for the application of judgment based upon imprecise criteria. The analysis may be imprecise and judgmental, but it is not necessarily complex. I see the function of this court when faced with the possibility of complexity to simplify it, not to compound it, and that is one reason I write separately. As I stated above, a writ of habeas corpus puts in issue the legality of the custody of the plaintiff. It deals with the present, not the future. The defendant has answered that custody is lawful because the plaintiff has been indicted for murder. The plaintiff answers that custody is no longer lawful because her right to a speedy trial has been denied and the case must be dismissed. We are not called upon to resolve a motion for trial. The writ properly presents no such demand because this case is in habeas corpus, not mandamus. The issue is whether the plaintiff is entitled to dismissal because a speedy trial has already been denied. The majority addresses that issue by applying the four factors outlined in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which also guide application of the Oregon constitution, State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977). I agree generally with the application of those factors to this case.[2] Applying the four factors, the majority concludes that the plaintiff is presently not entitled to dismissal because, as far as this record shows, she has not been denied a speedy trial. The majority concludes: After a discussion of plaintiff's evidence of prejudice due to the passage of time, the court concludes: That conclusion is dispositive of the writ of habeas corpus and I concur in it. The portion of the opinion which I would not reach and do not join is that portion dealing with what the majority refers to as the prospective rather than retrospective application of the right to speedy trial. The beginning of the extraneous line of reasoning is: That may be, but habeas corpus does not present the occasion to look into the future. There is no demand for prompt trial in this habeas corpus proceeding. The majority concludes that any further postponement while plaintiff remains in custody will be statutorily impermissible (at page 641) and that if the motion to dismiss is renewed and any reasonable possibility of prejudice to plaintiff's defense is found, then the trial court must dismiss the case regardless of the other three factors. (At page 643) The trial court's future conduct of this case is for the trial court to decide and for this court to review. At this point, anything this court says is advisory and prejudges a record which is yet to be made. We should not write dicta where we do not fully foresee the implications of our analysis or advice. If, however, the majority chooses to advise the trial court as to the disposition of the criminal case, then it should do so with *647 clarity. As I understand trial and appellate procedure, the trial court has no jurisdiction to order the parties to trial during the pendency of the appeal in the Court of Appeals. The rule applicable to civil cases, ORS 19.033(1), is also applicable to criminal cases whether the appellant be the defendant or the state. In State v. Jackson, 228 Or. 371, 365 P.2d 294 (1961), defendant appealed a denial of his motion to dismiss the indictment. Thereafter, he was tried and he appealed his conviction. The appeals were consolidated. The denial of the motion to dismiss was affirmed, but the judgment was reversed because the trial court had no jurisdiction to proceed after the filing of the notice of appeal. The court said: I assume that this case will be tried if and when the Court of Appeals decides the appeal. I cannot join in the part of the majority opinion which purports to instruct the trial court as to its future disposition of a motion which might be filed at some future stage of the proceedings. TONGUE, J., joins in this opinion. [*] Denecke, C.J., did not participate in this decision. [1] ORS 34.310 provides that "[e]very person imprisoned or otherwise restrained of his liberty [except under a judgment or decree] may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom." Apart from the statute, the constitution guarantees the privilege of the writ of habeas corpus, Or.Const. art. I, § 23, and gives this court original jurisdiction to issue the writ. Or. Const. art. VII (am), § 2. The court has allowed the writ to inquire into the legality of detention upon a refusal of release on security or other appropriate conditions. See Owens v. Duryee, 285 Or. 75, 589 P.2d 1115 (1979), also citing the unreported 1978 decision in Knutson v. Burks, No. 25680, 285 Or. at 80, 589 P.2d 1115. Accord Richardson v. Mason, No. 24720 (file # 1344) (Oct. 8, 1976). [2] Or.Const. art. I, § 14: "Offences (sic), except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong." [3] In the Connall opinion the word "discretion" appears in describing the hearing court's responsibility, but this responsibility is really the judicial one of evaluating the strength of the state's proof rather than the exercise of discretion. The law does not leave a court discretion to release a defendant charged with murder when the proof of guilt is "evident or the presumption strong," nor to deny release when the proof, though sufficient to go to trial, falls below this standard. Compare ORS 135.285(2) ("discretionary" release pending appeal after conviction.) [4] ORS 135.753(2): "An order for the dismissal of a charge or action, as provided in ORS 135.703 to 135.709 and 135.745 to 135.757, is a bar to another prosecution for the same crime if the crime is a Class B or C misdemeanor; but it is not a bar if the crime charged is a Class A misdemeanor or a felony. [5] U.S.Const. amend. 6: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ..." U.S.Const. amend. 14: "No State shall ... deprive any person of life, liberty, or property, without due process of law ..." Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). [6] Obviously a timely trial protects societal interests beyond those of the accused, particularly when the accused is at large. See, e.g., the remarks of Professor Herman Goldstein in the 1965 Proceedings of the National Conference on Bail and Criminal Justice, 152-153, quoted in Kamisar, LaFave & Israel, Modern Criminal Procedure 1114-1115 (5th ed. 1980); Barker v. Wingo, 407 U.S. 514, 519-520, 92 S. Ct. 2182, 2186, 33 L. Ed. 2d 101 (1972). [7] State v. Ivory, 278 Or. at 506-507, 564 P.2d 1039, quoting from United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776, 15 L. Ed. 2d 627 (1966); Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183 (1973). [8] its face, this proposition is incredible. Anglo-American law has long provided remedies for denial of a speedy trial other than dismissal of the prosecution with prejudice. State and lower federal courts enforcing subconstitutional speedy-trial guarantees have frequently found other remedies appropriate; and both lower courts and the Supreme Court have enforced the sixth amendment by other means. Surely, the primary form of judicial relief against denial of a speedy trial should be to expedite the trial, not to abort it. Where expedition is impracticable for some reason, the Supreme Court's repeated recognition of the several distinct interests protected by a right to speedy trial suggests the propriety of fashioning various remedies responsive to the particular interest invaded in any particular case. If the sole wrong done by delay is `undue and oppressive incarceration prior to trial,' the remedy ought to be released from pretrial confinement; if prolongation of the `anxiety' and other vicissitudes `accompanying public accusation' is sufficiently extensive, the remedy ought to be dismissal of the accusation without prejudice; and it is only when delay gives rise to `possibilities [of impairment of] ... the ability of an accused to defend himself,' or when a powerful sanction is needed to compel prosecutorial obedience to norms of speedy trial which judges cannot otherwise enforce, that dismissal of a prosecution with prejudice is warranted." 27 Stan.L.Rev. 534-535 (footnotes omitted). [9] In that case, the court issued a writ of mandamus, normally not available to control a discretionary act, to order a change of venue which the circuit court erroneously believed it had no legal authority to make. This court ordered that a change of venue be made rather than that the circuit court exercise its discretion, because the defendant judge "has indicated his purpose to stand on his demurrer" to the petition. 198 Or. at 434-435, 255 P.2d 1055. [10] ORS 34.610: "If it appears on the return that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before him, authorized by law, such prisoner shall be discharged only if one of the following cases exists: "(1) The jurisdiction of the court or officer has been exceeded, either as to matter, place, sum or person. "(2) The original imprisonment was lawful, yet by some act, omission or event which has taken place afterwards, the party has become entitled to be discharged. "(3) The order or process is defective in some matter of substance required by law, rendering the same void. "(4) The order or process, though in proper form, has been issued in a case not allowed by law. "(5) The person having the custody of the prisoner under such order or process is not the person empowered by law to detain him. "(6) The order or process is not authorized by any judgment or decree of any court, nor by any provision of law." [11] The nature of the disputed evidence and the court's order are set forth in State v. Haynes, 41 Or. App. 321, 597 P.2d 1297 (1979). [12] The problem results from the state's simultaneous pursuit of three objectives: (1) The state is committed to bring a defendant to trial without unreasonable delay, and obligation in which the fact of pretrial detention plays a major role; (2) it forbids pretrial release of a defendant charged with murder when there is strong evidence of guilt; and (3) it insists that a defendant's right to the suppression of evidence be raised in advance of trial and permits the prosecution to appeal from an adverse ruling. Legitimate as each objective is by itself, the three will often be incompatible. Cf. State v. Jenkins, 29 Or. App. 751, 565 P.2d 758 (1977). The first two are fixed in the constitution (and the right to a speedy trial also in the United States Constitution); the third is only a statutory policy. That statutory policy is open to the state when the appeal can be completed within the limits set by its constitutional obligation to provide a speedy trial. But when the period for satisfying that obligation is shortened by the state's insistence on pretrial imprisonment of the accused, the trial cannot always await the completion of the state's appeal. [13] We do not read "presumption" in the constitutional and statutory formula to mean anything divorced from evidence, since to do so would attribute to the drafters an improbable purpose to reverse the traditional presumption of innocence and would raise questions of due process. See, e.g., Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3 (1951); Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978). Cf. Kentucky v. Wharton, 441 U.S. 786, 99 S. Ct. 2088, 60 L. Ed. 2d 640 (1979); Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, 48 L. Ed. 2d 126 (1976). [1] is not the case here. Although there may be some doubt of the circuit court's legal premises, as stated above and as will be mentioned later, this does not appear from the order itself. As to the strength of the evidence of plaintiff's guilt, the facts are not undisputed. From our own examination of the stipulated record, we cannot say that a judge could not reasonably consider the evidence of plaintiff's guilt to be strong. Accordingly, plaintiff is not entitled to release under the writ of habeas corpus on this issue." (At page 640) [2] I do not join in the reference to State ex rel., Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980). In that case we stated the principle that the command of Article I, Section 10, Oregon Constitution, that justice shall be administered openly was a limitation upon the court rather than an expression of a right of either litigant. The principles involved in the entitlement of a member of the public to observe a juvenile court proceeding are not necessarily material to questions of speedy trial. The principles for which SER Oregonian Pub. Co. v. Deiz is cited are not clear to me. Because the plaintiff's claim can be resolved without reference to it and because the implications of that reference are unclear and unforeseeable, I do not join in that reference.

4c93f94ef05bfa976f47a6a74a5a9de96a302ba020b7ae7d60d0c4f5a4d2aa33

1980-11-04T00:00:00Z

b680d6a8-f161-4f39-ab77-f8af8391f6ed

Balboa Apartments v. Patrick

S059058

oregon

Oregon Supreme Court

Filed: October 6, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON BALBOA APARTMENTS and SILVERSTRAND INVESTMENTS, LLC, Respondents on Review, v. LISA PATRICK, et al., Petitioners on Review. (CC FE08-0910; CA A139660; SC S059058) En Banc On review from the Court of Appeals.* Argued and submitted June 7, 2011. Craig P. Colby, Portland, argued the cause and filed the brief for petitioner on review Lisa Patrick. Mark G. Passannante of Broer & Passannante, P.S., Portland, argued the cause and filed the brief for respondents on review. LANDAU, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Clackamas County Circuit Court, Eve Miller, Judge. 237 Or App 391, 241 P3d 317 (2010). 1 LANDAU, J. 1 ORS 105.135(3) requires a plaintiff in an action for forcible entry and 2 detainer (FED) to serve the summons and complaint "by the end of the judicial day next 3 following the payment of filing fees." The issue in this case is whether failure to serve a 4 summons and amended complaint within one day of the payment of filing fees requires 5 dismissal of the FED action. Both the trial court and the Court of Appeals concluded that 6 such a failure did not require dismissal. We agree and affirm. 7 The relevant facts are few and undisputed. On May 27, 2008, plaintiff, 8 Balboa Apartments, filed an FED complaint against defendant for nonpayment of 9 residential rent. Plaintiff paid the requisite filing fee at the same time. ORS 10 105.130(2)(a). The clerk set the first appearance date for June 9, 2008. The summons 11 and complaint, however, erroneously listed defendant's apartment as unit "#20," when, in 12 fact, defendant occupied unit "#28." A process server attempted service on the wrong 13 apartment, ultimately posting a copy of the summons and complaint on the door of unit 14 #20. See ORS 105.135(3)(b) (permitting a process server who has attempted 15 unsuccessfully to effect personal service to serve "by attaching a true copy of the 16 summons and complaint in a secure manner to the main entrance" of the premises). 17 Plaintiff learned of the mistake and, on June 3, 2008, filed an amended 18 complaint that listed the correct unit number. Plaintiff did not pay an additional filing 19 fee, because none was required. The clerk reset the first appearance date for June 16, 20 2008. A process server posted the amended complaint and summons at defendant's 21 apartment on June 4, 2008. 22 2 Defendant filed an answer and defense, alleging that, among other things, 1 plaintiff failed to serve her within one day of payment of the filing fee, as required by 2 ORS 105.135. Defendant requested dismissal of the action. 3 At the beginning of trial, defendant moved to dismiss the action for want of 4 jurisdiction. She renewed her contention that plaintiff had failed to serve its amended 5 complaint and summons within one day of the payment of the filing fee as required by 6 ORS 105.135. According to plaintiff, because landlord-tenant law is "in derogation of 7 the common law[,] * * * in order for jurisdiction to attach for the court, * * * the 8 procedures must be meticulously followed." 9 The trial court denied defendant's motion, holding that "service of process 10 pursuant to ORS 105.135 was sufficiently complied with and * * * any defect was not 11 significant enough to cause the Court to dismiss plaintiff's complaint." Ultimately, the 12 trial court determined that plaintiff was entitled to restitution of the property and entered 13 judgment in plaintiff's favor, awarding plaintiff costs and attorney fees. 14 Defendant appealed, assigning error to the trial court's failure to dismiss the 15 action due to lack of proper service. Defendant argued that, in an FED action, "[s]trict 16 compliance with the procedural requirements of ORS 105.135 is a necessary prerequisite 17 of the court obtaining jurisdiction over either the subject matter or the party." Plaintiff 18 responded that, although service did not occur within 24 hours of the payment of the 19 filing fee, substantial, rather than strict compliance, with the service of process procedure 20 of ORS 105.135 was sufficient, because the goal of those procedures -- adequate notice to 21 allow a defendant to respond to an FED action -- was served in this case. 22 3 The Court of Appeals affirmed. Balboa Apartments v. Patrick, 237 Or App 1 391, 404, 241 P3d 317 (2010). The court explained that, although the parties framed 2 their contentions in terms of whether "the legislature intended to permit substantial, as 3 opposed to strict, compliance with the statutory requirement for timing of service of 4 process," it was undeniable that plaintiff did not comply with the one-day service 5 requirement of ORS 105.135. Id. at 395-96. Thus, the court concluded, "[t]he real issue 6 in contention is the consequence of the error in the timing of service." Id. at 396. 7 Examining the text, context, and legislative history of ORS 105.135, the 8 court concluded that "it seems highly unlikely that the legislature would have intended 9 for dismissal of an action in a circumstance such as this, when service of the correct 10 summons and amended complaint occurred eight judicial days before the first appearance 11 date." Id. at 399. The court noted that, if the law were otherwise, "as a practical matter, 12 no defective summons could be corrected and no complaint could be amended in an FED 13 action without the payment of a new filing fee," for which the legislature made no 14 provision in the statute. Id. 15 Defendant petitioned for review, and this court accepted review to 16 determine whether the Court of Appeals accurately interpreted ORS 105.135. 17 Defendant argues that, under Schroeder v. Woody, 166 Or 93, 96, 109 P2d 18 597 (1941), and South State Inv. Co. v. Brigum, 289 Or 109, 113, 611 P2d 305 (1980), 19 the FED statutes must be strictly complied with, and, as a result, plaintiff's failure to 20 serve her within one judicial day of the payment of the filing fee deprived the trial court 21 of jurisdiction. 22 4 Plaintiff responds that the cases on which defendant relies are 1 distinguishable and that, when an FED complaint has been amended, the deadline for 2 service of the initial complaint becomes irrelevant. In that circumstance, it argues, the 3 only relevant deadline is the requirement that a defendant be given adequate notice of the 4 first appearance date, so that the defendant may prepare for the hearing. In this case, 5 plaintiff contends, it is undisputed that defendant was given more notice than the statute 6 requires. 7 Defendant rejoins that there is no provision in the statute for amending a 8 complaint initiating an FED action and that plaintiff's sole recourse upon discovering the 9 error in the complaint was to dismiss the action, file a new complaint, pay a new filing 10 fee, and comply with the one-day service requirement. 11 The issue is thus one of statutory construction. In addressing it, we 12 examine the text of the statute in context and, where appropriate, legislative history and 13 pertinent canons of statutory construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 14 1042 (2009). 15 The requirements of initiating an FED action are set out in ORS chapter 16 105. ORS 105.130 (2010)1 first requires the payment of a filing fee upon the filing of a 17 complaint: 18 "2. Upon filing a complaint in the case of a dwelling unit to 19 1 The legislature recently amended ORS 105.130 to increase the filing fee. HB 2710 (2011). That change is irrelevant to our analysis. 5 which ORS chapter 90 applies, the clerk shall: 1 "(a) Collect a filing fee of $13; 2 "(b) Collect any other fee authorized by law or ordinance; and 3 "(c) With the assistance of the plaintiff or an agent of the plaintiff, 4 complete the applicable summons and provide to the plaintiff or an agent of 5 the plaintiff sufficient copies of the summons and complaint for service." 6 ORS 105.135 then spells out the following requirements that are to follow the filing of 7 the complaint and the payment of the filing fee: 8 "(1) Except as provided in this section, the summons shall be 9 served and returned as in other actions. 10 "(2) At the time the clerk collects the filing fee under ORS 11 105.130, the clerk shall enter the first appearance date on the summons. 12 That date shall be seven days after the judicial day next following payment 13 of filing fees unless no judge is available for first appearance at that time, in 14 which case the clerk may extend the first appearance date for up to seven 15 additional days. At the request of the plaintiff, the clerk may enter a date 16 more than seven days after the judicial day next following payment of filing 17 fees if a judge will be available. 18 "(3) Notwithstanding ORCP 10, by the end of the judicial day next 19 following the payment of filing fees: 20 "(a) The clerk shall mail a true copy of the summons and 21 complaint by first class mail to the defendant at the premises. 22 "(b) The process server shall serve the defendant with a true copy 23 of the summons and complaint at the premises by personal delivery to the 24 defendant or, if the defendant is not available for service, by attaching a 25 true copy of the summons and complaint in a secure manner to the main 26 entrance to that portion of the premises of which the defendant has 27 possession." 28 Two of those requirements are pertinent to this case. First, the plaintiff 29 must serve the defendant with a copy of the summons and complaint by the end of the 30 next judicial day following the payment of the filing fee. Second, the clerk must set a 31 6 first appearance date eight judicial days after filing, which -- if the plaintiff complies with 1 the one-day service requirement -- will usually be seven days following service. 2 In this case, it is undisputed that plaintiff served defendant well in advance 3 of seven days before the first appearance date. It is also undisputed, however, that 4 plaintiff did not serve defendant within one day of paying the filing fee. Plaintiff 5 attempted to serve defendant following the filing of the initial complaint, but found that it 6 had listed the incorrect address, resulting in service on the wrong residence. Plaintiff 7 then filed an amended complaint and served the summons and amended complaint the 8 following day. The dispute centers on the consequence of plaintiff failing to serve 9 defendant within the one-day requirement set out in ORS 105.135(3)(b). 10 Beginning with the text of the statute, we observe that the legislature 11 included no wording that spells out its intentions one way or the other about the 12 consequences of failing to comply with the one-day service requirement of ORS 105.135 13 in cases in which the plaintiff has filed an amended complaint. There is, as defendant 14 correctly points out, no mention of amending a complaint in the statute at all. 15 That is not the end of the matter, however. ORCP 1 A provides that the 16 rules of civil procedure 17 "govern procedure and practice in all circuit courts of this state, except in 18 the small claims department of circuit courts, for all civil actions and 19 special proceedings whether cognizable as cases at law, in equity, or of 20 statutory origin except where a different procedure is specified by statute or 21 rule." 22 An FED action is an action of "statutory origin." See Lexton-Ancira, Inc. v. Kay, 269 Or 23 1, 5-6, 522 P2d 875 (1974) (an FED action is a "special statutory proceeding"). Thus, the 24 7 rules of civil procedure apply "except where a different procedure is specified by statute 1 or rule." 2 ORCP 23 A provides that 3 "[a] pleading may be amended by a party once as a matter of course at any 4 time before a responsive pleading is served or, if the pleading is one to 5 which no responsive pleading is permitted, the party may so amend it at any 6 time within 20 days after it is served." 7 The effect of filing the amended complaint is to supersede the original pleading. Propp 8 v. Long, 313 Or 218, 222-23, 831 P2d 685 (1992); see also ORCP 23 D (providing that 9 an "amended pleading shall be complete in itself, without reference to the original or any 10 preceding amended one"). 11 Thus, unless the FED statute itself specifies a different procedure, a 12 plaintiff who has filed an FED complaint may file an amended complaint as provided in 13 ORCP 23. Defendant has identified no such different procedure specified in the FED 14 statute, and we are aware of none. To the contrary, the FED statute is specific about 15 when it is intended to depart from what is otherwise required by the rules of civil 16 procedure. ORS 105.130(1), for example, states that, "[e]xcept as provided in this 17 section" and others specified, an FED action "shall be conducted in all respects as other 18 actions in courts of this state." ORS 105.135(3) itself, for another example, spells out the 19 requirements of valid service of process "[n]otwithstanding ORCP 10." Clearly, the 20 legislature is aware of how to specify a different procedure from what is required by the 21 rules of civil procedure. Equally clearly, the legislature did not do so with respect to the 22 filing of amended complaints. It necessarily follows that the rules of civil procedure 23 8 apply to the filing of an amended complaint in an FED action, and that a plaintiff who has 1 filed an FED complaint may file an amended complaint as provided in ORCP 23. 2 As we have noted, under ORCP 23, a plaintiff may file an amended 3 complaint once as a matter of course before a responsive pleading has been served. 4 Consistently with that rule, plaintiff in this case filed its amended complaint within a 5 week of filing the original complaint and before defendant served a responsive pleading. 6 The question remains what consequence, if any, attends the fact that 7 plaintiff did not serve the summons and amended complaint within one judicial day of 8 paying the filing fee. The short answer to that question is that there is no such 9 requirement in the statute. What the statute does specify is that service occur at least 10 seven judicial days before the first appearance date (eight judicial days from the filing of 11 the complaint), to give the defendant an adequate opportunity to prepare. In this case, as 12 plaintiff correctly asserts, it is undisputed that it served the summons and amended 13 complaint 12 days before the first appearance date. 14 Defendant insists that, even though she was served with the amended 15 complaint more than seven days before the first appearance date, the fact remains that she 16 was not served with the original summons and complaint within the one judicial day of 17 the payment of the filing fee, as required by ORS 105.135. That failure, she contends, 18 deprived the court of jurisdiction and requires dismissal. Defendant, however, overlooks 19 the effect of the filing of an amended complaint, which, as we have noted, is to supersede 20 the original complaint. Propp, 313 Or at 222-23; Olson v. Chuck, et al., 199 Or 90, 98, 21 259 P2d 128 (1953) ("This court has held many times * * * that when a party files an 22 9 amended pleading as to any of his adversaries, the original pleading ceases to be a 1 pleading as to them."). 2 Neither of the decisions on which plaintiff relies is to the contrary. In 3 Schroeder, the plaintiff sold the defendant certain real property by means of a land sale 4 contract. 166 Or at 94. When the defendant failed to make payments as required under 5 the contract, the plaintiff initiated an action to recover possession of the property under 6 the FED statutes. Id. at 94-95. The court held that the plaintiff could not maintain the 7 action, as a matter of law. "According to the great weight of authority," the court 8 explained, "an action of forcible entry and detainer does not lie against a vendee in 9 possession under a contract of purchase." Id. at 95 (citation omitted). Nothing in this 10 court's decision in Schroeder turned on the compliance, or noncompliance, with a 11 particular procedural requirement of the FED statute. 12 As for South State Inv. Co., the plaintiff in that case filed a complaint under 13 the FED statutes to recover possession of an apartment leased to the defendant. 289 Or at 14 111. The summons stated that the defendant was required to appear and answer at a 15 hearing scheduled to occur eight days later. The version of the statute in effect at the 16 time required the plaintiff to personally serve the defendant between three and seven days 17 before the hearing. ORS 105.135(3) (1977). In the alternative, the statute permitted the 18 clerk to mail a copy of the summons and complaint to the defendant between seven and 19 ten days before the hearing. Id. The sheriff unsuccessfully attempted personal service on 20 the defendant the following day (seven days before the hearing). Three days later, the 21 clerk mailed a copy of the summons and complaint to the defendant (four days before the 22 10 hearing). The defendant did not appear, and the trial court entered judgment, including 1 costs and disbursements, for the plaintiff. South State Inv. Co., 289 Or at 111. A year 2 later, the defendant moved to set aside the judgment for costs and disbursements. The 3 defendant argued that, because the clerk failed to mail the summons and complaint within 4 the time prescribed by the statute, the court lacked personal jurisdiction to enter the 5 judgment. Id. This court agreed with the defendant. The court held that the statute 6 plainly required the plaintiff to provide seven to ten days' notice of the hearing, and, in 7 that case, the plaintiff gave only four days' notice. Id. at 117-18. The failure to provide 8 adequate notice, the court held, deprived the trial court of personal jurisdiction. Id. The 9 decision has no application to this case, in which it is undisputed that defendant did 10 receive the notice that the statute requires before the first appearance hearing. 11 In short, nothing in the text of ORS 105.135 suggests that a plaintiff in an 12 FED action must serve a summons and amended complaint within one judicial day of 13 payment of the filing fee. What the statute does require is that an amended complaint be 14 served at least seven judicial days before the first appearance date. In this case, plaintiff 15 served the amended complaint more than seven days before the first appearance date. 16 The trial court therefore did not err in denying defendant's motion to dismiss for want of 17 jurisdiction, and the Court of Appeals did not err in affirming the judgment of the trial 18 court. 19 The decision of the Court of Appeals and the judgment of the circuit court 20 are affirmed. 21

12be1ba7d175415f4874af07cfb74bd0fc513ea26211d7c4c070b33e8443be9d

2011-10-06T00:00:00Z

111cbb82-97a2-4a25-83b0-22c3c7c2fa97

Robinson v. Public Employees Retirement Board

S058882

oregon

Oregon Supreme Court

1 Filed: December 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON RUTH ROBINSON,GERALD BUTTON, NORMAN FABIAN, BECKY HANSON, RENE REULET, LINDA GRAY, LAREN FERRELL, STUART GILLETT, ROBERT PEARSON, GARY REESE, and BRUCE JOHNSON, Petitioners-Respondents, v. PUBLIC EMPLOYEES RETIREMENT BOARD, Respondent-Appellant, and STATE OF OREGON, CITY OF PORTLAND, PORTLAND SCHOOL DISTRICT, CITY OF GRESHAM, LINN COUNTY, PORTLAND COMMUNITY COLLEGE, MULTNOMAH COUNTY, CENTRAL CATHOLIC SCHOOL DISTRICT 13J, and FOREST GROVE SCHOOL DISTRICT #15, Intervenors-Appellants. (CC 060504584; CA A141664; SC S058882) On petition for reconsideration filed October 27, 2011. James S. Coon, Swanson Thomas & Coon, Portland, filed the petition for reconsideration. No appearance contra. 2 Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.* DE MUNIZ, C. J. Petition for reconsideration allowed; former opinion adhered to. *Landau, J., did not participate in the consideration or decision of this case. 1 DE MUNIZ, C. J. 1 Petitioners Ruth Robinson, et al., (Window Retirees) have filed a petition 2 for reconsideration requesting that the court modify its disposition in this case. Arken v. 3 City of Portland, 351 Or 113, ___ P3d ___ (2011). Petitioners assert that the court erred 4 in determining that the proper disposition is to invalidate both the administrative expense 5 mechanism and the COLA freeze mechanism set out in Oregon Laws 2003, chapter 625, 6 section 14b(1) (Section 14b(1)). Petitioners contend that the appropriate disposition is to 7 declare that use of either the administrative expense mechanism or the COLA freeze 8 mechanism would constitute a breach of the Public Employee Retirement System (PERS) 9 statutory contract, but then to leave the choice of remedy for either of those breaches to 10 the Legislative Assembly. We allow petitioners' request for reconsideration, but adhere 11 to our previous opinion. 12 In Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005), this court addressed 13 a similar legislative attempt to take a particular restorative action in reform of the PERS 14 statutes. In Strunk, this court addressed a COLA freeze mechanism similar to that 15 involved in this case. After the court determined that the COLA freeze at issue there 16 violated the PERS contract, this court concluded that "the prudent dispositional action is 17 to invalidate the offending statutory wording." Strunk, 338 Or at 225. We conclude that 18 the prudent dispositional action in this case, too, is to invalidate the administrative 19 expense mechanism and the COLA freeze mechanism set out in Section 14b(1). 20 In Strunk, this court expressly noted that "[o]ur conclusion that th[e] particular legislative 21 action taken by the legislature amounted to a breach of the PERS contract, however, 22 2 implies nothing about [the Public Employee Retirement Board's] -- or, for that matter, the 1 legislature's -- authority to recover amounts determined to have been paid from the fund 2 in error." Strunk, 338 Or at 224 n 58. Here, too, our determination that the 3 administrative expense mechanism and the COLA freeze mechanism set out in Section 4 14b(1) are invalid does not imply that the Legislative Assembly is powerless to take some 5 other action to provide some form of remedy for the Window Retirees to compensate 6 them for the loss of payments they have received and would receive pursuant to Section 7 14b(1). 8 Petition for reconsideration allowed; former opinion adhered to. 9

13bf760c9737650ea117b653efb8b6711dbf6783f9ae520c588f749369332897

2011-12-30T00:00:00Z

177636f7-9008-4170-9cca-11858413a17d

Davidson v. Wyatt

289 Or. 47, 609 P.2d 1298

oregon

Oregon Supreme Court

609 P.2d 1298 (1980) 289 Or. 47 William G. DAVIDSON, George R. Davidson, and Barry F. Davidson, Respondents, v. Robert S. WYATT, Petitioner. No. 38-248; CA 13176; SC 26445. Supreme Court of Oregon, In Banc. Argued and Submitted February 5, 1980. Decided April 22, 1980. *1299 Fred A. Anderson of Anderson, Dittman & Anderson, Tigard, argued the cause and filed a brief for petitioner. Frank Noonan of Winfree & Noonan, Portland, argued the cause and filed a brief for respondents. PETERSON, Justice. This is a suit by optionees to obtain specific performance of a written option to purchase real property. The trial court sustained defendant optionor's demurrer to the plaintiffs' second amended complaint, and judgment was thereafter entered for the defendant. The Court of Appeals, in a per curiam opinion, reversed and remanded. 41 Or. App. 187, 597 P.2d 379 (1979). The defendant, in his petition for review, contends that the trial court's ruling should be upheld for either of two reasons. The first is that the complaint did not allege that the option was exercised according to its terms either during the period originally prescribed or during the period allowed by an alleged oral agreement to extend the option. The second is that the oral extension agreement as alleged is void under the statute of frauds, ORS 41.580(5).[1] More specifically, the primary issues before us are: 1. When an option provides, by its terms, that it is to be exercised by payment of a portion of the purchase price, is tender of payment excused by the optionor's repudiation *1300 of the option prior to the expiration of the time for its exercise? 2. Assuming that an agreement to extend the time for exercise of an option is within the statute of frauds,[2] is a complaint seeking enforcement of the option as extended sufficient to withstand a demurrer if it alleges that the optionee did not exercise the option during its initial term in reliance upon an oral extension agreement but does not allege that the oral agreement was made at the request of the optionor? We first consider the problem of the oral extension. The allegations of the complaint which are relevant to this issue read as follows: The trial court, in its memorandum opinion, reasoned that it was not enough for plaintiffs to allege that they relied on the oral agreement for an extension of time. It is necessary, the court said, "to show that the waiver was at the instance and request of the party waiving the agreement in order that such party might obtain a benefit therefrom." This requirement, the court concluded, is found in our decisions in Neppach v. Or. & Cal. R.R. Co., 46 Or. 374, 80 P. 482 (1905), and Osburn v. DeForce, 122 Or. 360, 257 P. 685, 258 P. 823 (1927). The Court of Appeals, in reversing, also cited the Neppach case as well as the more recent decisions in Stevens v. Good Samaritan Hosp., 264 Or. 200, 504 P.2d 749 (1972), and United Farm Agency v. McFarland, 243 Or. 124, 411 P.2d 1017 (1966). Although the parties and the trial court, under the influence of our prior cases, treated this aspect of the case as depending on the applicability of an exception to the statute of frauds or of an estoppel to rely on the statute, we do not believe that this case presents a true statute of frauds problem. As we discuss in more detail below, it is more accurate to frame the issue in terms of waiver of a contract provision and estoppel to later retract the waiver and rely on the strict terms of the contract. Neppach v. Or. & Cal. R.R. Co., supra, appears to be the principal case upon which the trial court relied in considering whether an optionee may successfully assert the terms of an oral modification of an option contract which is within the statute of frauds. In Neppach the plaintiff was purchasing land from the defendant under a written contract calling for installment payments. While the contract was in force, a controversy arose between defendant and a third party over the title to the land. Because of defendant's uncertainty as to whether it would be able to deliver clear title when the full price was paid, its agents agreed with plaintiff that no further installment payments were to be made until the controversy over title was settled. Later, after title was cleared and without allowing the plaintiff a reasonable time in which to make up the payments, defendant notified plaintiff that the contract was canceled because the installment payments had not been made on time. Plaintiff brought an action for breach, and we held that the defendant, under the circumstances, could not rely on the statute of frauds to deny the validity of the oral agreement. Assuming, we said, that the oral agreement was within *1301 the statute and therefore void, nevertheless it was relied upon by the plaintiff and the defendant could not thereafter deny its validity to the injury of the plaintiff. 46 Or. at 395, 80 P. 482. In explanation of this holding, we pointed out that the provision in the contract of sale for the time of the payments was for the defendant's benefit and could be waived. Id. We also pointed out that it was the defendant which had requested the extension agreement because of the uncertainty whether, when the plaintiff had made all of the payments, defendant would be able to perform its promise to deliver title. 46 Or. at 396, 80 P. 482. In the opinion we quoted from cases holding that it would be inequitable, and would open the door to fraud, to permit one party to a contract to induce the other to depart from the terms of the written agreement and then, relying on the statute, to insist upon a strict adherence to its terms. 46 Or. at 396-97, 80 P. 482. Neppach, however, contains no suggestion that we believed that the applicable rule is limited to situations in which the oral agreement was made at the request of the party who later asserts the bar of the statute: The facts in some of our later cases are consistent with defendant's position and the trial court's rationale. In Scott v. Hubbard, 67 Or. 498, 136 P. 653 (1913) and United Farm Agency v. McFarland, 243 Or. 124, 411 P.2d 1017 (1966), the modification was induced by the party who later attempted to rely on the statute, and we held that a party who had changed position in reliance on an oral modification could assert the terms of the modification in spite of the statute of frauds. But the opinions do not hold that the right to prove an oral modification and detrimental reliance upon it depends on which party requested it. See also the discussion in Kingsley v. Kressly, 60 Or. 167, 173-174, 111 P. 385, 118 P. 678 (1911). Osburn v. DeForce, 122 Or. 360, 257 P. 685, 258 P. 823 (1927), also contains language which could support the trial court's reading of the Neppach decision. Osburn was an action by an employee to enforce a written contract of employment as orally modified. We held that the defendant was not estopped to claim the benefit of the statute of frauds, ORS 41.580(1). We said that the estoppel principle was well illustrated in Neppach and that, in contrast, the case before us did not contain the necessary elements of estoppel. We pointed out that it was the employee, rather than the employer, who had requested the oral modification of the contract, and that the modification benefited only the plaintiff. No conduct on the defendant's part, we said, "induced the plaintiff to seek the modification." 122 Or. at 372, 257 P. at 689. In spite of that language in the opinion, Osburn does not stand for the proposition that reliance on an oral modification of a contract which is within the statute of frauds has no effect unless the modification was requested by the party who later attempts to rely on the statute. The court appears to have based its holding that there was no estoppel upon this premise: The plaintiff had not changed his position in reliance on the oral agreement in such a way that it would be inequitable to enforce the written contract according to its terms. 122 Or. at 373, 257 P. 685. In light of the reasoning in previous and later cases, the *1302 suggestion in Osburn that estoppel in this context only operates against a party who requested the oral modification, or induced the other party to request it, is not an accurate statement of the law. Neppach was most recently cited in Stevens v. Good Samaritan Hosp., 264 Or. 200, 504 P.2d 749 (1972), which was an action for breach by an employee against his employer of an alleged oral contract to employ the plaintiff for a period of 15 years. The plaintiff alleged that, with defendant's knowledge, he had abandoned a lucrative business in order to take employment with defendant and that he was financially damaged when defendant discharged him after only five years. Although the case involved an oral agreement rather than an oral modification of a written agreement, we suggested no difference in principle. We held that although the agreement was within the statute of frauds, the complaint was sufficient to withstand a demurrer because the above allegations would permit proof of all the elements of estoppel. We cited, in support of our holding, both Neppach and United Farm Agency v. McFarland, supra, which also involved the oral modification of a written agreement. There is no indication in the opinion that it was necessary for plaintiff to allege that the oral agreement was made at defendant's suggestion or inducement. The defendant in this case has not cited any decisions, and we have found none, in which the elements of estoppel were present but the defendant was nevertheless permitted to rely on the statute of frauds simply because the oral contract or oral modification was not induced by him or not made at his request. The authorities on the law of contracts do not suggest that the operation of the estoppel principle in this context is limited in that fashion. See Restatement, Contracts § 224 (1932); 2 Corbin on Contracts 111-120, § 310 (1950); 3 Williston on Contracts 783-810, § 533A (3d ed. Jaeger 1960). In the cases discussed above we framed the central issue as one involving the statute of frauds. We have spoken at times of an exception to the statute and at times of an estoppel to assert it. The analysis has not always been clear, but it is obvious that this line of cases and the case now before us do not present pure statute of frauds problems. The distinction can be illustrated by contrasting the present case with a hypothetical variation on the same facts. Suppose that plaintiffs alleged a written option to purchase and a later oral agreement, supported by consideration, to extend the option period for one year. Suppose further that they then alleged that before the expiration date provided in the written option defendant had told them that he had changed his mind and would not honor the extension agreement. Suppose, finally, that the only relief plaintiffs sought was a declaration that defendant was obliged to keep the option open for that additional year. Under those circumstances the question would be the enforceability of the oral agreement as such, and we would have to determine whether the oral modification agreement was void as being within the statute of frauds[3] and, if so, whether the plaintiffs' allegations brought the case within some exception to the statute. The case actually before us is different. These plaintiffs are not attempting to enforce an executory oral contract. The contract under which they claim is in writing. Their contention is, in effect, that the optionor has waived one of the provisions of the written agreement the provision that the option must be exercised, if at all, by a certain date and that because the plaintiffs, in reliance on that waiver, let that date go by without attempting to exercise the option, the optionor is now estopped to withdraw that waiver and to insist on his rights under the expiration provision of the written option. Corbin discusses this question. He points out that the issue of estoppel to insist upon strict application of contract provisions is the same whether or not the contract is within the statute of frauds. The fact that *1303 the estoppel is based in part on an oral modification does not, in his view, require a special approach: The results of our own cases support this analysis. When an estoppel to insist on the strict terms of a contract is created by conduct rather than by express waiver, our opinions suggest no concern with whether the contract is or is not within the statute of frauds.[4] Our opinions in the cases cited above discuss the policy behind the statute of frauds, but we can find no indication that the results are different than they would have been had the cases been analyzed simply in terms of waiver and estoppel.[5] Returning to the complaint before us, we hold that the plaintiffs have adequately alleged the necessary elements of estoppel. The complaint alleges that while there was still time for plaintiffs to exercise the written option according to its terms, the parties made an oral agreement to extend the time for its exercise and that the plaintiffs, "* * * although able to do so, did not exercise their right to purchase the * * * real property prior to June 1, 1977, in reliance on the * * * verbal agreements * * *." The complaint also alleges that plaintiffs paid $7,000 for the option to purchase and under the terms of the written option they were to be credited, upon its timely exercise, with at least $5,000 of that payment against the purchase price of the land. Thus, under the allegations of the complaint, the plaintiffs would be able to offer evidence to prove (1) the waiver defendant's representation that he would permit plaintiffs to exercise the option at any time to and including January 1, 1978, (2) the reliance that they reasonably relied on that representation, and (3) the damage that they would be injured as a consequence of that reliance if defendant were permitted to insist on the expiration date provided in the written option. We are now convinced that the statute of frauds plays no independent role in the analysis of cases of this kind. When a party to a written contract asserts that the other party has waived the benefit of a contract provision under circumstances giving rise to an estoppel, the fact that the alleged waiver was in the form of an oral *1304 agreement may be significant on the issue of whether it was reasonable to rely on the waiver. It does not, however, raise the problem of the enforcement of an oral contract contrary to the statute of frauds.[6] The next question is whether the complaint fails to state a cause of suit because it does not allege that the plaintiffs exercised the option, as orally modified, in accordance with its terms. The written option provided for its exercise by doing two things: (1) providing written notice either delivered "in hand" or mailed by certified mail to the owner at a given address; and (2) depositing $25,000 with a named title insurance company. The written option further provides that both the time and the manner of exercising the option are of the essence. The alleged oral modification extended the time for exercise, but did not alter the provisions as to the manner in which it was to be accomplished. The relevant allegations of the complaint are: Plaintiffs' complaint was filed on January 18, 1978. Defendant claims that the allegation of repudiation is irrelevant, and that the complaint does not state a cause of suit because it does not allege that the option was exercised in the manner provided by its terms. Plaintiffs' position is that formal exercise of the option in accordance with its terms was not a condition precedent to this suit because defendant repudiated the option before the final date for its exercise. In other contexts we have held that the tender of performance which is ordinarily necessary before bringing a suit or action is excused if the other party has made it clear that the tender would be refused. See, e.g., Temple Enterprises v. Combs, 164 Or. 133, 153-54, 100 P.2d 613, 128 ALR 856 (1940) (lease repudiated by lessor); Tortora v. Wyatt, 125 Or. 240, 243-44, 266 P. 251 (1928) (agreement to exchange land); Guillaume v. K.S.D. Land Co., 48 Or. 400, 405, 86 P. 883 (1906), 88 P. 586 (1907) (land sale contract). See also, Wittick v. Miles, 268 Or. 451, 521 P.2d 349 (1974) (land sale contract repudiated by vendor; vendee in possession). In two cases involving options which were to be exercised by payment we have suggested, but have not held, that a similar rule applies. Clarno v. Grayson, 30 Or. 111, 126, 46 P. 426 (1896); Leadbetter v. Price, 103 Or. 222, 236, 202 P. 104 (1922). Defendant relies on the Leadbetter case, but we do not believe it supports his position. In that case the decisive flaw in the optionee's case was that although the option could only be exercised by payment, the optionee asked the court to decree that he had up to an additional year to pay. That was clearly an attempt to vary the terms of the option agreement rather than to enforce them. At best, our precedents involving options are inconclusive. Other authorities state the law in language favorable to plaintiffs' position, but there appears to be little direct support in the cases. Corbin, in discussing *1305 whether repudiation excuses a tender of performance, states: In the option cases in the notes to that section, suit was apparently brought before the time for exercise of the option had expired. The opinions do not state whether the result would have been the same had the suit been filed, like this one, after the time for exercise had run.[7] In an annotation entitled "When Optionee's Delay in Exercising Option Excused," 157 ALR 1311 (1945), the following is said to be the general rule: However, of the many cases cited in the annotation and the supplements, only a few stand directly for that proposition. See, e.g., In re Estate of Wurtz, 214 Kan. 434, 520 P.2d 1308, 1313 (1974); Cooper v. Mayer, 312 S.W.2d 127 (Mo. 1958); Winslow v. Dundom, 46 Mont. 71, 125 P. 136, 139-40 (1912). In spite of the lack of definitive support in the cases, we think the rule as stated in 157 ALR at 1325-1326 is correct in principle. An option like that before us is a conditional contract to sell; the optionor, in return for consideration furnished by the optionee, promises to sell the property on specified terms if the optionee chooses to buy and exercises the option in the manner agreed upon. See 1A Corbin on Contracts 495, § 262 (1963). It is a general rule of contract law that performance of a condition is excused when the party's failure to perform is the result of the other party's repudiation of his obligations under the contract: Comment c. to this section states: Pomeroy, in his discussion of specific performance, states the following rule as being "settled": See also, 5 Williston on Contracts 344-349, § 699 (3d ed. Jaeger 1961). We see no reason not to apply the principle recognized by these authorities to a suit *1306 to enforce an option contract. It would serve no purpose to require an optionee to attempt, before bringing suit, a performance which the optionor has already indicated will not be accepted. Defendant urges us to follow the reasoning in Clark v. Muirhead, 245 Mich. 49, 222 N.W. 79 (1928), which, he contends, stands for a contrary rule where an option is involved. The option in that case was to be exercised by written acceptance before a certain date. Before that date, the optionee on several occasions offered to pay the purchase price to the optionors who refused to take the money because, they said, they "didn't want to sell the farm." The optionee never provided a written acceptance of the option, but brought suit for specific performance. The Michigan Supreme Court held that the optionee was not entitled to relief because the optionor had no duty to sell until the option was exercised in the manner provided, and that the optionor's "naked refusal to perform" did not constitute either a waiver or an estoppel. We need not decide whether we would follow that case on similar facts where the exercise of the option could have been accomplished simply by giving written notice.[8] We hold only that when payment of money is required in order to exercise the option, an optionor who has stated that he will refuse to accept the payment may not insist that the optionee nevertheless complete the financing or other arrangements necessary to obtain the money and make the futile gesture of offering to pay it. In the case before us the plaintiffs have alleged that notice was given to the defendant within the time permitted by the option contract as modified and that they were "ready to exercise" it. Under this allegation they would be permitted to prove that they were both able and willing to deposit the money within the time allowed, and that they notified defendant that they were prepared to do so, thus to complete the steps necessary to exercise the option. They have also alleged that defendant indicated that if tender of payment were made it would be refused. It is true that plaintiffs did not allege that the written notice was either delivered "in hand" or sent by certified mail as provided in the written option. They did, however, allege that it was received by defendant within the option period as orally extended. This allegation is sufficient to permit proof of an adequate compliance with the notice provision. See Nafstad v. Merchant, 303 Minn. 569, 228 N.W.2d 548, 550-51 (1975). Cf. Albachten v. Miller, 216 Or. 379, 339 P.2d 427 (1959). Plaintiffs have also alleged that they are now ready to exercise the option. Although there is no direct offer, in so many words, to make payment immediately, this allegation is adequate to indicate plaintiffs' intention to be presently bound and their willingness and ability to perform the necessary steps to that end. Compare Clarno v. Grayson, supra, 30 Or. at 143, 46 P. at 429 (allegation that plaintiff is "ready, willing, and waiting to perform" not sufficient where balance of complaint showed that he was not willing to pay the purchase price), and Leadbetter v. Price, supra, 103 Or. at 236, 202 P. 104 (institution of suit could not be treated as exercise of option where optionee prayed for additional time to perform). What, then, of the 18-day delay in filing this suit? Because the optionee has bargained only for the right to elect to purchase during a limited time, he should not be allowed to take advantage of an anticipatory repudiation by the optionor to get *1307 more than he bargained for by extending that time. Failure to exercise the option followed by delay in bringing suit could have that result. Here, however, the suit was filed less than three weeks after the expiration of the option as allegedly modified, and we cannot say, merely from looking at the plaintiffs' complaint, that, as a matter of law, this demonstrates any undue delay by the plaintiffs. We emphasize that this case comes to us on a pleading question which requires an answer to but one question: Did the plaintiffs allege facts sufficient to state a cause of suit? In answering that question, we must assume the truth of all well-pleaded facts and give the plaintiff the benefit of the inferences that can properly and reasonably be drawn from those facts. Lincoln Loan v. State Hwy. Comm., 274 Or. 49, 52, 545 P.2d 105 (1976). Applying this standard, we conclude that the complaint states a cause of suit for specific performance and that the Court of Appeals was correct in ruling that the demurrer should have been overruled. The decision of the Court of Appeals is affirmed. [1] The statute provides: "In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law: "* * *. "(5) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein." For purposes of this opinion, we assume that an option to purchase real property is, within the meaning of the statute, an agreement for the sale of an interest in realty. See Neppach v. Or. & Cal. R.R. Co., 46 Or. 374, 394-95, 80 P. 482 (1905); Kingsley v. Kressly, 60 Or. 167, 111 P. 385, 118 P. 678 (1911). [2] As to whether an agreement to extend the time for performance of a contract within the statute of frauds must itself be in writing to be enforceable see Neppach v. Or. & Cal. R.R. Co., 46 Or. 374, 80 P. 482 (1905), and 2 Corbin on Contracts 104-107, § 307 (1950). [3] See Norris, B & S v. Eastgate Theatres, 261 Or. 56, 63-64, 491 P.2d 1018 (1972). [4] See, e.g., Laster v. Hiebert, 284 Or. 493, 500, 587 P.2d 461 (1978); Stinemeyer v. Wesco Farms, Inc., 260 Or. 109, 487 P.2d 65 (1971); County of Lincoln v. Fischer, 216 Or. 421, 453-456, 339 P.2d 1084 (1959). [5] These observations do not apply to Stevens v. Good Samaritan Hosp., 264 Or. 200, 504 P.2d 749 (1972), discussed above, in which we permitted, on the basis of an estoppel, the recovery of damages for breach of an oral agreement. No question of waiver was involved. The rationale we express in this opinion will not support the result in Stevens, but we need not determine at this time whether it was decided correctly. [6] In the trial court and the Court of Appeals defendant also urged that the complaint did not adequately allege consideration for the oral modification agreement. He did not make that contention in his petition for review, but the question was discussed at some length at oral argument. As the above discussion indicates, it is not important to our decision whether the oral extension was given for adequate consideration. It is the representation inherent in the alleged agreement which is significant; if there was such a representation it is not important whether it was made in return for consideration which would support a contract. See Neppach v. Or. & Cal. R.R. Co., 46 Or. 374, 80 P. 482 (1905). But cf. Scott v. Hubbard, 67 Or. 498, 506-507, 136 P. 653 (1913). Estoppel does not require consideration. S.S. Steiner, Inc. v. Hill, 191 Or. 391, 397, 226 P.2d 307, 230 P.2d 537 (1951). [7] Scholle v. Cuban-Venezuelan Oil Voting Trust, 285 F.2d 318 (2d Cir.1960); Bonde v. Weber, 6 Ill. 2d 365, 128 N.E.2d 883 (1955); Nichols v. Sanborn, 320 Mass. 436, 70 N.E.2d 1 (1946). See also Country Club Oil Co. v. Lee, 239 Minn. 148, 58 N.W.2d 247 (1953) (option was apparently exercised by notice before time had expired; tender of further performance held excused by optionor's repudiation). [8] The authorities we have cited above also suggest that exercise of an option by notice is not a prerequisite to suit if the optionor has repudiated. While there is no apparent distinction in logic between exercise by notice and exercise by payment, the burden of giving notice is not great and the optionee thus clearly indicates his intention to become bound to purchase. We need not decide in this case whether an optionee who has failed to exercise an option which may be exercised by notice alone may, after the expiration of the option period, enforce the agreement against an optionor who has repudiated.

aa423a2a3259508a70820194de48024b313cfede82058621350fbcaa98c217fc

1980-04-22T00:00:00Z

d89b3689-3bc7-4473-a544-6b822e57283e

Satrum v. Kroger

S059691

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED November 10, 2011 Satrum v. Kroger (S059691). Petitioner's request for oral argument is denied. Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 20 (2012) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure.

c8e5da1db879b9a18c6a235796382833bfa536dec992c796f5fe89cf39ce3fca

2011-11-10T00:00:00Z

4c3bd30e-558c-43b1-b5f0-824dc01405c9

Petock v. Asante

S059046

oregon

Oregon Supreme Court

Filed: December 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON NANCY E. PETOCK, Petitioner on Review, v. ASANTE, formerly known as ASANTE HEATH SYSTEM dba ROGUE VALLEY MEDICAL CENTER, a domestic nonprofit corporation, Respondent on Review. (CC 08104117; CA A141216; SC S059046) On review of an order of the Court of Appeals.* Argued and submitted June 7, 2011. Craig Crispin, Crispin Employment Lawyers, Portland, argued the cause and filed the brief for petitioner on review. Robyn Ridler Aoyagi, Tonkon Torp LLP, Portland, argued the cause and filed the brief for respondent on review. Amy Joseph Pedersen, Stoel Rives LLP, Portland, filed the brief for amicus curiae Associated Oregon Industries, Inc. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** KISTLER, J. The decision of the Court of Appeals affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from Jackson County Circuit Court, Mark Schiveley, Judge. 237 Or App 113, 240 P3d 56 (2010). **Landau, J., did not participate in the consideration or decision of this case. 1 KISTLER, J. 1 A worker who suffers a "compensable injury" may seek compensation for 2 the injury and, for three years following the injury, also may demand reinstatement to his 3 or her former position of employment. See Armstrong v. Rogue Federal Credit Union, 4 328 Or 154, 161, 969 P2d 382 (1998). Additionally, for five years following the injury, 5 the worker may seek compensation if the condition resulting from the injury worsens. 6 ORS 656.273. The primary question in this case is whether a workplace injury that 7 plaintiff characterized, in filing a workers' compensation claim, as an aggravation or 8 worsening of an earlier compensable injury can give rise to a new three-year period in 9 which she can demand reinstatement or reemployment. 10 The trial court held that it could not and granted defendant's summary 11 judgment motion. The Court of Appeals reversed and remanded for further proceedings. 12 Petock v. Asante, 237 Or App 113, 240 P3d 56, adh'd to as clarified on recons, 238 Or 13 App 711, 243 P3d 822 (2010). Although the Court of Appeals agreed with the trial court 14 that an aggravation of an earlier injury cannot give rise to new reinstatement rights, it 15 concluded that there was a disputed issue of fact as to whether plaintiff had sustained a 16 "new and separate injury" in 2005 that would give rise to those rights. See 238 Or App at 17 at 714 (clarifying holding on reconsideration). 18 On review, plaintiff argues primarily that the Court of Appeals erred in 19 holding that an aggravation of an earlier injury cannot give rise to a right to reinstatement 20 under ORS 659A.043 or a right to reemployment under ORS 659A.046. Defendant, for 21 its part, contends that the Court of Appeals erred in concluding that the medical evidence 22 2 adduced on summary judgment was sufficient to permit a reasonable trier of fact to find 1 that the injury that plaintiff suffered was "compensable" within the meaning of ORS 2 656.005(7)(a). We allowed review to consider those issues and now affirm the Court of 3 Appeals decision, although our reasoning differs in some respects from that of the Court 4 of Appeals. 5 Defendant owns and operates the Rogue Valley Medical Center in 6 Medford.1 Plaintiff "began [her] employment at the Rogue Valley Medical Center in 7 1993 and * * * was employed there * * * as a dietary aid in Emilia's Coffee Shop," a café 8 within the medical center. On September 17, 2002, plaintiff injured her knee at work. As 9 she explained, she "started working at 8:30 am" and was "[t]he only waitress at that 10 time." At some point, "[a] lot of people all came in at the same time," and plaintiff had to 11 "move around quickly." When she "was on [her] way back to the register, [her] knee 12 made a loud popping noise" and she "couldn't walk." 13 Plaintiff's injury caused her to leave work for a short period of time. She 14 underwent knee surgery, after which her doctor diagnosed her with "chondrosis of the 15 patellofemoral joint and the trochlear groove." Plaintiff's knee specialist, Dr. Versteeg, 16 later explained that that condition is "basically an arthritis under [the] kneecap."2 As a 17 1 Because this case arises on defendant's motion for summary judgment, we state the facts in the light most favorable to the plaintiff. See Clackamas Cty Assessor v. Village at Main St. Phase II, 349 Or 330, 332, 245 P3d 81 (2010) (stating that standard). 2 Versteeg later testified that he did not know whether plaintiff's September 17, 2002, injury had caused her patellofemoral chondrosis, or whether that injury had only caused it to "bec[o]me symptomatic." As he explained, plaintiff's patellofemoral chondrosis "could have been existing there and just aggravated by her work history, I 3 result of her 2002 injury, plaintiff filed a workers' compensation claim, which defendant 1 accepted.3 After plaintiff had been "off work for a few weeks after surgery," she 2 recovered from her injury sufficiently to "retur[n] to work on light duty[.]" Finally, on 3 March 5, 2003, plaintiff's doctor determined that she was "medically stationary," and she 4 "returned to [her] former position" at that time. On March 26, 2003, defendant closed 5 plaintiff's workers compensation claim. See ORS 656.268(1)(a) (providing for the 6 closure of workers' compensation claims when "[t]he worker has become medically 7 stationary and there is sufficient information to determine permanent disability"); ORS 8 656.005(17) (a worker is "'[m]edically stationary'" when "no further material 9 improvement would reasonably be expected from medical treatment, or the passage of 10 time"). 11 In April 2005, plaintiff injured her knee a second time while working in 12 Emilia's Coffee Shop. According to plaintiff, at some point during that month, she "was 13 walking quickly in [her] work area, [she] felt [her] knee pop," and she felt "severe pain in 14 [her] knee and up [her] leg." Both plaintiff's doctor, Versteeg, and defendant's workers' 15 compensation administrator advised plaintiff that she should file an "aggravation claim" 16 for a worsened condition resulting from her earlier compensable injury. Plaintiff filed a 17 workers' compensation claim for her second injury on April 26, 2005. On the claim 18 form, plaintiff checked a box stating that she was reporting an "aggravation of original 19 _______________________ don't know, it's hard to know what causes those things quite honestly." 3 Although the record shows that defendant accepted plaintiff's 2002 claim, it does not disclose the condition that defendant accepted. 4 injury." Apparently, there was some delay in processing plaintiff's 2005 claim, and 1 plaintiff was not aware why "it was taking so long to approve [her] to see" her doctor for 2 treatment of her second knee injury. She filed another claim form on July 13, 2005, 3 again characterizing her second knee injury as an "aggravation" of the injury that she had 4 sustained on September 17, 2002. 5 Following her second knee injury, plaintiff was "placed on light duty 6 [work] in the Medical Records Office." After approximately five months, defendant 7 denied plaintiff's aggravation claim and removed her from light-duty work. As plaintiff 8 explained: 9 "On September 15, 2005, the Human Resources Department called 10 me in the Medical Records Office and told me to come down to the 11 workers' compensation office. The woman who met me there informed me 12 that my workers' compensation claim had been denied. She told me that 13 this would be my last day, and that I should go home." 14 After she was removed from light-duty work, plaintiff requested a medical leave of 15 absence under the Family and Medical Leave Act, 29 USC §§ 2601 to 2654, and the 16 Oregon Family Leave Act, ORS 659A.150 to 659A.186. Defendant granted her request. 17 At some later point, according to the parties' briefing, the Workers' Compensation Board 18 ruled in plaintiff's favor on her 2005 claim.4 19 On October 20, 2005, plaintiff underwent surgery to treat her second knee 20 injury. In the course of that operation, Versteeg discovered "a tear of the posterior horn 21 4 The parties submitted no evidence in this action regarding how or why the Workers' Compensation Board resolved plaintiff's 2005 workers' compensation claim. Plaintiff, however, represented in a memorandum opposing summary judgment that the Workers' Compensation Board had ruled in her favor. 5 of [plaintiff's] medial meniscus." It was not clear to the doctor exactly when plaintiff 1 had sustained the tear to her meniscus. He explained, "I didn't see it the first time, so I 2 don't think it was there, could it have been there, I suppose it's possible. I didn't see a tear 3 of the meniscus then, so she developed one in the interim." As to the condition with 4 which Versteeg had diagnosed plaintiff following her first knee injury in 2002 -- "the 5 chrondrosis of the patellofemoral joint and the trochlear groove" -- he stated that "that 6 [condition] was also noted the second time around too [i.e., during plaintiff's October 20, 7 2005 surgery,] and it is still there and it didn't look any worse, so that was encouraging 8 and I think it actually looked a little better." 9 In November 2005, after plaintiff recovered from her second surgery, 10 Versteeg cleared her to return to work on a light-duty basis. Accordingly, plaintiff 11 contacted defendant to notify it that she "had been released for light duty and could come 12 back to work." Defendant did not reemploy her at that time, however. Instead, as 13 plaintiff explained, defendant "told me that I could not come back on light duty because I 14 was not on workers' compensation leave. [Defendant] told me [that] I was required to 15 have a full release, and that I could come back to work only then." Plaintiff received a 16 full release on January 4, 2006. The next day, she went to Emilia's Coffee Shop "so that 17 [she] could arrange to get back on the schedule." When she arrived, she "was told that 18 [her] job had been filled, and that [her] only option was to go through the jobs book and 19 apply for other jobs." She did so, but "the only available jobs were for nurses and other 20 positions" for which plaintiff lacked "the required experience and education." All of 21 plaintiff's available leave expired on January 22, 2006, and on that date defendant sent 22 6 her a formal notice of termination.5 1 Plaintiff then brought this action, alleging that defendant had violated two 2 statutes that protect injured workers from unlawful discrimination. Those statutes, ORS 3 659A.043 and ORS 659A.046, set out the terms under which "[a] worker who has 4 sustained a compensable injury" may demand to return to the service of his or her 5 employer. See ORS 659A.043(1) and ORS 659A.046(1). The first statute, ORS 6 659A.043, gives an injured worker a right to demand reinstatement to the same position 7 that the worker formerly held. See ORS 659A.043(1) (a worker "shall be reinstated by 8 the worker's employer to the worker's former position of employment" if certain 9 conditions are met). The second statute, ORS 659A.046, provides a similar right to 10 workers who cannot be reinstated to their former position because they are not able to 11 perform the duties of that position. Those workers have a right to be reemployed by their 12 former employer in a different "available and suitable" position. See ORS 659A.046(1) 13 (providing that right under certain conditions). Both rights "terminate" after "[t]hree 14 years elapse from the date of injury." ORS 659A.043(3)(a)(F) (reinstatement); ORS 15 659A.046(3)(f) (reemployment). 16 In her complaint, plaintiff alleged that, following her April 2005 knee 17 injury, defendant unlawfully refused her demands for reemployment and reinstatement. 18 5 As noted, plaintiff initially had taken a medical leave of absence under the federal Family and Medical Leave Act and the Oregon Family Leave Act, both of which provided her with job protection. That leave expired on October 22, 2005, after which plaintiff exhausted her remaining leave under defendant's internal policy providing for a temporary extension of healthcare benefits. 7 More specifically, plaintiff claimed that, in refusing to permit her to return to work on a 1 light-duty basis after Versteeg cleared her to do so in November 2005, defendant failed to 2 reemploy her "at employment which [was] available and suitable," as ORS 659A.046(1) 3 required. Additionally, plaintiff claimed that, in refusing to allow her to resume her 4 former job at Emilia's Coffee Shop after she received a full release to return to work in 5 January 2006, defendant failed to reinstate her "to [her] former position of employment" 6 in violation of ORS 659A.043(1).6 7 Defendant moved for summary judgment in response to plaintiff's claims. 8 Defendant contended that plaintiff's rights to demand reinstatement and reemployment 9 had terminated on September 17, 2005, because the "date of [the] injury" from which 10 plaintiff had three years to demand reinstatement or reemployment was September 17, 11 2002, the date on which plaintiff first had injured her knee at work. Plaintiff opposed 12 summary judgment, arguing that, even though she had treated her April 2005 knee injury 13 as an "aggravation" in seeking workers' compensation benefits, nothing in ORS 14 659A.043 and ORS 659A.046 precluded her 2005 injury from giving rise to a new three- 15 year period in which she could demand reinstatement or reemployment. Among other 16 things, plaintiff argued that, in providing that reinstatement and reemployment rights 17 terminate after "[t]hree years elapse from the date of injury," the phrase "date of injury" 18 should be given its plain meaning, and should encompass any "injury" that causes a 19 6 Plaintiff advanced a third claim for relief based on ORS 659A.040. She alleged that her "use of the workers' compensation system" was "[a] substantial motivating cause of defendant's decision not to reemploy and not to reinstate" her. That claim is not before us. 8 worker to leave work. 1 The trial court granted defendant's summary judgment motion. That court 2 started from the proposition that, because plaintiff had filed an aggravation claim with her 3 employer, she "cannot now argue [that] her 2005 injury was a 'new' injury rather than an 4 aggravation claim." It then reasoned that, as a matter of statutory construction, an 5 aggravation claim is distinct from a claim that a worker has suffered a compensable 6 injury. It also reasoned that the "date of injury" from which a worker has three years to 7 seek reinstatement or reemployment is the date that a worker suffers a compensable 8 injury, not an aggravation of an earlier injury. It followed, the trial court concluded, that 9 plaintiff's reinstatement and reemployment rights ran from September 17, 2002, the date 10 she suffered a compensable injury. They did not run from April 2005, the date she 11 suffered an aggravation of her 2002 compensable injury. The trial court accordingly 12 granted defendant's summary judgment motion in part and entered a limited judgment on 13 plaintiff's claims for relief under ORS 659A.043 and ORS 659A.046.7 14 Plaintiff appealed, renewing her argument that nothing in ORS 659A.043 or 15 ORS 659A.046 precluded her April 2005 knee injury from giving rise to new 16 reinstatement and reemployment rights. As the Court of Appeals understood plaintiff's 17 7 The trial court determined that a question of fact precluded granting summary judgment on plaintiff's third claim for relief. On plaintiff's unopposed motions, the trial court abated the proceedings on that claim for relief and entered a limited judgment under ORCP 67 B dismissing plaintiff's reinstatement and reemployment claims for relief, finding "that there [was] no just reason for delay in the entry of a limited judgment to permit plaintiff to seek review of the dismissal of such claims." See ORCP 67 B (permitting that disposition); Interstate Roofing, Inc. v. Springville Corp., 347 Or 144, 152-53, 218 P3d 118 (2009) (discussing the same). 9 argument, it entailed two issues: 1 "First, * * * [a]ccording to plaintiff, the term 'injury' in the phrase 2 'date of injury' * * * is not limited to the technical meaning of the term 3 'injury' under workers' compensation statutes, which distinguish between an 4 injury and an aggravation. * * *. Second, plaintiff argues that, even if the 5 term 'injury' does not encompass the aggravation of an original injury, 6 summary judgment was inappropriate because there was, at the very least, a 7 question of fact as to whether the condition for which she received 8 treatment in 2005 was not an aggravation, but a 'new injury' -- namely, a 9 tear of the meniscus that was not present earlier." 10 Petock, 237 Or App at 118. 11 In analyzing the first issue, the Court of Appeals explained that the three- 12 year period for seeking reinstatement and reemployment runs from the date that an 13 employee suffers a compensable injury within the meaning of ORS 656.005(7)(a). Id. at 14 120. It also ruled that, as a matter of statutory construction, an aggravation or worsening 15 of an earlier injury "is not a separate 'compensable injury,' but is instead compensable 16 because of its relation back to the original injury." Id. at 120-21 (citing ORS 656.273(1)). 17 It followed, the Court of Appeals reasoned, that, in the context of reinstatement and 18 reemployment claims, "the 'date of injury' [from which the worker's rights to 19 reinstatement and reemployment run] is the date of the original, compensable injury 20 rather than some later date on which the injured worker's condition worsens." Id. at 122. 21 The Court of Appeals concluded that, because plaintiff had not sought 22 reinstatement or reemployment within three years of her 2002 injury, she could assert a 23 right to reinstatement or reemployment only if the 2005 injury resulted in a "new and 24 separate" injury, as opposed to an aggravation of the condition resulting from the 2002 25 compensable injury. See Petock, 238 Or App at 714 (on reconsideration). On that issue, 26 10 the Court of Appeals reasoned that Versteeg's testimony that he had observed a tear in 1 plaintiff's meniscus during the second surgery -- one that he had not seen during 2 plaintiff's first knee surgery in 2002 -- would permit a reasonable juror to find that 3 plaintiff's April 2005 knee injury was "a new and separate" compensable injury that gave 4 rise to a new three-year period in which plaintiff could seek reinstatement and 5 reemployment. Id. Accordingly, the Court of Appeals held that the trial court had erred 6 in granting defendant's summary judgment motion, reversed the trial court's judgment, 7 and remanded the case for further proceedings. Petcock, 237 Or App at 125. 8 On review, plaintiff raises primarily one argument. She acknowledges that 9 the phrase "the date of injury," from which a three-year period to seek reinstatement runs, 10 refers to the date of a "compensable injury," as that phrase is used in ORS 659A.043(1).8 11 She contends, however, that "an aggravation * * * is a 'compensable injury'" within the 12 meaning of ORS 659A.043(1) and is therefore sufficient to trigger a new three-year 13 period in which a worker may seek reinstatement. Defendant argues, in response, that an 14 aggravation or worsening of an earlier injury can never itself be a compensable injury. 15 Additionally, defendant takes issue with the Court of Appeals' reasoning that the medical 16 evidence on summary judgment was sufficient to permit a reasonable inference that 17 plaintiff suffered a "new and separate" compensable injury.9 18 8 For the purposes of the issues that the parties raise, ORS 659A.043 and ORS 659A.046 are identical. In discussing the parties' arguments, we refer only to ORS 659A.043 for ease of reference. Our conclusions regarding ORS 659A.043 apply equally to ORS 659A.046. 9 Defendant raised this issue as a contingent request for review in its 11 We begin with the issue that plaintiff raises and first set out the text of ORS 1 659A.043. ORS 659A.043(1) provides that, subject to certain conditions not at issue 2 here: 3 "A worker who has sustained a compensable injury shall be reinstated by 4 the worker's employer to the worker's former position of employment upon 5 demand for such reinstatement." 6 ORS 659A.043(3)(a) provides that "[t]he right to reinstatement to the worker's former 7 position under this section terminates when whichever of the following [six] events first 8 occurs." The first five events are: (1) a medical determination that that worker "cannot 9 return to the former position of employment"; (2) the worker's "eligibil[ity for] and 10 participat[ion] in vocational assistance under ORS 656.340"; (3) the worker's 11 "accept[ance of] suitable employment with another employer after becoming medically 12 stationary"; (4) the worker's refusal of a "bona fide offer from the employer of [suitable] 13 light duty or modified employment"; and (5) the worker's failure to request reinstatement 14 within seven days after being notified by certified mail that the worker's attending 15 physician or a specified medical professional has released the worker for employment. 16 ORS 659A.043(3)(a)(A)-(E). Finally, ORS 659A.043(3)(a)(F) provides that a worker's 17 right to reinstatement will terminate when "[t]hree years elapse from the date of injury." 18 Under the plain text of ORS 659A.043(1), a worker's right to reinstatement 19 arises when he or she sustains a "compensable injury." That right terminates when 20 _______________________ response to plaintiff's petition for review. See ORAP 9.10(1) (providing for contingent requests for review); ORAP 9.20(2) (providing that, unless the court limits the questions on review, "the questions before the Supreme Court include all questions * * * that the petition or the response claims were erroneously decided"). 12 "[t]hree years elapse from the date of injury." ORS 659A.043(3)(a)(F). As plaintiff 1 correctly acknowledges in this court, the "date of injury" in ORS 659A.043(3)(a)(F) 2 refers to the date of the "compensable injury" in ORS 659A.043(1) that gave rise to the 3 right to reinstatement in the first instance. Textually, that is the only logical referent. As 4 we read ORS 659A.043, subsection (1) provides that the occurrence of a compensable 5 injury will give rise to a right to reinstatement, and subparagraph (3)(a)(F) identifies the 6 outside time limit on the exercise of that right: If three years have elapsed from the date 7 of the compensable injury that gave rise to a worker's reinstatement rights, then those 8 rights expire. 9 Plaintiff does not dispute that proposition in this court. Rather, she argues 10 that, because an aggravation or worsening of an existing condition is an "injury" for 11 which workers' compensation benefits are available, her 2005 aggravation was a 12 "compensable injury" within the meaning of ORS 659A.043(1). In analyzing plaintiff's 13 argument, we note that the phrase "compensable injury" is a defined term for the 14 purposes of the workers' compensation statutes, which form the backdrop against which 15 ORS 659A.043 was enacted. Moreover, in Armstrong, this court explained that, as used 16 in ORS 659A.043(1), 17 "the term 'compensable injury' has the same meaning that it has in the 18 Workers' Compensation Law, ORS 656.005(7)(a). Generally, a 19 'compensable injury' is an accidental injury that 'arises out of and in the 20 course of employment.'" 21 Armstrong, 328 Or at 159 (quoting ORS 656.005(7)(a)) (footnote omitted). That 22 reasoning was integral to the court's holding in Armstrong and controls our resolution of 23 13 plaintiff's argument here. Following Armstrong, we conclude that plaintiff can establish 1 that she suffered a "compensable injury" in 2005 that will give rise to a new three-year 2 period in which she may seek reinstatement only if the injury that she sustained was a 3 "compensable injury" within the meaning of ORS 656.005(7)(a); that is, plaintiff must 4 show that she suffered "an accidental injury * * * arising out of and in the course of 5 employment requiring medical services or resulting in disability or death * * *." See 6 ORS 656.005(7)(a) (defining "compensable injury"). 7 The parties disagree whether the 2005 injury that plaintiff sustained met 8 that standard. Plaintiff appears to take the position that every aggravation will be a 9 compensable injury that gives rise to a new three-year period in which she may seek 10 reinstatement. Defendant appears to take the position that no aggravation can ever 11 constitute a compensable injury. And there is a suggestion in the Court of Appeals' 12 opinion that a new injury will be compensable only if it is separate from the condition 13 resulting from an earlier compensable injury. As explained below, we think that both 14 parties err in attempting to convert what is, at bottom, a fact-specific issue into a question 15 of law. 16 To the extent that plaintiff argues that every worsening that gives rise to 17 benefits under ORS 656.273 constitutes a "compensable injury," as that phrase is used in 18 ORS 656.005(7)(a), her argument sweeps too broadly. ORS 656.273(1) provides that "an 19 injured worker is entitled to additional compensation for worsened conditions resulting 20 from the original injury." Under ORS 656.273, a worker need not show that he or she 21 suffered a new compensable injury to establish an aggravation claim. See SAIF v. 22 14 Walker, 330 Or 102, 118, 996 P2d 979 (2000) (explaining what a worker must show to 1 establish an aggravation claim). It is sufficient if the condition resulting from the original 2 injury has worsened, see id., unless "the major contributing cause of the worsened 3 condition is an injury not occurring within the course and scope of employment," ORS 4 656.273(1) (emphasis added).10 5 Conversely, to the extent that defendant argues that the same set of facts 6 can never give rise to both an aggravation claim and a compensable injury claim, its 7 argument also sweeps too broadly. Suppose a worker suffers, at different times, two 8 workplace injuries while working for the same employer, and the second injury 9 aggravates a preexisting condition that resulted from the earlier compensable injury. If 10 the later injury both combined with the preexisting condition "to cause or prolong 11 disability or a need for treatment" and was the major contributing cause of the disability 12 or need for treatment, then the worker could bring a claim for a compensable injury. See 13 ORS 656.005(7)(a)(B) (defining when a combined condition will be compensable). 14 The worker also could bring an aggravation claim on the theory that the 15 worsened condition resulted from the original compensable injury and that the major 16 10 ORS 656.273(1) provides, in part: "After the last award or arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings. However, if the major contributing cause of the worsened condition is an injury not occurring within the course and scope of employment, the worsening is not compensable." 15 contributing cause of the worsened condition was not an injury that occurred outside the 1 course and scope of employment. See ORS 656.273(1) (providing that a worsened 2 condition resulting from an earlier injury is not compensable if the major contributing 3 cause of the worsening did not occur in the course and scope of employment). Even if 4 the second workplace injury was the major contributing cause of the worsened condition, 5 that does not mean that the worsened condition did not "result" from the first injury 6 within the meaning of ORS 656.273(1). In short, we disagree with defendant to the 7 extent that it argues that the same set of facts can never give rise to both an aggravation 8 claim and a compensable injury claim.11 9 Finally, there is a suggestion in the Court of Appeals opinion that a second 10 workplace injury will be compensable only if the resulting condition is separate from the 11 condition that resulted from the earlier compensable injury. See Petock, 237 Or App at 12 123 (explaining that plaintiff's 2005 injury would be compensable if it resulted in a torn 13 meniscus as opposed to a worsening of her patellofemoral chondrosis). As explained 14 above, however, to the extent that an otherwise compensable injury combines with a 15 preexisting condition resulting from an earlier compensable injury to cause or prolong 16 disability or the need for treatment, the second injury will be compensable so long as it is 17 the major contributing cause of the disability or need for treatment. Conversely, if the 18 second injury did not combine with a preexisting condition, then the inquiry would be 19 11 There may be other situations in which the same set of facts can give rise to both an aggravation claim and a compensable injury claim. Our point is not to exhaust the possible factual situations but to show that the absolute position that defendant has advanced is not well taken. 16 whether the second injury was a "compensable injury" as defined in ORS 656.005(7)(a). 1 See ORS 656.005(7) (distinguishing among compensable injuries, consequential 2 conditions resulting from compensable injuries, and otherwise compensable injuries that 3 combine with preexisting conditions).12 4 In our view, the parties err in arguing that, as a matter of law, an 5 aggravation either always will result in a compensable injury or never will do so. Rather, 6 the question before the trial court on summary judgment was a simpler one: whether the 7 facts that gave rise to plaintiff's 2005 workplace injury were sufficient to permit a 8 reasonable inference that the injury was compensable within the meaning of ORS 9 656.005(7)(a). If they were, then defendant cannot prevail on summary judgment on the 10 ground that plaintiff's November 2005 demand for reemployment and her January 2006 11 demand for reinstatement were untimely. However, if no reasonable juror could find that 12 the 2005 injury was compensable, then defendant's summary judgment motion was well 13 taken. 14 On that issue, plaintiff submitted evidence that, "while [she] was working at 15 Emilia's" Coffee Shop in 2005, she "was walking quickly in [her] work area, [she] felt 16 [her] knee pop," and she felt "severe pain in [her] knee and up [her] leg." As a result of 17 that workplace injury, she required a second surgery on her knee. At first blush, it is 18 12 Because plaintiff's 2002 and 2005 injuries occurred while she was working for the same employer, ORS 656.308(1) does not apply. That statute specifies when a subsequent employer will be responsible for a "new compensable injury involving the same condition" that an earlier employer had accepted. See generally Multifoods Specialty Distribution v. McAtee, 333 Or 629, 43 P3d 1101 (2002) (discussing that statute). 17 difficult to see why that evidence is not sufficient to permit a reasonable juror to find that 1 plaintiff suffered "an accidental injury * * * arising out of and in the course of 2 employment requiring medical services[.]" See ORS 656.005(7)(a) (defining a 3 compensable injury). 4 Over the course of this litigation, defendant has advanced three arguments 5 why it should prevail on summary judgment. In the Court of Appeals, defendant noted 6 that, when plaintiff filed a claim for workers' compensation benefits in 2005, she checked 7 a box on the claim form that states "[r]eport of aggravation of original injury." It 8 followed, defendant argued, that issue preclusion barred plaintiff from arguing in this 9 action that her 2005 injury was a new compensable injury rather than an aggravation and 10 that, as a matter of law, an aggravation and a compensable injury are mutually exclusive 11 statutory categories. In defendant's view, if plaintiff's 2005 injury was an aggravation of 12 an earlier injury, it cannot be a compensable injury and her reinstatement claim 13 necessarily fails. 14 Regarding defendant's issue preclusion argument, we note that issue 15 preclusion is an affirmative defense, for which defendant bears the burden of persuasion. 16 See ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117, 138, 241 P3d 710 17 (2010) (so stating); Keller v. Armstrong World Industries, Inc., 342 Or 23, 38 n 12, 147 18 P3d 1154 (2006) (same). If defendant wanted to rely on issue preclusion as a basis for 19 seeking summary judgment, it had the burden of producing evidence to establish that 20 defense. See Keller, 342 Or at 38 n 12 ("On summary judgment, a party has the burden 21 to produce evidence as to which it has the burden of persuasion at trial. ORCP 47 C."). 22 18 Defendant, however, did not introduce any evidence to establish how or why the 1 Workers' Compensation Board resolved plaintiff's 2005 workers' compensation claim. 2 As the Court of Appeals correctly recognized, the factual predicate for defendant's issue 3 preclusion argument was absent.13 See Petock, 237 Or App at 123-24. 4 Before this court, defendant acknowledges that, on this record, it cannot 5 establish issue preclusion. However, it reiterates its argument that, as a statutory matter, 6 aggravation claims are distinct from and derivative of compensable injury claims. The 7 point of defendant's argument is not completely clear, however. To the extent that 8 defendant argues that the fact that plaintiff characterized her 2005 injury as an 9 aggravation on the worker's compensation claim form somehow precludes her from 10 arguing in this action that her injury was a compensable injury within the meaning of 11 ORS 656.005(7)(a), we do not understand the basis for that argument. 12 This court explained in Armstrong that an injured worker need not establish 13 in a workers' compensation proceeding that he or she suffered a compensable injury 14 before bringing a reinstatement claim under ORS 659A.043. Armstrong, 328 Or at 162- 15 63. The reinstatement claim can proceed independently. Id. Moreover, as noted above, 16 defendant cannot argue that, on this record, issue preclusion prevents plaintiff from 17 arguing in this action that her 2005 injury was a compensable injury. Even if defendant 18 were correct that the same facts cannot give rise to an aggravation claim and a 19 13 Because there was no factual predicate for defendant to assert issue preclusion, we need not decide whether, if the factual predicate existed, issue preclusion either would apply or would act as a bar to proving a compensable injury. 19 compensable injury claim (a proposition with which we have noted our disagreement), 1 we fail to see the relevance of that proposition in the context of defendant's summary 2 judgment motion. On this record, plaintiff was free to argue that her 2005 injury was a 3 compensable injury within the meaning of ORS 656.005(7)(a).14 4 Finally, defendant argues that the Court of Appeals erred in concluding that 5 the medical evidence was sufficient to permit a reasonable trier of fact to find that the 6 2005 injury caused the torn meniscus. That was not the ground on which the parties 7 litigated the summary judgment motion before the trial court, however. Rather, the 8 opening memorandum that defendant filed in the trial court assumed, without explaining 9 the basis for the assumption, that the only compensable injury that plaintiff suffered was 10 the 2002 injury. In its reply memorandum, defendant made that assumption explicit; it 11 stated that, having filed aggravation claims for the 2005 injury, plaintiff "cannot now 12 convert these aggravation claims into a new injury to suit her current litigation 13 strategies." Defendant accordingly contended that only the 2002 injury was a 14 compensable injury that gave rise to reinstatement and reemployment rights; however, 15 plaintiff did not demand reinstatement and reemployment until three years had elapsed 16 14 In Armstrong, the employer had denied the employee's workers' compensation claim, and the question was whether the employee could pursue a reinstatement claim under ORS 659A.043 when the Workers' Compensation Board had not yet determined whether the injury was compensable. See 328 Or at 163. This court held that the worker could. Id. The court did not have occasion in Armstrong to consider whether a final determination in a workers' compensation proceeding would have a preclusive effect in a proceeding for reinstatement and reemployment under ORS 659A.043 and ORS 659A.046. This case does not present that issue either, and we express no opinion on it. 20 from the date of that injury. 1 In the Court of Appeals, defendant argued both in its answering brief and 2 also in its petition for reconsideration that, to the extent that plaintiff was arguing that she 3 sustained a new compensable injury in 2005, the medical evidence in the record was not 4 sufficient to support that contention. In effect, defendant advanced a different ground for 5 sustaining the trial court's summary judgment ruling than it had advanced before the trial 6 court.15 Defendant raises the same argument before this court in challenging the Court of 7 Appeals' conclusion that there was sufficient evidence of a compensable injury in 2005 to 8 deny defendant's summary judgment motion. 9 Given that background, we conclude that this is a case in which plaintiff 10 might have offered other, additional evidence if defendant had sought summary judgment 11 on the ground it now advances for affirming the trial court's ruling. Put differently, we 12 cannot say that the record is "materially * * * the same one that would have been 13 developed had [defendant] raised the alternative basis for affirmance below" that it now 14 asserts. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 15 P3d 180 (2001) (explaining when a court may affirm a ruling on grounds not urged 16 below). In these circumstances, we cannot rely on the "right for the wrong reason" 17 15 We note that, before the trial court, no one discussed whether the 2005 injury combined (or did not combine) with any preexisting condition or, if it were a combined condition, who had the burden of proving that the 2005 injury was the major contributing cause of plaintiff's need for treatment. Cf. ORS 656.266(2) (providing that, in a workers' compensation proceeding, once the worker establishes an otherwise compensable injury, the employer has the burden of proving that the injury is not the major contributing cause of a combined condition). 21 doctrine to uphold the trial court's ruling. See id. Rather, we conclude that, on this 1 record, the Court of Appeals correctly reversed the trial court's summary judgment ruling 2 and remanded for further proceedings. 3 The decision of the Court of Appeals is affirmed. The judgment of the 4 circuit court is reversed, and the case is remanded to the circuit court for further 5 proceedings. 6

7302eec48632218f7784e55c8ff9d8c8924dd3fcab9b227a77faffcff376f669

2011-12-30T00:00:00Z

6de6f6b4-67a1-4121-b202-e5f0e1801921

Rasmussen v. Kroger

S059368

oregon

Oregon Supreme Court

Filed: October 6, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON GAIL RASMUSSEN and BETHANNE DARBY, Petitioners, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S059368) En Banc On petition to review ballot title filed April 15, 2011, considered and under advisement June 22, 2011. Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the petition and reply memorandum for petitioners. Samuel A. Kubernick, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. LINDER, J. Ballot title referred to the Attorney General for modification. 1 LINDER, J. 1 Petitioners seek review of the Attorney General's certified ballot title for 2 Initiative Petition 15 (2012). See ORS 250.085(2) (specifying requirements for seeking 3 review of certified ballot title). This court reviews the certified ballot title to determine 4 whether it substantially complies with ORS 250.035(2) (stating requirements for ballot 5 titles). For the reasons explained below, we refer the ballot to the Attorney General for 6 modification. 7 If enacted, Initiative Petition 15 would add a provision to the Oregon 8 Revised Statutes that would phase out all estate and inheritance taxes, and related taxes 9 on intra-family property transfers, that the state currently has statutory authority to 10 collect. The proposed measure would supersede any Oregon law that purports to impose 11 such a tax. 12 The Attorney General certified the following ballot title for Initiative 13 Petition 15: 14 "Phases out estate and inheritance taxes, and any tax on property 15 transfers between family members 16 "Result of 'Yes' Vote: 'Yes' vote phases out estate/inheritance tax, 17 tax on death-related property transfers, and tax on property transfers 18 between certain family members; reduces state revenue. 19 "Result of 'No' Vote: 'No' vote retains one-time estate tax on 20 inherited property for estates of certain value; tax on property transfers 21 between family members in certain circumstances. 22 Summary: Current state law imposes one-time tax on estate of 23 person dying on/after January 1, 2006, if estate's gross value -- determined 24 by federal law as of December 31, 2000 -- is at least $1,000,000. Current 25 law taxes income-producing property sales, regardless of parties' 26 2 relationship. Measure incrementally phases out estate/inheritance tax, tax 1 on property transfers between 'family members' (defined), and tax on 2 property transferred in connection with person's death; prohibits imposition 3 of such taxes on property of person dying on/after January 1, 2016. Allows 4 state to cooperate with other states and federal government in administering 5 those entities' estate/inheritance taxes; permits fees on probate and other 6 transactions that may occur following person's death. Measure reduces 7 state revenues; provides no replacement. Other provisions." 8 (Boldface in original.) 9 Petitioners are electors who timely submitted written comments to the 10 Secretary of State concerning the content of the Attorney General's draft ballot title and 11 who therefore are entitled to seek review of the resulting certified ballot title in this court. 12 See ORS 250.085(2) (stating that requirement). Petitioners challenge the caption and 13 "yes" and "no" vote result statements. 14 We first consider petitioners' challenge to the caption. Our task is to 15 determine whether the caption substantially complies with the relevant statutory standard. 16 ORS 250.085(5). ORS 250.035(2)(a) sets out the basic standard for ballot title captions: 17 A certified ballot title must contain a "caption of not more than 15 words that reasonably 18 identifies the subject matter." The "subject matter" of a proposed measure is "the 'actual 19 major effect' of [the] measure or, if the measure has more than one major effect, all such 20 effects (to the limit of the available words)." Whitsett v. Kroger, 348 Or 243, 247, 230 21 P3d 545 (2010). When the major effect of a proposed measure would be a substantive 22 change in existing law, the ballot title should inform the reader of the scope of the 23 change. Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004) (caption should identify 24 the proposed measure's subject matter in a way that "do[es] not understate or overstate 25 3 the scope of the legal changes that the proposed measure would enact"). 1 Petitioners argue that the Attorney General's caption for Initiative Petition 2 15 violates the relevant standards because it suggests to the reader that the measure's 3 actual effect is far broader than it actually is. Petitioners argue, in particular, that the 4 caption erroneously suggests to voters that the measure would phase out a tax that 5 presently applies to all estates, when, in fact, the present estate tax applies only to estates 6 with a gross value of $1 million or more. In other words, according to petitioners, the 7 measure's effect would be restricted to eliminating the tax on those larger estates, which 8 is an effect that the caption does not identify. 9 Recently, in Rasmussen v. Kroger, 350 Or 533, 258 P3d 1224 (2011), this 10 court considered a similar argument in the context of a challenge to the Attorney 11 General's certified ballot title for a related proposed measure. That proposed measure 12 would amend the Oregon Constitution to prohibit the state and its political subdivisions 13 from imposing any estate, inheritance, or other tax on the transfer of a person's property 14 "where the transfer is the result of the death of a person." The Attorney General certified 15 the following caption for the ballot: "Amends Constitution: Prohibits any inheritance or 16 estate taxes on property transferred in connection with a person's death." The petitioners 17 in that case (who also are petitioners in the present case) raised the same objection to that 18 caption that they now raise to the caption certified for Initiative Petition 15 -- viz., that the 19 caption erroneously suggests that all estates in Oregon are subject to estate and 20 inheritance taxes and, thus, misleads the reader as to the scope of changes that the 21 proposed measure would effect. 22 4 This court rejected that argument, explaining: 1 "Nothing in the certified caption suggests that all persons currently are 2 subject to estate or inheritance taxes. Rather, the caption accurately 3 identifies the subject matter of the measure as a constitutional prohibition 4 on the imposition of an estate or inheritance tax on the transfer of a 5 decedent's property in connection with that person's death. Contrary to 6 petitioners' assertion, the adoption of such a prohibition would have an 7 effect on Oregon residents, including those with estates of less than $1 8 million, because it would place in the constitution a bar on any law that 9 imposed such a tax." 10 Id. at 536. 11 Despite the similarities in the arguments and subject matter between 12 Rasmussen and this case, Rasmussen does not dictate the result here, because the two 13 measures differ in a significant way. The proposed measure at issue in Rasmussen was a 14 constitutional amendment that would flatly prohibit the imposition of any estate or 15 inheritance tax by the state or any local government. Although the measure clearly 16 would have the specific effect of nullifying existing estate and inheritance tax laws, it 17 ultimately would have the broader and more lasting effect of prohibiting the legislature in 18 the future from enacting laws imposing such taxes. Thus, the measure at issue in 19 Rasmussen had the major effect of limiting the legislature's power to levy estate and 20 inheritance taxes. In the light of that effect, a caption that focused on that broad 21 constitutional change, without mentioning the specifics of the existing laws that would be 22 nullified, did not mislead readers about the scope of the proposed change. 23 In contrast, the proposed measure in this case is statutory, and it explicitly 24 purports to "phase out" the existing statutory scheme for taxation of estates and intra- 25 family gifts ("the Death Tax system in place at the time of passage of this Act"). When a 26 5 proposed measure is explicitly directed at changing the existing statutory scheme and its 1 major effect will be to change that scheme, the particulars of the existing scheme may be 2 an essential element that must be disclosed in the caption in order to inform the reader of 3 "the scope of the legal changes that the proposed measure would enact." Kain/Waller, 4 337 Or at 40. 5 Kain/Waller is instructive. In Kain/Waller, the petitioners challenged the 6 certified ballot titles for two proposed measures that would cap ad valorem property taxes 7 levied on single family residences at $200 per month. The captions of the certified ballot 8 titles described both measures in essentially those terms: "Amends Constitution: Caps 9 Property Taxes on Single Family Residence and the Land Upon Which It Is Located."1 10 The petitioners argued that the captions failed to reasonably identify the subject matter of 11 the proposed measures, because they failed to disclose that the measures would 12 fundamentally alter Oregon's system of property taxation from one based on the assessed 13 value of property to one that levies taxes at a flat amount regardless of the property's 14 assessed value. This court agreed with the petitioners, holding that (1) the shift away 15 from a property taxation scheme that historically had relied on assessed value of the 16 affected property was not merely "one effect" of the proposed measure, but "[went] to the 17 heart of the proposed measure and [was] part of its subject matter," 337 Or at 44; and (2) 18 1 The proposed measures in Kain/Waller were constitutional amendments, but nevertheless illustrate the point that, in some circumstances, to inform the reader of "the scope of the legal changes that the proposed measure would enact," the caption will have to describe some particulars of the existing statutory scheme. 6 the caption must make the fact of the shift explicit, and could not rely on an assumption 1 that the voters were aware of relevant statutory background that made it clear that the 2 proposed measure involved a shift to a property tax system that would apply the same tax 3 limit to all property regardless of value, id.2 4 The question in this case, then, is whether the logic of Kain/Waller applies 5 to the caption of the certified ballot title for Initiative Petition 15. We are persuaded that 6 it does. Just as the assessment cap in Kain/Waller would have represented a fundamental 7 shift in Oregon's property taxation scheme, so, too, would the adoption of Initiative 8 Petition 15 represent a fundamental shift in Oregon's estate taxation scheme -- that is, a 9 shift from one that taxes only very large estates to one that allows those very large estates 10 to avoid taxation. That change represents a significant policy choice that goes to the crux 11 of the proposed measure's effect. It is part of the subject matter of the proposed measure 12 and must be acknowledged in the ballot title's caption, if it is possible to do so within the 13 2 Whitsett v. Kroger, 348 Or 243, 230 P3d 545 (2010) also is on point. In Whitsett, the petitioners challenged the attorney general's certified ballot title for a referred measure that would authorize the state to issue general obligations bonds to finance acquisition, construction, repair and furnishing of state-owned property. The petitioners argued that the certified caption, which described the measure's subject in terms of "authoriz[ing] lowest-cost borrowing for state's real and personal property projects," was misleading because it failed to mention that the proposed measure would essentially supersede an existing constitutional limitation on the state's incursion of debt. This court agreed, citing Kain/Waller, and noting that a ballot title caption for such measures must "inform prospective voters of the 'substantive change' in existing law that the measure will make." Whitsett, 348 Or at 248 (emphasis added). The court particularly noted that the change to the existing law represented a significant policy choice, and that the caption must acknowledge that policy choice. Id. at 249. 7 15-word limit specified in ORS 250.035(2)(a). 1 Petitioners also argue that the caption is inadequate because it makes no 2 reference to what they perceive to be another primary effect of the measure -- that of 3 "reducing revenue, without replacing that revenue." Petitioners contend that, to the 4 extent that the Attorney General has opted to describe the "subject matter" of the 5 proposed measure in terms of an effect (i.e., the phasing out of estate and inheritance 6 taxes), he must include some reference to the measure's effect on state revenues. We are 7 not persuaded. An "effect" that is at the heart of a proposed measure -- such as a shift in 8 the existing statutory paradigm for dealing with a subject of interest to the government 9 and the public -- qualifies as the proposed measure's "subject matter" and must be 10 mentioned in the ballot title caption. But that does not mean that any and all results or 11 "effects" that might flow from a proposed measure's adoption demand similar treatment. 12 The Attorney General concluded that the reduction of revenue to the state would be a 13 result that warrants mention in the ballot title's results statements and included it in the 14 "yes" vote result statement in the certified ballot title. But we conclude that that result is 15 not so central to the proposed measure's meaning and purpose that it must be mentioned 16 in the caption as well.3 17 We turn next to petitioners' challenges to the "yes" and "no" vote results 18 3 Petitioners also argue that the caption is inadequate because it does not mention a savings clause in the proposed measure that allows for the imposition of fees on probate and other transactions that may be triggered by a person's death. That argument is without merit, and we reject it without further discussion. 8 statements. Again, we review those statements for substantial compliance with the 1 relevant statutory standards. ORS 250.085(5). Those standards provide that a "yes" vote 2 result statement must be a "simple and understandable statement of not more than 25 3 words that describes the result if the * * * measure is approved," while a "no" result 4 statement must be a similarly concise "simple and understandable statement * * * that 5 describes the result if the * * * measure is rejected." ORS 250.035(2)(b) and (c). 6 For the reader's convenience, we set out, for a second time, the "yes" and 7 "no" result statements in the Attorney General's ballot title: 8 "Result of 'Yes' Vote: 'Yes' vote phases out estate/inheritance tax, 9 tax on death-related property transfers, and tax on property transfers 10 between certain family members; reduces state revenue. 11 "Result of 'No' Vote: 'No' vote retains one-time estate tax on 12 inherited property for estates of certain value; tax on property transfers 13 between family members in certain circumstances." 14 Petitioners contend that the result statements fail to substantially comply 15 with the statutory standard because they fail to "inform the voter that the current estate 16 tax is on one-million-dollar-plus estates and that passage of [Initiative Petition 15] would 17 eliminate that tax on those estates." The Attorney General observes, however, that the 18 "no" vote result statement informs the reader that the existing estate tax scheme (which 19 the proposed measure would change) imposes estate taxes only on "estates of certain 20 value." The Attorney General contends that that statement will sufficiently inform any 21 voter who reads the two result statements together (as they should) that the proposed 22 measure's phase out of estate taxes would affect only a limited number of persons. 23 The Attorney General raised an identical argument in defense of similarly 24 9 worded "yes" and "no" vote result statements in the certified ballot title at issue in 1 Rasmussen, mentioned above. __ Or at __ (slip op at 3-4). We rejected the argument 2 there, concluding that the indefinite reference to "estates of certain value" did not inform 3 voters which estates presently are subject to estate taxes (and, thus, would continue to be 4 subject to estate taxes if the measure were rejected). See Rasmussen, 350 Or App at 538- 5 39.4 The "yes" and "no" statements must be modified so that, individually or together, 6 they inform the voter that current law only taxes estates valued at $1 million or more, and 7 that a "no" vote will retain that scheme while a "yes" vote will not.5 8 Petitioners have not challenged the certified ballot title's summary. The 9 Attorney General, however, has notified the court that legislation recently enacted by the 10 Oregon legislature may affect the accuracy of a portion of the certified ballot title 11 summary. The Attorney General points, in particular, to House Bill (HB) 2541 (2011) 12 (signed by the governor on June 28, 2011), which amends ORS 118.007 (2009) to 13 provide that references to the Internal Revenue Code in that statute relate to the code "as 14 4 Although it may be acceptable in some cases to state the results of "yes" and "no" votes with less specificity, that is not the case here. As we have suggested above, __ Or at __ (slip op at 6), a clear policy choice inheres in the current scheme of taxing estates in excess of $1 million. The phrase "estates of a certain value" is too vague and general to inform voters of the policy choice that would be reversed if the proposed measure were adopted or that it would remain intact if the proposed measure were rejected. 5 Petitioners also argue that the "yes" and "no" vote result statements fail to comply substantially with ORS 250.035(2)(b) and (c) because they do not refer to the fact that the proposed measure would allow fees associated with the death of an individual. That argument is not well taken and we reject it without further discussion. 10 amended and in effect on December 31, 2010," rather than, as had previously been the 1 case, to the code as in effect on December 31, 2000. The Attorney General observes that 2 that change appears to render a statement in certified ballot title's summary -- that current 3 Oregon law imposes a tax on an estate's "gross value [as] determined by federal law as of 4 December 31, 2000" -- inaccurate. 5 We acknowledge the problem that the Attorney General identifies. We are 6 remanding the certified ballot title to the Attorney General for modifications to the 7 caption and "yes" and "no" vote results statements (as discussed above), and we invite the 8 Attorney General to modify the summary as well, to correct the problem that has arisen 9 out of the enactment of HB 2541. 10 Ballot title referred to the Attorney General for modification. 11

771464e3011ea2ca714112afaf6d88cf2b7d63ef4c7b0311b2441edd227ec418

2011-10-06T00:00:00Z

06759d85-9cb4-496c-806f-51a630ac8d6c

Oregon v. Rainoldi

S058846

oregon

Oregon Supreme Court

1 Filed: December 30, 2011 1 2 IN THE SUPREME COURT OF THE STATE OF OREGON 3 4 STATE OF OREGON, 5 Petitioner on Review, 6 7 v. 8 9 10 NICHOLAS RYAN RAINOLDI, 11 Respondent on Review. 12 13 (CC 061255770; CA A136377; SC S058846) 14 15 En Banc 16 17 On review from the Court of Appeals.* 18 19 Argued and submitted May 3, 2011. 20 21 Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and 22 filed the brief for petitioner on review. With him on the brief were John R. Kroger, 23 Attorney General, and Mary H. Williams, Solicitor General. 24 25 Ernest G. Lannet, Chief Deputy Defender, Salem, argued the cause and filed the 26 brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, 27 Office of Public Defense Services. 28 29 LANDAU, J. 30 31 The decision of the Court of Appeals is reversed. The judgment of the circuit 32 court is affirmed. 33 34 35 *Appeal from Multnomah County Circuit Court, Frank L. Bearden, Judge. 236 Or 36 App 129, 235 P3d 710 (2010). 37 38 2 LANDAU, J. 1 ORS 166.270(1) provides that any person "who has been convicted of a 2 felony" who owns or possesses a firearm commits the crime of felon in possession of a 3 firearm. The issue in this case is whether the statute requires proof that the defendant 4 knew that he had been convicted of a felony before he possessed, or attempted to possess, 5 a firearm. The Court of Appeals held that ORS 166.270(1) requires proof of such 6 knowledge and that the trial court erred in failing to deliver a jury instruction to that 7 effect. We reverse the decision of the Court of Appeals and affirm the judgment of the 8 circuit court. 9 I. BACKGROUND 10 The relevant facts are few and undisputed. In 2004, defendant was 11 convicted of two offenses: forgery in the first degree, ORS 165.013, and identity theft, 12 ORS 165.800. Both are Class C felonies. ORS 165.013(3); ORS 165.800(2). The trial 13 court sentenced him to 24 months' probation. On the judgment, the trial judge wrote 14 "misd. treat. on completion of probation." Defendant completed probation in May 2006. 15 Several months later, defendant attended a gun show and attempted to 16 purchase a shotgun from Keith's Sporting Goods. As part of that transaction, defendant 17 filled out a background check form. On the form, he indicated that he had never been 18 convicted of a felony. Using the information that defendant provided, an employee of 19 Keith's Sporting Goods called the State Police Firearms Unit to run a background check 20 on defendant for approval of the shotgun sale. Based on the background check, 21 defendant's application to purchase the shotgun was denied. 22 3 Two police officers, Jacquot and Kulp, were also at the gun show. 1 Dispatch notified them that defendant, a convicted felon, was attempting to purchase a 2 firearm from Keith's Sporting Goods. The officers went to the Keith's Sporting Goods 3 booth, spoke with the owner, and reviewed defendant's background check form. During 4 their conversation, the owner was able to identify defendant for the officers. 5 The officers then contacted defendant, and the three went outside to discuss 6 the situation. Once outside, defendant verified his identity and told the officers that he 7 had been convicted of forgery a few years ago but that he understood the trial judge to 8 have told him that, on completion of probation, his convictions would be reduced to 9 misdemeanors. He explained that, because he had completed probation several months 10 earlier, his crimes were only misdemeanors. Officer Kulp went to his patrol vehicle and 11 ran another background check on defendant in an attempt to confirm his story. Because 12 defendant's felony convictions still appeared on his record, the officers cited him for 13 attempted unlawful purchase of a firearm, ORS 166.425, and attempted felon in 14 possession of a firearm, ORS 166.270. The state then charged defendant by information 15 with those offenses, alleging that defendant "knowingly" attempted to purchase and 16 "intentionally" attempted to own a firearm. 17 Before trial, defendant requested that the trial court instruct the jury that, to 18 find him guilty of attempted felon in possession of a firearm, the jury had to conclude 19 that defendant knew that he was a felon at the time he attempted to purchase the shotgun. 20 The trial court denied the request. 21 At trial, defendant admitted that he had attempted to purchase the firearm. 22 4 He further stipulated that, by virtue of his 2004 convictions, he had been convicted of a 1 felony. He asserted that, nevertheless, he was not prohibited from purchasing or 2 possessing a firearm because, at the time he attempted to do so, he believed that his 3 felony convictions had been reduced to misdemeanors. In support of that assertion, he 4 testified that the sentencing judge explained that if he completed his two-year probation 5 period, his two felony convictions would be treated as misdemeanors. Although 6 defendant admitted that he had no documentation that his felonies actually had been 7 reduced to misdemeanors, he testified that he believed, at the time of the attempted 8 purchase, that his convictions were only misdemeanors. 9 The jury was instructed that, among other things, to convict defendant for 10 attempted possession of a firearm by a felon, it was required to find that defendant 11 "knowingly attempted to possess any firearm." The jury found defendant guilty of 12 attempted felon in possession of a firearm, but acquitted him of the remaining charge. 13 Defendant appealed, arguing that the trial court erred in failing to instruct the jury that it 14 had to find that defendant knew he was a felon in order to find him guilty. The Court of 15 Appeals agreed and reversed the judgment of conviction, holding that a person's status as 16 a felon requires proof of a culpable mental state. State v. Rainoldi, 236 Or App 129, 149, 17 235 P3d 710 (2010). The court noted that, under ORS 161.105(1), a statute defining an 18 offense that is outside of the Oregon Criminal Code does not require proof of a culpable 19 mental state if that statute "clearly indicates" an intention to dispense with the 20 requirement. The court observed that the text of ORS 166.270(1)(b) "provides no 21 indication, much less a clear indication" of an intention to dispense with proof of a 22 5 culpable mental state as to the element of defendant's prior felony conviction. Id. at 135. 1 Likewise, the court stated, the legislative history of the statute is silent on the point. Id. at 2 136. Particularly in light of the "emphatic legislative and judicial hostility toward strict 3 liability crimes," the court concluded, that silence is dispositive. Id. at 140. We accepted 4 review of this case to determine whether that conclusion is correct. 5 II. ANALYSIS 6 A. Applicable law 7 The extent to which criminal liability requires proof of a particular mental 8 state is prescribed by statute. ORS 161.095(2) provides: 9 "Except as provided in ORS 161.105, a person is not guilty of an 10 offense unless the person acts with a culpable mental state with respect to 11 each material element of the offense that necessarily requires a culpable 12 mental state." 13 By its terms, that somewhat circular requirement that there be proof of a culpable mental 14 state for "each material element of the offense that necessarily requires a culpable mental 15 state" applies "[e]xcept as provided in ORS 161.105." The exception to which ORS 16 161.095 refers provides, in part: 17 "Notwithstanding ORS 161.095, a culpable mental state is not 18 required if: 19 "* * * * * 20 "(b) An offense defined by a statute outside the Oregon Criminal 21 Code clearly indicates a legislative intent to dispense with any culpable 22 mental state requirement for the offense or for any material element 23 thereof." 24 ORS 161.105(1)(b). The statutes thus impose different requirements, depending on 25 whether the offense at issue is defined by a statute within the Oregon Criminal Code. 26 6 In this case, the offense at issue -- felon in possession of a firearm -- is 1 defined by ORS 166.270. That statute is not within the Oregon Criminal Code. ORS 2 161.005 spells out precisely which provisions of the Oregon Revised Statutes may be 3 cited as the "Oregon Criminal Code of 1971," commonly referred to as the "Oregon 4 Criminal Code" without the date. See, e.g., ORS 161.535; ORS 161.555; ORS 161.665 5 (all referring to "the Oregon Criminal Code"). ORS 166.270 is not listed as one of the 6 statutes that may be cited as the Oregon Criminal Code. 7 In State v. Rutley, 343 Or 368, 375, 171 P3d 361 (2007), this court 8 addressed the proper method of analysis of the extent to which an offense not within the 9 Oregon Criminal Code requires proof of a culpable mental state as to a particular 10 element. The court held that the analysis proceeds in the following sequence. First, it 11 must be determined whether, under ORS 161.105(1)(b), the offense at issue "clearly 12 indicates a legislative intent to dispense" with the mental state requirement as to the 13 element. If the answer is yes, then the analysis is at an end. If, however, it cannot be said 14 that the relevant statute "clearly indicates" such an intent, then the offense is treated as if 15 it were part of the Oregon Criminal Code, subject to the requirement of ORS 161.095(2). 16 That triggers a second determination, viz., whether the particular element is a "material 17 element of the offense that necessarily requires a culpable mental state." Id. at 373-75. 18 Under Rutley, then, our initial task is to determine whether the offense of 19 felon in possession of a firearm "clearly indicates a legislative intent to dispense with any 20 culpable mental state" for the element that the defendant "has been convicted of a felony" 21 within the meaning of ORS 161.105(1)(b). Unfortunately, as has been noted in earlier 22 7 cases, the legislature has provided no guidance about how we should determine whether 1 an offense "clearly indicates" such legislative intent. See State v. Miller, 309 Or 362, 2 366, 788 P2d 974 (1990) (so noting). In the process of applying the standard in a number 3 of specific cases, however, this court has identified four factors that it takes into account 4 in applying ORS 161.105(1)(b). The court has not catalogued those factors in any single 5 decision, so we take the opportunity to do so in this case. But the list is not exhaustive; 6 other factors may be relevant, depending on the circumstances. 7 The first is the text of the statute defining the offense itself. ORS 8 166.425(1) -- to take an example from a statute pertaining to firearms offenses -- provides 9 that a person commits the crime of unlawfully purchasing a firearm if the person, 10 "knowing that the person is prohibited by state or federal law from owning or possessing 11 the firearm," attempts to purchase the firearm. Obviously, the legislature knows how to 12 craft legislation requiring proof of a culpable mental state, and such unambiguous 13 statements of legislative intent as that in ORS 166.425(1) ordinarily will be dispositive of 14 the inquiry required under ORS 161.105(1)(b). 15 The fact that a statute does not include such an unambiguous statement of 16 legislative intent is more problematic. On the one hand, it can be argued that legislative 17 silence does not "clearly indicate" anything. On the other hand, such silence may give 18 rise to an inference that, given that the legislature knows how to include a culpable 19 mental state requirement, the omission of such a requirement was purposeful and 20 indicates an intention to dispense with it. Because of the possibility of those competing 21 inferences, this court has concluded that "statutory silence alone is not a sufficiently clear 22 8 indication of legislative intent to dispense with a culpable mental state." Rutley, 343 Or 1 at 375; see also State v. Cho, 297 Or 195, 201, 681 P2d 1152 (1984) ("The mere 2 enactment of a crime without an expressly required culpable mental state is insufficient to 3 establish such a clear indication."). 4 On occasion, however, the court has gone further, holding that the silence 5 of the text as to a culpable mental state, although not dispositive, is at least significant 6 evidence of an intention to dispense with a culpable mental state. In Miller, for example, 7 the issue was whether the statute that defines the offense of driving under the influence of 8 intoxicants (DUII) requires proof that the defendant knew that he was intoxicated while 9 driving. 309 Or at 364. That statute, ORS 813.010, which is not part of the Oregon 10 Criminal Code, says nothing about a culpable mental state. The court found that 11 significant. "The offense of DUII," the court observed, "does not nor has it ever required 12 proof of a culpable mental state. The statute * * * has been amended several times. 13 Never in the 70-year history of this state's legislation has one word been written in any 14 DUII statute to require such proof." Id. at 368. The fact that the statute itself was silent 15 on the matter, coupled with a complete absence of any discussion of it in the legislative 16 history, held the court, "indicates a legislative intent to dispense with any culpable mental 17 state requirement for the offense or for any of its material elements." Id. 18 Included in the examination of a statute's text is the overall structure of the 19 law of which it is a part, which the court has held to be an important consideration under 20 ORS 161.105(1)(b). In State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982), for example, 21 this court addressed whether the statute defining the offense of driving while suspended, 22 9 former ORS 487.560 (1981), repealed by Or Laws 1983, ch 338, § 987, required proof 1 that the defendant knew that his or her license had been suspended. The court noted that 2 the section of the statute that defines the offense "does not prescribe a culpable mental 3 state." Id. at 582. The court noted, however, that the overall structure of the statute did 4 clearly indicate the legislature's intentions with respect to the culpable mental state. 5 Specifically, the court noted that the statute lists affirmative defenses, one of which, 6 former ORS 487.560(2), is that the defendant did not receive notice of the suspension. 7 Id. at 583. The court observed that, if the state were required to prove a defendant's 8 knowledge of the suspension as part of its prima facie case, the affirmative defense of 9 lack of notice would become "surplusage." Id. at 584. 10 A second factor on which the court has relied in its analysis under ORS 11 161.105(1)(b) is the nature of the element at issue. In particular, the court has stated that 12 there is a difference, in terms of whether a culpable mental state must be proved, between 13 elements of an offense that pertain to the conduct of the defendant and those that pertain 14 either to the status of the defendant who engages in that conduct or to an "attendant 15 circumstance" to the commission of the offense. The former type of element is generally 16 regarded as the type that requires proof of a culpable mental state, while the latter is not. 17 Miller provides an example of the significance of that principle in evaluating whether the 18 statute defining the offense clearly indicates an intention to dispense with proof of a 19 culpable mental state. After noting that the absence of any such requirement in the text 20 of the DUII statute strongly suggested an intention to dispense with such proof, the court 21 added the following observation about the nature of the element at issue: 22 10 "Having a certain [blood alcohol content] or being under the 1 influence is a status, and a person's mental state has nothing to do with 2 whether that status exists. The statute requires only that the state prove that 3 a defendant had the status while driving, not that the defendant knew or 4 should have known of it." 5 Miller, 309 Or at 369. 6 A third factor is the legislative history of the statute that defines the offense 7 at issue. In Buttrey, for example, the court noted that, in addition to the overall structure 8 of the statute defining the offense of driving while suspended, the legislative history 9 made clear the legislature's intentions to dispense with proof of a culpable mental state. 10 293 Or at 584. The court found especially persuasive a statement from the project 11 director of the interim committee that was responsible for the drafting of the bill that 12 became the Oregon Vehicle Code, that "'[p]roof that [a defendant] knew of his 13 suspension would not be an element of the offense but failure to receive notice would be 14 an affirmative defense which would shift the burden to the defendant.'" Id. (quoting 15 Minutes, House Committee on Judiciary, May 5, 1975, at 2 (statement of Donald 16 Paillette)). 17 In Miller, the court suggested that the enactment history of a statute also 18 may be pertinent in other ways. The court observed that the legislature had reenacted the 19 statute defining the offense of DUII several times after it had enacted ORS 161.105(1)(b) 20 without adding any phrasing concerning a culpable mental state. Miller, 309 Or at 370. 21 That fact, the court held, "also provides a proper basis for concluding that the legislature 22 did not intend any such mental element to apply." Id. 23 Finally, a fourth consideration in determining whether the statute defining 24 11 an offense clearly indicates an intention to dispense with proof of a culpable mental state 1 is the purpose of the statute. If requiring proof of such a mental state could frustrate the 2 obvious purpose of the statute, the court has held, it is highly unlikely that the legislature 3 intended to require that proof. 4 Directly on point in that regard is Rutley, in which the issue was whether 5 the statute that makes it unlawful to deliver certain controlled substances "within 1,000 6 feet of the real property comprising a public or private elementary, secondary or career 7 school attended primarily by minors," ORS 475.904, requires proof that the defendant 8 knew that the delivery took place within 1,000 feet of a school. The court began by 9 observing that the statute defining the offense is outside the Oregon Criminal Code, thus 10 triggering ORS 161.105(1)(b) and the need to determine whether the statute "clearly 11 indicates" a legislative intent to dispense with a culpable mental state requirement as to 12 the element in dispute. Rutley, 343 Or at 375. The court concluded that the purpose of 13 the statute clearly indicated such a legislative intent: 14 "Beginning with the text, we conclude that the statute evidences a 15 clear legislative intent to give drug dealers a reason to locate the 1,000-foot 16 school boundary and stay outside it -- by punishing the failure to do so as 17 the most serious of crimes, a Class A felony. The statutory text leaves no 18 doubt that the legislature intended to protect children from drug use and the 19 violence and other negative influences that accompany drug delivery. 20 Children are exposed to those negative influences when drugs are delivered 21 near schools, regardless of whether the dealers know they are within 1,000 22 feet of a school. In our view, requiring a knowing mental state with regard 23 to the distance element would work against the obvious legislative purpose, 24 in that it would create an incentive for drug dealers not to identify schools, 25 and not to take into consideration their distance from them in engaging in 26 their illegal activity." 27 Id. at 376 (citation omitted; emphasis in original). 28 12 B. Application to this case 1 With the foregoing principles in mind, we turn to the statute at issue in this 2 case. ORS 166.270 provides, in part: 3 "(1) Any person who has been convicted of a felony under the law of 4 this state or any other state, or who has been convicted of a felony under the 5 laws of the Government of the United States, who owns or has in the 6 person's possession or under the person's custody or control any firearm 7 commits the crime of felon in possession of a firearm. 8 "* * * * * 9 "(3) For the purposes of this section, a person 'has been convicted of 10 a felony' if, at the time of conviction for an offense, that offense was a 11 felony under the law of the jurisdiction in which it was committed." 12 Beginning with the text of that statute, we state the obvious: It says nothing 13 about requiring a culpable mental state with respect to proving that defendant "has been 14 convicted of a felony." As Rutley and other decisions make clear, that does not 15 necessarily mean that the statute "clearly indicates" a legislative intent to dispense with 16 such proof. 343 Or at 375. But, under Miller, the absence of any identifying culpable 17 mental state suggests that the legislature intended none to apply. 309 Or at 368. To 18 begin with, as in Miller, the statute at issue in this case has existed for many years (as we 19 explain below, even longer than the statute at issue in Miller) without referring to a 20 culpable mental state. Moreover, the legislature clearly knows how to include such a 21 culpable mental state requirement, and it did just that in ORS 166.425(1), a related 22 offense pertaining to the unlawful purchase of firearms. As we have noted, that statute 23 textually provides that, to commit that offense, the defendant must purchase a firearm 24 "knowing that the person is prohibited" from owning or possessing it. ORS 166.425(1) 25 13 (emphasis added). The fact that the legislature did not include a similar requirement in 1 ORS 166.270, at the very least, gives rise to an inference that the omission was 2 purposive. See State v. Bailey, 346 Or 551, 562, 213 P3d 1240 (2009) ("Generally, when 3 the legislature includes an express provision in one statute and omits the provision from 4 another related statute, we assume that the omission was deliberate."). 5 Turning to the nature of the element at issue, we note that proof that the 6 defendant "has been convicted of a felony" refers to an established class of persons who 7 are not permitted to possess firearms. As such, the element refers to a status, as opposed 8 to conduct, which ordinarily does not require proof of a culpable mental state. As this 9 court explained in Miller, a person's mental state ordinarily has nothing to do with 10 whether a particular status exists. 309 Or at 369. 11 Directly addressing the nature of the element that a defendant "has been 12 convicted of a felony," within the meaning of ORS 166.270(1), is Bailey v. Lampert, 342 13 Or 321, 153 P3d 95 (2007). In that case, the issue was whether a conviction for felon in 14 possession of a firearm should have been set aside because the underlying felony 15 conviction had been overturned three years after the felon-in-possession convictions. Id. 16 at 323. The court held that, "[t]o satisfy the elements of ORS 166.270(1), one must have 17 been convicted of a felony and then possessed a firearm. That is all that the statute 18 requires * * *." Id. at 325. Because, the court explained, the statutory reference to a 19 person who "has been convicted of a felony" was directed at a "status" at the time of 20 possession of the firearm, what happens to that felony conviction later is irrelevant: 21 "Based on our analysis of the text and context of ORS 166.270, we 22 14 conclude that the legislature intended to, and did, focus on a person's status 1 at the time that he or she possessed a firearm. The legislature determined 2 that a person who has the status of 'felon' at that time -- even if that status 3 later might change because the prior felony conviction is reversed or set 4 aside -- falls within the class of persons that are not permitted to possess 5 firearms. Under ORS 166.270(1), the predicate for the crime of felon-in- 6 possession is the status of being a felon at the time of possession of the 7 firearm." 8 Id. at 327 (citation omitted; emphasis in original). 9 The nature of the element is significant in another, related way: namely, 10 whether a defendant's earlier conviction was a felony is a question of law. In State v. 11 Anderson, 241 Or 18, 19, 403 P2d 778 (1965), the defendant had been charged with felon 12 in possession of a firearm based on a prior conviction in another state for burglary. At 13 trial, the state established that the defendant had pleaded guilty to attempted burglary. 14 The defendant argued on appeal that the trial court should have ordered a directed verdict 15 on the ground that there was a fatal variance between the predicate offense alleged and 16 the one proven. Id. at 21. The court rejected the argument, explaining that "[t]he 17 allegation of a prior conviction of a felony is only an allegation of the status of the 18 defendant and the mere fact that the defendant had been convicted of an attempt instead 19 of the completed offense" was irrelevant. Id. at 21-22. 20 The defendant then argued that the trial court should have entered a 21 directed verdict because the state had failed to prove that the offense was actually a 22 felony. Id. at 22. The court rejected that argument, as well, explaining that, 23 "[t]he law certainly does not require, in a case such as this, that the facts 24 constituting the commission of the prior crime be established to the 25 satisfaction of a jury. The sole question before the jury is whether or not 26 the defendant was previously convicted of the crime of burglary or a lesser 27 15 included offense. It is a matter of law for the court to determine whether 1 the crime committed constituted a felony against the property of another." 2 Id. See also State v. Tippie, 269 Or 661, 665, 525 P2d 1315 (1974) (question of whether 3 a prior conviction was a "felony" within the meaning of felon-in-possession statute is one 4 of legislative intent). 5 Ordinarily, an element that is purely a question of law is a matter for the 6 court and does not require proof as to defendant's knowledge of that law. State v. 7 Langan, 293 Or 654, 661, 652 P2d 800 (1982) ("[G]uilt does not depend on defendant's 8 knowledge of the law."). Proof may be required of predicate facts, but the legal 9 significance of those facts is purely for the court. Id. Thus, in this case, there is no 10 dispute that the state established the fact of defendant's prior conviction. The only 11 dispute is whether the state is required to establish that defendant was aware of the legal 12 significance of that fact. The legal significance of the prior conviction, however, is a 13 matter for the court. 14 Turning to the legislative history of ORS 166.270, we are aware of none 15 that directly addresses whether the legislature intended proof that a defendant "has been 16 convicted of a felony" requires a culpable mental state. Indeed, no legislative history of 17 the enactment of the original statute exists at all, because the records literally went up in 18 smoke with the burning of the state capitol in 1935. Nevertheless, the history of the 19 adoption of felon-in-possession statutes in the 1920s is well understood and the purposes 20 of those statutes not in dispute, as this court has previously recognized. 21 The Oregon legislature enacted its first "felon-in-possession" statute in 22 16 1925. Or Laws 1925, ch 260, § 2. That statute had its genesis in a national movement 1 towards greater regulation of firearms in reaction to the increase in crimes committed 2 with pistols or revolvers. Indeed, in 1922, one report stated that "[t]he criminal situation 3 in the United States, so far as crimes of violence are concerned, is worse than that in any 4 other civilized country." William B. Swaney et al., For a Better Enforcement of the Law, 5 8 ABA J 588, 590 (1922). Some proponents went as far as arguing for a complete ban on 6 the manufacture and sale of pistols. Id. at 591. 7 In response, the United States Revolver Association (USRA) drafted an act 8 for adoption throughout the country, in an attempt to provide "effective legislation which 9 will minimize the use of pistols and revolvers by criminals, and at the same time permit 10 law-abiding citizens to obtain such weapons for protection and other legitimate uses[.]" 11 USRA, The Argument for a Uniform Revolver Law (1922), reprinted in Handbook of the 12 National Conference of Commissioners on Uniform State Laws and Proceedings of the 13 Thirty-Fourth Annual Meeting 716 (1924). Relevant to our inquiry, section five of the 14 USRA Act prohibited any "person who has been convicted of a felony" from possessing 15 or controlling a pistol or revolver. Id. at 728-29. Following the USRA's lead, the 16 National Conference of Commissioners on Uniform State Laws used that association's act 17 as a model for its Uniform Firearms Act, which preserved the "fundamental principles" of 18 the USRA Act -- including the ban on persons who had been convicted of a felony 19 possessing a firearm. Charles V. Imlay, The Uniform Firearms Act, 12 ABA J 767, 767 20 (1926). 21 California, in 1923, was one of the first states to adopt the USRA Act, with 22 17 a few modifications. Id.; Cal Laws 1923, ch 339, § 2. Two years later, Oregon also 1 adopted the USRA Act, although it appears -- due to the identical wording -- that the 2 Oregon legislature followed California's lead in deviating slightly from the wording of 3 the act. Compare Cal Laws 1923, ch 339, § 2, with Or Laws 1925, ch 260, § 2. Both the 4 California and Oregon laws provided: 5 "[N]o person who has been convicted of a felony against the person or 6 property of another or against the government of the United States or of the 7 state of Oregon[/California] or of any political subdivision thereof shall 8 own or have in his possession or under his custody or control any pistol, 9 revolver or other firearm capable of being concealed upon the person." 10 Or Laws 1925, ch 260, § 2; Cal Laws 1923, ch 339, § 2. 11 Thus, even though there is no direct statement of the 1925 Oregon 12 legislature's policy choices in enacting what is now ORS 166.270, there is a significant 13 amount of contemporaneous information regarding the California law, the USRA Act, 14 and the Uniform Firearm Act that illuminates the concerns and intentions behind the 15 national movement to ban the possession of firearms by persons who had been convicted 16 of a felony. See Datt v. Hill, 347 Or 672, 680, 227 P3d 714 (2010) (relying on history of 17 Uniform Post-Conviction Procedure Act on which Oregon Post-Conviction Hearing Act 18 was based); State v. Selness/Miller, 334 Or 515, 527, 54 P3d 1025 (2002) (referring to 19 pre-1857 Indiana cases construing former jeopardy provision of 1851 Indiana 20 Constitution on which Article I, section 12, of the Oregon Constitution was based). 21 As previously alluded to, the turn of the century saw a sharp increase in 22 crimes, particularly involving the use of small firearms. In 1922, "over 90 per cent of the 23 murders in this country [were] committed by the use of pistols." Swaney, 8 ABA J at 24 18 591. Indeed, a report by the California Crime Commission explained: 1 "In a very large percentage of the serious crimes now being 2 committed, a firearm of some sort is used. Robberies and burglaries are 3 almost invariably committed with the aid of pistols. Guns are frequently 4 used in murders, manslaughters, highjacking and rum-running cases. The 5 pistol came into its own, as an effective weapon of the criminal, when the 6 present day automobile made the fast getaway possible. Automobiles are 7 being used not only as a means of escape but as a place from which shots 8 are fired. 9 "The sale of automobiles can not be regulated to keep them out of 10 the hands of criminals, but the sale of firearms can be regulated and 11 effectively controlled." 12 James A. Johnston et al., Report of California Crime Commission 20 (1929). 13 With those concerns in mind, states began enacting statutes regulating the 14 sale and possession of firearms and, in response to a call for uniformity, the USRA Act 15 and the Uniform Firearms Act were drafted. Imlay, 12 ABA J at 767. One of the key 16 provisions in those statutes and proposed uniform laws was that "[o]ne convicted in a 17 state of a crime of violence [was] absolutely forbidden to own or possess a pistol or 18 revolver." Id. at 768. 19 "The justification for the section is the protection afforded by 20 prohibiting the possession of pistols to men who are liable to use them in a 21 way dangerous to society. Experience has shown that crimes of violence 22 are much more likely to be committed by men who have previously been 23 convicted of such offenses." 24 Sam B. Warner, The Uniform Pistol Act, 29 Am Inst Crim L & Criminology 529, 538 25 (1939). Indeed, a newspaper article reporting the enactment of the California statute 26 stated that the law was "[a]imed at disarming the lawless." New Firearms Law Effective 27 on August 7, SF Chron, July 15, 1923, at 3. 28 19 Early cases interpreting the California firearm law echoed those concerns: 1 "The purpose of the act is to conserve the public welfare, to prevent any 2 interference with the means of common defense in times of peace or war, to 3 insure the public safety by preventing the unlawful use of firearms. It 4 cannot be assumed that the Legislature did not have evidence before it, or 5 that it did not have reasonable grounds to justify the legislation, as, for 6 instance, that * * * persons who have been convicted of a felony were more 7 likely than citizens to unlawfully use firearms or engage in dangerous 8 practices against the government in times of peace or war, or to resort to 9 force in defiance of law. To provide against such contingencies would 10 plainly constitute a reasonable exercise of the police power." 11 In re Rameriz, 193 Cal 633, 650, 226 P 914 (1924). Similarly, in another California 12 decision, the court held 13 "The danger to the public safety from the indiscriminate carrying of 14 deadly weapons, especially by persons who are criminally inclined, is a 15 matter of common knowledge, and, as justifying the regulation of the 16 practice thereof by the state in the exercise of its police power[.]" 17 People v. McCloskey, 76 Cal App 227, 229, 244 P 930 (1926).1 18 This court has recognized that Oregon's felon-in-possession statute was 19 1 Whether felon-in-possession statutes require proof of a culpable mental state as to the defendant having a prior felony conviction has been addressed in a number of cases in other jurisdictions. Every court -- state and federal -- that has considered the question has concluded that no such proof is required. See, e.g., U.S. v. Gardner, 488 F3d 700, 715-16 n 2 (6th Cir 2007) ("[C]ourts tend to agree that the government need not establish that the defendant knew of his own felony status." (Emphasis in original.)); People v. DeWitt, ___ P3d ___, 2011 WL 4089974 (Colo App 2011) ("[I]t is clear to us that the General Assembly did not intend for the express mental state of 'knowingly' in the amended * * * statute to apply to the prior felony conviction element of the offense."); Rhone v. State, 825 NE 2d 1277, 1286 (Ind App 2005) (Indiana felon-in- possession statute "does not require proof that [defendant] knew he was a serious violent felon"); Branch v. Commonwealth, 42 Va App 665, 669, 593 SE2d 835 (2004) (Virginia felon-in-possession statute does not "contain a scienter or mens rea element for a conviction under that statute" (emphasis in original)). 20 adopted with the same policy in mind. In State v. Robinson, 217 Or 612, 614, 343 P2d 1 886 (1959), the defendant was convicted of violating ORS 166.270. On appeal, he 2 challenged the constitutionality of the statute under, among other things, the Equal 3 Protection Clause of the Fourteenth Amendment. The court rejected the challenge, 4 explaining that the purpose of the statute was clear and legitimate: "A firearm of the kind 5 described in ORS 166.270 is plainly dangerous, especially if possessed by one whose 6 past conduct revealed a disregard for law and the normal moral restraints." Id. at 616. 7 The legislature, in drafting that act, the court said, was concerned with, among other 8 things, "those whose past conviction of a felony showed an unsocial attitude." Id. at 616. 9 According to the court, "[t]he legislature evidently believed that ex-convicts who possess 10 firearms of the kind described in ORS 166.270 are more likely to commit evil * * *." Id. 11 The court explained: 12 "By his own felonious conduct he classifies himself and places himself in a 13 category different from that composed of the law abiding. When the 14 legislature concludes that a person of that kind can not be trusted with a 15 concealable weapon we surely can not say that its decision lacks reason." 16 Id. at 617. Similarly, in Tippee, the court stated that it is clear that "[t]he legislature made 17 a decision that a person convicted of a felony is such a great potential danger that he 18 should not be permitted to carry a concealable weapon." 269 Or at 665. 19 Clearly, then, the underlying policy of ORS 166.270 is that persons who 20 have been convicted of a felony pose a risk to the public. That risk exists regardless of a 21 person's knowledge of the legal significance of the conviction. Said another way, 22 whether or not a given defendant is aware of the legal significance of a prior felony 23 21 conviction, the risk to the public remains the same. Under the circumstances, it makes no 1 sense to require proof of the defendant's knowledge of the legal significance of the prior 2 conviction. To the contrary, requiring such proof would frustrate the purpose of the 3 statute. 4 In short, the usual indicators that this court has considered relevant under 5 ORS 161.105(1)(b) all indicate the legislature's clear intent to dispense with proof of a 6 culpable mental state with respect to whether a defendant "has been convicted of a 7 felony" under ORS 166.270(1). 8 Defendant insists that the fact that ORS 166.270(1) does not specify a 9 culpable mental state with respect to proof that a defendant "has been convicted of a 10 felony" establishes conclusively that the statute does not provide the sort of clear 11 intention that ORS 161.105(1)(b) requires in order to dispense with such proof. 12 According to defendant, the legislature's silence on the matter should be regarded as 13 conclusive because of the strong policy against criminal liability without fault and 14 because the possession of firearms is otherwise constitutionally protected activity. The 15 Court of Appeals similarly reasoned that, in light of the "emphatic legislative and judicial 16 hostility toward strict liability crimes," the silence of the statute is conclusive. Rainoldi, 17 236 Or App at 140. 18 That reasoning fails on at least three grounds. To begin with, it cannot be 19 reconciled with the case law that we have described, which recognizes that, although the 20 legislature's failure to expressly require proof of a culpable mental state with respect to a 21 particular element may not be conclusive evidence that it intended to dispense with such 22 22 proof, Rutley, 343 Or at 375, it may in some cases strongly suggest such a clear intent, 1 Miller, 309 Or at 368. Defendant cites Rutley, but asserts that it stands for the 2 proposition that a statute's "silence is not an indication of a legislative intent to dispense 3 with a culpable mental state." That is incorrect. What Rutley says is that "statutory 4 silence alone is not a sufficiently clear indication of legislative intent to dispense with a 5 culpable mental state," 343 Or at 375, which is a different point altogether. 6 Aside from that, the argument is built on a false premise, namely, that a 7 statute that imposes criminal liability without proof of a culpable mental state as to each 8 and every element of an offense imposes liability without fault. Merely because proof of 9 a culpable mental state is not required as to a single element does not mean that the 10 statute defining the offense imposes liability without fault. The court considered a 11 similar proposition in State v. Irving, 268 Or 204, 520 P2d 354 (1974). At issue in that 12 case was the extent to which former ORS 167.232 (1971), repealed by Or Laws 1977, ch 13 745, § 54, which prohibited the fraudulent sale of imitation drugs to a peace officer, 14 required proof that the defendant knew that the one to whom the imitation drugs were 15 sold was, in fact, a peace officer. Id. at 205. The Court of Appeals concluded that the 16 statute must be read to require such proof, in order to avoid imposing criminal liability 17 without fault. This court reversed, holding that, although the text of the statute said 18 nothing about a culpable mental state, the legislative history established that no such 19 proof is required. Id. at 206. As for the concern that such a holding creates criminal 20 liability without fault, the court responded that "[o]ur interpretation does not render ORS 21 167.232 a crime 'without fault.' Conviction still depends on establishing that the 22 23 defendant fraudulently misrepresented the substances he sold, which in itself constitutes 1 knowingly culpable behavior." Id. at 207. 2 In this case, merely because it is not necessary to prove that defendant 3 knew that he had been convicted of a felony does not mean that it is not necessary to 4 prove a culpable mental state with respect to other elements of the offense or that he is 5 strictly liable for his attempted possession of a firearm. In that regard, we note that the 6 state alleged that he "knowingly" and "intentionally" attempted to purchase and possess a 7 firearm, and the jury was instructed in accordance with those allegations. In any event, 8 the fact that that the legislature has stated a policy against imposing strict criminal 9 liability does not necessarily mean that, in a given case, the relevant factors -- including 10 the silence of the statutory text -- do not provide a clear indication to do just that, as 11 Miller makes clear. 309 Or at 368 (concluding that, although the statute defining the 12 offense of DUII and its legislative history were silent as to a culpable mental state, it was 13 nevertheless clear that the legislature intended to create a strict liability offense). 14 Finally, defendant is mistaken that failing to impose a culpable mental state 15 requirement in this case raises constitutional questions. He cites no case law supporting 16 that assertion. And the pertinent authority appears to be to the contrary. In State v. 17 Hirsch/Friend, 338 Or 622, 625, 114 P3d 1104 (2005), this court upheld the 18 constitutionality of ORS 166.270 as against a challenge that it violated a convicted felon's 19 state constitutional right to bear arms. Nothing in the court's decision suggested that the 20 constitutionality of the statute depended on the convicted felon's knowledge of the legal 21 consequences of the prior conviction. 22 24 III. CONCLUSION 1 In summary, based on the multiple indicators discussed above, ORS 2 166.270 exhibits a clear legislative intent to dispense with the culpable mental state 3 requirement as to the element that a defendant "has been convicted of a felony." Because 4 we conclude that the legislature's intentions are clear in that regard, it is not necessary for 5 us to examine whether proof of a culpable mental state is required under ORS 6 161.095(2). The trial court did not err in denying defendant's request that it instruct the 7 jury that it could not convict defendant unless it found that he knew he was a felon at the 8 time he attempted to purchase the shotgun. 9 The decision of the Court of Appeals is reversed. The judgment of the 10 circuit court is affirmed. 11

57ec75eaba7a247f14acea1fb84830e351151b96edb87c0577acb8e717824636

2011-12-30T00:00:00Z

34f6a5ea-40a3-423e-8323-a54a78d30b0a

Goodson v. Public Employees Retirement System

S059056

oregon

Oregon Supreme Court

1 Filed: October 6, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON JOHN GOODSON, ANTHONY SANTOS, PAUL WASHBURN, JAMES MICHAUD, DONA ALDRICH, and SALVADOR CANTU, Petitioners, v. PUBLIC EMPLOYEES RETIREMENT SYSTEM, Respondent. (Agency Nos. 900900, 900901, 900903, 900915, 900916, 900937; SC S059056) En Banc On certification from the Court of Appeals in a judicial review from a ruling on summary determination and final order of the Public Employees Retirement Board. Argued and submitted January 6, 2011. John E. Hoag, Snyder and Hoag, LLC, Petersburg, AK, argued the cause and filed the briefs for petitioners. Michael A. Casper, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. DE MUNIZ, C. J. The order of the Public Employees Retirement Board is affirmed. 1 DE MUNIZ, C. J. 1 Petitioners seek judicial review under ORS 183.482 of a final order of the 2 Public Employees Retirement Board (PERB). They contest the reduction of their 3 retirement benefits as a result of PERB's efforts to recoup benefit overpayments that 4 petitioners had received because of an erroneous 20 percent earnings credit for 1999. 5 The Court of Appeals certified the matter to this court under ORS 19.405. We affirm 6 PERB's final order. 7 This is a companion case to our decision today in Arken v. City of Portland, 8 ___ Or ___, ___ P3d ___ (2011). To avoid unnecessary repetition, we will refer 9 frequently to the various detailed factual and legal discussions contained in that opinion. 10 In particular, Arken sets out the extensive legal and historical background surrounding 11 PERS, the 20 percent earnings credit granted by PERB to certain members' regular 12 retirement accounts in 1999, and the later litigation and legislation that resulted instead in 13 an 11.33 percent credit for that year. ___ Or at ___ (slip op at 5-15). 14 As in Arken, petitioners in this case are also "Window Retirees," meaning 15 (among other things) that they had retired effective on or after April 1, 2000, but before 16 April 1, 2004. See ___ Or at ___ (slip op at 1 n 1) (defining "Window Retirees"). In 17 2007 and 2008, PERB recalculated petitioners' retirement benefits to reflect an 11.33 18 percent credit for 1999 and sought to recoup the overpayments on their retirement 19 benefits that had resulted from the prior 20 percent credit. Petitioners challenged those 20 recalculations, first before an administrative law judge (ALJ) of the Office of 21 Administrative Hearings, then before PERB. In doing so, petitioners did not challenge 22 2 the mathematical recalculations of their individual benefits by PERB, but challenged 1 instead PERB's legal authority to make those recalculations using an 11.33 percent credit 2 for 1999. Additionally, petitioners sought interest on cost of living adjustments (COLAs) 3 that the legislature had frozen beginning in 2003. Both the ALJ and PERB rejected 4 petitioners' arguments. Petitioners then sought judicial review. 5 On judicial review, petitioners assign three errors. First, petitioners 6 contend that the reduction in their retirement benefits by PERB unconstitutionally 7 impaired the obligation of contract in violation of Article I, section 21, of the Oregon 8 Constitution.1 Petitioners assert that PERB promised particular benefits after retirement 9 based on the 20 percent earnings credit in 1999, and that petitioners relied on that 10 promise when they retired. 11 Petitioners' argument rests on a false premise. The terms of the statutory 12 contract between the state and its retirees are determined by examining the pertinent 13 statutes enacted by the legislature; PERB had no authority to make or change those 14 contractual terms. Arken, ___ Or at ___ (slip op at 28); Strunk v. PERB, 338 Or 145, 15 175, 108 P3d 1058 (2005). "[T]he purported promise by PERB to calculate their 16 retirement benefits on a 20 percent crediting allowance for 1999 is a promise that PERB 17 could not lawfully make." Arken,___ Or at ___ (slip op at 28-29). Because petitioners' 18 claim of a contractual right to the 20 percent earnings credit for 1999 relies solely on the 19 alleged promises by PERB, not on any statutory provision, their argument fails. See 20 1 Article I, section 21, of the Oregon Constitution provides, in part: "No * * * law impairing the obligation of contracts shall ever be passed * * *." 3 Strunk, 338 Or at 17 (expressly holding that PERS handbooks, communication from 1 PERB to PERS members, and employer employment policies do not constitute terms of 2 the PERS contract). 3 In their second assignment of error, petitioners assert that PERB violated 4 procedural due process when it failed to give them notice of the pending litigation 5 challenging the 20 percent earnings credit for 1999. See Arken, ___ Or at ___ (slip op at 6 8-13) (discussing that litigation, the subsequent legislative amendments, and the 7 settlement). Specifically, petitioners contend that, once PERB learned of their plans to 8 retire, it was constitutionally required to give petitioners notice of the pending litigation 9 and to inform them that they could not rely on getting the 20 percent credit. 10 In addressing petitioners' due process argument, we first must consider 11 whether the state has acted to deprive them of a protected interest in property. See US 12 Const, Amend XIV, § 1 ("[N]or shall any State deprive any person of life, liberty, or 13 property, without due process of law * * *."); American Mfrs. Mut. Ins. Co. v. Sullivan, 14 526 US 40, 59, 119 S Ct 977, 143 L Ed 2d 130 (1999) ("The first inquiry in every due 15 process challenge is whether the plaintiff has been deprived of a protected interest in 16 'property' or 'liberty.'"). Such a protected interest in property requires that the person 17 have a "legitimate claim of entitlement" to a benefit that arises "from an independent 18 source such as state law." Board of Regents v. Roth, 408 US 564, 577, 92 S Ct 2701, 33 19 L Ed 2d 548 (1972). 20 In this case, no source of law gave petitioners a legitimate claim of 21 entitlement to a 20 percent earnings credit for 1999. Petitioners have not identified any 22 4 part of the statutory contract between the legislature and petitioners that would entitle 1 them to a 20 percent earnings credit for 1999, and, as we have explained, PERB lacked 2 authority to promise such a credit. See Arken, ___ Or at ___ (slip op at 16-17) (2003 3 PERS reform legislation did not constitute statutory promise to grant Window Retirees 20 4 percent credit for 1999); id. at ___ (slip op at 28-29) (noting PERB's lack of authority to 5 modify the statutory contract); Strunk, 338 Or at 175 (same). Furthermore, petitioners 6 could not reasonably have relied on PERB's representations regarding the 20 percent 7 earnings credit, because they had reason to know that PERB lacked the authority to make 8 such a promise. Arken, ___ Or at ___ (slip op at 29). Accordingly, we reject petitioners' 9 second assignment of error. 10 Petitioners' third assignment of error seeks interest on delayed COLAs. In 11 2003, the legislature had attempted to recoup the overpayments to the Window Retirees 12 caused by the erroneous 20 percent earnings credit by suspending COLAs on those 13 accounts, rather than seeking repayment by other means. See Strunk, 338 Or at 217-18 14 (discussing legislation and effect); Arken, ___ Or at ___ (slip op at 16-17) (summarizing 15 statutory scheme). This court later held that the COLA suspension breached a term of the 16 PERS contract, so the court invalidated that portion of the statute. Strunk, 338 Or at 218- 17 25; see Arken, ___ Or at ___ (slip op at 15-20) (further explicating that holding in 18 Strunk). Petitioners contend that they are entitled to be paid interest on those delayed 19 COLAs. 20 Interest cannot be awarded here. ORS 238.470 states: 21 "Interest is not payable on any payment from the Public Employees 22 5 Retirement Fund unless specifically provided for in this chapter." 1 Petitioners do not identify any statute or constitutional provision that would authorize or 2 require the interest they seek.2 Petitioners rely only on their claim that an award of 3 interest is "normal," which is not sufficient to justify ignoring a statutory directive. 4 The order of the Public Employees Retirement Board is affirmed. 5 2 During the administrative proceedings, petitioners conceded that PERS was "correct" in its assertion that no statute authorized the payment of interest.

4ff7dba82079f90cb2e03d7c378a76b677594114323999278ca464abc987f3fe

2011-10-06T00:00:00Z

8d8f7305-3abc-4c13-810a-a4e261eccad1

Lasley v. Combined Transport, Inc.

S058762

oregon

Oregon Supreme Court

Filed: September 22, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON CLARENCE D. LASLEY, as Personal Representative for the ESTATE OF MARK ALAN LASLEY, Petitioner on Review, v. COMBINED TRANSPORT, INC., Respondent on Review, and JUDY MARIE CLEMMER, Respondent on Review. (CC 0608-08260; CA A137222; SC S058762) En Banc On review from the Court of Appeals.* Argued and submitted May 2, 2011. Stephen C. Hendricks of Hendricks Law Firm, P.C., Portland, argued the cause and filed the brief for petitioner on review. Allyson S. Krueger of Hitt Hiller Monfils Williams, LLP, Portland, argued the cause and filed the brief for respondent on review Combined Transport. Lindsey H. Hughes of Keating Jones Hughes, P.C., Portland, filed the brief for amicus curiae Oregon Trucking Associations, Inc. Shenoa L. Payne of Haglund Kelley Jones & Wilder, LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. WALTERS, J. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. DEMUNIZ, C.J., filed a dissenting opinion, in which Durham J., joined. *Appeal from Multnomah County Circuit Court, John Wittmayer, Judge. 234 Or App 11, 227 P3d 1200, adh'd to on recons, 236 Or App 1, 237 P3d 859 (2010). 1 WALTERS, J. 1 In this case we decide evidentiary and pleading questions that arose in the 2 trial of a multi-defendant negligence case. Plaintiff, decedent's father, brought this case 3 against defendants Combined Transport, Inc. (Combined Transport) and Judy Clemmer 4 (Clemmer). On the day that decedent died, a truck owned and operated by Combined 5 Transport lost part of its load of large panes of glass on the I-5 freeway. During the 6 clean-up, traffic backed up and decedent was stopped. Clemmer drove into decedent's 7 pickup, causing leaks in its fuel system. The ensuing fire killed decedent. Combined 8 Transport denied that it was negligent and that its conduct foreseeably resulted in 9 decedent's death. Clemmer admitted that she was negligent in driving at an unreasonable 10 speed and in failing to maintain a proper lookout and control. Clemmer also admitted 11 that her negligence was a cause of decedent's death. Based on the pleadings, the trial 12 court granted plaintiff's motion in limine to exclude evidence that Clemmer was 13 intoxicated at the time of the collision. The jury rendered a verdict against both 14 defendants, finding Combined Transport 22 percent at fault and Clemmer 78 percent at 15 fault for plaintiff's damages. 16 Combined Transport appealed and the Court of Appeals reversed, 17 concluding that the trial court had erred in excluding the evidence of Clemmer's 18 intoxication. The Court of Appeals held that that evidence was relevant to two issues: 19 "Although Clemmer admitted that she was negligent, the jury was 20 required to consider evidence of the circumstances relating to the accident 21 to determine whether Combined Transport's negligence was a substantial 22 factor in causing decedent's death and, if so, to apportion fault between 23 defendants. Clemmer's intoxication was relevant to those determinations. 24 2 See Lyons v. Walsh & Sons Trucking Co., Ltd., 183 Or App 76, 84, 51 P3d 1 625 (2002), aff'd, 337 Or 319, 96 P3d 1215 (2004) (holding that '[w]hether 2 any particular cause, or any individual actor's conduct, is sufficiently 3 "substantial" to warrant the imposition of liability depends, properly, on a 4 consideration of the whole'). Accordingly, the trial court erred in excluding 5 evidence of Clemmer's intoxication." 6 Lasley v. Combined Transport, Inc., 234 Or App 11, 20-21, 227 P3d 1200, adh'd to on 7 recons, 236 Or App 1, 237 P3d 859 (2010). On reconsideration, the Court of Appeals 8 clarified its opinion: 9 "First, the evidence of intoxication is relevant to the jury's 10 'substantial factor' analysis because it is relevant to the cause of the 11 accident. There is an adequate factual nexus between the testimony 12 concerning the quality of Clemmer's driving and her consumption of 13 alcohol to allow the jury to make the determination that the alcohol affected 14 her ability to control her vehicle and keep a proper lookout. That, in turn, 15 could affect the jury's determination of what caused the accident. 16 Ostrander v. Alliance Corp., 181 Or App 283, 291, 45 P3d 1031, rev den, 17 335 Or 104 (2002). Accordingly, Clemmer's intoxication is relevant to the 18 cause-in-fact determination regarding the conduct of Combined Transport, 19 because the jury must consider the 'totality of potentially causative 20 circumstances' in making that determination. Lyons,183 Or App at 84. 21 "On the other hand, the evidence of intoxication is relevant to the 22 apportionment of fault, because it shows blameworthiness. The 23 considerations announced in Sandford v. Chev. Div. Gen. Motors, 292 Or 24 590, 608, 642 P2d 624 (1982), which are quoted in our original opinion, 25 Lasley, 234 Or App at 21-22, regarding the relevance of Clemmer's 26 previous driving history for the purpose of apportionment of fault, were 27 also pertinent to the relevance of Clemmer's intoxication for the same 28 purpose. The evidence of Clemmer's intoxication shows the degree of 29 Clemmer's departure from the standard of care of a reasonable person, and, 30 accordingly, is a proper consideration for the jury in apportioning fault." 31 236 Or App at 4. 32 We allowed plaintiff's petition for review. For the reasons we shall explain, 33 we decide that evidence of Clemmer's intoxication was not relevant to the issue of 34 3 whether Combined Transport's negligence was a cause of decedent's death but was 1 relevant to the issue of apportionment of fault. We affirm the decision of the Court of 2 Appeals, reverse the judgment of the circuit court, and remand to the circuit court for 3 further proceedings. 4 I. CAUSATION 5 We begin with the question of whether evidence of Clemmer's intoxication 6 was relevant on the issue of causation. Plaintiff's argument that it was not proceeds as 7 follows: (1) Clemmer admitted causation, therefore the only causal issue before the jury 8 was whether Combined Transport's negligence also was a substantial factor in causing 9 decedent's death; (2) whether Combined Transport's negligence was a cause of decedent's 10 death is an independent question that does not depend on Clemmer's negligence; and 11 therefore (3) why Clemmer drove erratically and struck decedent's pickup was irrelevant. 12 Combined Transport parts ways with plaintiff at the second step of 13 plaintiff's argument. Combined Transport asserts that this court has not adopted and 14 should not adopt a rule that the causation of each tortfeasor must be decided "in total 15 isolation, separate and apart from the conduct of any co-tortfeasors, and without regard to 16 all of the circumstances that contributed to the plaintiff's injury." To determine whether 17 Combined Transport's conduct was a "substantial," as opposed to an "insignificant," 18 factor in causing decedent's harm, Combined Transport contends that all of the evidence 19 concerning the events that led to that harm, including Clemmer's intoxication, was 20 admissible. Alternatively, Combined Transport argues, "[g]iven the nature and severity 21 of Clemmer's speed and drunk driving, Combined Transport was entitled to introduce 22 4 evidence that Clemmer was going to cause the harm no matter what." (Emphasis in 1 original.) Why Clemmer drove erratically and struck defendant's pickup also was 2 relevant for that purpose. 3 In making those arguments, both parties accept the premise that, when the 4 negligence of multiple tortfeasors combines to produce harm, each tortfeasor whose 5 negligence was a cause of the harm may be held liable. Hills v. McGillvrey, 240 Or 476, 6 482-83, 402 P2d 722 (1965). The parties also agree that it is factual, not legal cause, at 7 issue in this case. This court has abolished not only the terms but also the concepts of 8 "proximate" and "legal" cause. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 9 Or 329, 340, 83 P3d 322 (2004); Simpson v. Sisters of Charity of Providence, 284 Or 10 547, 555, 588 P2d 4 (1978); McEwen v. Ortho Pharmaceutical, 270 Or 375, 385 n 7, 528 11 P2d 522 (1974). When a defendant's negligence is a factual cause of harm to the 12 plaintiff, the defendant is subject to liability to the plaintiff as long as the harm that the 13 plaintiff suffered was a reasonably foreseeable result of the defendant's negligence. 14 Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987). Thus, the 15 concept of causation (determined as a purely factual matter) is a separate concept from 16 that of liability (determined by foreseeability and not by "proximate" or "legal" cause). 17 Although Combined Transport argued at trial that decedent's death was not 18 a foreseeable consequence of Combined Transport's negligence, we do not understand 19 Combined Transport to argue on appeal that Clemmer's intoxication was relevant to the 20 issue of foreseeability or that the "substantial factor" test permits evidence of intoxication 21 to determine "proximate" or "legal" cause. Combined Transport acknowledges, correctly, 22 5 that the "substantial factor" test is a test of factual cause as explained by this court in 1 Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 606, 642 P2d 624 (1982): 2 "Causation in Oregon law refers to causation in fact, that is to say, whether 3 someone examining the event without regard to legal consequences would 4 conclude that the allegedly faulty conduct or condition in fact played a role 5 in its occurrence." 6 See also Simpson, 284 Or at 561 (approving jury instruction using "substantial factor" test 7 to determine physical cause of harm); Stewart v. Jefferson Plywood Co., 255 Or 603, 606, 8 469 P2d 783 (1970) (using "substantial factor" when discussing "cause in fact" 9 connection); Babler Bros. v. Pac. Intermountain, 244 Or 459, 463, 415 P2d 735 (1966) 10 (noting that, in most negligence cases, "the factual inquiry whether the actor's conduct 11 was a substantial factor in producing the harm is relatively uncomplicated"); Dewey v. 12 A.F. Klaveness & Co., 233 Or 515, 541, 379 P2d 560 (1963) (phrasing the causation 13 standard as whether the defendant's conduct was a "substantial factor" in physically 14 producing the injury). 15 What Combined Transport does argue is that the "substantial factor" test is 16 intended to rule out, as a factual cause of harm, an act that is minimally significant in the 17 causal chain of events. Combined Transport contends that the "substantial factor" test 18 expresses a "concept of relativity" that permits a jury to consider the degree to which the 19 conduct of a particular defendant was a factor in causing the harm and to relieve a 20 defendant of liability if its conduct was insignificant or insubstantial when compared to 21 the conduct of others. In support of that contention, Combined Transport cites the 22 Restatement (Second) of Torts § 433 comment d (1977), which provides, in part: 23 6 "Some other event which is a contributing factor in producing the harm 1 may have such a predominant effect in bringing it about as to make the 2 effect of the actor's negligence insignificant and, therefore, to prevent it 3 from being a substantial factor." 4 Combined Transport does not demonstrate, however, that this court has 5 adopted that comment, or that approach, as the law of Oregon.1 Combined Transport 6 begins with a citation to McEwen, 270 Or at 407-21, for the proposition that the conduct 7 of multiple defendants must be analyzed together to determine whether each defendant's 8 conduct was a cause of the plaintiff's harm. That proposition is correct. In McEwen, the 9 court considered the conduct of both defendants in the causation analysis and explained 10 that the plaintiff need not show that each defendant's negligence was 11 "sufficient to bring about plaintiff's harm by itself; it is enough that [each 12 defendant] substantially contributed to the injuries eventually suffered by 13 [the plaintiff.]" 14 Id. at 418. McEwen does not, however, stand for the additional proposition that, in every 15 multi-defendant case, the jury is entitled to relieve a defendant of liability if its 16 contribution to the plaintiff's injuries was insignificant when compared to the contribution 17 of another defendant. 18 In Smith v. J.C. Penney Co., 269 Or 643, 525 P2d 1299 (1974), the court 19 rejected one codefendant's request for a jury instruction that would have permitted just 20 such a comparison. In that case, one defendant, the owner of a service station, started a 21 1 We note that the Restatement (Second) has been superseded by the Restatement (Third) of Torts (2005) and that the comment on which Combined Transport relies has been deleted. 7 fire in its waiting room, where the plaintiff happened to be standing. The second 1 defendant supplied flammable fabric that was used to construct the coat that the plaintiff 2 was wearing. Id. at 646. The court permitted the jury to consider the conduct of each 3 defendant in determining whether the conduct of each or both contributed to the 4 plaintiff's injuries. However, the court rejected the gas station's request for an instruction, 5 pursuant to the Restatement (Second) of Torts § 433 comment d, that the jury should 6 determine whether the fabric supplier's conduct had such a predominant effect in bringing 7 about the injuries that it made the gas station's conduct "insignificant" and therefore not a 8 cause of the plaintiff's injuries. Id. at 659. The court stated that the principle reflected in 9 comment d was not applicable to the facts presented because "[t]he jury would have to 10 find that [the gas station owner's] conduct was a substantial factor in causing an injury to 11 the plaintiff of some extent." Id. at 660. The court did not adopt comment d as the law of 12 Oregon or describe the circumstances in which it might be appropriate to permit a jury to 13 relieve a defendant of liability because the effect of its conduct was relatively 14 insignificant in the causal chain of events. 15 The other cases on which Combined Transport relies -- Joshi v. Providence 16 Health System, 342 Or 152, 149 P3d 1164 (2006), and Furrer v. Talent Irrigation 17 District, 258 Or 494, 466 P2d 605 (1971) -- were not multi-defendant cases. Joshi was a 18 malpractice case in which the court held that the plaintiff was not permitted to adduce 19 expert testimony that, if the defendant had taken certain actions, the decedent would have 20 had a 30 percent greater chance of an improved outcome. The court was not called on to 21 decide, and did not decide, that, even if the defendant's conduct was a cause of the 22 8 decendent's death, the defendant could not be held liable if its conduct was relatively 1 insignificant. 2 In Furrer, the trial court instructed the jury as follows: 3 "'If you find from the preponderance of the evidence that defendant 4 was negligent in at least one of the particulars charged in plaintiff's 5 amended complaint, and further find from a preponderance of the evidence 6 that the negligence of the defendant was a substantial factor in causing 7 damage to plaintiff, the defendant would be liable for all the damages you 8 find the plaintiff has suffered even though the acts of others might also 9 have contributed to said damage.'" 10 258 Or at 510. One of the defendant's objections to that instruction was that the court had 11 erred in failing to further define the term "substantial factor." In discussing that 12 objection, the court stated that 13 "[t]he term 'substantial factor' expresses a concept of relativity which is 14 difficult to reduce to further definiteness. Little, if anything, can be done 15 with words to help the jury decide how much causal relationship must exist 16 between conduct and damage before it constitutes a basis for recovery." 17 Id. at 511. The court concluded that further explanation would not materially enlighten 18 the jury and that the trial court had not erred. Id. at 511-12. Like Joshi, Furrer did not 19 present the issue of whether, in every multi-defendant case, a jury is entitled to compare 20 the significance of the defendants' conduct. 21 It may be possible to imagine a circumstance in which one defendant's act 22 is a factual cause of a plaintiff's harm in the sense that the harm would not have occurred 23 absent the defendant's conduct, but in which that defendant's conduct is so insignificant, 24 when contrasted with the conduct of a second defendant, that the first defendant's conduct 25 should not be deemed a cause of the plaintiff's harm. However, for the reasons that we 26 9 shall explain, that circumstance is not presented here, and, therefore, we do not address 1 it.2 2 In this case, both the conduct of Clemmer and the conduct of Combined 3 Transport were substantial factors in contributing to decedent's death. Clemmer admitted 4 that her conduct in driving her car into decedent's pickup with such force that leaks in its 5 fuel system caused the pickup to ignite was a substantial factor in causing decedent's 6 death. The jury found that Combined Transport's conduct in spilling a load of glass 7 panes on the freeway caused decedent to bring his pickup to a stop. Based on expert 8 testimony that, had decedent been moving at or close to the speed limit when Clemmer 9 hit him, the impact of the collision would not have been as great, decedent's truck would 10 not have ignited, and decedent would not have died, the jury found that Combined 11 Transport's conduct also was a substantial factor in causing decedent's death. The 12 additional fact that Combined Transport sought to prove -- that Clemmer was intoxicated 13 at the time of the collision -- could not make Clemmer's conduct any more significant or 14 Combined Transport's conduct any less significant in that causation analysis. 15 Combined Transport's primary argument -- that evidence of Clemmer's 16 intoxication could establish that her conduct was more significant in the causation 17 analysis -- confuses causation and negligence. In deciding whether a defendant's act is a 18 factual cause of a plaintiff's harm, the effect of the defendant's conduct, and not whether 19 2 For the position that cause is not a relative concept, see the Restatement (Third) of Torts § 26. 10 that conduct fell below the expected standard of care, is the relevant consideration. So, 1 for instance, if Clemmer had been sober, driving at a reasonable rate of speed, keeping a 2 proper lookout, and maintaining control of her car on the night of decedent's death, and if 3 she had, nevertheless, collided with decedent's stationary pickup with such force that the 4 truck ignited and decedent died, Clemmer's conduct would have been a cause of his 5 death. That would be so even though Clemmer was not negligent and could not be held 6 liable to plaintiff. 7 In this case, Clemmer admitted that her conduct -- colliding with decedent's 8 pickup -- had the effect of killing him. Evidence that Clemmer was under the influence 9 of alcohol when she engaged in that conduct could not make its causal effect any greater. 10 Evidence that Clemmer was under the influence of alcohol could prove an additional way 11 in which Clemmer deviated from the standard of care; it could not prove an additional 12 way in which Clemmer contributed to the chain of events that caused decedent's death. 13 Combined Transport argues, alternatively, that evidence of Clemmer's 14 intoxication was relevant to demonstrate that Combined Transport's conduct was less 15 significant in the causation analysis. Combined Transport contends that it was entitled to 16 prove that, because Clemmer was intoxicated, she would have collided with decedent's 17 pickup and killed him, even if he had not been stopped on the freeway. In other words, 18 Combined Transport contends that evidence of Clemmer's intoxication was relevant to 19 prove that Combined Transport's conduct did not contribute to decedent's death at all; the 20 collision and death would have occurred even if decedent had been travelling at or near 21 the speed limit. 22 11 Although Combined Transport's alternative argument may have merit in the 1 abstract, it fails on the record before us. Combined Transport did not proffer evidence 2 that showed that, because Clemmer was intoxicated, she inevitably would have killed 3 decedent, even if his pickup had not been stationary. 4 In the offer of proof that it submitted in opposition to plaintiff's motion in 5 limine, Combined Transport asserted that a qualified expert physician would testify to 6 Clemmer's blood alcohol level at the time of the collision, would testify that Clemmer 7 was so intoxicated that she was in a "'near medical 'stupor,'" and would testify that 8 "intoxication was the cause of the accident and if Clemmer were not intoxicated, the 9 accident would not have occurred." Combined Transport asserted that two lay witnesses 10 who were drinking alcohol with Clemmer before the collision would testify to the amount 11 of alcohol that Clemmer drank before she got in her car and that they "believed that 12 Clemmer should not [have been] driving due to her intoxication." Combined Transport 13 also asserted that 11 lay witnesses saw Clemmer driving and also "believed that her 14 erratic and reckless driving was the result of intoxication." 15 The trial court excluded all evidence of Clemmer's intoxication, but 16 permitted the 11 lay witnesses to describe Clemmer's excessive speed and the erratic 17 manner in which she drove. Many of those witnesses were themselves on the freeway, 18 many in moving vehicles. Clemmer did not collide with any of them, although some 19 testified that she "almost" did. The evidence that the court permitted did not demonstrate 20 that Clemmer would have caused the collision and decedent's death even if decedent had 21 been travelling at or near the speed limit. The evidence that the court excluded -- that 22 12 Clemmer was intoxicated when she drove at that excessive speed and in that erratic 1 manner -- would not have supplied the missing connection. 2 Because the fact of Clemmer's intoxication would not have made 3 Clemmer's conduct more significant or Combined Transport's conduct less significant in 4 the causation analysis, it was not relevant to that issue. We proceed to the issue of 5 whether evidence of Clemmer's intoxication was, nevertheless, relevant to the issue of the 6 apportionment of fault under ORS 31.600. 7 II. APPORTIONMENT OF FAULT 8 When a trier of fact determines that multiple defendants were negligent and 9 that the conduct of each was a cause-in-fact of the plaintiff's harm, the trier of fact is then 10 required to determine the relative fault of the defendants and to apportion the plaintiff's 11 damages between them on that basis. ORS 31.600(2). Plaintiff concedes that, under 12 Sandford, 292 Or at 600-08, the trier of fact is required to compare the degree to which 13 each defendant deviated from the standard of care and is therefore "blameworthy." 14 Plaintiff asserts, however, that in this case the only evidence of Clemmer's 15 blameworthiness that the jury was entitled to consider was evidence material to the 16 specifications of negligence that plaintiff pleaded and that Clemmer admitted. Plaintiff 17 alleged, and Clemmer admitted, that Clemmer was negligent in driving at an excessive 18 speed and in failing to keep a proper lookout and control of her car. Plaintiff did not 19 allege that Clemmer was negligent in driving while intoxicated. Therefore, plaintiff 20 contends, Clemmer's intoxication was not material to a comparison of the fault of the 21 parties as framed by the pleadings. 22 13 Combined Transport counters that it filed two pleadings that permitted the 1 introduction of evidence of Clemmer's intoxication on the issue of her relative fault: (1) 2 its answer that included a general denial, and (2) a cross-claim against Clemmer for 3 contribution that included affirmative allegations that Clemmer was negligent in driving 4 under the influence of intoxicants. Alternatively, Combined Transport asks that, if this 5 court decides that Combined Transport was required to affirmatively plead the fact of 6 Clemmer's intoxication but that a cross-claim for contribution was not the appropriate 7 vehicle to do so, we construe its cross-claim as an affirmative defense. 8 The Court of Appeals did not specifically address those pleading issues. 9 The Court of Appeals simply concluded that evidence of Clemmer's intoxication was 10 relevant to apportion fault between defendants. Lasley, 234 Or App at 20. 11 For the reasons that follow, we hold that, in a comparative negligence case, 12 a defendant that seeks to rely on a specification of negligence not alleged by the plaintiff 13 to establish a codefendant's proportional share of fault must affirmatively plead that 14 specification of negligence and do so in its answer as an affirmative defense and not in a 15 cross-claim for contribution. In the special circumstances that this case presents, we 16 construe Combined Transport's cross-claim as an affirmative defense alleging that 17 Clemmer deviated from the standard of care by driving under the influence of intoxicants 18 and decide that evidence of Clemmer's intoxication was material and relevant. 19 We begin by discussing Combined Transport's argument that evidence of 20 Clemmer's intoxication was admissible under its general denial. Combined Transport 21 argues that Oregon's comparative fault statutes require the jury to compare the fault of the 22 14 parties and, therefore, make all facts relevant to that comparison admissible. ORS 1 31.600(2) requires that the trier of fact "compare the fault of the claimant with the fault of 2 any party against whom recovery is sought, the fault of third party defendants who are 3 liable in tort to the claimant, and the fault of any person with whom the claimant has 4 settled."3 ORS 31.605 provides that "[w]hen requested by any party the trier of fact shall 5 answer special questions indicating * * * [t]he degree of fault of each person specified in 6 ORS 31.600(2)."4 Because the comparative fault statutes require that comparison, we 7 3 ORS 31.600(2) provides: "The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. The failure of a claimant to make a direct claim against a third party defendant does not affect the requirement that the fault of the third party defendant be considered by the trier of fact under this subsection. Except for persons who have settled with the claimant, there shall be no comparison of fault with any person: "(a) Who is immune from liability to the claimant; "(b) Who is not subject to the jurisdiction of the court; or "(c) Who is not subject to action because the claim is barred by a statute of limitation or statute of ultimate repose." 4 ORS 31.605(1) provides: "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 fault of each person specified in ORS 31.600(2). 15 agree with Combined Transport that all evidence that may bear on that comparison is 1 potentially relevant. That does not answer the question, however, whether a defendant 2 that intends to rely on a specification of negligence not pleaded by a plaintiff must 3 affirmatively plead those facts to make them admissible. 4 In this case, plaintiff alleged that Clemmer was negligent in driving at an 5 excessive speed and in failing to maintain a proper lookout and control of her vehicle. 6 Plaintiff also could have alleged, as a separate, additional, specification of negligence, 7 that Clemmer was negligent in driving under the influence of intoxicants. See Winn v. 8 Gilroy, 296 Or 718, 720, 681 P2d 776 (1984) (in wrongful death action, plaintiff alleged 9 that defendant was negligent in several particulars, including driving while intoxicated); 10 ORS 813.010 (making it a crime to drive under the influence of intoxicants). However, 11 without pleading those ultimate facts in his complaint, plaintiff would not have been 12 permitted to rely on evidence of those facts to establish Clemmer's liability. See ORCP 13 18 A (requiring plaintiff to plead 'ultimate facts constituting a claim for relief'); Holger v. 14 Irish, 316 Or 402, 407, 851 P2d 1122 (1993) (pleader required to allege way in which 15 defendant was negligent); Rauw v. Huling and Sparks, 199 Or 48, 64, 259 P2d (1953) 16 (evidence incompetent to establish act of negligence plaintiff did not allege). 17 When a defendant seeks to avoid liability to the plaintiff by asserting that 18 The degree of each person's fault so determined shall be expressed as a percentage of the total fault attributable to all persons considered by the trier of fact pursuant to ORS 31.600." 16 the plaintiff or another tortfeasor should be held responsible for the plaintiff's damages, 1 Oregon law also anticipates that the defendant will alternatively plead the facts on which 2 it relies. When a defendant contends that the plaintiff was at fault, the defendant must 3 affirmatively plead "comparative or contributory negligence" in its answer as an 4 affirmative defense. ORCP 19 B.5 5 When a defendant contends that a tortfeasor who has not been joined in the 6 action or with whom the plaintiff has settled was at fault, the defendant must file a third- 7 party complaint against the tortfeasor or otherwise affirmatively allege the fault of that 8 tortfeasor. ORS 31.600(3). That statute provides: 9 "A defendant who files a third party complaint against a person 10 alleged to be at fault in the matter, or who alleges that a person who has 11 settled with the claimant is at fault in the matter, has the burden of proof in 12 establishing [that the other person was at fault and that that fault was a 13 contributing cause to injury or death]." 14 (Emphases added.) 15 5 ORCP 19 B provides: "In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, comparative or contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, unconstitutionality, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation." (Emphasis added.) 17 When a defendant contends that a codefendant was at fault, the defendant 1 also must affirmatively allege the unpleaded fault of the codefendant. As noted, ORCP 2 19 B requires that a party set forth affirmatively allegations of "comparative negligence." 3 That requirement is not limited to allegations of the comparative negligence of a plaintiff. 4 In addition, ORCP 19 B requires a defendant to set forth affirmatively "any other matter 5 constituting an avoidance or affirmative defense." 6 A general denial is required to "fairly meet the substance of the allegations 7 denied." ORCP 19 A. Therefore, a general denial does not put at issue facts that a 8 plaintiff has not pleaded. Deering v. Alexander, 281 Or 607, 613, 576 P2d 8 (1978), 9 describes the distinction between a general denial and an affirmative defense: 10 "Under Oregon pleading rules, evidence which controverts facts 11 necessary to be proved by plaintiff may be shown under a general denial. 12 * * *. However, where the defendant desires to present evidence which 13 does not directly controvert a fact necessary to be established by plaintiff, it 14 is a new matter which must be pleaded as an affirmative defense." 15 (Internal citations omitted.) This court has defined "new matter" as consisting of "a 16 statement of facts different from those averred by the plaintiff and not embraced within 17 the judicial inquiry into their truth." Hubbard v. Olsen-Roe Transfer Co., 110 Or 618, 18 627, 224 P 636 (1924). When a defendant seeks to avoid liability for the damages that a 19 plaintiff claims by asserting that a codefendant engaged in more blameworthy negligent 20 conduct not pleaded by the plaintiff, the defendant relies for that defensive posture on 21 facts different from those averred by the plaintiff. 22 In combination, ORS 31.600(3) and ORCP 19 B establish that a defendant 23 must, in some way, affirmatively plead a specification of negligence on which it intends 24 18 to rely, and that has not been pleaded by the plaintiff, to establish the fault of a 1 codefendant. A general denial will not permit a defendant to adduce evidence of a 2 codefendant's unpleaded negligence to avoid liability to the plaintiff. 3 We next address Combined Transport's argument that a defendant may 4 affirmatively plead the negligence of a codefendant in a cross-claim for contribution. 5 The current comparative negligence scheme provides that the proportional share of fault 6 of each tortfeasor will be determined in the negligence action brought by the plaintiff. 7 ORS 31.805(1).6 However, that was not always the case.7 In 1971, the contribution 8 6 ORS 31.805(1) provides: "The proportional shares of tortfeasors in the entire liability shall be based upon their relative degrees of fault or responsibility. In contribution actions arising out of liability under ORS 31.600, the proportional share of a tortfeasor in the entire liability shall be based upon the tortfeasor's percentage of the common negligence of all tortfeasors." 7 In 1971, the legislature adopted the first comparative fault statute, which abolished contributory negligence as a complete bar to recovery. Or Laws 1971, ch 668, § 1 (Spec Sess). Under that statute, the plaintiff's fault was compared with that of the defendant, and the plaintiff's recovery was diminished by his or her own proportion of fault, provided that the plaintiff's fault was not greater than the defendant's. In 1995, the legislature amended that statute to its current form. The legislature added a section that detailed the parties that were to be included in the comparison of fault and provided, in part: "(2) The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. The failure of a claimant to make a direct claim against a third party defendant does not affect the requirement that the fault of the third party defendant be considered by the trier of fact under this subsection." 19 statute permitted contribution amongst co-tortfeasors based on their pro rata share of 1 liability.8 The legislature amended both the comparative fault and the contribution 2 statutes in 1975.9 The legislature amended the comparative fault statute to permit the 3 Former ORS 18.470 (1997), renumbered as ORS 31.600 (2003). 8 The original version of former ORS 18.440 provided, in part: "(1) Except as otherwise provided in this Act, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. "(2) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability." Or Laws 1971, ch 665, § 1 (Spec Sess). 9 The amendments to the comparative fault statutes provided for a comparison of fault between any party, including multiple defendants: "Contributory negligence shall not bar recovery in an action by any person * * * 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." Or Laws 1975, ch 599, § 1 (Spec Sess) (italicized portions removed, emphasis omitted). The amendments to the contribution statute provided that a tortfeasor was liable in contribution only for its proportional, not its pro rata, shares. The relevant part of that statute provided: "(1) Except as otherwise provided in this section, where two or more 20 trier of fact to compare the fault of all parties. The legislature amended the contribution 1 statute to reflect that co-tortfeasors were entitled to contribution for any amount in excess 2 of their "proportional share" of liability. 3 At that time, liability was joint and several, and a plaintiff could collect a 4 judgment in its entirety from any one of the defendants. The defendants then could 5 engage in litigation between themselves to allocate ultimate responsibility for payment. 6 See DeMaris v. Whittier, 280 Or 25, 27, 569 P2d 605 (1977); Case v. McKinnis, 107 Or 7 223, 213 P 422 (1923) (illustrating proposition). 8 In 1995, the legislature again changed the comparative negligence scheme. 9 Or Laws 1995, ch 696, §§ 1-5 (Spec Sess). The current law reflects those changes. Most 10 significantly, for our discussion, the legislature eliminated joint and several liability. Or 11 Laws 1995, ch 696, § 5 (Spec Sess).10 Now, under ORS 31.610, liability is several only; 12 persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. There is no right of contribution from a person who is not liable in tort to the claimant. "(2) The right of contribution exists only in favor of a tortfeasor who has paid more than his proportional share of the common liability, and his total recovery is limited to the amount paid by him in excess of his proportional share. No tortfeasor is compelled to make contribution beyond his own proportional share of the entire liability." Or Laws 1975, ch 269, § 1 (Spec Sess) (italicized portions removed, emphases omitted). 10 Former ORS 18.485, renumbered as ORS 31.610, provided for joint and several liability. In 1987, the legislature amended that statute to provide that noneconomic damages were several only. Or Laws 1987, ch 774, § 7. In 1995, the 21 a tortfeasor is responsible only for its percentage of fault as determined in the action 1 brought by the plaintiff.11 2 legislature amended the statute to abolish joint liability for all civil actions "arising out of bodily injury, death or property damage[.]" Or Laws 1995, ch 696, § 5 (Spec Sess). 11 ORS 31.610 provides, in part: "(1) Except as otherwise provided in this section, in any civil action arising out of bodily injury, death or property damage, including claims for emotional injury or distress, loss of care, comfort, companionship and society, and loss of consortium, the liability of each defendant for damages awarded to plaintiff shall be several only and shall not be joint. "(2) In any action described in subsection (1) of this section, the court shall determine the award of damages to each claimant in accordance with the percentages of fault determined by the trier of fact under ORS 31.605 and shall enter judgment against each party determined to be liable. The court shall enter a judgment in favor of the plaintiff against any third party defendant who is found to be liable in any degree, even if the plaintiff did not make a direct claim against the third party defendant. The several liability of each defendant and third party defendant shall be set out separately in the judgment, based on the percentages of fault determined by the trier of fact under ORS 31.605. The court shall calculate and state in the judgment a monetary amount reflecting the share of the obligation of each person specified in ORS 31.600(2). Each person's share of the obligation shall be equal to the total amount of the damages found by the trier of fact, with no reduction for amounts paid in settlement of the claim or by way of contribution, multiplied by the percentage of fault determined for the person by the trier of fact under ORS 31.605. "(3) Upon motion made not later than one year after judgment has become final by lapse of time for appeal or after appellate review, the court shall determine whether all or part of a party's share of the obligation determined under subsection (2) of this section is uncollectible. If the court determines that all or part of any party's share of the obligation is uncollectible, the court shall reallocate any uncollectible share among the other parties. The reallocation shall be made on the basis of each party's respective percentage of fault determined by the trier of fact under ORS 22 When the legislature made that change, it did not amend or repeal the 1 contribution statute. Thus, under Oregon's current comparative negligence scheme, no 2 tortfeasor is liable for more than its percentage of fault, and that percentage of fault is 3 determined in the original negligence action brought by the plaintiff. ORS 31.610(2); 4 ORS 31.805. A defendant cannot bring a contribution action to seek a different 5 31.605. The claimant's share of the reallocation shall be based on any percentage of fault determined to be attributable to the claimant by the trier of fact under ORS 31.605, plus any percentage of fault attributable to a person who has settled with the claimant. Reallocation of obligations under this subsection does not affect any right to contribution from the party whose share of the obligation is determined to be uncollectible. Unless the party has entered into a covenant not to sue or not to enforce a judgment with the claimant, reallocation under this subsection does not affect continuing liability on the judgment to the claimant by the party whose share of the obligation is determined to be uncollectible. "(4) Notwithstanding subsection (3) of this section, a party's share of the obligation to a claimant may not be increased by reason of reallocation under subsection (3) of this section if: "(a) The percentage of fault of the claimant is equal to or greater than the percentage of fault of the party as determined by the trier of fact under ORS 31.605; or "(b) The percentage of fault of the party is 25 percent or less as determined by the trier of fact under ORS 31.605. "(5) If any party's share of the obligation to a claimant is not increased by reason of the application of subsection (4) of this section, the amount of that party's share of the reallocation shall be considered uncollectible and shall be reallocated among all other parties who are not subject to subsection (4) of this section, including the claimant, in the same manner as otherwise provided for reallocation under subsection (3) of this section." (Emphases added.) 23 determination of its percentage of fault. A contribution action serves only to permit a 1 defendant who has "paid more" than its "proportional share of the common liability" to 2 obtain contribution from another person who is also liable for the same injury or death. 3 ORS 31.800(2).12 4 Because a defendant's liability is several only and the defendant is not 5 obligated to pay more than its proportional share of liability, it seems that the 6 circumstances in which a defendant will pay more than its proportional share and, 7 therefore, have a reason to seek contribution from a codefendant will be quite limited. 8 However, ORS 31.800(2) continues to permit a claim for contribution should those 9 circumstances exist. And, should those circumstances exist, a defendant could use a 10 cross-claim to assert a claim for contribution against a codefendant. ORCP 22 B defines 11 a cross-claim as a claim "existing in favor of the defendant asserting the cross-claim and 12 against another defendant, between whom a separate judgment might be had in the 13 action[.]" A defendant who "has paid" its proportional share could seek a separate 14 judgment against a codefendant for the excess amount of its payment and do so by means 15 12 ORS 31.800(2) provides: "The right of contribution exists only in favor of a tortfeasor who has paid more than a proportional share of the common liability, and the total recovery of the tortfeasor is limited to the amount paid by the tortfeasor in excess of the proportional share. No tortfeasor is compelled to make contribution beyond the proportional share of the tortfeasor of the entire liability." (Emphasis added.) 24 of a cross-claim. 1 A cross-claim for contribution is not, however, perfectly adapted for use by 2 defendant to allege that a co-defendant is at fault for the plaintiff's damages and should be 3 held liable, not to the defendant, but to the plaintiff. In that instance, the defendant does 4 not seek a separate judgment against the codefendant as required by ORCP 22 B. Even 5 so, the comparative negligence statutes indicate that such a pleading may be permitted. 6 As noted, when a plaintiff does not join a tortfeasor as a defendant, the comparative 7 negligence statutes permit the named defendant to file a third-party complaint against the 8 tortfeasor. ORS 31.600(3). In that instance, the third-party defendant will not be liable 9 to the defendant but, potentially, will be liable to the plaintiff. However, ORCP 22 C(1) 10 restricts third-party claims to circumstances in which a third party "is or may be liable to 11 the third party plaintiff." Thus, although ORCP 22 C(1) indicates that a third-party claim 12 is designed for the circumstance in which the third-party defendant is or may be liable to 13 the third-party plaintiff, ORS 31.600(3) permits a defendant to file a third-party 14 complaint to allege that a third-party defendant is at fault and potentially liable to the 15 plaintiff. ORS 31.600(2) specifically provides that the fact that a plaintiff is not a party to 16 the third-party claim does not prevent the trier of fact from comparing the fault of the 17 third-party defendant in the action brought by the plaintiff.13 18 13 ORS 31.600(2) provides that "[t]he failure of a claimant to make a direct claim against a third party defendant does not affect the requirement that the fault of the third party defendant be considered by the trier of fact[.]" 25 Thus, the legislature anticipated that a defendant could file a third-party 1 complaint against a tortfeasor who would not be liable to the defendant but who could, 2 instead, be liable to the plaintiff. Whether the legislature intended to permit a defendant 3 to make a cross-claim against a codefendant who would not be liable to the defendant 4 but, instead, would be liable to the plaintiff, is unclear. 5 Neither an affirmative defense nor a cross-claim for contribution is ideally 6 designed as a mechanism for a defendant to plead the negligence of a codefendant that is 7 not pleaded by the plaintiff and thereby to avoid or reduce the defendant's liability to the 8 plaintiff. An affirmative defense is directed at a plaintiff, not at a codefendant. A cross- 9 claim for contribution is directed at a codefendant and is not designed to avoid liability to 10 a plaintiff. On balance, however, we think that an affirmative defense is the pleading 11 mechanism that a defendant should use. The use of an affirmative defense is consistent 12 with the terms of ORCP 19 B, whereas the use of a cross-claim for contribution would 13 require modification of the terms of ORCP 22 B(1) and ORS 31.800. We hold that a 14 defendant that does not allege that it has paid more than its proportional share of liability 15 and that does not seek a separate judgment against a codefendant for the amount of that 16 excess payment, but that instead seeks to avoid paying the full damages that a plaintiff 17 has alleged on the basis that a codefendant is more at fault in a way that was not alleged 18 by the plaintiff, must plead the specification of negligence on which the defendant relies 19 as an affirmative defense in its answer to the plaintiff's complaint and not in a separate 20 cross-claim against the codefendant. 21 In this case, Combined Transport did not allege in its cross-claim that it had 22 26 paid more than its proportional share of liability or seek a money judgment against 1 Clemmer. Combined Transport alleged that Clemmer was driving under the influence of 2 intoxicants and sought to have Clemmer "contribute such amount as is proportionate to 3 her share." Combined Transport should have included those allegations in its answer as 4 an affirmative defense. Because it did not, Combined Transport requests that we 5 construe its cross-claim as an affirmative defense under ORCP 12. We now turn to that 6 argument. 7 Important to resolution of that issue is an understanding of the pleadings 8 that Combined Transport filed and the rulings that the trial court made. In its answer to 9 plaintiff's complaint, Combined Transport included an affirmative defense and two cross- 10 claims. In the affirmative defense, Combined Transport alleged that Clemmer had 11 pleaded guilty to second-degree manslaughter and driving under the influence of 12 intoxicants and had been determined to have recklessly killed decedent and to have been 13 legally intoxicated. Therefore, Combined Transport alleged, both plaintiff and Clemmer 14 were precluded from claiming that Clemmer was not negligent, reckless, or intoxicated. 15 In its first cross-claim for common-law indemnity, Combined Transport alleged that 16 plaintiff's damages were caused by Clemmer's "active and gross negligence and criminal 17 conduct" in driving while intoxicated. Combined Transport alleged that its negligence, if 18 any, was passive and that, because Clemmer was primarily responsible for decedent's 19 death, Combined Transport was entitled to common-law indemnity from Clemmer. In its 20 second cross-claim for contribution, Combined Transport alleged that the negligent 21 conduct of Clemmer contributed to plaintiff's damages and that Combined Transport was 22 27 entitled to recover from Clemmer an amount equal to Clemmer's proportional share of 1 fault, as determined by the court. 2 Plaintiff filed a motion to strike Combined Transport's affirmative defense 3 and cross-claims or, alternatively, to bifurcate any issues relating to Clemmer's reckless 4 or intoxicated behavior to a separate trial. The court granted the motion to strike the 5 affirmative defense.14 The parties stipulated that the indemnity cross-claim would be 6 tried to the court and that no evidence would be admissible on that claim that would not 7 be admissible on the underlying complaint. On that basis, the trial court deferred ruling 8 on the motion to strike the cross-claim for indemnity. 9 The trial court then inquired as to the function of Combined Transport's 10 cross-claim for contribution. Combined Transport responded, as we understand it, that 11 the jury would be required to receive all of the evidence of the relative fault between the 12 defendants, including recklessness and intoxication, and after it did so, a contribution 13 claim would only arise if there was a post-judgment reallocation of obligations pursuant 14 to ORS 31.610(3).15 Otherwise, Combined Transport indicated, "as far as affecting the 15 trial, other than supplementing -- giving a defendant the opportunity to supplement the 16 14 Combined Transport does not assign error to that ruling. 15 Under ORS 31.610(3), if a tortfeasor cannot pay its proportional share of the judgment, that portion of the judgment can be reallocated to the other tortfeasors under certain circumstances. Those tortfeasors who had to pay more than their proportional share after the reallocation have an action for contribution from the nonpaying tortfeasor. Therefore, the claim for contribution does not accrue until the payment has been reallocated. 28 claims of relative fault in the case, I don't believe that it plays an independent role with 1 the jury." Plaintiff argued that a cross-claim for contribution was premature because it 2 only exists in favor of a tortfeasor who has paid more than a proportional share of the 3 common liability. "It is not," plaintiff argued, "a platform for changing the pleadings." 4 Saying, "I think that's right," the trial court granted plaintiff's motion to strike Combined 5 Transport's second cross-claim for contribution. 6 Later in the pretrial proceedings, after the trial court had ruled that evidence 7 of Clemmer's intoxication was not relevant and granted plaintiff's motion in limine 8 precluding admission of that evidence, Combined Transport filed a motion for leave to 9 file an amended answer with an amended cross-claim for contribution. In the amended 10 cross-claim that it proffered with its motion, Combined Transport alleged that Clemmer 11 was negligent in seven particulars, including driving under the influence of intoxicants. 12 Combined Transport also alleged that Clemmer should be required to "contribute such 13 amount as is proportionate to her share[.]" In considering Combined Transport's motion, 14 the court explained that, when it had granted plaintiff's earlier motion to strike Combined 15 Transport's cross-claim, it had done so for a reason that "had nothing to do with the 16 pleading of the contribution claim, but more had to do with the role that a contribution 17 claim plays or doesn't play in the context of this litigation, where the jury is going to be 18 deciding the relative negligence or fault, * * * if any, between the two defendants." The 19 court said that, because Clemmer had admitted negligence and causation, she was 100 20 percent responsible for plaintiff's damages, less any responsibility that the jury assessed 21 to Combined Transport. Therefore, the court reasoned, there was no need for the cross- 22 29 claim that Combined Transport proffered. Combined Transport responded that it was 1 seeking to file the amended pleading "so that we have a clear pleading setting forth 2 exactly what it is that we would intend to plead and prove in this case." The court then 3 brought the discussion to a close, stating that it was denying Combined Transport's 4 motion to amend its cross-claim because "the jury is going to be answering this question 5 anyway." 6 The case then proceeded to trial on plaintiff's complaint, Clemmer's answer 7 admitting negligence and causation, and Combined Transport's answer denying 8 negligence and causation and asserting a cross-claim for indemnity to be tried to the court 9 on the same evidence relevant to the trial of the issues presented by the complaint.16 On 10 appeal to the Court of Appeals, Combined Transport assigned error to the ruling of the 11 trial court striking its cross-claim. Without explicitly addressing that issue, the Court of 12 Appeals decided that evidence of Clemmer's intoxication was relevant to the issue of 13 apportionment of fault. 14 ORS 31.600 requires the jury to compare the fault of the parties, but, for the 15 reasons that we have explained, a defendant who wishes to have the jury consider the 16 unpleaded negligence of a codefendant in making that comparison is required to plead the 17 facts establishing that negligence. The fact that the codefendant has accepted liability 18 based on the facts alleged by the plaintiff does not eliminate that requirement. Thus, in 19 16 On October 2, 2007, in a post-trial hearing, the trial court denied the cross- claim for indemnity, and Combined Transport does not challenge that ruling. 30 this case, to have the jury consider evidence of Clemmer's intoxication in comparing the 1 fault of the parties, either plaintiff or Combined Transport had to allege those facts. 2 Plaintiff did not do so, and the pleading burden fell on Combined Transport. 3 Combined Transport did not use the pleading that we now hold was 4 required -- an affirmative defense. However, Combined Transport did allege, in its cross- 5 claim, the fact of Clemmer's intoxication and its theory that Clemmer's intoxication 6 should be considered in determining Clemmer's proportional share of liability. 7 Combined Transport was incorrect in selecting the pleading that it was required to use, 8 but was correct in recognizing that it must plead those allegations to make Clemmer's 9 intoxication relevant to the jury's determination of comparative fault. The trial court was 10 correct that a cross-claim for contribution was premature, but it was incorrect that there 11 was no role for Combined Transport's pleading alleging negligence by Clemmer that was 12 not pleaded by plaintiff. A pleading was necessary to make Clemmer's intoxication 13 material and to allow the jury to consider that conduct in comparing the fault of Clemmer 14 and Combined Transport. 15 We think that, in the unique circumstances of this case, the cross-claim that 16 Combined Transport proffered fulfilled the function of an affirmative defense, viz., to put 17 the plaintiff on notice of the theory and facts comprising the defendant's defense. See 18 Ritter v. Beals et al., 225 Or 504, 517-18, 358 P2d 1080 (1961) (affirmative defense must 19 inform plaintiff of what defendant intends to prove). ORCP 12 requires a court, "in every 20 stage of an action," to "disregard any error or defect in the pleadings or proceedings 21 which does not affect the substantial rights of the adverse party." See also Bank of Calif. 22 31 Nat. Ass'n v. Schmaltz, 139 Or 163, 171, 9 P2d 112 (1932) (courts not controlled by 1 construction that parties place on pleadings). At the time of trial in this case, the pleading 2 that Combined Transport was required to use was unclear, and Combined Transport's 3 cross-claim apprised plaintiff of the facts on which it intended to rely and the purpose of 4 those facts. In that narrow circumstance, the defect in designating the pleading as a 5 cross-claim rather than as an affirmative defense did not affect the substantial rights of 6 plaintiff. Because Combined Transport affirmatively alleged the fact of Clemmer's 7 intoxication and its theory that Clemmer's intoxication should be used in determining the 8 relative fault of the parties, the evidence that Combined Transport proffered on that issue 9 was relevant on the issue of the comparative fault of the defendants and the trial court 10 erred in excluding it. 11 However, for the reasons we have stated, the evidence of Clemmer's 12 intoxication was not relevant on the issues of causation, liability, or damages. Therefore, 13 we remand the case for a new trial limited to the degree of fault of each defendant 14 "expressed as a percentage of the total fault" attributable to each defendant. ORS 15 31.605(1)(b). 16 The decision of the Court of Appeals is affirmed. The judgment of the 17 circuit court is reversed, and the case is remanded to the circuit court for further 18 proceedings. 19 1 DE MUNIZ, C. J., dissenting. 1 Evidence adduced in the course of a civil trial does not arise in a vacuum. 2 It is circumscribed by the content of the parties' respective pleadings, a fact that requires 3 litigants in Oregon to plead the ultimate facts on which their claims are based. See ORCP 4 18 A (pleadings must contain a "plain and concise statement of the ultimate facts 5 constituting a claim for relief "); see also Welch v. Bancorp, 296 Or 208, 221, 675 P2d 6 172 (1984) ("The necessity of pleading ultimate facts retains the present Oregon 7 requirements of pleading facts at a fairly specific level.") (internal quotation marks 8 omitted). As explained in greater detail below, the pleadings -- including those that set 9 out affirmative defenses -- declare and control the issues to be determined at trial, at once 10 providing the parties with notice concerning the key facts that each side will attempt to 11 prove while establishing boundaries for the trial court in determining the relevance of the 12 evidence offered. Here, Combined Transport's deficient pleading -- not trial court error -- 13 was the only factor that kept evidence of Clemmer's intoxication from the jury. The 14 majority's efforts to say otherwise not only does a disservice to the trial court's expertise, 15 but effectively kicks one hundred years of Oregon pleadings law to the curb without 16 explanation. Because defendant's cross-claim for contribution cannot be construed as an 17 affirmative defense, I respectfully dissent. 18 The majority agrees with the basic premise that a cross-claim for 19 contribution cannot be viewed as an affirmative defense. Indeed, it writes: 20 "We hold that a defendant that does not allege that it has paid more than its 21 proportionate share of liability and that does not seek a separate judgment 22 against a co-defendant for the amount of that excess payment, but that 23 2 instead seeks to avoid paying the full damages that a plaintiff has alleged 1 on the basis that a co-defendant is more at fault in a way that was not 2 alleged by the plaintiff, must plead the specification of negligence on which 3 the defendant relies as an affirmative defense in its answer to the plaintiff's 4 complaint and not in a separate cross-claim against the co-defendant." 5 ___ Or at ___ (slip op at ___ ). The majority goes on to acknowledge that Combined 6 Transport should have included the allegations of Clemmer's intoxication in its answer as 7 an affirmative defense. ___ Or at ___ (slip op at ___ ). The majority, however, 8 nevertheless concludes that, at the time, that particular legal tenet was "unclear" as a 9 matter of Oregon law. ___ Or at ___ (slip op at ___ ). The resulting lack of clarity, the 10 majority posits, created "unique circumstances" that now require this court to 11 transmogrify Combined Transport's cross-claim for contribution into an affirmative 12 defense under ORCP 12. ___ Or at ___ (slip op at ___ ). At the end of the day, that 13 decision is, for the reasons that follow, simply wrong. 14 Oregon's Pleading Requirements Are Clear 15 As a threshold matter, it is important to note that there is little that is 16 unclear about the Oregon pleading requirements at issue here, or the consequences for 17 failing to adhere to those rules. In this state, a party's pleadings matter and have for some 18 time: 19 "It is a theory long in use in the practice of law that the pleadings declare 20 and control the issues to be determined and the relations that the parties 21 bear to each other." 22 Warner v. Synnes, 114 Or 451, 459-60, 235 P 305 (1925). See also Wold v. City of 23 Portland, 166 Or 455, 470-71, 112 P 2d 469 (1941) (citing Warner for the proposition 24 that an action tried on pleadings of negligence could not be overturned on appeal under 25 3 unpleaded theory of nuisance). In particular, a party's pleadings set the boundaries for 1 evidence that can be admitted at trial. See Cutsforth v. Kinzua Corp., 267 Or 423, 428- 2 29, 517 P2d 640 (1973) (plaintiff could not present evidence to support allegation of 3 negligence that was properly stricken from the pleading); Laird C. Kirkpatrick, Oregon 4 Evidence § 401.03, 141-42 (5th ed 2007) (relevance depends on allegations pleaded by 5 the parties). 6 A fundamental component of the overall pleading process is, of course, the 7 pleading of affirmative defenses. In Ritter v. Beals, 225 Or 504, 517-18, 358 P2d 1080 8 (1961), this court outlined the purpose of such pleadings: 9 "A pleading of an affirmative defense has two functions. It must inform the 10 plaintiff of facts which the defendant will prove. It must also give the trial 11 court a pleading foundation for the taking of testimony and ultimately for 12 instructing the jury." 13 A defendant who seeks to extend the boundaries of relevancy initially established by a 14 plaintiff's pleadings must affirmatively set forth in its answer the additional facts on 15 which he or she seeks to rely, thereby making the facts relevant for trial purposes. 16 In Oregon, failure to do so has long had negative outcomes for those 17 seeking to advance unpleaded defenses on appeal. In 1905, for example, the Oregon 18 Supreme Court decided Thayer v. Buchanan, 46 Or 106, 79 P 343 (1905), an action to 19 foreclose on a mortgage. In his response to the complaint against him, the defendant had 20 asserted that part of the principal covered by the mortgage had been fraudulently 21 confessed without his authorization or knowledge by the plaintiff representing himself as 22 the defendant's lawyer in a separate matter. The trial court found in favor of the plaintiff, 23 4 and on appeal, the defendant took a different tack, arguing that the mortgage note 1 encompassed certain usurious elements that were illegal. In affirming the trial court's 2 judgment, this court concluded that the pleadings below were dispositive with regard to 3 the validity of the newly proffered defense: 4 "Some usurious items may have been included in the settlement, and 5 it looks very much as if such was the case, which would not in themselves 6 support the note; but, as we have previously had occasion to observe, the 7 pleadings set out no such defense, and we are therefore powerless to help 8 the defendant, even on account of such demands." 9 Id. at 110 (emphasis added). See also Wolf v. Hougham, 62 Or 264, 125 P 301 (1912) (in 10 contract action for sale of hops, trial court instruction disregarding unpleaded defense 11 was correct; defendant could not avail himself of defense not clearly stated in his answer, 12 although it appeared by his evidence). 13 In a nutshell, what was clear shortly after the turn of the last century 14 remains clear today: Combined Transport was obliged to plead Clemmer's intoxication 15 as an affirmative defense in order to have the jury consider that evidence. The process 16 for doing so is not a secret. In Hawkins v. City of La Grande, 315 Or 57, 62-63, 843 P2d 17 400 (1992) this court outlined the provisions for pleading an affirmative defense: 18 "The relevant pleading rules call for defenses to be pleaded. Oregon Rules 19 of Civil Procedure (ORCP) 13 A provides: 20 "'The pleadings are the written statements by the parties of the facts 21 constituting their respective claims and defenses.' 22 "ORCP 19 B provides, in part: 23 "'In pleading to a preceding pleading, a party shall set forth 24 affirmatively accord and satisfaction, arbitration and award, 25 assumption of risk, * * * and any other matter constituting an 26 avoidance or affirmative defense. * * *' 27 5 "ORCP 21 A provides, in part: 1 "'Every defense, in law or fact, to a claim for relief in any pleading, 2 whether a complaint, counterclaim, cross-claim or third party claim, 3 shall be asserted in the responsive pleading thereto * * *. (Emphasis 4 added.)'" 5 Despite the roadmap provided for it in Hawkins, however, Combined 6 Transport did not plead an affirmative defense under ORCP 19 B. It opted, instead, to 7 submit a cross-claim for contribution, which the trial court struck as premature. 8 The majority apparently concludes that the trial court erred in doing so; I disagree. 9 The Prejudgment Cross-claim For Contribution Was Properly Stricken 10 A cross-claim for contribution is not a substitute for a properly pleaded 11 affirmative defense. Today, the right to seek contribution is largely a relic of Oregon's 12 past as a state that once recognized joint and several liability. After Oregon abandoned 13 that doctrine in favor of several liability for claims involving bodily injury, death, and 14 property damage,1 the applicability of a contribution claim has since been confined to a 15 limited set of circumstances. In that regard, ORS 31.800(2) provides: 16 "The right of contribution exists only in favor of a tortfeasor who has 17 paid more than a proportional share of the common liability, and the total 18 recovery of the tortfeasor is limited to the amount paid by the tortfeasor in 19 excess of the proportional share. No tortfeasor is compelled to make 20 contribution beyond the proportional share of the tortfeasor of the entire 21 liability." 22 Under the statute, the gravamen of a contribution action is that a tortfeasor "has paid" 23 1 ORS 31.610(1) provides generally that, for multiple defendants in such cases, "the liability of each defendant for damages awarded to plaintiff shall be several only and shall not be joint." 6 more than his or her "proportional share" of damages. Faced with that circumstance, a 1 tortfeasor may enforce contribution in either a "separate action" regardless of whether 2 judgment has been entered or not, ORS 31.810(1), or by motion upon notice to all the 3 parties after "a judgment has been entered in an action against two or more tortfeasors for 4 the same injury or wrongful death," ORS 31.810(2). As a result, a contribution claim has 5 nothing to do with determining the fault of the parties; it is solely a procedural 6 mechanism to allow damages to be collected fairly. 7 Taken together, ORS 31.800 and ORS 31.810 support the proposition that 8 an action for contribution is relevant prior to judgment only in a separate proceeding or, if 9 undertaken in the same proceeding, after a judgment has been entered. At the time that 10 Combined Transport sought to have its cross-claim made part of the pleadings in this 11 case, however, no judgment had been rendered and no damages had been paid; indeed, 12 the trial on plaintiff's claims had yet to begin. Consequently, it was altogether 13 appropriate for the trial court to strike the cross-claim as premature. Combined 14 Transport's subsequent attempt to amend its contribution request did nothing to change 15 the premature nature of that claim: At the end of the day it remained a pretrial attempt to 16 initiate a matter that could only be brought post-judgment or in a separate proceeding. 17 Consequently, it warranted the same response. The trial court did not err in either ruling. 18 The majority, of course, has a different view. It ultimately concludes that 19 the only problem with Combined Transport's cross-claim for contribution was its 20 defective designation as such rather than as an affirmative defense. ___ Or at ___ (slip 21 op at ___ ). It sets about to fix that problem by resort to ORCP 12 B, which provides: 22 7 "The court shall, in every stage of an action, disregard any error or 1 defect in the pleadings or proceedings which does not affect the substantial 2 rights of the adverse party." 3 See ___ Or at ___ (slip op at ___ ). The majority is untroubled by the resulting 4 transformation, concluding that Combined Transport's contribution claim effectively 5 "fulfilled the function of an affirmative defense, viz., to put the plaintiff on notice of the 6 theory and facts comprising the defendant's defense." ___ Or at ___ (slip op at ___ ). I 7 again disagree. 8 This Court is Precluded From Construing Combined Transport's Cross-claim For 9 Contribution As An Affirmative Defense 10 11 It is important to understand that the majority's reliance on ORCP 12 in this 12 case is incorrect as a matter of Oregon law. As a general rule, the Oregon Rules of Civil 13 Procedure are applicable only in the trial courts. In Lincoln Loan Co. v. City of Portland, 14 335 Or 105, 110, 59 P3d 521 (2002), this court held that "'the ORCP apply only in trial 15 courts.'" (quoting McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 89, 957 P2d 1200, 16 adh'd to on recons, 327 Or 185, 957 P2d 1207 (1998)); see also Robinson v. Lamb's 17 Wilsonville Thriftway, 332 Or 453, 459, 31 P3d 421 (2001) (stating that the rules of civil 18 procedure "are rules to be applied to actions in trial courts") (emphasis in original). 19 Although rules of civil procedure have indeed been incorporated into this court's 20 procedural framework, we have done so only after expressly making those provisions 21 part of the Oregon Rules of Appellate Procedure. See, e.g., ORAP 1.40 (expressly 22 adopting the provisions of ORCP 17); ORAP 8.05 (doing the same for ORCP 34). We 23 have yet to do the same with regard to ORCP 12. 24 8 Even if it was proper for the court to invoke ORCP 12 B in this case -- and 1 it is not -- the majority nevertheless misapplies the rule here. Under its plain text, the 2 pleading problem to be corrected by ORCP 12 B must constitute an "error or defect"; 3 neither are present here. In Mulier v. Johnson, 332 Or 344, 29 P3d 1104 (2001), the 4 defendant had moved for summary judgment but had failed to allege a right to attorney 5 fees under ORCP 68 C(2)(b). This court held that the defendant's complete failure to 6 plead a right to attorney fees was not an "error or defect" under ORCP 12 B: 7 "As we have explained, the words 'error' and 'defect' in ORCP 12 B 8 reflect the legislature's intent that a party must attempt to comply with the 9 mandatory requirements of the rules of civil procedure if that party is to 10 benefit from the provisions of ORCP 12 B. A complete failure to allege the 11 right to attorney fees in a motion under ORCP 68 C(2)(b) does not 12 demonstrate an attempt to comply with the requirements of that rule." 13 Id. at 350 (internal citation omitted; emphasis added). The same is true in this case. If a 14 party wishes to present evidence of comparative negligence as an affirmative defense, 15 ORCP 19 B requires such a pleading. One's abject failure to do so might be categorized 16 as many things but, as Mullier makes clear, it is not a defect that can be corrected by 17 ORCP 12 B. 18 In sum, the trial court did not err in this matter. Combined Transport's 19 cross-claim for contribution was not relevant at the time it was brought, and the trial court 20 correctly granted plaintiff's motion to strike. While ORCP 12 A directs that "[a]ll 21 pleadings shall be liberally construed with a view of substantial justice between the 22 parties," the majority has resurrected and rewritten the stricken pleading at issue here -- 23 not construed it -- in order to make out an affirmative defense in this matter. The 24 9 majority errs in doing so. Consequently, I would affirm the judgment. 1 For the reasons cited above, I respectfully dissent. 2 Durham, J., joins this dissenting opinion. 3

508177dccd2423afb7fb1bf851da458160b13dff1ee6579ef8fbef692892fe6f

2011-09-22T00:00:00Z

5d295417-55ee-498c-8246-12a2845c6e60

Williams v. RJ Reynolds Tobacco Company

S059014

oregon

Oregon Supreme Court

1 Filed: December 2, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON MAYOLA WILLIAMS, Personal Representative of the Estate of Jesse D. Williams, Deceased, Plaintiff-Appellant, and STATE OF OREGON, acting by and through the Department of Justice, Cross-Appellant Cross-Respondent, v. RJ REYNOLDS TOBACCO COMPANY; FRED MEYER, INCORPORATED; and PHILIP MORRIS COMPANIES, INC., Defendants, and PHILIP MORRIS, INC., nka Philip Morris USA, Inc., Defendant-Respondent Cross-Respondent. (CC 970503957; SC S059014 (Control)) ____________________________________________________________ STATE OF OREGON, Plaintiff-Appellant, v. 2 AMERICAN TOBACCO COMPANY, INC., et al., Defendants, and PHILIP MORRIS, INC., Defendant-Respondent. (CC 970604457; SC S059248) On appeal certified from the Court of Appeals on appeal from a judgment of the Multnomah County Circuit Court. Janice R. Wilson, Judge. Argued and submitted September 19, 2011. James S. Coon, Swanson Thomas & Coon, Portland, argued the cause for appellant, Mayola Williams, and Stephanie Striffer, Senior Assistant Attorney General, Salem, argued the cause for cross-appellant-cross-respondent State of Oregon. James S. Coon filed the briefs for Appellant. With Stephanie Striffer on the briefs for cross- appellant-cross-respondent were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. William F. Gary, Harrang Long Gary Rudnick PC, Eugene, argued the cause for respondent-cross-respondent Philip Morris United States of America Incorporated. With him on the answering brief was Sharon A. Rudnick. Lisa T. Hunt, Portland, filed a brief on behalf of amici curiae American Lung Association of the Mountain Pacific, American Cancer Society, Campaign for Tobacco Free Kids, Upstream Public Health and the Tobacco-Free Coalition. Janie Robben, Oregon Crime Victims Law Center, Portland, filed a brief on behalf of amicus curiae Oregon Crime Victims Law Center. Margaret Garvin, Executive Director, National Crime Victim Law Institute, at Lewis & Clark Law School, Portland, filed a brief on behalf of amicus curiae National Crime Victim Law Institute. Before De Muniz, Chief Justice, and Durham, Kistler, Walters, and Linder, 3 Justices.* DE MUNIZ, C. J. The judgment of the circuit court in Williams v. Philip Morris (CC970503957) is reversed, and the case is remanded for entry of a judgment consistent with this opinion. The post-judgment order in State v. American Tobacco Co. (CC 970604457) is reversed. *Balmer and Landau, JJ., did not participate in the consideration or decision of this case. 1 DE MUNIZ, C. J. 1 This is a certified appeal from the Court of Appeals. See ORS 19.405 2 (describing process for certification of appeal to this court). The dispute arises out of the 3 case of Williams v. Philip Morris, Inc., in which, in 1999, a jury awarded the Estate of 4 Jesse Williams (the Williams estate) compensatory damages and $79.5 million in 5 punitive damages for Philip Morris, Inc.'s (Philip Morris) fraud and negligence leading to 6 the smoking-related lung cancer death of Jesse Williams. After over a decade of appeals, 7 during which the case has been before this court multiple times, the punitive damages 8 award now has been affirmed.1 Philip Morris has paid the compensatory damages and 9 part of the punitive damages to the Williams estate, but has refused to pay the 60 percent 10 of the jury's punitive damages award that is allocated to the state under Oregon's split 11 recovery statute, ORS 31.735.2 The state and the Williams estate have sought to force 12 Philip Morris to pay that 60 percent share, either to the state, as the statute directs, or, 13 alternatively, to the Williams estate. The trial court ruled that the state had released its 14 1 Williams v. Philip Morris Inc., 335 Or 142, 61 P3d 938 (2002), rev'd and rem'd, 540 US 801, 124 S Ct 56, 157 L Ed 2d 12 (2003), on remand, 340 Or 35, 127 P3d 1165 (2006), rev'd and rem'd, 549 US 346, 127 S Ct 1057, 166 L Ed 2d 940 (2007), on remand, 344 Or 45, 176 P3d 1255 (2008), cert dismissed as improvidently granted, 556 US 178, 129 S Ct 1436, 173 L Ed 2d 346 (2009). 2 At the time that the complaint in Williams v. Philip Morris, Inc. was filed, Oregon's split recovery statute was numbered as ORS 18.540. In 2003, it was renumbered as ORS 31.735. For convenience, we refer to that statute at all times in this opinion as it is currently codified. We set out the text of ORS 31.735 later in this opinion. 2 claim to those punitive damages in a settlement agreement in another action, and that the 1 Williams estate also has no right to the portion of the punitive damages award allocated 2 to the state under ORS 31.735. The state and the Williams estate appealed that ruling to 3 the Court of Appeals, which certified the appeal to this court. We now hold that the 4 state's statutory right to a share of punitive damages is not a "released claim," as that term 5 is defined in the settlement agreement in the other action, and therefore, the state did not 6 release its right to pursue payment of its statutory interest in 60 percent of the Williams 7 punitive damages award when it settled that other action. We therefore reverse the 8 judgment of the trial court. 9 The following facts are undisputed. For decades, Jesse Williams smoked 10 cigarettes manufactured and marketed by Philip Morris. In March 1997, Williams died 11 of lung cancer, and later that year, his estate filed a complaint against Philip Morris, 12 alleging that the company's fraud and negligence caused his death. In November 1998, 13 the Williams estate moved to amend the complaint to add a claim for punitive damages. 14 Philip Morris opposed that motion, but the trial court granted the estate leave to file the 15 amended complaint in December 1998. In March 1999, a jury returned a verdict in favor 16 of the Williams estate, awarding the estate economic and noneconomic damages on the 17 negligence and fraud claims, and awarding $79.5 million in punitive damages on the 18 fraud claim. As noted, the case, and particularly the punitive damages award, has been 19 the subject of protracted appeals in this court and in the United States Supreme Court. 20 This court ultimately affirmed the punitive damages award, Williams v. Philip Morris 21 Inc., 344 Or 45, 176 P3d 1255 (2008), cert dismissed as improvidently granted, 556 US 22 3 178, 129 S Ct 1436, 173 L Ed 2d 346 (2009), and the appellate judgment issued in 2009. 1 Also in 1997, the State of Oregon filed an action against Philip Morris and 2 other major domestic cigarette manufacturers and distributors of tobacco products, 3 alleging unfair trade practices, ORICO violations, and other claims. In State v. American 4 Tobacco Co., Inc., et al. (State v. Philip Morris),3 the state alleged that it had incurred 5 hundreds of millions of dollars in increased Medicaid expenses for medical care for low- 6 income Oregon residents and increased health insurance premiums for public employees 7 as a result of the tobacco companies' unlawful conduct. In 1998, Oregon settled its 8 claims against the tobacco companies when its attorney general, and the attorneys general 9 of 45 other states, entered into a "Master Settlement Agreement" (MSA), a global 10 settlement agreement with Philip Morris and the other tobacco companies. As part of the 11 MSA, the tobacco companies agreed, among other things, to make annual payments to 12 the settling states to compensate the states for past and future health care expenses. They 13 also agreed to adhere to restrictions on their advertising and marketing. In return, the 14 settling states agreed to release the tobacco companies from past and future claims 15 relating to the manufacturing of, sale of, and exposure to tobacco products, as well as 16 claims relating to research, statements, or warnings regarding tobacco products.4 Oregon 17 3 Although the case is denominated State v. American Tobacco Co., Inc., et al, in the trial court register and throughout the appellate process, the parties have always referred to the case as State v. Philip Morris. For convenience, we do the same in this opinion. 4 The terms of the MSA release provisions are set out later in this opinion. 4 Attorney General Hardy Myers signed the MSA in November 1998, and the trial court 1 entered a consent decree based on that agreement in December 1998. 2 In April 1999, after the jury returned the verdict in Williams v. Philip 3 Morris, Philip Morris sent the Oregon Attorney General a letter asserting that the MSA 4 released Philip Morris from its obligation under ORS 31.735 to pay the state its 60 5 percent share of the punitive damages award.5 The state then moved in State v. Philip 6 Morris for declaratory relief concerning its entitlement to part of the punitive damages 7 5 ORS 31.735 provides, in part: "(1) Upon the entry of a verdict including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award to which the Criminal Injuries Compensation Account is entitled pursuant to paragraph (b) of this subsection, and the punitive damage portion of an award shall be allocated as follows: "(a) Forty percent shall be paid to the prevailing party. * * * "(b) Sixty percent shall be paid to the Criminal Injuries Compensation Account of the Department of Justice Crime Victims' Assistance Section to be used for the purposes set forth in ORS chapter 147. * * * "* * * * * "(3) Upon the entry of a verdict including an award of punitive damages, the prevailing party shall provide notice of the verdict to the Department of Justice. In addition, upon entry of a judgment based on a verdict that includes an award of punitive damages, the prevailing party shall provide notice of the judgment to the Department of Justice. The notices required under this subsection must be in writing and must be delivered to the Department of Justice Crime Victims' Assistance Section in Salem, Oregon within five days after the entry of the verdict or judgment." 5 awarded in Williams. The trial court stayed the proceedings pending the outcome of the 1 Williams appeals. 2 After the Williams punitive damages award was affirmed on appeal in 3 2009, Philip Morris paid the Williams estate over $61 million in full satisfaction of the 4 award of economic and noneconomic damages, and in full satisfaction of the estate's 5 interest in 40 percent of the punitive damages award allocated to the Williams estate 6 under ORS 31.735, plus costs and interest on those awards. The Williams estate 7 executed a partial satisfaction of money judgment, but asserted that, if the state had 8 released its share of the punitive damages award, then the estate was entitled to recover 9 that share.6 10 The trial court then lifted the stay in State v. Philip Morris and 11 recommenced the proceedings on the state's action to construe the terms of the MSA. 12 The court consolidated Williams v. Philip Morris and State v. Philip Morris to decide the 13 legal questions surrounding entitlement to the punitive damages award: viz., whether by 14 signing the MSA, the state released its allocated share in the Williams punitive damages 15 award and, if so, what should happen to that money. 16 In briefs and in arguments in the consolidated cases, the state and the 17 6 By our calculations, today (12 years after the entry of the judgment in the Williams case), the remaining 60 percent of the punitive damages award, plus accrued simple interest at nine percent per annum, amounts to over $99 million. ORS 82.010(2)(b) (providing for simple interest on judgments at rate of nine percent per annum). 6 Williams estate contended that the state's statutory allocation of 60 percent of any 1 eventual punitive damages award was not a "Claim" or a "Released Claim" under the 2 MSA, because the state was entitled to a share of the punitive damages award by 3 operation of law, or alternatively that the MSA was at least ambiguous as to whether the 4 state had released its right to recover 60 percent of the punitive damages award.7 In that 5 latter regard, the Williams estate also argued that the MSA contained conflicting 6 provisions, one appearing to provide that the state released claims for punitive damages, 7 and another appearing to provide that such claims are not part of the settlement. 8 In addition, both the state and the Williams estate argued that extrinsic 9 evidence supported their position that the state had not released its right to the 60 percent 10 allocation of the punitive damages award under ORS 31.735. In particular, they asserted 11 7 In 2004, the state and the Williams estate entered into an agreement to cooperate in an effort to ensure that Philip Morris is required to pay the entire amount of the punitive damages awarded in Williams, and to share those funds if successful. In part the agreement provides: "8. Any amount recovered by the State of Oregon or by the Williams Estate or both in State of Oregon v. Philip Morris, whether by litigation to final judgment, by settlement, or by any other means, shall be paid 55% to the State of Oregon and 45% to the Williams Estate and its attorneys. In the event that Philip Morris pays 100% of the final appellate judgment in Williams v. Philip Morris with or without litigating State of Oregon v. Philip Morris, the State of Oregon would receive 33.33% of the total punitive damages recovered, and the Williams Estate and its attorneys would receive 66.67% of the total punitive damages recovered." Under that agreement, the state and the Williams estate each argued at the trial court level and in this court that the state had not released its statutory share of the punitive damages award when it entered into the MSA, and, if it had, then the estate was entitled to recover that part of the award. 7 that, when the Oregon Attorney General signed the MSA, he was aware of the Williams 1 case and the fact that the Williams estate claimed punitive damages, and that, by the end 2 of December 1998, only a few weeks after signing the MSA, the Attorney General wrote 3 at least two official letters assuring the recipients of those letters that the settlement 4 would not affect any interest of the state's other than those the state asserted in State v. 5 Philip Morris. In addition, the state and the Williams estate argued that Philip Morris 6 appeared to share that belief, pointing to evidence that, on December 22, 1998, counsel 7 for the tobacco companies (including Philip Morris) sent a notice to the attorneys general, 8 as required by the MSA, listing "potential released claims" under the MSA. The tobacco 9 companies described the list as "substantially over inclusive" in an "exercise of caution" 10 to include every known case in which there was a "colorable possibility" of a released 11 claim. Although the Williams case was pending at that time, it was not included in the 12 tobacco companies' list. 13 In response, Philip Morris argued that the wording of the MSA release 14 provisions is extraordinarily broad and encompasses the state's interest in its statutory 15 share of the punitive damages award. Philip Morris contended that, properly understood, 16 the MSA does not contain any provision that contradicts that broad release provision. 17 Urging that the MSA is not ambiguous, Philip Morris moved to strike the extrinsic 18 evidence of the parties' intent in entering into the MSA not to release the state's share of 19 any punitive damages award in Williams. Finally, Philip Morris argued that the Williams 20 estate was not entitled to the state's share of the punitive damages award because, under 21 the split recovery statute, plaintiffs acquire no right, entitlement, property interest, or 22 8 even expectation interest in the state's statutory allocation of a punitive damages award. 1 The trial court ultimately ruled in Philip Morris's favor on all points. The 2 court concluded that (1) the state had released its right to a share of the Williams punitive 3 damages award by entering into the MSA; (2) the MSA was not ambiguous, and, 4 therefore, there was no need for extrinsic evidence of the parties' intent,8 and (3) the 5 Williams estate was not entitled to the unpaid 60 percent of the jury's punitive damages 6 verdict. As to the MSA's release provisions, the trial court stated: 7 "The State's claim for money from Philip Morris pursuant to the 8 judgment in the Williams case arises, at least indirectly, from and is 9 certainly 'in any way related' to conduct arising out of and related to the 10 use, sale, distribution, advertising, marketing or health effects of tobacco. 11 The State's right to the money at issue arose precisely because the jury 12 imposed punitive damages against Philip Morris in its verdict for the type 13 of conduct described in the MSA. There simply would have been no 14 verdict for punitive damages and no judgment as to which the State is a 15 creditor but for the described conduct." 16 In concluding that the MSA is not ambiguous, the trial court stated: 17 "I find nothing contradictory about those two provisions [one 18 releasing claims for punitive, among other things, punitive damages, and 19 another stating that no part of any payment under the MSA is for, among 20 other things, punitive damages]. It is more common than not in settlement 21 agreements for the releasing language to be as broad as the defendant can 22 make it and the plaintiff will allow, while there is often some limiting 23 characterization of the payment made. Often the characterization is made 24 8 In addition to concluding that the MSA was not ambiguous, the trial court concluded that the Attorney General's opinion about the meaning of the agreement, disclosed to nonparties after the agreement was signed, was not probative, and that the letter from the tobacco companies listing all the released claims was not probative because it was generated in fulfillment of a notice obligation under the MSA and was not produced as part of some due diligence before the settlement itself was reached. 9 for tax reasons -- sometimes for the plaintiff's benefit, sometimes for the 1 defendant's. 2 "Following the Williams Estate's argument, any time the language in 3 a settlement agreement characterizing a settlement payment is not identical 4 to the language characterizing the claims released, the settlement agreement 5 would be ambiguous, and that is not sound reasoning factually or legally." 6 Finally, with respect to the Williams estate's right to the state's allocation of the punitive 7 damages award, the court stated: 8 "I conclude that the state became a judgment creditor [under ORS 9 31.735, when the jury returned the verdict awarding punitive damages], but 10 had released its right to collect. The Williams estate never had an interest 11 in the portion of the punitive damages award allocated by statute to the 12 State, and the State's release through the MSA did not create such an 13 interest in the Williams estate. So I conclude that the estate is not entitled 14 to the remaining portion of the punitive damages award in that verdict." 15 The state and the Williams estate each filed notices of appeal in the Court of Appeals. 16 The Court of Appeals, noting (1) that this court already has reviewed much of the record 17 of the case in deciding Williams v. Philip Morris and is familiar with the facts and issues 18 surrounding the award of punitive damages, and (2) that review in this court appeared to 19 be inevitable because of the amount of money at stake and because of the important 20 issues to be resolved, unanimously decided to certify the appeals to this court. This court 21 accepted certification. 22 Our analysis of the legal issues presented in this case requires that we 23 interpret the MSA. To begin that analysis, we set out the operative terms of the 24 agreement, starting with the release itself. 25 The MSA includes the following provision, in a section entitled 26 "SETTLING STATES' RELEASE, DISCHARGE AND COVENANT," under the 27 10 heading "Release": 1 "(1) Upon the occurrence of State-Specific Finality in a Settling 2 State, such Settling State shall absolutely and unconditionally release and 3 forever discharge all Released Parties from all Released Claims that the 4 Releasing Parties directly, indirectly, derivatively or in any other capacity 5 ever had, now have, or hereafter can, shall or may have. 6 "* * * * * 7 "(3) Each Settling State (for itself and for the Releasing Parties) 8 further covenants and agrees that it (and the Releasing Parties) shall not 9 after the occurrence of State Specific Finality sue or seek to establish civil 10 liability against any Released Party based, in whole or in part, upon any of 11 the Released Claims, and further agrees that such covenant and agreement 12 shall be a complete defense to any such civil action or proceeding." 13 Oregon, as one of the 46 signatories to the MSA, is a "Settling State." Additionally, it is 14 undisputed that, under the MSA, the state is a "Releasing Party" and that Philip Morris is 15 a "Released Party."9 Accordingly, under the "Release," the state "absolutely and 16 9 "Releasing Party" is defined as follows: "'Releasing Parties' means each Settling State and any of its past, present and future agents, officials acting in their official capacities, legal representatives, agencies, departments, commissions and divisions; and also means, to the full extent of the power of the signatories hereto to release past, present and future claims, the following: (1) any Settling State's subdivisions * * *, public entities, public instrumentalities and public educational institutions; and (2) persons or entities acting in a parens patriae, sovereign, quasi-sovereign, private attorney general, qui tam, taxpayer, or any other capacity, whether or not any of them participate in this settlement, (A) to the extent that any such person or entity is seeking relief on behalf of or generally applicable to the general public in such Settling State or the people of the State, as opposed solely to private or individual relief for separate and distinct injuries, or (B) to the extent that any such entity (as opposed to an individual) is seeking recovery of health- care expenses * * * paid or reimbursed, directly or indirectly, by a Settling State." 11 unconditionally release[d] and forever discharge[d]" Philip Morris from all "Released 1 Claims" that it then had or ever would have. 2 "Released Claims" are defined, in pertinent part, as 3 "(1) for past conduct, acts or omissions (including any damages 4 incurred in the future arising from such past conduct, acts or omissions), 5 those Claims directly or indirectly based on, arising out of or in any way 6 related, in whole or in part, to (A) the use, sale, distribution, manufacture, 7 development, advertising, marketing or health effects of, (B) the exposure 8 to, or (C) research, statement or warnings regarding Tobacco Products 9 * * *." 10 "Claims," in turn, are defined as 11 "any and all manner of civil (i.e., non-criminal): claims, demands, actions, 12 suits, causes of action, damages (whenever incurred), liabilities of any 13 nature including civil penalties and punitive damages, as well as costs, 14 expenses and attorneys' fees * * *, known or unknown, suspected or 15 unsuspected, accrued or unaccrued, whether legal, equitable, or statutory." 16 To resolve a dispute over the meaning of a contractual provision, this court 17 first considers the text of the disputed provision in the context of the contract as a whole 18 to determine whether the disputed provision is ambiguous. Yogman v. Parrott, 325 Or 19 358, 361-63, 937 P2d 1019 (1997). A contractual provision is ambiguous if its wording 20 can, in context, reasonably be given more than one plausible interpretation. Pacific First 21 "Released Party" is defined as follows: "'Released Parties' means all Participating Manufacturers, their past, present and future Affiliates, and the respective divisions, officers, directors, employees, representatives, insurers, underwriters, Tobacco- Related Organizations, trade associations, suppliers, agents, auditors, advertising agencies, public relations entities, attorneys, retailers and distributors of any Participating Manufacturer or of any such Affiliate * * *." 12 Bank v. New Morgan Park Corp., 319 Or 342, 348, 876 P2d 761 (1994). Whether a 1 provision is ambiguous is a question of law, as is the meaning of an unambiguous 2 provision. State v. Heisser, 350 Or 12, 25-26, 249 P3d 113 (2011). The court must, if 3 possible, construe the contract so as to give effect to all of its provisions. Johnson v. 4 School District No. 12, 210 Or 585, 592, 312 P2d 591 (1957); see ORS 42.230 (in 5 construing a document, court is "to ascertain and declare what is, in terms or in 6 substance, contained therein, not to insert what has been omitted, or to omit what has 7 been inserted; and where there are several provisions or particulars, such construction is, 8 if possible, to be adopted as will give effect to all"). If the meaning of the provision is 9 clear from the text and context, then the analysis ends. Yogman, 325 Or at 361. If the 10 provision is ambiguous, the court moves to the second step of the analysis, which is to 11 consider other evidence of the parties' intent. Id. at 363. 12 With that interpretive paradigm in mind, we turn to the principal question 13 before us: whether the MSA's definitions of "Claims" or "Released Claims" encompass 14 the state's interest in an allocation of the Williams punitive damages award. Before we 15 determine whether those terms apply to the state's allocation, however, we think it is 16 helpful first to examine the nature of the state's interest. 17 The state was not a party in Williams: it did not directly bring a claim, 18 make a demand, file an action or suit, assert a cause of action, allege damages, or assert a 19 liability based on the smoking and health-related conduct described in the MSA's 20 definition of "Released Claims." In other words, the state's interest does not arise out of 21 any direct participation in the Williams case. Rather, the state's interest arose by 22 13 operation of Oregon's split recovery statute, ORS 31.735. For convenience, we set out 1 the pertinent parts of ORS 31.735 again here: 2 "(1) Upon the entry of a verdict including an award of punitive 3 damages, the Department of Justice shall become a judgment creditor as to 4 the punitive damages portion of the award to which the Criminal Injuries 5 Compensation Account is entitled pursuant to paragraph (b) of this 6 subsection, and the punitive damage portion of an award shall be allocated 7 as follows: 8 "(a) Forty percent shall be paid to the prevailing party. * * * 9 "(b) Sixty percent shall be paid to the Criminal Injuries 10 Compensation Account of the Department of Justice Crime Victims' 11 Assistance Section to be used for the purposes set forth in ORS chapter 12 147. * * * 13 "* * * * * 14 "(3) Upon the entry of a verdict including an award of punitive 15 damages, the prevailing party shall provide notice of the verdict to the 16 Department of Justice. In addition, upon entry of a judgment based on a 17 verdict that includes an award of punitive damages, the prevailing party 18 shall provide notice of the judgment to the Department of Justice. The 19 notices required under this subsection must be in writing and must be 20 delivered to the Department of Justice Crime Victims' Assistance Section in 21 Salem, Oregon within five days after the entry of the verdict or judgment." 22 As the terms of ORS 31.735 provide, the statute applies without regard to 23 the subject matter or nature of any claims made in a civil action in which punitive 24 damages are awarded. If a jury awards punitive damages, the state becomes a judgment 25 creditor on entry of the verdict as to the "portion of the [punitive damages] award to 26 which the Criminal Injuries Compensation Account is entitled" under the statute. The 27 judgment of the court must allocate shares of any punitive damage award according to the 28 percentages set out in ORS 31.735(1)(a) and (b), regardless of the conduct that triggered 29 the award. In other words, the statute is blind to the nature of the underlying action and 30 14 the conduct that gave rise to it. 1 It is true that subsection (1) makes the state a "judgment creditor" on entry 2 of a verdict that includes an award of punitive damages, but the statute does not require 3 the state to take any particular action to assert its right to the 60 percent allocation of a 4 punitive damages award as set out in paragraph (1)(b). Rather, as this court explained in 5 Patton v. Target Corp., 349 Or 230, 235-43, 242 P3d 611 (2010), the state's status as a 6 judgment creditor serves another purpose, which a brief description of the history of the 7 statute helps to elucidate. When Oregon's split recovery statute first was enacted, it 8 mandated how punitive damages awards were to be distributed; it did not make the state a 9 judgment creditor. Over time, the legislature became aware that, on occasion, the parties 10 to litigation in which punitive damages were awarded agreed before judgment to settle 11 their cases to avoid paying the state a share of the punitive damages award. To prevent 12 that type of agreement, the legislature ultimately amended the statute to make the state a 13 judgment creditor on entry of a verdict. In Patton, this court held that the state's status as 14 a judgment creditor on entry of a verdict that includes an award of punitive damages 15 confers no specific rights or obligations on the state before the judgment is entered. 349 16 Or at 243.10 The parties remain free to settle the case as they see fit. The state's consent 17 10 In Patton, a former employee of Target successfully sued the company for wrongful discharge, and a jury awarded the employee a substantial sum in punitive damages. After the verdict, but before the trial court entered judgment, the employee and Target entered into a settlement agreement that eliminated the state's share of the punitive damages award under ORS 31.735, and jointly moved the court to approve a stipulated judgment dismissing the case. The state filed a complaint in intervention in the case, 15 to the settlement is not required even if the settlement reduces or eliminates the punitive 1 damages award that would be allocated to the state under ORS 31.735. However, once a 2 court has entered judgment awarding punitive damages, and only then, does the state 3 have the right of a judgment creditor to enforce the statutory allocation of part of the 4 punitive damages award to the crime victims' fund. 5 Under ORS 31.735, the state's statutory interest in 60 percent of a punitive 6 damages award arises by operation of law. Moreover, the statutory designation of the 7 state as a judgment creditor is a mechanism that allows the state to enforce compliance 8 with ORS 31.735; it does not change the nature of the state's interest. We have already 9 noted that the state does not and never did have any direct claim, demand, action, suit, 10 cause of action, damages, or liability for any tobacco related conduct in Williams. It was 11 not a party to that case. The question, then, is whether the state's statutory interest, or its 12 effort to enforce payment of that statutory interest, nonetheless is a "Claim" or a 13 "Released Claim" under the definition of those terms in the MSA. 14 Under the MSA, "Claims" means: 15 "any and all manner of civil (i.e., non-criminal): claims, demands, actions, 16 suits, causes of action, damages (whenever incurred), liabilities of any 17 arguing that it had a vested interest in 60 percent of the punitive damages award and that the parties, therefore, were precluded from settling the case without its consent. This court held that, at the time of entry of a verdict awarding punitive damages, the state had, "at most, an economic expectancy of 60 percent of whatever portion of punitive damages, if any, eventually is memorialized in a judgment." 349 Or at 239. However, the state did not have the right to block a settlement; its consent was not a prerequisite to any post- verdict settlement between the parties. Id. at 343-44. 16 nature including civil penalties and punitive damages, as well as costs, 1 expenses and attorney's fees * * *." 2 We agree that, by covering "any and all manner" of various types of claims, the definition 3 of "Claims" is very broad and could be seen to cover the state's action to collect under 4 ORS 31. 735. However, even assuming, for purposes of argument here, that the state's 5 action is a "Claim" as that term is defined in the MSA, we have no trouble concluding 6 that it is not a "Released Claim." 7 Under the MSA's release provision, the state released "all Released Parties 8 from all Released Claims that the Releasing Parties directly, indirectly, derivatively or in 9 any other capacity ever had, now have, or hereafter can, shall or may have." The 10 definition of "Released Claims" is bifurcated into separate definitions for past and future 11 conduct, acts, or omissions. As relevant here, "Released Claims * * * for past conduct, 12 acts or omissions" are 13 "those Claims directly or indirectly based on, arising out of or in any way 14 related, in whole or in part, to (A) the use, sale, distribution, manufacture, 15 development, advertising, marketing or health effects of, (B) the exposure 16 to, or (C) research, statement or warnings regarding Tobacco Products 17 * * *." 18 In other words, the state released only those "Claims" that are "directly or indirectly 19 based on, arising out of or in any way related" to the described tobacco-related conduct. 20 As we already have explained, the state's interest in the 60 percent share arises by 21 operation of law. If Philip Morris continues to refuse to pay the 60 percent it owes the 22 crime victims' fund under ORS 31.735, the state may have to take steps to execute on the 23 judgment to force Philip Morris to pay it, but that claim will be to enforce the statute, not 24 17 to recover damages for Philip Morris's tobacco-related conduct. And while it could be 1 said that the state's interest in a share of the Williams punitive damages award is 2 indirectly related in some way to the Williams case, its effort to secure payment under the 3 statute is not related in any way to that case. 4 Philip Morris counters that 5 "[t]he State's claim under ORS 31.735 in this case only exists because the 6 Williams Estate sued and recovered based on the same past conduct that 7 formed the basis of the State's claims against [Philip Morris] and which 8 expressly defines the scope of release. Therefore, even if the State's claim 9 under ORS 31.735 for 60% of the Williams punitive damages award could 10 properly be classified as one 'for a statutory allocation' rather than one 'for 11 conduct,' it would still be a claim 'indirectly based on, arising out of or in 12 any way related, in whole or in part, to' the conduct that formed the basis of 13 the claims in Williams." 14 (Emphasis in original.) It is true that the state's statutory entitlement to a share of the 15 punitive damages award in Williams "only exists" because the Williams estate sued Philip 16 Morris for tobacco-related conduct. However, the fact that there is a but-for causal 17 connection between the Williams case (and Philip Morris's tobacco-related conduct that 18 triggered the punitive damages award in that case) and the state's entitlement to part of 19 the punitive damages award does not change the legal nature of the state's interest in its 20 share of that award.11 The state's interest in the punitive damages award arises out of a 21 11 We also reject Philip Morris's assertion that the Williams estate sued and recovered based on "the same past conduct that formed the basis of the State's claims" against Philip Morris. The state sued Philip Morris and other tobacco companies to recover for the state's own increased health care costs arising out of the tobacco companies' tobacco-related conduct. The Williams estate, by contrast, sued and recovered based on misconduct directed at Jesse Williams, not at the people of the State 18 statute that is indifferent to the factual basis of the underlying litigation. The state's 1 entitlement to the statutory share is not, even indirectly, related to or dependent on the 2 tobacco-related conduct that is described in the MSA. 3 Philip Morris also argues that, by seeking a post-judgment declaration in 4 the trial court as to the correctness of Philip Morris's interpretation of the MSA, the state 5 has sought to establish liability for the statutory share of the punitive damages award in 6 Williams, which itself constitutes a "Released Claim" under the MSA. In support of that 7 position, Philip Morris contends that, under this court's decision in DeMendoza v. 8 Huffman, 334 Or 425, 449, 51 P3d 1232 (2002), it is only the state that has ever had an 9 interest in the punitive damages awarded in Williams. 10 We disagree. First, in DeMendoza, this court did not hold that only the 11 state ever has an interest in the part of the punitive damages award allocated to the state 12 under ORS 31.735, or that plaintiffs never have any interest in the entirety of a punitive 13 damages award. Rather, the court ruled only that a plaintiff does not have a 14 constitutionally vested prejudgment property right in punitive damages, which, under 15 Article I, section 18, of the Oregon Constitution, could not be taken for public use 16 without just compensation. 344 Or at 449. More importantly, DeMendoza says nothing 17 of Oregon. As Philip Morris itself has argued so strenuously in this court in earlier cases, and as the United States Supreme Court affirmed, punitive damages may not be awarded to punish a defendant for harms to persons who were not parties to the litigation. Philip Morris USA v. Williams, 549 US 346, 353, 127 S Ct 1057, 166 L Ed 2d 940 (2007); Williams v. Philip Morris Inc., 344 Or 45, 48-55, 176 1255 (2008) (discussing history of the case). 19 about whether the state has a claim for punitive damages under ORS 31.735. It also is 1 noteworthy that, in Patton, this court held that, up until entry of the judgment awarding 2 punitive damages, the plaintiff controls the claim for punitive damages: the plaintiff can 3 expand the claim or drop it, and, even after a jury renders a verdict awarding punitive 4 damages, the plaintiff can settle away a punitive damages award. See Patton, 349 Or at 5 243-44. The state is powerless to stop a plaintiff from depriving the state of its share of a 6 punitive damages award up to that point. Id. Second, as we already have discussed, the 7 state's entitlement to a share of a punitive damages award in Williams is not even 8 indirectly related to the tobacco-related conduct identified in the MSA. Rather, that 9 entitlement arose by operation of law. In other words, the state's effort to obtain its 10 statutory share was based on Philip Morris's refusal to pay the allocation as required by 11 the statute, not on Philip Morris's tobacco-related conduct. The state's pursuit of a trial 12 court declaration that Philip Morris's interpretation of the MSA was incorrect is not a 13 "Released Claim." 14 Based on the foregoing, we hold that the state's interest in a share of the 15 Williams punitive damages award was not a "Released Claim" under the MSA. The state 16 did not release any claim to that money. 17 Alternatively, Philip Morris argues that the state, in executing the MSA, 18 promised that Philip Morris and the other tobacco companies would have no further 19 liability, not just to the state, but also to third parties acting on the public's behalf with 20 respect to smoking and health related claims. To that end, the definitions of "Released 21 Claim" and "Releasing Parties" explicitly contemplate that the release will apply to 22 20 claims brought by persons other than the state for the benefit of the public. And, under 1 those definitions, Philip Morris argues, the Williams estate is a "Releasing Party" and its 2 claim for punitive damages, at least to the extent that those damages are allocated to the 3 state's crime victim's fund, is a "Released Claim." 4 The MSA defines "Releasing Party" to include: 5 "persons or entities acting in a parens patriae, sovereign, quasi-sovereign, 6 private attorney general, qui tam, taxpayer, or other capacity, whether or 7 not any of them participate in this settlement, (A) to the extent that any 8 such person or entity is seeking relief on behalf of or generally applicable 9 to the general public in such Settling State or the people of the State, as 10 opposed solely to private or individual relief for separate and distinct 11 injuries." 12 Philip Morris argues that the obvious purpose of that provision is to prevent persons other 13 than the state from recovering on the public's behalf from Philip Morris for the same 14 alleged misconduct, and it would vitiate the provision if the public could recover from 15 Philip Morris again for the same misconduct simply because the action was not brought 16 by the state but by some third party also acting on behalf of the public. In this case, 17 according to Philip Morris, the Williams estate was suing, in part, for the public's 60 18 percent share, a share that, it contends, under this court's decision in DeMendoza, the 19 Williams estate never had an interest in. Thus, Philip Morris concludes, even if the claim 20 to the state's 60 percent share of the Williams punitive damages award actually is a claim 21 by the Williams estate, it would still be a "Released Claim" under the MSA because the 22 Williams estate was seeking relief that, under ORS 31.735, could inure only to the benefit 23 of the public. 24 The short answer to Philip Morris's argument lies in the wording of the 25 21 MSA's definition of "Releasing Party": the definition applies to third parties only "to the 1 extent that any such person or entity is seeking relief on behalf of or generally applicable 2 to the general public * * *, as opposed solely to private or individual relief for separate 3 and distinct injuries." By the plain terms of that definition, the Williams estate is not a 4 "Releasing Party." When the estate sued Philip Morris, the estate did not "seek[] relief on 5 behalf of or generally applicable to the general public." Nor could it. As noted above, 6 the United States Supreme Court has held that punitive damages may not be awarded to 7 punish a defendant for harms to persons who were not parties to the litigation. ___ Or at 8 ___ n 11 (slip op at 17 n 11). Rather, in its effort to recover damages for injuries suffered 9 by Jesse Williams, the estate was seeking "private or individual relief" for the death of 10 Jesse Williams, a "separate and distinct injur[y]." 11 Moreover, as we pointed out earlier in this opinion, Philip Morris's 12 contention that this court, in DeMendoza, held that a plaintiff never has an interest in the 13 60 percent of a punitive damages award that is allocated to the state under ORS 31.735 is 14 simply incorrect. The court held in DeMendoza that a plaintiff does not have a 15 constitutionally vested right to punitive damages before judgment, because the jury 16 ultimately has discretion not to award punitive damages. 334 Or at 449. However, the 17 fact that a plaintiff does not have a constitutionally guaranteed expectation of punitive 18 damages does not mean that a plaintiff never has any interest in the entirety of a punitive 19 damages award. As we discuss above, the estate had a significant interest in that award. 20 As this court explained in Patton, before a judgment is entered awarding punitive 21 damages, a plaintiff has the right to control the punitive damages claim, including the 22 22 right to settle away the state's 60 percent statutory share. 349 Or at 243-44. Thus, we 1 cannot conclude that the Williams estate sued Philip Morris on behalf of the public for 2 the share of the punitive damages award that would inure to the public's benefit after 3 entry of the judgment.12 The Williams estate is not a "Releasing Party" under the MSA. 4 Finally, Philip Morris argues that, if this court concludes that the state did 5 not release its statutory interest in the Williams punitive damages award when it executed 6 the MSA, then the court must conclude that the MSA is ambiguous, because Philip 7 Morris's construction of the MSA's release terms to cover the state's entitlement to part of 8 the punitive damages award is plausible. Therefore, according to Philip Morris, this court 9 should remand the case for factfinding to resolve the ambiguity. See Pacific First Bank, 10 319 Or at 348 (a contract is ambiguous if it can reasonably be construed to have more 11 than one meaning). 12 We disagree that the MSA contains an ambiguity that must be resolved. 13 Our conclusion that the state's interest in its statutory share of the punitive damages 14 award is not covered under the MSA is not based on our construction of any ambiguous 15 terms of the MSA, but on our interpretation of the statute that confers the state's share. 16 That is, we have examined the nature of the state's interest under ORS 31.735, and we 17 conclude, as a matter of law, that that interest is not directly or indirectly based on, 18 12 The Williams estate also points out that it sued Philip Morris in 1997, five years before this court resolved the constitutional challenges to ORS 31.735 in DeMendoza, and it consistently argued to the trial court that ORS 31.735 was unconstitutional and that it was entitled to the entire punitive damages award. 23 arising out of, or related in any way to the conduct that formed the basis for the estate's 1 claims in Williams. Rather, as discussed at length above, the state's interest arises by 2 operation of law in any case in which punitive damages are awarded, without regard to 3 the nature of the underlying litigation. We understand Philip Morris's construction of the 4 term "Released Claims" to include any entitlement to payment that is "'indirectly based 5 on, arising out of or in any way related, in whole or in part, to' the conduct that that 6 formed the basis of the claims in Williams." Accepting that construction as correct for 7 purposes of analysis here, we nevertheless conclude that the state's interest in 60 percent 8 of the punitive damages award in Williams is not a "Released Claim" for tobacco-related 9 conduct under the MSA, and that the state did not release its right to that share of the 10 punitive damages award in that case when it executed the MSA. 11 The judgment of the circuit court in Williams v. Philip Morris 12 (CC970503957) is reversed, and the case is remanded for entry of a judgment consistent 13 with this opinion. The post-judgment order in State v. American Tobacco Co. 14 (CC 970604457) is reversed. 15

c7cb92d90e4894f780d824b6567119ecb5d1242206f81ed7748990e82ecbe167

2011-12-02T00:00:00Z

77dc3000-9dbf-437e-8fda-4675e3d0994d

Oregon v. Swanson

S059135

oregon

Oregon Supreme Court

1 Filed: November 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON Respondent on Review, v. DAVID LEE SWANSON, Petitioner on Review. (CC 071371M; CA A140575; SC S059135) On review from the Court of Appeals.* Argued and submitted September 20, 2011. Jedediah Peterson, Deputy Public Defender, Officer of Public Defense Services, Salem, argued the cause for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender. Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Before, De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** LINDER, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 237 Or App 508, 240 P3d 63 (2010). **Landau, J., did not participate in the consideration or decision of this case. 1 LINDER, J. 1 In this case, defendant was charged with reckless driving, which is a 2 misdemeanor.1 In his ensuing jury trial, defendant asked the trial court to instruct the 3 jury on the elements of careless driving, which is a traffic violation, arguing that it is a 4 lesser-included offense of reckless driving.2 The trial court declined to give defendant's 5 requested instructions. On appeal, the Court of Appeals affirmed. State v. Swanson, 237 6 Or App 508, 240 P3d 63 (2010). The Court of Appeals reasoned that violations and 7 crimes are distinctive categories of offenses and, under ORS 136.465, juries are 8 authorized to consider only lesser-included crimes, not lesser-included violations, of a 9 charged crime. Id. at 511. That understanding of the legislature's intent was reinforced, 10 the court concluded, by substantial procedural differences between violation proceedings 11 and criminal proceedings, including the requirement that violations be "tried to the court 12 sitting without jury." ORS 153.076(1); see Swanson, 237 Or App at 513 (so stating). We 13 allowed defendant's petition for review. As we will explain, we agree that ORS 136.465 14 does not extend to lesser-included violations and is, instead, limited to lesser-included 15 criminal offenses. We therefore affirm. 16 1 See ORS 811.140 (setting out elements of reckless driving and providing for punishment as a Class A misdemeanor). 2 See ORS 811.135 (setting out elements of careless driving; designating offense as either a Class A or Class B traffic violation, depending on the circumstances of the offense; authorizing a sentence that includes a fine, but not authorizing a term of imprisonment). 2 ORS 136.465 provides: 1 "In all cases, the defendant may be found guilty of any crime the 2 commission of which is necessarily included in that with which the 3 defendant is charged in the accusatory instrument or of an attempt to 4 commit such crime." 5 (Emphasis added.) As the italicized text emphasizes, the statute expressly refers to any 6 "crime" the commission of which is necessarily included in the charged crime. The term 7 "crime" is not defined in the statute itself, or in any statute that specifically cross- 8 references ORS 136.465. It is defined, however, elsewhere in the criminal code. In 9 particular, ORS 161.515 provides: "A crime is an offense for which a sentence of 10 imprisonment is authorized." ORS 161.515. The term "offense," in turn, is defined as 11 "either a crime, as described in ORS 161.515, or a violation, as described in ORS 12 153.008." ORS 161.505. Under ORS 153.008,3 an offense is a violation if, inter alia, it 13 3 ORS 153.008 provides: "(1) Except as provided in subsection (2) of this section, an offense is a violation if any of the following apply: "(a) The offense is designated as a violation in the statute defining the offense. "(b) The statute prescribing the penalty for the offense provides that the offense is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The statute may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment. "(c) The offense is created by an ordinance of a county, city, district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of 3 is designated as such or is punishable by a fine but not by a term of imprisonment. Thus, 1 under those statutes, "violations" and "crimes" are distinct types of "offenses," 2 distinguished principally by the fact that crimes are punishable by imprisonment and 3 violations are not. Because they are distinct types of offenses, the fact that a statute uses 4 the term "crime" (as does ORS 136.465) and not the term "violation" would seem at first 5 blush to compel a conclusion that the legislature intended the statute to reach crimes but 6 not violations. In the context of ORS 136.465, that would mean that a crime that is 7 lesser-included offenses of a crime with which a defendant is charged may be submitted 8 to a jury, but a lesser-included violation may not, as the Court of Appeals concluded. 9 Swanson, 237 Or App at 511. 10 Defendant concedes that, if those definitions of "violation" and "crime" 11 apply, then ORS 136.645 did not permit the jury to consider a charge of careless driving 12 imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment. "(d) The prosecuting attorney has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.566. "(e) The court has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.568. "(2) Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime." The parties agree, and ORS 811.435 establishes, that careless driving is a "violation." The question that remains is whether a "violation" is within the meaning of the term "crime," as it is used in ORS 136.465. 4 in this case. He takes issue, however, with the conclusion that those definitions apply. 1 Defendant's argument resolves into two propositions: (1) when ORS 136.465 was 2 originally enacted, the term "crime" included offenses that were punishable only by fines 3 and would therefore be denominated today as a "violation;" and (2) that the original 4 scope of ORS 136.465 has remained the same, and has been unaffected by more recently 5 enacted definitions of the term "crime" that apply to other statutes in the criminal code. 6 In interpreting a statute, the court's goal is to determine the legislature's 7 intent. State v. Gaines, 346 Or 160, 171, 206 P3d 1041 (2009). In doing that, we look to 8 the intent of the legislature that enacted the statute, and we also consider any later 9 amendments or statutory changes that were intended by the legislature to modify or 10 otherwise alter the meaning of the original terms of the statute. See, e.g., Holcomb v. 11 Sunderland, 321 Or 99, 105, 894 P2d 457 (1995) (proper inquiry in interpreting statute 12 focuses on what the legislature intended at the time of enactment); see also Mastriano v. 13 Board of Parole, 342 Or 684, 696, 159 P3d 1151 (2007) (examining post-enactment 14 legislative changes to statute and statutory context to determine whether they reflected a 15 legislative intent to alter the meaning of statute as originally enacted). As we will 16 explain, we are not persuaded that ORS 136.465, as originally enacted, would have 17 applied to what qualifies as a violation under our current criminal code. In all events, as 18 we will further explain, we are satisfied that later comprehensive changes to the criminal 19 code were intended to, and did, alter the meaning of the term "crime," as it is used in 20 statutes throughout the code, including ORS 136.465, to exclude violations. 21 We begin with defendant's first proposition -- that, as originally enacted, 22 5 ORS 136.465 applied to offenses that, because they were punishable only by a fine, 1 would today be designated as "violations." As defendant correctly observes, our state's 2 original "lesser-included offense" statute was part of the 1864 Deady Code and was 3 essentially identical in its wording to ORS 136.465. In particular, the Deady Code statute 4 permitted a jury to consider any lesser-included "crime" of the offense with which the 5 defendant was charged.4 At that time, "crimes" were either "felonies" or 6 "misdemeanors," and the two categories of crimes were distinguished solely by how they 7 were punished. A "felony" was a crime that was punishable by death or imprisonment, 8 and "[e]very other crime [was] a misdemeanor." General Laws of Oregon, Crim Code, 9 ch I, §§ 2, 3, 4, pp 441-42 (Deady 1845-1864). 10 Defendant compares that classification scheme to that of our current 11 criminal code, under which, as we have described, an "offense" is either a "crime" or a 12 "violation," depending on whether it is punishable by a term of imprisonment (making it 13 a crime) or by a fine but not a term of imprisonment (making it a violation). Defendant 14 asserts that what is, under the current scheme, a violation punishable solely by a fine 15 4 Thus, the original statute provided: "In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment, or of any attempt to commit such crime." General Laws of Oregon, Crim Code, ch XVII, § 164, pp 468-69 (Deady 1845-1864). The change from the original "indictment" wording to the present "accusatory instrument" wording occurred in 1973, as part of a complete revision of the criminal procedure code. Or Laws 1973, ch 836, § 244. 6 would qualify as a "crime" under the 1864 version of the lesser-included offense statute. 1 Defendant's premise -- and particularly his assessment of the category of 2 offenses now denominated as "violations" -- may overlook other distinctions between 3 current-day violations and Deady Code-era crimes. To be sure, one distinguishing 4 characteristic of a violation is the fact that only a fine, and not imprisonment, may be 5 imposed for the offense. But the distinctive nature of a violation goes beyond that. 6 Violations under our current criminal code are charges that have been "decriminalized." 7 A determination of guilt for such an offense cannot carry criminal consequences of any 8 sort, as the legislature has expressly declared: "Conviction of a violation does not give 9 rise to any disability or legal disadvantage based on conviction of a crime." ORS 10 153.008(2). For that reason, prosecutions for violations are not subject to the 11 constitutional procedural protections that are required for crimes. See, e.g., ORS 12 153.076(1), (2), and (5) (violation proceedings shall be tried to the court sitting without 13 jury; charged violation must be proved by a preponderance, rather than a reasonable 14 doubt, standard; defense counsel shall not be provided at public expense); see generally 15 Easton v. Hurita, 290 Or 689, 697, 625 P2d 1290 (1981) (discussing constitutional 16 implications of decriminalizing traffic infractions); Mattila v. Mason, 287 Or 235, 250, 17 598 P2d 675 (1979) (same); Brown v. Multnomah County Dist. Ct., 280 Or 95, 99-110, 18 570 P2d 52 (1977) (same). In short, violations under the current classification system, 19 given their noncriminal nature and the different procedures that apply to them, had no 20 7 counterpart under the Deady Code.5 That fact undermines defendant's premise that a 1 violation under our current criminal code would have been a "crime" for purposes of the 2 original lesser-included offense statute that was part of the Deady Code in 1864. 3 However, even accepting defendant's premise for purposes of our analysis, 4 his argument depends on a second proposition -- that later legislation has not changed the 5 meaning and scope of the term "crime" as it is now used in ORS 136.465. As we will 6 explain, we conclude that when the legislature comprehensively revised the Oregon 7 Criminal Procedure Code, of which ORS 136.465 is a part, it did so intending the general 8 classification system that it had adopted in its 1971 revisions to the Oregon Criminal 9 Code to control, including the definitions of terms such as "crime" and "violation." 10 As we earlier noted, "crime" is defined in ORS 161.515 as follows: 11 "(1) A crime is an offense for which a sentence of imprisonment is 12 authorized. 13 "(2) A crime is either a felony or a misdemeanor." 14 That definition was adopted in 1971 as part of a complete revision of Oregon's criminal 15 5 In 1864, certain misdemeanors and lesser felonies could be prosecuted in "Justices' Courts" rather than circuit courts, following different procedures than the circuit courts followed. For example, criminal matters were initiated in Justices' Courts by means of a private complaint, rather than an indictment, and were prosecuted by the private complainant. All criminal prosecutions in Justices' Courts, however, were triable to a jury under the same criminal procedures that applied in the Circuit Courts. See generally General Laws of Oregon, Jus Code, ch I, § 2, p 583 (describing criminal jurisdiction of Justices' Courts); id. at ch X, §§ 78-105, pp 597-602 (describing procedures in criminal actions in Justices' Courts). There was no concept of an offense that, due to its noncriminal nature, could be prosecuted in any court in the state without the procedures and protections constitutionally required in criminal cases. 8 code. Or Laws 1971, ch 743, § 66. The revision, which was spearheaded by a 1 legislatively-appointed Oregon Criminal Law Revision Commission, was the culmination 2 of a years-long project to replace the existing criminal code, which was "replete with 3 overlapping and seemingly inconsistent crimes and penalties[,]" with one that was 4 modern and "internally consistent." Commentary to Criminal Law Revision Commission 5 Proposed Oregon Criminal Code, Final Draft and Report, Foreword, XXII (July 1970). 6 The new definition of the term "crime," along with other new definitions -- of "offense," 7 "felony," "misdemeanor," and "violation" -- was an essential component of a new offense 8 classification scheme that grouped and punished offenses according to their seriousness. 9 Id. at Foreword, XXIII. 10 Notably, the 1971 Oregon Criminal Code was an overhaul of Oregon's 11 substantive criminal law, and did not amend the statutes pertaining to criminal procedure, 12 including ORS 136.465. Relying on that fact, defendant argues that, in the absence of 13 any suggestion in the 1971 statute to the contrary, we must assume that the statute's 14 narrower definition of the term "crime" was intended to apply only to the use of the term 15 within the 1971 Criminal Code and to have no effect on its meaning in statutes outside 16 that code, such as ORS 136.465. Defendant also relies on the notion that, in general, a 17 definition of a term that appears in one area of the Oregon Revised Statutes does not 18 necessarily control the term's meaning in another area. See, e.g., Enertrol Power 19 Monitoring Corp v. State of Oregon, 314 Or 78, 84, 836 P2d 123 (1992) (so stating); 20 9 State ex rel Frohnmayer v. Oregon State Bar, 307 Or 304, 308 n 2, 767 P2d 893 (1989) 1 (same).6 2 Defendant may be correct that the 1971 adoption of a new definition of the 3 term "crime" had no direct effect on the meaning of that term in ORS 136.465, which 4 pertains to criminal procedure. However, he is less persuasive when confronting the 5 effects of the 1973 enactment of the Oregon Criminal Procedure Code. Or Laws 1973, 6 ch 836, §§ 1-359. Although the 1973 procedural code did not modify the words of ORS 7 136.465 in any significant way,7 it is clear from the legislative history of the 1973 code 8 that the drafters intended to import into that code the 1971 Criminal Code definitions of 9 "crime," "offense," and "violation." 10 The 1973 Criminal Procedure Code and the 1971 Criminal Code were 11 closely linked. Both codes were drafted by the Oregon Criminal Law Revision 12 Commission, which the 1967 legislature created for the purpose of "prepar[ing] a revision 13 6 Defendant also cites a provision in the 1971 revision through which the legislature disavowed an intent to affect statutes governing criminal procedure: "Except as otherwise expressly provided, the procedure governing the accusation, prosecution, conviction and punishment of offenders and offenses is not regulated by this act but by the criminal procedure statutes." Or Laws 1971, ch 743, § 6(1). That provision, however, is directed at the procedures themselves, not the meaning of words common to both substantive and procedural statutes. That provision has no application here. 7 The 1973 statute made a single modification to ORS 136.465 (then codified as ORS 136.660): the term "accusatory instrument" was substituted for the original term "indictment." Or Laws 1973, ch 836, § 244. 10 of the criminal laws of this state, including but not limited to necessary substantive and 1 topical revisions of the law of crime and of criminal procedure, sentencing, parole and 2 probation of offenders, and treatment of habitual criminals." Or Laws 1967, ch 573, §§ 3 1, 2. The commission undertook that charge by first revising the substantive criminal 4 laws and "defer[ring] work on a procedural code until completion of [that] phase of the 5 project." Commentary to Criminal Law Revision Commission Proposed Oregon 6 Criminal Code, Final Draft and Report, Foreword, XXIV (1970). As soon as the 7 commission completed its work on the substantive code in 1970 and the legislature 8 enacted that code in 1971, the commission turned to the criminal procedural code 9 revision. Thus, the commission's work on the procedural code was an extension of its 10 recently completed effort on the substantive code. 11 As the commission considered additions and amendments to the procedural 12 statutes, it applied the definitions that it had drafted, and that the legislature had adopted, 13 in the 1971 Criminal Code.8 For example, when the commission considered certain 14 procedural statutes pertaining to arrest, it decided to change the word "crime" to 15 8 The commission was composed largely of sitting legislators and was charged by the legislature with revising Oregon's criminal statutes. In numerous cases, we have looked to the minutes of its deliberations as well as its published commentary on the revised code as an authoritative source of legislative history for the 1973 Criminal Procedure Code. See, e.g., State v. Conger, 319 Or 484, 493 n 4, 878 P2d 1089 (1994) (considering commentary to code); State v. Hitt, 305 Or 458, 462, 753 P2d 415 (1988) (considering both minutes of commission meetings and official commentary to criminal procedure code); State v. Dyson, 292 Or 26, 33-34, 636 P2d 961 (1981) (same); State v. Mendacino, 288 Or 231, 236 n 4, 603 P2d 1376 (1980) (relying on minutes of commission meetings). 11 "offense" in a number of the statutes to make it clear that a person could be arrested (or 1 criminally cited in lieu of arrest) for violations as well as misdemeanors and felonies. 2 Minutes, Criminal Law Revision Commission, July 24, 1972, 34-36, 40. In the course of 3 the same discussions, a member of the commission suggested that the use of the word 4 "crime" in ORS 133.225, pertaining to the authority of private persons to make citizen's 5 arrests, "was intentional and it should not be changed to 'offense.'" Id. at 40. In at least 6 one of the commission's discussions of the arrest statutes, the 1971 Criminal Code was 7 explicitly acknowledged as the source of the relevant definitions of the term "crime." 8 Minutes, Criminal Law Revision Commission, Subcommittee No. 1, June 9, 1972, 2. 9 The commission had similar discussions about whether to use "offense" or "crime" with 10 respect to the statutes governing stops by police officers9 and the statutes governing 11 arraignment and demurrers.10 12 During those discussions, the commission considered whether, and how, to 13 change the original (1864) wording of ORS 136.465 (then numbered ORS 136.660). 14 After a brief consideration of that statute, the commission produced an amended version 15 that nonetheless continued to use the term "crime."11 Although the commission did not 16 9 Minutes, Criminal Law Revision Commission, January 28, 1972, 16. 10 Minutes, Criminal Law Revision Commission, August 28, 1972, 39. 11 Minutes, Criminal Law Revision Commission, August 28, 1972, 27. The minutes indicate that the only comment made with respect to the statute, and two others that were grouped with it, was that the amendments "were all housekeeping in nature." 12 specifically discuss whether to keep or modify the term "crime" in the lesser-included 1 offense statute, the context of its discussions makes clear that the commission 2 understood, in leaving it, that the term would carry the meaning given to it in the 1971 3 Criminal Code. Generally, the legislative history indicates that the commission and, 4 later, the legislature, intended the term "crime," including when it was used in ORS 5 136.465, to have the meaning that it was given in the 1971 Criminal Code through the 6 definition in ORS 161.515. 7 We conclude that the jury's authority, described in ORS 136.465, to find a 8 defendant guilty of "any crime the commission of which is necessarily included in that 9 with which the defendant is charged," extends only to a crime as that term is defined in 10 ORS 161.515 -- an offense "for which a sentence of imprisonment is authorized," i.e., 11 felonies and misdemeanors. The offense for which defendant sought lesser-included 12 treatment -- careless driving -- is not a "crime" within the meaning of that definition. It 13 follows that the trial court did not err in denying defendant's request for a jury instruction 14 on careless driving as an offense necessarily included in the crime charged, and that the 15 Court of Appeals did not err in affirming the trial court's denial. 16 The decision of the Court of Appeals and the judgment of the circuit court 17 are affirmed. 18

3b8acc5633926d411e25e3097829573132b9ea1ec9b8a932000cc7c66ee89968

2011-11-10T00:00:00Z

4d8516e1-5d42-4f01-b276-f38bc01e2871

Lavey v. Kroger

S059447

oregon

Oregon Supreme Court

Filed: July 28, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON DANIEL P. LAVEY and ANNA RICHTER TAYLOR, Petitioners, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S059447) En Banc On petition to review ballot title filed May 17, 2011, considered and under advisement June 22, 2011. Gregory A. Chaimov of Davis Wright Tremaine, LLP, Portland, filed the petition and reply memorandum for petitioners. Erin C. Lagesen, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the answering memorandum were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. LANDAU, J. The ballot title is referred to the Attorney General for modification. 1 LANDAU, J. 1 Petitioners seek review of the Attorney General's certified ballot title for 2 Initiative Petition 16 (2012), arguing that the ballot title does not satisfy the requirements 3 of ORS 250.035(2). See ORS 250.085(2) (specifying requirements for seeking review of 4 certified ballot titles). We review a certified ballot title to determine whether it 5 substantially complies with those statutory requirements. See ORS 250.085(5) (stating 6 standard of review). For the reasons that follow, we refer the ballot title to the Attorney 7 General for modification. 8 Initiative Petition 16, a copy of which is attached as an appendix to this 9 opinion, would amend several statutory provisions under ORS chapters 815 and 818, 10 regarding the use of studded tires on public roads. Currently, ORS 815.160 makes it a 11 Class C traffic violation for a person to drive a vehicle equipped with studded tires on any 12 Oregon highway. ORS 815.165 then lists 12 exemptions to that blanket prohibition, 13 including exemptions for certain vehicles that serve a public function, like school buses, 14 ORS 815.165(8), and emergency vehicles, ORS 815.165(9). Another exemption, ORS 15 815.165(7), provides that, between November 1 and April 1, a person may drive a vehicle 16 equipped with studded tires. That subsection also gives the Oregon Department of 17 Transportation (ODOT) authority to shorten or lengthen the period of time for the 18 permissible use of studded tires for any area of the state, if doing so would help to 19 preserve the highway surfaces or enhance public safety. Yet another exemption, ORS 20 815.165(12), provides that a person may operate a vehicle equipped with "retractable" 21 studded tires at any time during the year. 22 2 In addition to those statutory exemptions, ORS 818.200 allows "a road 1 authority," including ODOT, to issue a "variance permit" to any person if doing so would 2 serve the public interest. Pursuant to that permit, a person could equip a vehicle with 3 studded tires of any kind and at any time of the year without violating ORS 815.160. 4 Initiative Petition 16 would delete the two exemptions provided under ORS 5 815.165(7) and (12). It would also amend ORS 818.200 so that no road authority would 6 be allowed to issue a variance permit for the use of studded tires. 7 The Attorney General certified the following ballot title for Initiative 8 Petition 16: 9 "Prohibits the use of studded tires, including retractable studded tires, 10 at all times of year 11 "Result of 'Yes' Vote: 'Yes' vote creates year-round ban on 12 studded-tire use, violations of which are punishable by fines; prohibits 13 issuance of permits allowing studded-tire use. 14 "Result of 'No' Vote: 'No' vote retains motorists' option to use 15 studded tires November to April, other times if authorized by ODOT/other 16 road authority, or if studs retractable. 17 "Summary: Current Oregon law prohibits use of studded tires with 18 specified exceptions; person committing unauthorized use of studded tires 19 subject to fines, other penalties. One exception to the prohibition on 20 studded-tire use allows motorists to use studded tires from November until 21 April; ODOT has authority to shorten or lengthen the time period in which 22 studded-tire use is permitted. Other exceptions allow use of retractable 23 studded tires year round, and authorize ODOT/other road authorities to 24 issue permits allowing studded-tire use at other times. Proposed measure 25 eliminates these exceptions to studded-tire ban, resulting in year-round 26 prohibition on use of studded tires, including retractable studded tires, and 27 eliminating authority of ODOT/other road authorities to authorize studded- 28 tire use by permit. Other provisions." 29 (Boldface in original.) 30 3 Petitioners contend that the ballot title is deficient in a number of different 1 respects pertaining to the caption, the "yes" vote result statement, the "no" vote result 2 statement, and the summary. We reject most of petitioners' arguments without discussion 3 and write to address only one issue raised by petitioners that affects the caption and the 4 "yes" vote result statement. 5 Petitioners argue that the caption for Initiative Petition 16 is defective 6 because it "fails to identify the subject matter of the initiative." That is so, they argue, 7 because the caption states that Initiative Petition 16 "[p]rohibits the use of studded tires 8 * * * at all times of [the] year" when, in fact, such a ban already exists under ORS 9 815.160. Petitioners argue that the "major effect" of Initiative Petition 16 is the repeal of 10 ORS 815.165(7) because repeal of that exemption would mean that Oregonians would no 11 longer be allowed to use studded tires on public roads during winter months. Although 12 petitioners acknowledge that repeal of ORS 815.165(7) creates, in effect, a year-round 13 ban on the use of studded tires for general, daily use by most citizens, petitioners argue 14 that the caption "obscures from voters the change the measure proposes." 15 A ballot title caption is a statement of not more than 15 words that 16 "reasonably identifies the subject matter" of the measure. ORS 250.035(2)(a). To 17 comply with that statutory standard, case law requires that the caption "state or describe 18 the proposed measure's subject matter 'accurately, and in terms that will not confuse or 19 mislead potential petition signers and voters.'" Kain/Waller v. Myers, 337 Or 36, 40, 93 20 P3d 62 (2004) (quoting Greene v. Kulongoski, 322 Or 169, 174-75, 903 P2d 366 (1995)). 21 For purposes of this court's review, the "subject matter" of a ballot title is "the 'actual 22 4 major effect' of a measure or, if the measure has more than one major effect, all such 1 effects (to the limit of the available words)." Whitsett v. Kroger, 348 Or 243, 247, 230 2 P3d 545 (2010). "To identify the 'actual major effect' of a measure, this court examines 3 the text of the proposed measure to determine the changes that the proposed measure 4 would enact in the context of existing law and then examines the caption to determine 5 whether the caption reasonably identifies those effects." Rasmussen v. Kroger, 350 Or 6 281, 285, 253 P3d 1031 (2011). 7 In this case, petitioners are correct that the caption does not adequately 8 identify the subject of the proposed initiative. The change proposed in Initiative Petition 9 16 would repeal only two of 12 exemptions of the already-existing, year-round ban on the 10 use of studded tires. Thus, the caption -- which asserts that the measure will create a 11 year-round ban -- is inaccurate and overly broad. 12 The caption is inaccurate in that it states that the measure would create a 13 year-round ban on the use of studded tires in all cases. Initiative Petition 16, however, 14 has no effect on the other 10 exemptions to the studded tire ban, including the right to use 15 studded tires on any vehicle on a private road, ORS 815.165(2), on vehicles engaged in 16 construction on highways in the state, ORS 815.165(4), on school buses, ORS 17 815.165(8), and on emergency vehicles, ORS 815.165(9), among others. A reasonable 18 person, after reading the current caption, may be misled to think that Initiative Petition 16 19 would prohibit the use of studded tires in all of the above situations, instead of just the 20 two uses for which the measure deletes exemptions. See Brady/Berman v. Kroger, 347 21 Or 518, 524, 225 P3d 36 (2009) (wording used in ballot title caption did not reflect the 22 5 "limited extent" to which the measure changed the current law). 1 The caption is overly broad in that it states that the measure will create a 2 year-round ban on the use of studded tires when that is simply not the case. Such a ban 3 already exists, and Initiative Petition 16 will have no effect on the other 10 exemptions to 4 that ban. Several of the remaining exemptions under ORS 815.165 involve the use of 5 vehicles to provide important government services. By failing to clarify for voters that 6 the ban is not absolute, "the caption's phraseology is so broad that it fails to disclose the 7 subject matter of the proposed measure in terms that give notice to the voters of the 8 principal substantive choice or choices that the measure presents." Rogers v. Myers, 344 9 Or 219, 224, 179 P3d 627 (2008). Thus, the caption fails to substantially comply with the 10 requirements of ORS 250.035(2)(a) and must be referred to the Attorney General for 11 modification. 12 Petitioners argue that the "yes" vote result statement suffers from the same 13 fatal defect as the caption; namely, the statement is misleading because it does not 14 accurately state the change in the law that will occur if Initiative Petition 16 becomes law. 15 ORS 250.035(2)(b) provides that a result statement must be a "simple and understandable 16 statement of not more than 25 words that describes the result if the state measure is 17 approved." To substantially comply with that standard, an accurate description of the 18 change that will be caused by the measure is key. See Caruthers v. Myers, 344 Or 596, 19 600, 189 P3d 1 (2008) ("The purpose of [the] requirements [for ballot titles] is to ensure 20 that voters have accurate information about the subject and effect of a proposed 21 measure."). 22 6 As explained above, describing Initiative Petition 16 as creating an absolute 1 year-round ban on the use of studded tires is inaccurate. Ten exemptions under ORS 2 815.165 will continue to exist and permit the use of studded tires on vehicles, such as 3 school buses and emergency vehicles, that are engaged in important government activity. 4 Therefore, we also refer the "yes" vote result statement to the Attorney General to modify 5 that statement in a way that clarifies that result. 6 The ballot title is referred to the Attorney General for modification. 7 7 APPENDIX 1 "Relating to studded tires; creating new provisions; amending ORS 2 815.045, 815.165 and 818.200; and repealing ORS 815.167. 3 "Be It Enacted by the People of the State of Oregon: 4 "SECTION 1. ORS 815.165 is amended to read: 5 "815.165. [This section establishes exemptions from ORS 815.160. 6 The exemptions under this section are in addition to any under ORS 7 801.026. Exemptions are partial or complete as described in the following:] 8 The following are exempt from the prohibitions of ORS 815.160: 9 "(1) Any vehicle on any way, thoroughfare or place owned by a 10 district formed under ORS chapters 545, 547, 551 or a corporation formed 11 under ORS chapter 554. 12 "(2) Any vehicle on any road or thoroughfare or property in private 13 ownership or any road or thoroughfare, other than a state highway or 14 county road, used pursuant to any agreement with any agency of the United 15 States or with a licensee of such agency or both. 16 "(3) Operations approved under a variance permit issued under ORS 17 818.200, [are] subject to the terms of the permit. It shall be a defense to any 18 charge of violation of ORS 815.160 if the person so charged produces a 19 variance permit issued under ORS 818.200 authorizing the operation issued 20 prior to and valid at the time of the offense. 21 "(4) Vehicles actually engaged at the time in construction or repair 22 of highways in this state. 23 "(5) Traction engines moved upon dirt or unimproved roads. 24 "(6) Vehicles equipped with chains as defined in ORS 815.045. 25 "[(7) Between November 1 of any year and April 1 of the following 26 year, vehicles equipped with any tire having on its periphery studs of metal 27 or other material projecting beyond the tread surface of the tire not less 28 than four-hundredths (0.04) inch nor more than six-hundredths (0.06) inch 29 and made of such material that the studs will wear, through use, at the 30 same rate as the tread surface of the tire. When the preservation of the 31 highway surface or the safety of the traveling public so indicates, the 32 Department of Transportation shall have the authority to shorten or 33 lengthen the period for the permissible use of such tires in any area of the 34 8 state specifically designated by the department.] 1 "[(8)] (7) School buses with a loaded weight of 10,000 pounds or 2 more. 3 "[(9)] (8) Emergency vehicles and ambulances used in an emergency 4 situation. 5 "[(10)] (9) Motor vehicles used for regularly scheduled medical 6 transport services. 7 "[(11)] (10) The movement across or along a highway, by the 8 owner or lessee of any land adjoining [any highway may move across or 9 along] the highway, of any tractor or implement of husbandry for the 10 purpose of planting, cultivating, caring for or harvesting any crop, on 11 condition that the owner or lessee shall be liable to the State of Oregon for 12 the benefit of the State Highway Fund with respect to state highways, or to 13 the proper county for the benefit of the county road fund with respect to 14 county highways, for any damage or injury done to the highway by the 15 movement. 16 "[(12) Vehicles equipped with retractable studded tires as defined by 17 ORS 815.045.] 18 "SECTION 2. ORS 815.045 is amended to read: 19 "815.045. (1) The Oregon Transportation Commission shall adopt 20 rules necessary to carry out ORS 815.140. The rules adopted by the 21 commission: 22 "(a) Shall establish the various types of conditions under which 23 vehicle traction tires or chains must be used. 24 "(b) Shall define types of vehicle traction tires or chains that may be 25 used under various road conditions. The commission rules under this 26 paragraph shall comply with the following: 27 "(A) Traction tire shall be defined to include any tire that meets 28 traction standards established by the Department of Transportation. 29 "[(B) Retractable studded tires or tires with studs that are permitted 30 under ORS 815.165 shall be allowed as traction tires under the rules.] 31 "[(C)] (B) The department may require that traction tires [without 32 studs] bear identifying marks, defined by the department, that indicate that 33 9 the tire was manufactured specifically for adverse weather conditions. 1 "[(D)] (C) Chains shall be defined to include link chains, cable 2 chains or any other device that attaches to the wheel, vehicle or outside of 3 the tire and that augments the traction of the vehicle. 4 "[(E) Retractable studded tires shall be defined to include tires with 5 embedded studs that project beyond the tread surface only when a vehicle 6 operator extends the studs to augment the traction of the vehicle.] 7 "(c) Shall establish signs to be posted under conditions that require 8 vehicle traction tires or chains. 9 "(d) May establish types or classes of vehicles that are exempt from 10 requirements to use vehicle traction tires or chains under certain conditions 11 if the commission determines that the operation of the class or type of 12 vehicle would be safe under those conditions. 13 "(2) A road authority shall: 14 "(a) Determine when conditions on a segment of highway require the 15 use of vehicle traction tires or chains as defined by the commission; 16 "(b) Determine which segments of a highway shall be posted as 17 described under this section to require vehicle traction tires or chains; and 18 "(c) Provide for the placement and removal of signs requiring the 19 use of vehicle traction tires or chains. 20 "SECTION 3. ORS 818.200, as amended by section 11, chapter 30, 21 Oregon Laws 2010, is amended to read: 22 "818.200. (1) A road authority, or private contractor authorized by a 23 road authority to do so, may issue a variance permit if it determines the 24 public interests will be served. A variance permit issued under this section 25 may allow any vehicle, combination of vehicles, load article, property, 26 machine or thing to move over any highway or street under the jurisdiction 27 of the road authority without violation of any of the following: 28 "(a) Maximum weight limits under ORS 818.020. 29 "(b) Posted weight limits under ORS 818.040. 30 "(c) Administratively imposed weight or size limits under ORS 31 818.060. 32 10 "(d) Maximum size limits under ORS 818.090. 1 "(e) Maximum number of vehicles in combination under ORS 2 818.110. 3 "(f) Posted limits on the use of road under ORS 818.130. 4 "(g) Towing safety requirements under ORS 818.160. 5 "(h) Use of devices without wheels under ORS 815.155. 6 "(i) Use of metal objects on tires under ORS 815.160, except that a 7 variance permit issued under this paragraph may not allow the use of 8 tires with studs. 9 "(j) Operation without pneumatic tires under ORS 815.170. 10 "(k) Misuse of a special left turn lane under ORS 811.346. 11 "(l) Improper use of the center lane on three-lane road under ORS 12 811.380. 13 "(m) Operation of a motor vehicle on a bicycle trail under ORS 14 811.435. 15 "(n) Failure to drive within a lane under ORS 811.370. 16 "(2) The fee for issuance of a variance permit under this section is 17 the fee established under ORS 818.270. No fee shall be charged for 18 issuance of a permit to the federal government, agencies of the State of 19 Oregon, cities or counties. 20 "(3) A permit issued under this section is subject to all the provisions 21 under ORS 818.220 and to any limits under ORS 818.210. 22 "(4) Prohibitions and penalties relating to the use of the permit are 23 provided under ORS 818.340 and 818.350. 24 "(5) Violation of the conditions of the permit is subject to civil 25 penalties as provided under ORS 818.410. 26 "SECTION 4. ORS 815.167 is repealed. 27 "SECTION 5. The amendments to ORS 815.045, 815.165 and 28 818.200 by sections 1, 2 and 3 of this 2012 Act and the repeal of ORS 29 815.167 by section 4 of this 2012 Act become operative on May 1, 2013. 30 11 "Note: Matter in boldfaced type in an amended section is new; matter 1 [italic and bracketed] is existing law to be omitted. New sections are in 2 boldfaced type." 3

1522477b62dbdd8701b0265f0497465f0a63e228467e9fd0dabf1560dabef87c

2011-07-28T00:00:00Z

ba93d6fc-e8ca-4ae8-9dbb-961dd074e313

State v. Garcia

288 Or. 413, 605 P.2d 671

oregon

Oregon Supreme Court

605 P.2d 671 (1980) 288 Or. 413 STATE of Oregon, Respondent, v. Konrad Neal GARCIA, Petitioner. TC C 78-01-00208; CA 11307; SC 26150. Supreme Court of Oregon, In Banc. Argued and Submitted September 7, 1979. Decided January 22, 1980. *672 Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief were Gary D. Babcock, Public Defender, and Patricia Burnett, Law Clerk, Salem. Thomas H. Denney, 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. LENT, Justice. The defendant was charged with rape in the first degree, ORS 163.375; kidnapping in the first degree, ORS 163.235; and three counts of sodomy in the first degree, ORS 163.405. All of the charges arose out of conduct involving the same victim in Portland, Oregon on January 8, 1978. A jury found the defendant guilty on all five counts. The trial court sentenced the defendant to maximums of 20 years on the rape charge, 20 years on the kidnapping charge, and 20 years on each sodomy charge, each sentence to run consecutively, for a total term not to exceed 100 years. The defendant appealed to the Court of Appeals, which affirmed the conviction from the bench, 37 Or. App. 675, 588 P.2d 687 (1978). This court allowed review, ORS 2.520; 287 Or. 129, 592 P.2d 1021 (1979). *673 The defendant raises three principal arguments on review. He contends that a separate conviction and sentence for kidnapping is contrary to the legislative intent of ORS 163.235; that the several sexual offenses should be treated as a single criminal episode and therefore should not be punished separately; and that if the separate sexual offenses are punished separately, the sentences should be held excessive under substantive sentence review, ORS 138.040. At about 8:30 p.m. on January 8, 1978, the defendant, walking on a street in Portland, grabbed the victim, a female who was walking alone. He put his hand over her mouth and a knife at her throat and told her not to say anything. He forced her to cross the street and walk two blocks and then across another street. He then took her behind a house and forcibly raped and sodomized her. These events consumed about forty minutes. The defendant argues that a separate conviction and sentence for kidnapping is improper. The answer to this contention is found in the relevant kidnapping statutes. The 1971 legislature adopted the present kidnapping statutes[1] as part of the complete revision of the Oregon Criminal Code. The 1967 legislature created the Oregon Criminal Law Revision Commission to revise the criminal laws of this state. Carefully kept records of the proceedings of the Commission and of its subcommittees were preserved and, accordingly, provide a rich source for determination of the drafters' intent. The Commission's first draft of the kidnapping sections was adopted from the Model Penal Code[2] and contained the following commentary: The minutes following the presentation of the first draft indicate that the drafters considered the situation where kidnapping charges are brought in addition to robbery or rape charges. The minutes reveal that the drafters intended to prevent conviction and sentencing for kidnapping when the detention was merely incidental to a rape or robbery.[3] The difficulty facing the drafters, however, was to provide the flexibility to cover diverse kidnapping fact situations, yet rationally restrict prosecutorial discretion to punish.[4] *675 The language of the proposed kidnapping statutes was revised three times.[5] The commentary following each revision included the above-quoted passage.[6] This passage was also included in the tentative and final draft commentaries, but the drafters added the following paragraph:[7] This paragraph of commentary is less than clear. In the preceding paragraph of commentary, the drafters discussed the problem of unwarranted kidnapping convictions where the abduction in merely incidental to a robbery or rape, citing the Model Penal Code and New York approaches to this problem. The "solution," however, refers only to Oregon's first degree kidnapping statute, and states that this offense is strictly limited by the words of the statute itself. From this history we draw the inference that the Commission, and subsequently the legislature, intended that there be no conviction of the defendant for the separate crime of kidnapping where the detention or asportation of the victim is merely incidental to the accomplishment of another crime, particularly that of robbery or rape. On the other hand, we infer that the Commission and legislature perceived no reason not to prosecute and punish a malefactor for the separate crime of kidnapping where the detention or asportation is not merely incidental to the commission of the underlying crime. The drafting technique utilized to accomplish the legislative purpose is manifested in the definition of the crime of kidnapping. The Commission reasoned that even though the malefactor's conduct offended the statutory injunctions against rape or robbery, he would be guilty of kidnapping also if in committing rape or robbery he took the victim a "substantial distance" or held the victim "a substantial period of time." See n. 3, supra.[8] As finally enacted the law does not even require that there actually be *676 a substantial interference with the victim's personal liberty; it is only necessary that the perpetrator have the "intent to interfere substantially" with the victim's personal liberty to make the malefactor guilty of kidnapping if he commits an act proscribed by ORS 163.225. We find nothing in legislative history to indicate the legislature intended by its adverb "substantially" anything other than was intended by the Commission in its use of the adjective "substantial." The end result is that the legislature has left it to the process of adjudication to determine whether there was an intent to interfere substantially. Compare Miss Lavorato's discourse in footnote 3, supra. The mechanics of determining whether there is a separate crime of kidnapping do not initially depend on a post verdict inquiry. Assume that one is charged, as in the case at bar, with both rape and kidnapping against the same victim. To raise the issue of his liability for a separate conviction of kidnapping, at the appropriate time the defendant can test the sufficiency of the state's evidence to support the element of his intent by a motion for judgment of acquittal on the kidnapping charge. ORS 136.445. As in other cases the trial judge must then determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to justify a rational factfinder in finding such intent beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See also, Pilon v. Bordenkircher, ___ U.S. ___, 100 S. Ct. 7, 62 L. Ed. 2d 1 (1979). If the ruling is adverse, the claim of error has been preserved and the contention of want of the requisite intent may be presented to the appellate courts in case of a verdict of guilty. If on appeal it is held that there was trial court error in this respect, the conviction resulting from the verdict will be reversed. If there is held to be no error, the defendant will have been found to be guilty of the separate crime of kidnapping as intended by the legislature and therefore subject to punishment for that crime because he has been adjudged guilty of conduct which the legislature has found to be not "merely incidental" to the rape. There is no occasion in this case for this court to determine whether there was sufficient evidence to prove the element of intent under ORS 163.225. There was no motion for acquittal in the trial court. The trial court instructed that the jury must find such intent beyond a reasonable doubt. The jury so found. Defendant requested no special instruction concerning this element. Defendant did not raise this issue at the time of sentencing.[9] In the Court of Appeals the defendant was unable to make any assignment of error in this respect which could comply with Rule 7.19, Rules of Procedure, Supreme Court and Court of Appeals of the State of Oregon. The Court of Appeals affirmed from the bench, and we have no way of knowing the basis of its rejection of this claim of the defendant that his separate conviction and sentence for kidnapping is error. Whatever the reason of that court, it did not err in this respect. In summary, the legislature said there may be a separate conviction and sentence for kidnapping only when it is not incidental to another crime, and it may be found not to be incidental if the defendant had the intent to interfere substantially with the victim's personal liberty. That intent was here charged and found by the jury. There was no challenge to the sufficiency of the evidence to support that finding. Through the adjudicative process, as intended by the legislature, it has been established that the detention and asportation *677 of this victim by this defendant was not "merely incidental" to his rape upon her. The defendant's position for "merger" of the kidnapping conviction and sentence into the rape conviction and sentence rests upon the contention that the kidnapping was merely incidental to the rape. The position is not well taken and the contention is rejected. The defendant's second argument is that the several acts of sodomy committed in a single criminal episode should result in a single sodomy conviction and therefore a single sentence. The defendant alternatively contends that the rape conviction and the sodomy convictions should be treated as a single criminal episode and therefore should not be punished separately. The defendant may be charged with several counts of both rape and sodomy arising out of the same episode, and the jury may consider the several counts in the single prosecution. See State v. Cloutier, 286 Or. 579, 586, 596 P.2d 1278 (1979). The issue in this case is whether the defendant who is found guilty by the trier of fact on the several counts can be cumulatively sentenced. The defendant at the sentencing proceeding argued to the trial judge that "the sodomies would merge and that judgment could only be entered upon the conviction for rape, kidnapping and one sodomy." (Emphasis added). The defendant did not raise this specific argument in September, 1978, when the case was argued in the Court of Appeals; rather, he argued that the 100-year sentence was excessive. At that time, the Court of Appeals' decision in State v. Cloutier, 33 Or. App. 121, 575 P.2d 996 (1978), had not yet been reversed by this court. The Court of Appeals' decision in Cloutier concluded that the definition of an "offense" in ORS 161.505 permitted separate convictions and separate sentences for the several offenses committed in a burglary/theft episode. This court reversed that decision on June 12, 1979, 286 Or. 579, and concluded that a policy of rationality and proportionality should be applied in the sentencing of a multiple offender: One week prior to oral argument in this court, defendant filed a "Memorandum of Additional Authorities," in which, in light of our decisions in Cloutier and State v. Harris, 287 Or. 335, 599 P.2d 456 (1979) he reasserted his argument made in the trial court that a single sentence for sodomy was the appropriate disposition for his sodomitical conduct. The defendant, in oral argument before this court on September 7, 1979, stated: The defendant then argued that one sentence was appropriate because the first degree sodomy statute was violated in three different ways in a single episode. The state responded to this argument stating that separate sentences are justified for each act of sodomy because the victim is subjected to additional humiliation and fear, citing State v. Steele, 33 Or. App. 491, 577 P.2d 524 (1978). The defendant's argument that one sentence should be imposed for the sodomy offenses was timely raised in the trial court, and was argued before this court. We believe, in all the circumstances, this question is in an appropriate procedural position for this court's consideration. Cf., Rule 7.19, Oregon Rules of Appellate Procedure. *678 The first degree sodomy statute, ORS 163.405, uses the term "engage in deviate sexual intercourse," which is further defined in ORS 163.305(1) as "sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another." In the present case, three counts of sodomy were charged because the defendant engaged in deviate sexual intercourse in at least three different ways in the same episode.[10] The separate counts of sodomy are appropriate in the prosecutorial stage because the prosecution may be able to prove one type of sodomy but not another. The jury may appropriately return verdicts of guilty on all three counts. At the sentencing stage, however, the court's concern is with the defendant's criminal responsibility for a single criminal episode.[11] The term "criminal episode" is defined in ORS 131.505(4) for purposes of former jeopardy: This case does not involve former jeopardy issues; however, the term "criminal episode" is relevant to the sentencing stage because it prescribes when the required joinder of offenses will bring the offenses before the sentencing court in one proceeding. See State v. Cloutier, supra, 286 Or. at 595, 596 P.2d 1278. No statute in Oregon authorizes or prohibits multiple sentences when the same criminal statute is violated more than once in a single criminal episode. This court held in State v. Welch, 264 Or. 388, 505 P.2d 910 (1973) that the publishing of two forged checks in the same transaction constituted one offense and therefore separate sentences on the two counts was improper. The court looked for legislative intent behind the forged instrument statute, and, finding no legislative history, the court found guidance from the Supreme Court in Bell v. United States, 349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955). The defendant in that case was prosecuted under the Mann Act for transporting two women in one trip across state lines for immoral purposes. The Supreme Court held that the defendant was not subject to separate sentences on the two counts. The court noted the ambiguity in the possible units of the offense but concluded, "It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment." 349 U.S. at 83, 75 S. Ct. at 622. The rationale compelling a single conviction in Welch and Bell was that the defendant should not be twice punished for one criminal episode unless the legislature has clearly prescribed additional penalties. Cf., A. Campbell, Law of Sentencing, 241-246 (1978). The facts of the present case, however, can be distinguished from State v. Welch, supra, and Bell v. United States, supra, because in those cases, the defendant simultaneously committed two identical criminal violations; in the present case the defendant in the course of the criminal episode committed successive, repeated acts of rape and sodomy. The first degree rape statute, ORS 163.375, uses the term "sexual intercourse" which, under ORS 163.305(7), "occurs upon any penetration however slight * * *." A rape episode may involve more than one penetration, yet it would be absurd to sentence the defendant to twenty years for each act of penetration. The severity of the sentence for the single episode of rape should reflect the aggravated circumstances *679 of a particularly brutal or prolonged rape. Likewise, there may be several deviate contacts in one episode of sodomy. Separate sentences for each deviate contact result in a punishment disproportionate to the defendant's criminal responsibility for a single criminal episode. Cf., People v. Tate, 37 Ill. App.3d 358, 346 N.E.2d 79 (1976) (several acts of sodomy in a single episode constitute a single offense); People v. Cox, 53 Ill. 2d 101, 291 N.E.2d 1 (1972) (violation of the same sexual offense statute in two different ways in one episode constitutes one offense). See, Note, Cumulative Sentencing for Offenses Within a Single Transaction, 26 Fla.L.Rev. 367 (1974). By analogy, there are statutes in Oregon which may be violated in several distinct ways. For example, the offense of robbery in the first degree, ORS 164.415, can be committed in three different ways: by being armed with a deadly weapon, by using or attempting to use a dangerous weapon, and by causing or attempting to cause serious physical injury to any person. If a robber, armed with a loaded pistol, first brandished his pistol, then, moments later, pulled a knife and attempted to stab his victim, then took the victim's wallet and fled, would he be subject to three separate 20-year sentences for robbery? The legislature never addressed this question, so the courts are left with a difficult policy choice. Certainly the victim is exposed to additional fear, danger, and humiliation by the successive assaults.[12] Yet, the length of a single sentence for first degree robbery should reflect the aggravated circumstances of the crime. The first degree robbery statute can be violated three different ways; there is no denominated offense of "armed robbery" as distinguished from "robbery by using a dangerous weapon." Likewise, the first degree sodomy statute can be violated in at least three different ways: the offender can put his mouth to the victim's genitals, or he can put his genitals to the victim's mouth, or to her anus. It is a misstatement to say, as does the dissent, there is an "offense of oral sodomy" as differentiated from "the separate offense of anal sodomy." The dissent implies that the sodomitical conduct took place over a period of almost 40 minutes. Actually the entire course of criminal conduct lasted 40 minutes. Separate punishments for several acts of sodomy would be appropriate if the defendant, after one act, starts anew after a time of reflection. See Remington and *680 Joseph, Charging, Convicting and Sentencing the Multiple Criminal Offender, 1961 Wis.L.Rev. 528, 548-549 (1961). Cf., Lillard v. State, 528 S.W.2d 207 (Tenn.Cr.App. 1975). The time period when one episode ends and another begins is not always clear. Cf., State v. Welch, supra, 264 Or. at 394-395, 505 P.2d 910. In the present case, however, the defendant's conduct can clearly be said to involve a single criminal episode, therefore one conviction and sentence for sodomy is appropriate. Accordingly we hold that the trial court erred in imposing separate sentences for the three counts of sodomy in a single episode and that the case must be remanded for resentencing. The sentence imposed may appropriately reflect that the victim was exposed to additional fear, danger, and humiliation by the successive offenses of sodomy in the single episode. The defendant alternatively contends the rape and sodomy were two offenses within a single criminal episode with a single criminal objective, therefore only one sentence is appropriate. The defendant could be described as having a criminal objective to violate sexually his victim; nevertheless, he did commit sexually offensive acts which the legislature has chosen to differentiate as rape and sodomy. Cf., Johnson, Multiple Punishment and Consecutive Sentences, 58 Cal.L.Rev. 357, 364-365 (1970). Although the offenses of rape and sodomy in this case share a unity of time, location, circumstance, and objective, the legislature has chosen to make rape and sodomy two distinct offenses requiring different elements of proof. A rape always requires proof of a penetration, however slight, see ORS 163.305(8), whereas a sodomy always requires proof of a deviate sexual contact, see ORS 163.305(1). We conclude, therefore, that the legislature intended that separate sentences were permissible for rape and sodomy offenses arising out of the same criminal episode. Although the Oregon Legislature has not specifically limited the trial court's discretion to impose consecutive sentences,[13] the trial court does not have unlimited discretion to impose consecutive sentences for the separate offenses. Sentencing practices must conform to the stated purposes of the revised criminal code in ORS 161.025: "[t]o prescribe penalties which are proportionate to the seriousness of offenses," and "[t]o safeguard offenders against excessive, disproportionate or arbitrary punishment."[14] Arbitrary sentencing practices have recently become the subject of widespread concern, generating substantial criticism.[15] The lack of guidelines for imposing concurrent and consecutive sentencing is a particular problem in modern sentencing *681 practices.[16] The Model Penal Code,[17] the Model Sentencing Act,[18] and the ABA Standards Relating to Sentencing Alternatives and Procedures[19] all state a clear preference for concurrent over consecutive sentences for multiple offenses within a single criminal episode.[20] The ABA Standards state that the court should be authorized to impose consecutive sentences only after a finding that this is necessary to protect the public.[21] ORS 137.120(2) requires the sentencing court in felony convictions to state on the record the reasons for the sentence imposed. This requirement was added in 1977 to cause the trial court to clarify the court's sentencing rationale and to supply information for possible sentence review.[22]Cf., State v. Biles, 287 Or. 63, 597 P.2d 808 (1979). In light of this mandate for articulated sentencing rationales and the current recognition that consecutive sentences are appropriate only when the defendant poses an unusual risk to the safety of the public, we hold that the trial judge must affirmatively state the reasons for imposing consecutive sentences for separate offenses arising from the same criminal episode. These reasons must be consistent with the legislative policies concerning proportional sentencing, rehabilitation, deterrence, and protection of the public. Cf., ORS 161.025(1)(f), (g); ORS 144.780; People v. Meints, 41 Ill. App.3d 215, 355 N.E.2d 125, 129-130 (1976); State v. Underwood, 353 So. 2d 1013, 1019 (La. 1977); State v. Carroll, 66 N.J. 558, 334 A.2d 17 (1975); Gray v. State, 538 S.W.2d 391 (Tenn. 1976). *682 We now examine the trial court's sentencing rationale in the present case. The presentence report recommended one hundred years incarceration with a minimum of fifty years imprisonment for the seventeen-year-old defendant. The trial judge sentenced him to five consecutive twenty-year terms but directed a minimum sentence of ten years, stating the judge's hopes for reformation. He stated that defendant's insult to another human being deserved punishment and that he hoped the sentence would have a deterrent effect. The judge noted the defendant's refusal to accept psychiatric help and stated that society was entitled to be protected from the defendant's predatory conduct.[23] The defendant claims that his sentences should be held excessive under substantive sentence review, ORS 138.040. The defendant's legal challenges to the separate sodomy sentences and our disposition thereof result in a remand for resentencing. The trial court will sentence anew and there is nothing now before us upon which to exercise sentence review under ORS 138.040. Neither is there any occasion to consider whether this court is empowered under that statute to conduct an independent review. Remanded for resentencing. TONGUE, Justice, concurring in part, dissenting in part. I concur in the majority opinion in its holding that the trial court did not err in convicting and sentencing defendant separately for kidnapping, rape and sodomy. I dissent, however, from its holding that the trial court erred in entering separate judgments of conviction and sentences for each of the three counts of sodomy because: (1) That question is not properly before this court. It was not properly raised by the defendant and the state has had no fair opportunity to be heard on that question the only question properly before the court being whether consecutive sentences were "excessive," and thus subject to substantive appellate review under ORS 138.040. (2) The decision by the majority on that question to the effect that the trial court had no power to enter separate judgments of conviction and separate sentences for the separate acts of sodomy because they were "disproportionate" to defendant's criminal responsibility for a single criminal episode is contrary to the probable intent of the legislature in such cases. I. In considering the separate judgments of conviction and sentences for each of the three counts of sodomy, both the controlling statutes and the facts must be kept in mind. ORS 163.405(1)(a) provides that a person who "engages in deviate sexual intercourse with another person" is guilty of sodomy in the first degree if "[t]he victim is subjected to forcible compulsion by the actor." "Deviate sexual intercourse" is defined in ORS 163.305(1) as "sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another." The facts of this case relating to the acts of rape and sodomy upon the victim, following her kidnapping, as stated in defendant's petition for review, are as follows: That incident, from the time the victim was first abducted with a knife at her throat while walking down a street and forced to walk two blocks to a back yard where she was raped and sodomized three times, to the time when she escaped and ran away, lasted 40 minutes. The indictment set forth three separate sodomy counts: one for deviate sexual intercourse "by causing the sex organs of the said defendant to be brought into contact with the mouth" of the victim, a second for deviate sexual intercourse "by causing the sex organs of the said defendant to be brought into contact with the anus" of (the victim, a third for deviate sexual intercourse "by causing the sexual organs of (the victim) to be brought into contact with the mouth of the defendant." As stated by the majority, each of the three sodomy counts was submitted to the jury, which returned a verdict of guilty on each count, as well as on the separate counts for kidnapping and rape. The trial court then entered a judgment of conviction on each count and sentenced the defendant to a term not to exceed 20 years on each count, to run consecutively, and with directions that defendant was to serve a minimum of 10 years. As stated by the majority, the defendant, in objecting to the three sentences, contended that the sodomies would merge and that judgment could be entered for "one sodomy."[1] The only assignment of error in defendant's brief on appeal to the Court of Appeals, however, (other than that the trial court erred in its sentence for both rape and kidnapping) was that: In support of that assignment of error defendant's contention was that: More specifically, defendant's contention on its appeal to the Court of Appeals was that: The Court of Appeals apparently considered and rejected these contentions in affirming without opinion the separate judgments of conviction and the consecutive *684 sentences for each of the three counts of sodomy. In defendant's petition for review by this court defendant's primary emphasis was upon the prosecution of the defendant for both kidnapping and rape and the only remaining contention, again, was that: and that the consecutive sentences imposed by the trial court were improper and should thus be reviewed under those statutes. After the filing of defendant's petition for review, this court decided State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979), and heard argument in State v. Harris, 287 Or. 335, 599 P.2d 456 (1979), although Harris had not been decided when this case was argued in this court. Defendant then filed a supplemental memorandum acknowledging that although the issue had been raised at trial, as in Harris, "he did not assign as error the trial court's sentencing of defendant on those separate sodomy charges and a rape count." Defendant contended, however, that "in light of Cloutier," he would "return to his original position that a single sentence on one count was appropriate" and that the separate sentences by the trial court were "excessive." As previously noted, defendant's original position had been that the sentence was subject to substantive sentence review by the Court of Appeals under ORS 138.040 on the ground that it was an excessive sentence for the reason that consecutive sentences had been imposed, and that concurrent sentences should have been imposed. As also previously noted, defendant did not contest the separate judgments of conviction, but only the consecutive sentences. The majority holds that the trial court erred "in imposing separate sentences for three counts of sodomy in a single [criminal] episode * * *." By its references to Cloutier, the majority obviously intended to apply to this case the holding by the majority of this court in Cloutier to the effect that when crimes of burglary and robbery arise from the same criminal episode, there can properly be only one judgment of conviction, as well as only one sentence. No such contention was made by this defendant either in his brief on appeal to the Court of Appeals or in his petition for review or supplemental memorandum to the court. It follows, in my opinion, that the only question properly before this court relating to defendant's conviction and sentencing on each of three counts of sodomy is the question whether the sentences were excessive in that they were consecutive, rather than concurrent and thus were subject to substantive sentence review under ORS 138.040. It also follows, in my opinion, that the question whether there would be only one judgment of conviction and only one sentence for the three separate acts of sodomy, as decided by the majority, is not properly before this court in this case.[5] *685 The majority holds that this question is properly before this court for decision in this case because it was raised at the time of trial by the defendant and was raised again by him in oral argument before this court, at which time the state attempted to respond to that contention, even though that question was not assigned as error in appellant's brief to the Court of Appeals and was not urged in his petition for review to this court. In other words, the majority holds that if a defendant in a criminal case raises some question on trial which he does not assign as error on appeal or urge by petition for review, he can wait until oral argument before this court and then raise the question again. The majority also holds that in such an event, if the state attempts to make some response to that contention on oral argument, this court, in its new role as a "law-making court" rather than an "error-correcting court," can properly base its opinion, making "new law," upon a decision of such a question, rather than upon a decision of the questions raised by appellant's brief and petition for review. This sets a new and important, if not dangerous, precedent for application in the consideration of petitions for review in future cases, both criminal and civil. It is a step that should only be taken deliberately and after full benefit of the adversary system in this case only after the State of Oregon, through the Attorney General, has been afforded an opportunity to be heard on this important question by setting this case for further oral argument with or without further briefs. In addition to the importance of this question as one of proper appellate procedure, is the related question of whether, in this case, the state has had a fair opportunity to be heard on the contention by defendant which provides the basis for the decision by this court of this case. It is elemental, if not required as a matter of constitutional due process, that each party in a litigated case, at least at the appellate level, is entitled to notice before trial or hearing of the affirmative contentions of his opponent in order that he may have a fair opportunity to prepare and present opposing evidence or arguments. That basic requirement cannot properly be said to be satisfied by the fact that some attempt is made at a hearing to respond to a contention by an opponent when the party had no notice that such a contention would be made at the hearing. Yet the majority would decide this important case on the basis of just such a contention and would justify its action in doing so by the fact that the attorney for the state attempted to respond to the contention on oral argument before this court. In my opinion, the majority has denied the State of Oregon a fair opportunity to be heard on the question which provides the basis for its decision of this case. As a result, the least that should be done by this court is to set this case for reargument or request further briefs upon the question whether the three consecutive sentences for the three acts of sodomy were not only excessive, so as to require substantive sentence review, as urged by defendant in his brief and petition for review, but were also improper in that only one judgment of conviction and sentence can properly be entered, and for only one of the three acts of sodomy, as now held by the majority of this court. It would be particularly appropriate to set this case for reargument or request further briefs because the court is so closely divided on the important questions involved in this case and because one of the decisive votes in favor of the majority is that of a member of the court who has resigned as of January 21, 1980. I can understand and do not question the reasons and motives of the majority in its desire to make and publish a decision in this case before that date. With *686 all due respect to the majority, however, I believe that simple fairness to the State of Oregon, as a party to this case, is a far more basic and compelling consideration. This court has held many times, in both civil and criminal cases, that it will not reverse judgments entered by trial courts on grounds not properly raised by proper assignments of error on appeal. In my opinion, this is a salutory rule and one which should be followed by the court in this case. II. In support of its holding that the trial court erred in entering separate judgments of conviction and separate sentences for each of defendant's three different offenses of sodomy, the majority appears to reason as follows: With all due respect to the majority, it is my opinion that both its major premise and its reasoning, based upon that premise, is faulty. The majority of this court in State v. Cloutier, supra, under different facts, held that when the defendant in that case committed the offenses of burglary and robbery in the same criminal episode, only one judgment of conviction and one sentence is proper. Regardless of my disagreement with that decision by the majority of this court in Cloutier, for reasons as set forth in my dissent in that case,[6] it is important to note that it is based primarily upon a finding that it was the intention or "policy" of the legislature, as revealed by recently enacted statutes, that there be "proportionality and rationality" in sentencing and that anything other than a single judgment of conviction and sentence in a burglary-robbery case would be contrary to that intent by the Oregon legislature. Such was the basis for the holding by the majority in Cloutier, rather than a holding that unless the legislature has clearly indicated a contrary intent, a defendant's "responsibility" for a single "criminal episode" is such as to prohibit as "disproportionate" more than one judgment of conviction and sentence for all crimes committed in the course of a criminal episode unless after each crime the defendant "starts anew after a time for reflection," as now held by the majority. In other words, the majority has "put the cart" (of criminal responsibility) "before the horse" (of legislative intent). Assuming, however, as held by the majority in Cloutier, that the intention of the legislature is that there must be "proportionality and rationality" in sentencing, the question to be decided in this case is whether the legislature would regard separate judgments of conviction and separate sentences for each of the three separate and different "offenses" of sodomy committed by the defendant in this case as "disproportionate and irrational." The legislature, by ORS 161.505, has defined the term "offense" as follows: As previously stated, ORS 163.405 provides that: As also previously stated, ORS 163.305(1) provides: In this case, as also previously stated, defendant was charged and convicted by a jury of sodomy in the first degree by "deviate sexual intercourse" of each of the three types specified in ORS 163.305(1). It necessarily follows that defendant was found guilty by the jury of three separate "offenses," in addition to the offense of rape, even though committed during the same "criminal episode." The majority holds that it was not error for the trial court to enter a separate judgment of conviction and a separate sentence for rape, in addition to one judgment of conviction and sentence for sodomy. In other words, the majority holds that double convictions and sentences for rape and sodomy are not "disproportionate" or "irrational," even though committed during a single criminal episode. Thus, the majority holds that when a defendant rapes a victim by "natural" sexual intercourse and then commits sodomy on the same victim by anal intercourse there can be two separate judgments of conviction and sentences, but that if a defendant commits an act of sodomy by "causing the sex organs of said defendant to be brought into contact with the mouth" of the victim (an act equally, if not more terrifying to the victim than rape by natural intercourse), followed by the same act of anal intercourse, the entry of two separate judgments of conviction and sentences, as in this case, is in error as "disproportionate" or "irrational." If such be the law, to paraphrase Dickens, then "the law is an ass." And for the majority of this court to hold, as it must in order to justify such a distinction, that the legislature of Oregon intended such an absurd result is even more unbelievable. To compound the confusion, as well as the "irrationality" of such a result, the majority, by its reliance upon Cloutier, necessarily approved of the submission by the trial court to the jury of each of the three separate counts for each of the three different types of "deviate sexual intercourse," and yet held that despite the jury verdict of guilty on each of the three counts, the trial court had power to enter a judgment of conviction and sentence on only one of them. It is entirely possible, however, that an appeal may be taken from the judgment of conviction of that one act of sodomy, whereas if judgments of conviction had been entered for the other two acts of sodomy, and if appeals had been taken from those judgments of conviction, they would have been affirmed on appeal. In my judgment, this is a further reason why it can hardly be said that because the legislature intended to adopt a "proportionate" and "rational" program for sentencing, it must necessarily follow in a case involving three separate and different acts of sodomy three can be only one judgment of conviction. The only answer to this problem by the majority would be to hold, as suggested in Cloutier (at 286 Or. 602, 596 P.2d 1278), that because of the possibility of reversal of the judgment of conviction for the one act of sodomy, the jury verdicts of conviction for the other two and different acts of sodomy be held in a "state of suspended animation" so as to provide a basis for entry of a judgment of conviction on one of them in the event of an appeal and reversal of the prior judgment of conviction, presumably to be followed by another appeal, with continued bail and, if successful, by entry of judgment of conviction for the third act of sodomy, followed by yet another appeal, with continued bail. It is inconceivable to me that the legislature intended such an incongruous, complicated and time-consuming result. *688 To me, the legislative intent and plan to eliminate "disproportionate" sentences is far more simple and "rational." Or.L. 1977 ch. 372, enacted in 1977, although designed to reduce disparity in sentencing, is not inconsistent with the concept of separate judgments of conviction and sentences upon conviction by a jury for separate and different acts of sodomy, as in this case. Under that statute trial courts are provided with presentence reports and must state on the record the reasons for sentences imposed (ORS 144.790(1) and 137.120(2)). The sentences imposed by trial courts are for indeterminate periods of time, with the trial court stating only a maximum term to be served and, in his discretion, a minimum sentence up to one-half of that maximum sentence (ORS 137.120(2) and 144.110(1)). Appeals may be taken from sentences claimed to be excessive, and such sentences must be reviewed by the Court of Appeals (ORS 138.040 and 138.050). Thus, if the sentences imposed are "disproportionate" in that they are excessive, they are subject to substantive sentence review. As previously stated, it was the contention of this defendant in his brief to the Court of Appeals that the sentences imposed in this case should be reviewed as excessive sentences, not because there were three separate judgments of conviction and sentences, but because the sentences should have been made to run concurrently, rather than consecutively. Moreover, and regardless of the sentences imposed by the courts, the legislature has provided by ORS 144.780 and 144.785 that it is the Board of Parole that determines the actual duration of imprisonment and in doing so is to seek to achieve "[p]unishment which is commensurate with the seriousness of the prisoner's conduct," after considering "aggravating or mitigating circumstances." As conceded by the majority, nothing in this statutory plan prohibits multiple sentences when the same criminal statute is violated more than once in the same criminal episode. It is far more reasonable, in my opinion, to construe these statutes and the legislative intent which they embody as a legislative plan to eliminate "disproportionate" sentences by requiring presentence reports, statement of reasons for sentences, by providing for indeterminate sentences and substantive review of excessive sentences and by providing for a determination by the Parole Board of the actual time to be served, than to interpret these statutes as demonstrating a legislative intent to eliminate "disproportionate" sentences by prohibiting separate judgments of conviction and sentences in cases in which this court may be of the opinion that to do so would impose "disproportionate" sentences in this case by prohibiting separate judgments of conviction and sentences for three different acts of sodomy in a single criminal episode, while permitting separate convictions and sentences for acts of rape and sodomy in the same criminal episode, as held by the majority. Also, as previously stated, this question is not only one of importance, but one on which the State of Oregon has not had a fair opportunity to be heard, in my opinion, so as to entitle it to have this case set for reargument before this court makes a decision by which it adopts a finding of such an incongruous legislative intent. The majority says that separate convictions and sentences are proper for rape and sodomy, but not for two different acts of sodomy because the legislature "has chosen to differentiate" between rape and sodomy to make them "two distinct offenses requiring differing elements of proof." Under the terms of ORS 163.405 and 163.305, however, "differing elements of proof" are also required to establish the offense of oral sodomy, as "differentiated" from the separate offense of anal sodomy. What the majority fails to recognize, in my opinion, is that this victim was held in a state of terror by this defendant for a period of 40 minutes, which, to a victim under such circumstances, is a long period of time. During that period, as previously stated, the defendant not only raped the victim, but before doing so committed both oral and anal sodomy upon her and after then raping her he again committed oral sodomy upon her. *689 As previously noted, the legislature, in 1975, defined the term "offense" as "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state." ORS 163.405 and 163.305(1) provides that both oral and anal sodomy are Class A felonies for which terms of imprisonment are provided by ORS 161.605. Surely, any woman who has been subjected to such conduct by a man over a period of 40 minutes would believe that three separate offenses of sodomy have been perpetrated upon her for which the offender would be subject to separate convictions and separate sentences of imprisonment, and that for a court to hold that such a defendant can be convicted and sentenced for only one of the three acts of sodomy would be the ultimate in male chauvinism. If, in such a case, sentences for the three acts of sodomy are excessive, they are subject to substantive sentence review under the statutes recently adopted by the legislature. It is difficult for me to believe that the Oregon legislature, including its many women members, could have intended otherwise. Yet the majority necessarily must hold that to impose more than one judgment of conviction and more than one sentence for the three separate and different acts of sodomy in such a case would be "disproportionate" and therefore contrary to the intent of the Oregon legislature. I cannot agree and would hope that in the near future the legislature will make clear its intention on this subject. Finally, the almost identical question presented in this case was presented in State v. Steele, 33 Or. App. 491, 577 P.2d 524 (1978). In that case, as in this case, defendant contended that his convictions for oral and anal sodomy in the first degree were improper on authority of State v. Welch, supra. That same contention was rejected by the Court of Appeals in an opinion by Schwab, C.J., as follows (33 Or. App. at 499, 577 P.2d at 528-529): This court denied defendant's petition for review in Steele, and properly so. (285 Or. 195) In my view, the opinion by Schwab, C.J., is a sound opinion and one in full accord with what I believe to have been the probable intention of the legislature in such cases. For these reasons, I must respectfully dissent from the holding by the majority that it was error for the trial court to enter separate judgments of conviction and separate sentences for three separate offenses of sodomy committed by this defendant. I cannot agree with the holding by the majority that to do so was "disproportionate" to defendant's criminal responsibility for that criminal episode. HOWELL, J., joined in this opinion. PETERSON, J., joined in part and filed opinion. PETERSON, Justice, concurring in part; dissenting in part. I, too, concur in the majority opinion in its holding that the trial court did not err in convicting and sentencing defendant separately for kidnapping, rape, and sodomy. I join with Justice Tongue in part II of his dissent. I do not agree with part I of his dissent. [1] ORS 163.215 provides in part: "As used in ORS 163.215 to 163.257, unless the context requires otherwise: "(1) `Without consent' means that the taking or confinement is accomplished by force, threat or deception, * * *. "* * *." ORS 163.225(1): "A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, he: "(a) Takes the person from one place to another; or "(b) Secretly confines the person in a place where he is not likely to be found." ORS 163.235: "(1) A person commits the crime of kidnapping in the first degree if he violates ORS 163.225 with any of the following purposes: "(a) To compel any person to pay or deliver money or property as ransom; or "(b) To hold the victim as a shield or hostage; or "(c) To cause physical injury to the victim;[*] or "(d) To terrorize the victim or another person. "(2) Kidnapping in the first degree is a Class A felony." [*] The indictment charged this purpose. [2] Model Penal Code, Section 212.1, Tent. Draft No. 11 (1960); Criminal Law Revision Commission, Commentary, Kidnapping and Related Offenses, Preliminary Draft No. 1, Oct. 1968, p. 9. [3] Criminal Law Revision Commission, Subcommittee No. 2, Minutes, Oct. 25, 1968, pp. 2-3. The minutes read in relevant part as follows: "She [Miss Lavorato, Research Counsel] called attention to the use of `substantial' in subsection (1) and said the word involved an important policy decision in light of the number of kidnaping-robbery cases and kidnaping-rape cases where the defendant was prosecuted both for the offense of robbery or rape and also for the offense of kidnapping. Subsection (1) was designed to prevent prosecution of a defendant for kidnaping, where he would be subject to life imprisonment or the death penalty, when the crime actually amounted to a rape or robbery. The Model Penal Code had accomplished this objective by employing `substantial' to differentiate between a detention which would be of such duration that it would become a kidnaping as opposed to detention for a shorter period incidental to the commission of another crime. She gave as an example the detention of a bank employe for 20 minutes while the bank was being robbed and indicated that under the draft section such an act would be robbery and not kidnaping. The New York code, instead of using `substantial,' had included an arbitrary time limit of 12 hours but Miss Lavorato said she had rejected this approach to avoid problems which occurred when an arbitrary time limit was employed and had used `substantial' so that it would be a judicial determination whether the person was taken a substantial distance or was held a substantial period of time. "The committee agreed that `substantial period' was preferable to setting an arbitrary time limit. Mr. Paillette [Criminal Code Revision Project Director] commented that the drafters of the Model Penal Code realized that a term could be defined just so far and if the statute was not going to be tied to a definite number of hours, the best course was to leave some discretion to the court to look at the total circumstances of the crime. "Justice Sloan questioned the meaning of the phrase `or a substantial distance from the vicinity where he is found.' Miss Lavorato explained that the phrase was intended to differentiate between a situation where a person was removed from the place where he was found by the kidnaper to a place not within the immediate vicinity as opposed to a mere displacement incidental to another offense, such as removing a person to another room. Justice Sloan contended that the distance the person was moved was unimportant. The victim could be concealed in a place only a few feet from where he was found, he said, and it could be difficult or impossible to find him." [4] Compare, Comments, Section 212.1; Kidnapping, Model Penal Code, Tent. Draft No. 11 (1960) pp. 13-15. The commentary states in part: "[I]t is desirable to restrict the scope of kidnapping, as an alternative or cumulative treatment of behavior whose chief significance is robbery or rape, because the broad scope of this overlapping offense has given rise to serious injustice, as well as to distortion of criminal statistics. "Examples of abusive prosecution for kidnapping are common. Among the worst is use of this means to secure a death sentence or life imprisonment for behavior that amounts in substance to robbery or rape, in a jurisdiction where these offenses are not subject to such penalties. [citations omitted.] "* * * "The blame cannot be placed exclusively at the door of the prosecutor for choosing to indict for kidnapping. When an especially outrageous crime is committed there will always be public clamor for the extreme penalty which the laws permit, and it is asking too much of public officials and juries to resist such pressures. Rather it is precisely the obligation of penal legislators to minimize opportunities for such injustice by clearly and rationally restricting discretion to punish. Demands for high penalties, e.g., in aggravated cases of rape, should be satisfied by appropriate provision in the rape legislation itself. "* * * "It is necessary, therefore, to define an aggravated offense of kidnapping which shall consist of removal or confinement involving substantial isolation of the victim where the duration of the isolation, the intention of the kidnapper, or other circumstances, makes the behavior specially terrifying and dangerous." [5] The committee considered several alternative drafts for kidnapping in the first degree. The primary area of concern was the definition of the scope of the restraint or confinement. Criminal Law Revision Commission, Subcommittee No. 2, Kidnapping and Related Offenses, Minutes, Dec. 12, 1968, pp. 1-3; Criminal Law Revision Commission, Full Committee, Minutes, Mar. 20, 1969, pp. 2-3. The terms "restrain" and "abduct" were eliminated in Preliminary Draft No. 4, and replaced by the current definition in ORS 163.215 of "without consent." Criminal Law Revision Commission, Drafts, Kidnapping and Related Offenses, Preliminary Draft No. 4, April 1969, pp. 1-2. [6] Criminal Law Revision Commission, Drafts, Kidnapping and Related Offenses, Preliminary Draft No. 3, Feb. 1969, pp. 7-8; Id., Preliminary Draft No. 4, April 1969, p. 6; Id., Tentative Draft No. 1, Aug. 1969, p. 6. The minutes of the final meeting on the proposed kidnapping statutes disclose that the "double prosecution" issue was again raised. The minutes state in relevant part as follows: "Representative Haas asked where the abduction of a woman with intent to rape her would fall. "Mr. Paillette replied that it could fall under subsection (4) [to terrorize the victim or another person] and Mr. Tanzer [now Judge Tanzer] added that it could also fall under rape. "Mr. Paillette agreed and advised that one of the main purposes of the approach taken to kidnapping was to avoid any use of the kidnapping as a substitute for some other crime." Criminal Law Revision Commission, Full Commission, Minutes, June 17, 1969, p. 9. Compare, Commission Tape 67, Side One at 1076-1090 (Statement following Mr. Paillette's last above-quoted statement: "If it's robbery, it's robbery; if it's rape, it's rape.") [7] Criminal Law Revision Commission, Drafts, Kidnapping and Related Offenses, Temporary Draft No. 1, p. 6; Proposed Oregon Criminal Code, Final Draft and Report, July, 1970, Kidnapping and Related Offenses, pp. 99-100. [8] In the abstract we find it somewhat difficult to envision forcible rape or sodomy which does not entail "substantial" interference with the personal liberty of the victim; however, it is readily apparent that the drafters of this legislation were attempting to describe conduct of the malefactor not ordinarily inherent in the sexual misconduct itself. [9] In this respect defendant's counsel, prior to the pronouncement of sentence, raised an altogether different matter: "I believe that the sodomies would merge and that judgment could only be entered upon the conviction for rape, kidnapping, and one sodomy." Nothing we have said concerning the failure of this defendant to raise the issue of a single sentence for the rape and kidnapping before the trial judge is to be taken as any holding by this court that the matter can be raised at that late stage. Such a case is not before us; therefore, we make no ruling thereon. [10] The evidence discloses that the defendant forced the victim to put her mouth on his genitals, he attempted anal intercourse, and he put his mouth on the victim's genitals. The victim stated at trial that she was not certain as to the sequence of the various acts. [11] The posture of this case is not such as to pose for the sentencing judge the necessity of preserving all convictions pending finality thereof. Where a sentencing judge may be in that position, the suggestions we made in State v. Cloutier, 286 Or. 579, 600-603, 596 P.2d 1278 (1979) may prove helpful. [12] This argument was articulated in State v. Steele, 33 Or. App. 491, 577 P.2d 524 (1978). The authority cited in that case, however, does not support an argument for separate sentences for sodomies committed by oral and by anal contacts in a single episode. The cases cited include State v. Hill, 104 Ariz. 238, 240, 450 P.2d 696 (1969), where the defendant argued that it was error for the jury to consider two counts of rape and two counts of lewd conduct. He argued he could be charged with only one count of rape and one count of lewd conduct. The court held that the defendant can be charged in several counts. The defendant received concurrent sentences for rape, lewd conduct, and burglary. Another case cited is People v. Helton, 39 Ill. App.3d 672, 674, 349 N.E.2d 508 (1976), where the defendant appealed his concurrent sentences for deviate sexual assault, intimidation, battery, and unlawful restraint, all arising out of a single rape episode. The defendant argued that because his single motivation was sexual gratification, a single sentence for all the offenses was appropriate. The court held that the unlawful restraint conviction could not stand independently from the other three offenses, but that the other three offenses were each separate offenses subject to separate, concurrent sentences. The last case cited is Lillard v. State, 528 S.W.2d 207 (Tenn.Cr.App. 1975), where the defendant appealed his two consecutive sentences for two rapes committed upon the same victim on the same night. The evidence disclosed that the defendant raped the victim at one location, terminated the rape, drove to another location, and again raped the victim. The court stated: "While requisite penetration may occur many times during a single episode of intercourse, there exists in that context the single basic intent to have sexual intercourse and the same force and coercion is common to the penetration, even if they be momentarily interrupted. "But we do not agree that a man who has raped a woman once may again assault and ravish her with impunity, at another time and at another place, as was done here." (Emphasis added) 528 S.W.2d at 211. The court upheld the two consecutive sentences for rape. [13] Cf., Ill. Rev. Stat. ch. 38, § 1005-8-4 (Supp. 1978). ORS 166.230, however, provides a mandatory consecutive sentence for not more than ten (10) years for committing a felony while armed with a firearm. [14] ORS 161.025(1): "The general purposes of chapter 743, Oregon Laws 1971, are: "* * * "(f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders. "(g) To safeguard offenders against excessive, disproportionate or arbitrary punishment." [15] See, e.g., Symposium on Sentencing, 7 Hofstra L.Rev. 1-138 (1978); De Costa, Disparity and Inequality of Criminal Sentences: 14 How.L.J. 29, (1968); Note, Sentencing Disparity: Causes and Cures, 60 J.Crim.L., Crim. & Pol.Sci. 182 (1969); Coffee, The Future of Sentencing Reform: Emerging Legal Issues in the Individualization of Justice, 73 Mich.L.Rev. 1362 (1975); Morris, Towards Principled Sentencing, 37 Md.L.Rev. 267 (1977); Hennessey, Disparity in Sentencing, 3 New Eng.Journ. on Prison Law 5 (1976); Weigel, Appellate Revision of Sentences: To Make the Punishment Fit the Crime, 20 Stan.L.Rev. 405 (1968); Frankel, Lawlessness in Sentencing, 41 U.Cinn.L.Rev. 1 (1972); Note, Disparity and Discretion in Sentencing: A Proposal for Uniformity, 25 U.C.L.A.L.Rev. 323 (1978). [16] "At common law sentences for felonies could not be consecutive. * * * Since originally the sentence was invariably death the question was of no importance. However, cumulative punishments were not unknown and prisoners were sometimes hanged for one offence, drawn for another, and quartered for a third. When the death penalty was abolished for a number of offences at the beginning of the nineteenth century the problem began to have practical consequences. "* * * "Although in practice little trouble appears to be caused by the problem this is because no-one has realized how chaotic the principles are." Newark, Samuels, & White, Sentencing the Multiple Offender: Concurrent and Consecutive Sentences, 23 No. Ire.L.Q. 133, 134, 172 (1972). [17] Model Penal Code 27.06 (Proposed Official Draft 1962). [18] Model Sentencing Act § 22 (1963): "Separate sentences of commitment imposed on a defendant for two or more crimes constituting a single criminal episode shall run concurrently. Sentences for two or more crimes not constituting a single criminal episode shall run concurrently unless the judge otherwise orders." Cf., Model Sentencing Act, 2d Edition § 17 (1972), reprinted in 18 Crime and Delinquency 340, 367 (1972). [19] ABA Standards Relating to Sentencing Alternatives and Procedures § 3.4(b) (Approved Draft 1968): "(b) Consecutive sentences are rarely appropriate. Authority to impose a consecutive sentence should be circumscribed by the following statutory limitations: "(i) The aggregate maximum of consecutive terms should not be permitted to exceed the term authorized for an habitual offender (section 3.3) for the most serious of the offenses involved. If there is no provision for an habitual offender for the offenses involved, there should be a ceiling on the aggregate of consecutive terms which is related to the severity of the offenses involved; and "(ii) The aggregate minimum of consecutive terms should be governed by the limitations stated in section 3.2; and "(iii) The court should not be authorized to impose a consecutive sentence until a presentence report (sections 4.1-4.5), supplemented by a report of the examination of the defendant's mental, emotional and physical condition (section 4.6), has been obtained and considered; and "(iv) Imposition of a consecutive sentence should require the affirmative action of the sentencing court. The court should be authorized to impose a consecutive sentence only after a finding that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant." [20] Cf., R. Dawson, Sentencing The Decision as to Type, Length, and Conditions of Sentence 207-210 (1969). [21] ABA Standards Relating to Sentencing Alternatives and Procedures § 3.4(b)(iv) (quoted at note 19, supra). [22] Report of the Governor's Task Force on Corrections, 17, 72 (1976). [23] The rationale for consecutive sentences should be addressed by the sentencing judge as a separate issue. The record indicates, however, that the trial judge was referring to the consecutive terms when he articulated his sentencing reasons. [1] There was no "merger" of offenses in this case for reasons stated in footnote 5. [2] ORS 138.040 provides, in part: "The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court, including a judgment where the court imposes a sentence which is cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense * *. If in the judgment of the appellate court the punishment imposed by the sentence appealed from is cruel, unusual or excessive, the appellate court shall direct the court from which the appeal is taken to impose the punishment that should be administered." (Emphasis added) Defendant also cited Article I, Section 15 of the Oregon Constitution, which provides: "Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice." [3] Defendant also contended that: "The ABA Standards of Criminal Justice Relating to Sentencing Alternatives and Procedures disapprove of consecutive sentences, referring to them as `rarely appropriate.'" Standard 2.4(b). [4] For the provisions of ORS 138.040, see note 2 above. ORS 138.050 sets forth similar provisions relating to sentences of defendants who have pleaded guilty or "no contest." [5] The decision by this court in State v. Harris, supra, neither compels nor supports a different result. Harris held (287 Or. at 340, 599 P.2d 456) that when one offense, such as sodomy, necessarily includes another offense, such as sexual abuse, there is a merger of the two offenses, with the result that a sentence for both offenses is subject to judicial review under ORS 133.040 as "excessive" even if not properly raised by assignment of error. The court was careful to point out, however, (at 341, 599 P.2d 456) that this is not true of an offense which may be committed without committing another offense and (at 342, 599 P.2d 456) affirmed separate sentences for such offenses. In this case, each of the three acts of sodomy were separate offenses, were separately committed and could not have been committed at one and the same time. Defendant's briefs, petition and supplemental memorandum do not contend that separate judgments of conviction and separate sentences for each of these then separate acts of sodomy were improper, but only that the consecutive sentences imposed were "excessive," and thus subject to substantive sentence review under ORS 138.040. The majority, however, upon holding that the three separate sentences for sodomy were improper, has declined to consider that question the only question properly raised by defendant relating to the sentences for sodomy. As a result, the majority also declined to consider the further question whether this court is empowered by ORS 138.040 to conduct an independent sentence review since that statute, by its terms, confers that power upon the Court of Appeals. [6] See State v. Cloutier, supra, 286 Or. at pp. 604 to 617, 596 P.2d 1278.

66e09b95db7264ba8542149e72d5a5833f9a50509a39008efc43540c550925d4

1980-01-22T00:00:00Z

153b5790-2bfc-434d-9dad-90c2e643d7be

ZRZ Realty v. Beneficial Fire and Casualty Ins.

oregon

Oregon Supreme Court

Filed: November 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON ZRZ REALTY COMPANY, an Oregon corporation, for itself and as trustee of the ZIDELL REMEDIATION FUNDING TRUST, an Oregon trust; ZIDELL MARINE CORPORATION, a Washington corporation; TUBE FORGINGS OF AMERICA, INC., an Oregon corporation; and PON EXPLORATION, INC., a Delaware corporation, fka Zidell Explorations, Inc., an Oregon Corporation, Petitioners on Review, v. BENEFICIAL FIRE AND CASUALTY INSURANCE COMPANY, succeeded in interest by J.C. Penney Life Insurance Company, et. al., Defendant, and CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, and CERTAIN LONDON MARKET INSURANCE COMPANIES, aka "Lloyds," including the following defendant companies: ASSICURAZIONI GENERALI S.P.A., INSURANCE COMPANY OF NORTH AMERICA (UK) LTD., COMMERCIAL UNION ASSURANCE COMPANY, PLC, EDINBURGH ASSURANCE COMPANY, LTD., OCEAN MARINE INSURANCE COMPANY, LTD., WORLD AUXILIARY INSURANCE CORPORATION, LTD., CORNHILL INSURANCE COMPANY, LTD., DOMINION INSURANCE COMPANY, LTD., EAGLE STAR INSURANCE COMPANY LTD., THE THREADNEEDLE INSURANCE COMPANY LTD., EXCESS INSURANCE COMPANY LTD., LONDON & EDINBURGH GENERAL INSURANCE COMPANY LTD., NEW ZEALAND INSURANCE COMPANY, LTD., ROAD TRANSPORT & GENERAL INSURANCE COMPANY, LTD., SOUTH BRITISH INSURANCE COMPANY, LTD., ULSTER MARINE INSURANCE COMPANY, LTD., THE UNITED SCOTTISH INSURANCE COMPANY, LTD., YORKSHIRE INSURANCE COMPANY, LTD., HANSA RE & MARINE INSURANCE COMPANY (UK) LTD., LA REUNION FRANCAISE (UK) LTD., ECONOMIC INSURANCE COMPANY LTD., NORWICH UNION FIRE INSURANCE SOCIETY, LTD., FIREMEN'S INSURANCE COMPANY OF NEWARK NEW JERSEY, SWISS UNION GENERAL INSURANCE COMPANY, LTD., LEADENHALL INSURANCE COMPANY, LTD., BISHOPGATE INSURANCE COMPANY, LTD., HOME INSURANCE COMPANY, NIPPON FIRE & MARINE INSURANCE COMPANY (UK), LTD., SWITZERLAND GENERAL INSURANCE COMPANY, LTD., RIVER THAMES INSURANCE COMPANY, LTD., ROYAL INSURANCE COMPANY, LTD., BRITISH FIRE INSURANCE COMPANY, LTD., BRITISH & FOREIGN INSURANCE COMPANY, LTD., NATIONAL PROVINCIAL INSURANCE COMPANY, LTD., THE SCOTTISH LION INSURANCE COMPANY, LTD., SKANDIA MARINE INSURANCE COMPANY (UK), LTD., DRAKE INSURANCE COMPANY, LTD., SPHERE INSURANCE COMPANY, LTD., SPHERE DRAKE INSURANCE COMPANY PLC, ALLIANCE ASSURANCE COMPANY, LTD., BRITISH LAW INSURANCE COMPANY, LTD., and CONTINENTAL ASSURANCE COMPANY OF LONDON, LTD., LIVERPOOL MARINE & GENERAL INSURANCE COMPANY, LTD., PHOENIX ASSURANCE COMPANY, LTD., FINE ART & GENERAL INSURANCE COMPANY, LTD., ANGLO-FRENCH INSURANCE COMPANY, LTD., BALOISE MARINE INSURANCE COMPANY, LTD., BALTICA INSURANCE COMPANY (UK), LTD., FUJI FIRE & MARINE INSURANCE COMPANY, (UK), LTD., R.W. GIBBON GROUP, LA PRESERVATRICE GROUP, SWITZERLAND GENERAL INSURANCE COMPANY (LONDON), LTD., YASUDA FIRE & MARINE INSURANCE COMPANY, LTD., IRON TRADES MUTUAL INSURANCE COMPANY, LTD., MINSTER INSURANCE COMPANY, LTD., RELIANCE INSURANCE COMPANY, SIRIUS (UK) INSURANCE PLC, INDEMNITY MARINE ASSURANCE COMPANY, LTD., LONDON & HULL MARITIME INSURANCE COMPANY, LTD., AND ASSOCIATED COMPANIES, C.A. PARR AGENCIES, LTD., SUN INSURANCE OFFICE, MARINE INSURANCE COMPANY, LIMITED, and SUMITOMO MARINE & FIRE INSURANCE COMPANY, LIMITED, Respondents on Review. (CC 9708-06226; CA A121145; SC S057155) En Banc On petitioners on review's petition for attorney fees, filed January 5, 2011; considered and under advisement September 8, 2011. Bruce L. Campbell, Miller Nash LLP, Portland, filed the petition for attorney fees and the reply for petitioners on review. With him on the petition and reply was Heather K. Cavanaugh. Thomas W. Sondag, Lane Powell PC, Portland, filed the objection to petitioners' fee petition for respondents on review. With him on the objection was John Folawn, Folawn Alterman & Richardson LLP, Portland. KISTLER, J. The petition for attorney fees is allowed. Petitioners on review are awarded $40,858.50 for their attorney fees before the Court of Appeals and the Supreme Court. 1 KISTLER, J. 1 Pursuant to ORS 742.061, plaintiffs (Zidell) have petitioned to recover 2 attorney fees that they incurred before this court and the Court of Appeals. Defendants 3 (London) have objected to Zidell's fee request on three grounds. London contends that, 4 as a result of a 2005 amendment to ORS 742.001, Zidell may not recover any fees that it 5 incurred after the effective date of that amendment. Alternatively, London argues that 6 Zidell is entitled to fees only for work that it did to establish London's duty to defend. 7 Finally, London argues that the billing records that Zidell submitted do not support its fee 8 request. We hold that, to the extent the 2005 amendment applies to ORS 742.061, that 9 amendment does not apply to actions filed before its effective date. We also hold that, at 10 this stage of the litigation, Zidell may recover the attorney fees that it incurred to 11 establish London's duty to defend and to prepare the fee petition. 12 Zidell bases its fee request on ORS 742.061, which provides, in part: 13 "[I]f settlement is not made within six months from the date proof of loss is 14 filed with an insurer and an action is brought in any court of this state upon 15 any policy of insurance of any kind or nature, and the plaintiff's recovery 16 exceeds the amount of any tender by the defendant in such action, a 17 reasonable amount to be fixed by the court as attorney fees shall be taxed as 18 part of the costs of the action and any appeal thereon." 19 By its terms, ORS 742.061 applies to "any policy of insurance of any kind or nature." 20 London notes, however, that in 2005 the legislature amended ORS 742.001 to except 21 surplus lines insurance policies from the requirements of ORS chapter 742.1 London 22 1 As amended in 2005, ORS 742.001 provides that "[t]his chapter * * * appl[ies] to all insurance policies delivered or issued for delivery in this state except * * * [s]urplus lines insurance policies." 2 argues that the policies in this case are "surplus lines insurance policies"2 and that, as a 1 result of the 2005 amendment to ORS 742.001, ORS 742.061 does not authorize Zidell to 2 recover any attorney fees that it incurred after the effective date of the amendment. 3 Zidell responds that the 2005 amendment does not apply to actions filed before its 4 effective date.3 5 In this case, both parties argue that the 2005 act applies prospectively. 6 They differ over the event to which the 2005 act prospectively applies. London argues 7 that the act applies prospectively to fees incurred after its effective date, while Zidell 8 argues that it applies prospectively only to actions filed after its effective date. In 9 resolving the parties' dispute, we look initially to the text, context, and legislative history 10 of the 2005 act. See Whipple v. Howser, 291 Or 475, 480, 632 P2d 782 (1981); cf. Spicer 11 v. Benefit Ass'n of Ry. Emp., 142 Or 574, 593, 17 P2d 1107, 21 P2d 187 (1933) 12 (following an express legislative direction that an amendment authorizing attorney fees 13 on appeal for the predecessor to ORS 742.061 did not apply to actions filed before the 14 2 Generally, if insurers admitted to do business in this state do not offer coverage for in-state risks, some brokers (surplus lines licensees) can place the coverage for those risks (surplus lines insurance) with insurers who are not authorized to do business in Oregon and who are eligible to accept such insurance. See ORS 731.144 (defining "surplus lines insurance"); ORS 735.405(3), (6), and (9) (defining respectively "eligible surplus lines insurer," "nonadmitted insurer," and "surplus lines licensee"). 3 We note that the 2005 amendment to ORS 742.001, which excepts surplus lines insurance generally from several chapters of the revised statutes, is at odds with the more specific terms of ORS 742.061, which applies to "any policy of insurance of any kind or nature." Zidell does not argue, however, that the specific controls over the general. Rather, it assumes that the later-amended statute controls over the earlier- enacted one but argues that the later amendment does not apply to this action. For the reasons explained below, we conclude that, even assuming the 2005 amendment controls, it does not apply to actions, such as this one, filed before its effective date. 3 amendment's effective date). Those usual sources of legislative intent provide no help 1 here, however. Nothing in the text, context, or legislative history of the 2005 act 2 addresses whether that act applies prospectively or retroactively. See Or Laws 2005, ch 3 185; Minutes, HB 2160, Senate Business and Economic Development Committee, May 4 10, 2005.4 5 In the absence of guidance from those sources, this court "ordinarily [has] 6 decline[d] to construe a legislative amendment to have a retrospective effect if to do so 7 would 'impair existing rights, create new obligations or impose additional duties with 8 respect to past transactions.'" Black v. Arizala, 337 Or 250, 271, 95 P3d 1109 (2004) 9 (quoting Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or 533, 539 n 7, 577 P2d 10 477, cert den, 439 US 1051 (1978)); accord Joseph v. Lowery, 261 Or 545, 551-52, 495 11 P2d 273 (1972). In considering that issue, we note that this court explained more than 80 12 years ago that the predecessor to ORS 742.061 was intended "to protect an insured who 13 has suffered a loss from annoying and expensive litigation." Murray v. Firemen's Ins. 14 Co., 121 Or 165, 172, 254 P 817 (1927). Accordingly, this court recognized that an 15 insured could allege a claim for attorney fees under the predecessor to ORS 742.061 if 16 the insured had filed a proof of loss and if the insurer had not settled within the statutory 17 4 House Bill 2160 made technical changes to the insurance code. As initially proposed, the bill did not address surplus lines insurance. It was amended late in the session to "[c]larify when the Insurance Code applies and does not apply to surplus lines." See Statement of Joel Ario, HB 2160, Senate Business and Economic Development Committee, May 10, 2005, Exhibit K (stating the purpose of the surplus insurance lines amendments to the bill). Nothing in the legislative history addresses whether or how the amendments to HB 2160 regarding surplus lines policies would apply to claims for attorney fees under ORS 742.061. 4 time period, forcing the insured to bring an action on the policy and incur attorney fees. 1 Id. at 170-71.5 To be sure, then as now, an insured's fee claim was not perfected until he 2 or she recovered more than the insurer had tendered. Compare Oregon Laws, title 3 XXXVI, ch I, § 6355 (1920) (imposing that requirement), with ORS 742.061 (same). 4 However, this court reasoned that the insured's rights under the attorney fee statute 5 attached once the insurer's failure to settle within the requisite time period caused the 6 insured to bring an action to enforce his or her rights under the policy. Murray, 121 Or at 7 170-71. 8 It follows, we think, that Zidell's right to seek fees at trial and on appeal 9 under ORS 742.061 attached when London failed to settle within six months of Zidell's 10 proof of loss, forcing Zidell to bring this action and incur fees to establish its rights under 11 the policies that London had issued. It also follows that applying the 2005 act 12 retroactively to actions filed before the act's effective date would impair that right. 13 Following Black, we hold that, even assuming the 2005 act excepts actions brought on 14 surplus lines insurance policies from the scope of ORS 742.061, that act does not apply to 15 5 In Murray, approximately two months after filing a proof of loss, the insured filed a complaint alleging a right to recover on the policy and also a claim for attorney fees under the predecessor to ORS 742.061. See 121 Or at 169-70. At that time, the statute provided for fees only if the insurer had not settled within eight months of filing the proof of loss and if the insured recovered more than the insurer had tendered. Oregon Laws, title XXXVI, ch I, § 6355 (1920). Regarding attorney fees, this court observed that the insured's fee claim was premature because the insured filed his complaint within eight months of filing the proof of loss. Id. at 171. The insurer, however, had not objected on that ground, and the court held that, in those circumstances, "plaintiff ought not to be made to wait the full period of eight months after filing proof" to bring a fee claim. Id. at 172. 5 actions, such as this one, filed before the act's effective date -- a holding that is consistent 1 with the legislature's direction when it addressed a virtually identical issue 80 years ago. 2 See Spicer, 142 Or at 593 (noting the legislature's statement that an amendment 3 authorizing attorney fees on appeal for the predecessor to ORS 742.061 would not apply 4 to actions filed before the amendment's effective date). 5 Our holding is limited to the relationship between the 2005 amendment to 6 ORS 742.001 and ORS 742.061. We express no opinion on how the 2005 amendment to 7 ORS 742.061 applies to the various other provisions found in ORS chapter 742. As 8 Justice Linde observed in Whipple, "[r]esponsible attention to the significance to be 9 attached to past events cannot be compressed into some simple formula to serve 10 legislation of all kinds. Too many different past events and too many potential legal 11 consequences are relevant for different kinds of laws" to announce a single formula that 12 would determine how the 2005 amendment to ORS 742.001 applies to all the various 13 provisions of chapter 742. See id. at 489 (Linde, J., concurring) (stating general 14 proposition). 15 Having concluded that the 2005 amendment does not bar Zidell from 16 recovering fees that it incurred on appeal, we turn to the second issue that London raises: 17 whether Zidell may recover fees that it incurred to establish London's duty to indemnify, 18 as well as the fees that it incurred to establish London's duty to defend. To put that issue 19 in perspective, it is helpful to recount briefly the posture in which the issue arises. The 20 Oregon Department of Environmental Quality (DEQ) issued a notice to Zidell that it was 21 potentially responsible for cleaning up environmental damages resulting from its 22 6 business. See ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117, 125, 241 P3d 1 710 (2010). When London refused to defend Zidell in response to DEQ's notice or to 2 indemnify it for the costs of remediating any environmental damages, Zidell brought this 3 action claiming that London had breached its contractual obligations under various 4 insurance policies that it had issued to Zidell over the years. Id. Zidell also sought a 5 declaratory judgment that London had a duty to defend and indemnify it. Id. 6 The trial court ruled on summary judgment that London had a duty to 7 defend Zidell, id., and it found that London owed Zidell certain defense costs that Zidell 8 had incurred. Id at 149. The remainder of the trial was devoted to Zidell's declaratory 9 judgment claim that London had a duty to indemnify it for the cost of remediating 10 environmental damages caused by its business.6 Id at 125. Because Zidell had not 11 incurred any remediation costs by the time of trial, the trial court's rulings regarding the 12 duty to indemnify were prospective only. Id. at 126 n 10. 13 After the trial ended, Zidell sought attorney fees under ORS 742.061 for 14 establishing both London's duty to defend and its duty to indemnify. As noted, ORS 15 742.061 authorizes an award of fees if (1) the parties to an insurance agreement do not 16 settle within six months from the date that the insured files a proof of loss and (2) the 17 insured's monetary recovery exceeds the amount tendered by the insurer. The trial court 18 6 Much of the trial focused on determining whether Zidell had expected or intended the damages caused by contaminants that were released into the environment as a result of operating Zidell's business. See ZRZ Realty, 349 Or at 125-26. The trial court developed a series of rules for allocating the costs that Zidell and London would have to bear in remediating those contaminants. Id. at 126 and n 8. 7 awarded Zidell fees for the work that its attorneys had done to establish London's duty to 1 defend and to recover the defense costs that Zidell had incurred. Id. at 148-149. The trial 2 court, however, did not award Zidell fees for the work that its attorneys had done to 3 establish London's duty to indemnify. Because Zidell had not yet recovered any 4 remediation costs, id. at 126 n 10, the trial court could not say that Zidell had recovered 5 more remediation costs than London had tendered, as ORS 742.061 requires. 6 London appealed, and Zidell cross-appealed from the resulting judgment. 7 On the merits, London argued, among other things, that the trial court had erred in 8 allocating the burden of proof on the express and implied fortuity policies. 349 Or at 9 127. Regarding attorney fees, London argued that the trial court had erred in ruling that a 10 letter that Zidell had sent London constituted a proof of loss within the meaning of ORS 11 742.061. Id. at 149. Alternatively, London argued that, if the Court of Appeals reversed 12 the trial court's judgment on any ground, ORS 20.220 required it to reverse the award of 13 attorney fees as well. See id. Zidell cross-appealed on, among other things, the trial 14 court's ruling that Zidell did not have a right to recover fees for the work done on the duty 15 to indemnify. 16 The Court of Appeals reversed the trial court's ruling allocating the burden 17 of proof on the express fortuity policies and remanded for a new trial on both the express 18 and implied fortuity policies. See id. at 126-27, 146. In considering the trial court's fee 19 award, the Court of Appeals agreed with the trial court that Zidell's letter was a proof of 20 loss. See id. at 149. However, it reversed the fee award, which was based on the duty to 21 defend, because it had remanded for a new trial. See id. Having reversed the fee award, 22 8 the Court of Appeals did not reach Zidell's cross-appeal arguing that it had a right to fees 1 for work done to establish London's duty to indemnify, as well as London's duty to 2 defend. 3 On review, we upheld the Court of Appeals decision that the trial court had 4 erred in allocating the burden of proof on the express fortuity policies but held that the 5 case should be remanded for a new trial on only that issue. Id. at 132, 146-48. We 6 reversed the Court of Appeals decision vacating the attorney fees that the trial court had 7 awarded Zidell for the work its attorneys had done on the duty to defend. Id. at 149-50. 8 On that point, we reasoned: 9 "According to the trial court, it awarded Zidell only those fees and 10 costs that were attributable to London's breach of its duty to defend. By 11 contrast, the issue that the trial court must retry on remand -- whether Zidell 12 expected or intended the damage resulting from its business activity -- is 13 relevant only to the question whether London has a duty to indemnify 14 Zidell under the various express fortuity policies that London issued. 15 "This court has long recognized that '[t]he duty to indemnify is 16 independent of the duty to defend.' Ledford, 319 Or at 403. An insurer 17 may have a duty to defend its insured, as the trial court found here, but no 18 duty to indemnify. It follows that, even if the trial court finds on remand 19 that London had no duty to indemnify Zidell under the express fortuity 20 policies, that ruling would have no effect on either the trial court's ruling 21 that London had a duty to defend Zidell in DEQ's enforcement action or the 22 trial court's conclusion that ORS 742.061 authorized Zidell to recover 23 attorney fees it incurred in this action in establishing and enforcing 24 London's duty to defend. The Court of Appeals erred in reversing and 25 vacating the fee awards.31 26 ___________________ 27 "31 Because the part of the trial court's judgment that the Court of 28 Appeals reversed does not relate to the awards of attorney fees, ORS 29 20.220(3) did not require the Court of Appeals to reverse and vacate the fee 30 awards." 31 9 Id. (footnote 30 omitted). 1 In its fee petition, Zidell seeks to recover the fees that it incurred on appeal 2 to establish London's duty to defend and its duty to indemnify. London does not dispute, 3 at least before this court, that it owes Zidell the attorney fees it incurred in establishing 4 the duty to defend and in upholding the trial court's fee award. London argues, however, 5 that Zidell may not recover attorney fees that it incurred to establish London's duty to 6 indemnify. In resolving that issue, we note that this court repeatedly has held that 7 obtaining a declaration that an insurance policy provides coverage for a loss is, without 8 more, insufficient to trigger an insurer's obligation to pay the insured's attorney fees 9 under what is now codified as ORS 742.061. See McGraw v. Gwinner, 282 Or 393, 396- 10 400, 578 P2d 1250 (1978) (reviewing cases). An insured also must recover more than the 11 insurer tendered in order to receive fees under that statute. Id. 12 Because Zidell has not yet recovered any indemnification costs from 13 London, it cannot argue that, at this stage of the litigation, it has an independent right to 14 recover fees for establishing London's duty to indemnify it. Zidell, however, advances 15 two reasons why it should nonetheless recover fees related to the duty to indemnify. 16 First, Zidell notes that London argued in the Court of Appeals that, if the trial court had 17 erred in determining that London had a duty to indemnify Zidell, then the Court of 18 Appeals should reverse both the judgment establishing London's duty to indemnify and 19 the trial court's fee award. Zidell reasons that, in light of London's argument, the fees that 20 it incurred on appeal and review defending the trial court's indemnification rulings were 21 reasonably related to preserving the trial court's fee award. It follows, Zidell concludes, 22 10 that it can recover those fees now. 1 As we explained in our decision upholding the trial court's fee award, the 2 argument that London advanced (and the Court of Appeals accepted) is at odds with the 3 well-established principle that "'[t]he duty to indemnify is independent of the duty to 4 defend.'" ZRZ Realty, 349 Or at 150 (quoting Ledford v. Gutoski, 319 Or 397, 403, 877 5 P2d 80 (1994)). An insurer may have a duty to defend even though it has no duty to 6 indemnify. London was wrong in arguing that, if the Court of Appeals reversed the trial 7 court's rulings regarding the duty to indemnify, then it also had to reverse the trial court's 8 fee award, which was based on the duty to defend. Zidell cannot convert London's 9 mistaken argument into a basis for recovering fees now that it otherwise would have no 10 right to recover at this stage of the litigation. 11 Zidell advances a second argument that it raised in the trial court (and the 12 trial court rejected) and that it cross-assigned as error in the Court of Appeals (and the 13 Court of Appeals did not reach). Zidell reasons that, if it recovers more than London 14 tendered on one matter (the duty to defend), then ORS 742.061 permits it to recover the 15 fees that it incurred both on that matter and also on other, separate matters. That is true, 16 Zidell reasons, even though it has no independent right to recover fees under ORS 17 742.061 for those matters. 18 Zidell cites one case in support of its argument, Hartford v. Aetna/Mt. Hood 19 Radio, 270 Or 226, 527 P2d 406 (1974). In that case, the insurer brought a declaratory 20 judgment action to determine its responsibility for a loss (damage to the insured's 21 property), and the insured counterclaimed for monetary damages for failure to pay the 22 11 full amount of the loss. Id. at 228, 235-237. This court held on the declaratory judgment 1 claim that the insurer was responsible for the loss and on the counterclaim that the insurer 2 owed more than it had tendered. Id. at 235, 237. This court also awarded the insured 3 fees. Id. at 236. As the court later explained in McGraw, because the insured in Hartford 4 had recovered more on its counterclaim than the insurer had tendered, the insured could 5 recover the attorney fees it incurred both in responding to the insurer's declaratory 6 judgment action and in pursuing the counterclaim. See McGraw, 282 Or at 399-400 7 (explaining Hartford). 8 The decision in Hartford does not advance Zidell's argument in this case. 9 In Hartford, both the insurer's declaratory judgment claim and the insured's counterclaim 10 involved the same issue -- the insured's obligation to pay the insured for damage to its 11 property. Unlike this case, that decision did not involve a situation in which the insured 12 had established a right to recover fees on one matter (the duty to defend) but had not 13 established a right to recover fees on another, separate matter (the duty to indemnify). 14 There may be cases in which the issues are sufficiently related that an entitlement to fees 15 on one issue will warrant awarding fees for work on related issues. This is not one of 16 those cases, however. As we explained in our previous decision, the matter on which 17 Zidell seeks fees (the duty to indemnify) is independent of the matter on which it is 18 entitled to recover fees (the duty to defend). In these circumstances, we agree with the 19 trial court that, at this stage of the litigation, Zidell may recover only those fees that are 20 related to the duty to defend. 21 London raises a final issue. It contends that, for the most part, Zidell's 22 12 billing records are not sufficient for us to determine which fees related to the duty to 1 defend. Zidell's records, however, identify the time that its attorneys spent on the 2 assignments of error in the Court of Appeals related to the trial court's attorney fees 3 award.7 Zidell also has submitted affidavits from its lead counsel on appeal, which state 4 that, at this stage of the litigation, Zidell seeks only 20 percent of the fees related to 5 upholding the trial court's fee award, or $9,417. According to counsels' affidavits, the 6 remainder of the time devoted to attorney fee issues was spent briefing fee issues that the 7 Court of Appeals did not reach and that remain to be resolved on remand. London has 8 advanced no persuasive reason why we should not award Zidell those fees now.8 9 Zidell also seeks $48,841.50 for the fees that it incurred in preparing the fee 10 petition.9 London does not dispute that Zidell is entitled to fees for preparing the petition. 11 The only objection that London raises is that the time that Zidell's attorneys spent was 12 excessive. In London's view, Zidell's attorneys could have accomplished the task in six 13 hours. We agree in part with London's objection. Having examined Zidell's billing 14 records, we conclude that Zidell's attorneys reasonably devoted time to researching the 15 legal issues involved in recovering fees, reviewing the substantial record in this case, 16 7 Because the Court of Appeals reversed the trial court's fee award, Zidell could not have sought to recover attorney fees related to the duty to defend in that court. 8 Zidell briefed and argued issues related to the trial court's fee award at other stages of this appeal. However, its other billing entries do not identify what part of its time was related to that issue, and counsels' affidavits did not attempt to allocate a portion of those general billing entries to work related to the duty to defend. Our fee award for Zidell's appellate work related to the duty to defend is limited to the amount that Zidell specifically has identified and reflects the adjustment that Zidell has proposed. 9 Zidell filed a reply to London's objection but has not yet sought fees for the work done on the reply. 13 coordinating with the expert witness who submitted an affidavit in support of Zidell's fee 1 request, and coordinating with the client, the trial attorneys, and co-counsel in New York. 2 We discount, however, the time spent preparing the fee petition by 54.375 hours, in large 3 part because the theories that Zidell raised for recovering fees related to the duty to 4 indemnify did not result in the recovery of those fees. When multiplied by the applicable 5 hourly rate of the attorney who did that work, that discount results in a reduction of 6 Zidell's fee request by $17,400. We accordingly award Zidell $31,441.50 for its 7 attorneys' work on the fee petition and $9,417 for fees for their work on the duty to 8 defend.10 9 We note that our decision today does not preclude Zidell from recovering 10 attorney fees in the future for the work that its attorneys have done both at trial and on 11 appeal to establish London's duty to indemnify if London did not settle with Zidell within 12 six months of Zidell's filing a proof of loss and if Zidell recovers on remand more 13 indemnification costs than London tendered. See ORS 742.061.11 If and when those 14 conditions are met, the trial court may award Zidell reasonable fees for its attorneys' 15 work, both at trial and on appeal, related to establishing London's duty to indemnify it for 16 the cost of remediating the environmental damages caused by the operation of its 17 business. 18 The petition for attorney fees is allowed. Plaintiffs are awarded $40,858.50 19 10 Zidell also has sought to recover its costs, and London has objected to Zidell's cost bill. We resolve the cost bill in a separate order. 11 Our decision also does not preclude the Court of Appeals from awarding Zidell additional fees on remand if appropriate. 14 for their attorney fees before the Court of Appeals and the Supreme Court. 1

82d4befe353804567ee2fbfa9150309e60a5d498e976a19646d2bffdb39627fe

2011-11-10T00:00:00Z

76456b49-ca6a-4e8a-8e5a-b591070978a7

Farmers Ins. Co. v. Mowry

S058706

oregon

Oregon Supreme Court

Filed: September 9, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON FARMERS INSURANCE COMPANY OF OREGON, Respondent on Review, v. TOSHA K. MOWRY, Petitioner on Review. (CC 080202045; CA A141214; SC S058706) En Banc On review from the Court of Appeals.* Argued and submitted on March 1, 2011. Kathryn H. Clarke, Portland, argued the cause and filed the brief for petitioner on review. With her on the brief was Hala J. Gores, Portland. Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, argued the cause and filed the brief for respondent on review. BALMER, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. DURHAM, J., filed a specially concurring opinion, in which DeMuniz, C.J., and Walters, J., joined. * Appeal from Multnomah County Circuit Court. Henry C. Breithaupt, Circuit Judge Pro Tem. 236 Or App 236, 234 P3d 1098 (2010). 1 BALMER, J. 1 This case concerns the proper application of stare decisis and requires us to 2 decide whether Collins v. Farmers Ins. Co., 312 Or 337, 822 P2d 1146 (1991), is still 3 good law. In Collins, this court held that an exclusion in a motor vehicle liability 4 insurance policy that purported to eliminate all coverage for a claim by one insured 5 against another insured under the same policy was unenforceable to the extent that it 6 failed to provide the minimum coverage required by the Financial Responsibility Law 7 (FRL), ORS 806.060 and ORS 806.070. Id. at 347. The exclusion, however, was 8 enforceable as to any coverage beyond that statutory minimum. Id. In this case, plaintiff, 9 Farmers Insurance Company, issued an insurance policy to defendant, Tosha Mowry, that 10 contained an exclusion identical to the exclusion in Collins. Defendant was injured in an 11 accident in which her friend -- a permissive user and thus an insured person under the 12 policy -- was driving. Plaintiff brought this action seeking a declaration that defendant 13 had $25,000 available in coverage under her policy -- the minimum coverage required by 14 the FRL for bodily injury to one person in any one accident. Defendant argues that her 15 coverage is $100,000, the insurance amount stated on the declarations page of her policy. 16 The parties filed cross-motions for summary judgment, and the trial court granted 17 plaintiff's motion and denied defendant's. The Court of Appeals affirmed in a per curiam 18 opinion that cited Collins. Farmers Ins. Co. v. Mowry, 236 Or App 236, 234 P3d 1098 19 (2010). We affirm. 20 The facts are undisputed. Plaintiff issued defendant a motor vehicle 21 liability insurance policy that provides liability coverage with limits of $100,000 per 22 2 person and $300,000 per occurrence. Exclusion 12(a) of the policy, however, states that 1 "coverage does not apply to * * * [l]iability for bodily injury to an insured person." The 2 policy defines an "insured person," in relevant part, as "you" or "[a]ny person using your 3 insured car." Thus, the policy provided insurance coverage for claims made against an 4 insured by third parties, but purported to exclude coverage for claims against an insured 5 made by other "insured persons" under the policy, such as family members or others 6 using the insured vehicle. 7 In 2005, defendant was injured in a collision while riding as a passenger in 8 her own vehicle, which her friend was driving. Under the insurance policy, defendant's 9 friend was an insured person. Defendant made a claim under the policy, but defendant 10 and plaintiff disagreed on the amount of coverage available for the claim. Plaintiff 11 contended that $25,000 was available -- the minimum amount required by the FRL -- 12 because exclusion 12(a) caused defendant's coverage to "drop down" from the otherwise 13 applicable per person liability coverage in the policy. Defendant sought coverage of 14 $100,000 -- the per person liability coverage stated on the declarations page of the policy. 15 As noted, the trial court and the Court of Appeals agreed with plaintiff, citing Collins. 16 Defendant sought review, arguing that Collins should be overruled because it was 17 wrongly decided and is in conflict with a more recent case, North Pacific Ins. Co. v. 18 Hamilton, 332 Or 20, 22 P3d 739 (2001). 19 We begin by reviewing the relevant statutes and then turn to this court's 20 3 decision in Collins. Under ORS 742.450(4) (2005), amended by Or Laws 2007, ch 782, § 1 1,1 "[e]very motor vehicle liability insurance policy issued for delivery in this state shall 2 provide liability coverage to at least the minimum limits specified in ORS 806.070." 3 ORS 806.070(2)(a) sets the minimum limit at "$25,000 [for] bodily injury to or death of 4 one person in any one accident." ORS 742.464 provides: 5 "Any policy which grants the coverage required for a motor vehicle 6 liability insurance policy under ORS 742.450, 806.080 and 806.270 may 7 also grant any lawful coverage in excess of or in addition to the required 8 coverage, and such excess or additional coverage shall not be subject to the 9 provisions of * * * [ORS] 742.450 to 742.464. With respect to a policy 10 which grants such excess or additional coverage only that part of the 11 coverage which is required by ORS 806.080 and 806.270 is subject to the 12 requirements of those sections." 13 Thus, an insurance policy may limit the coverage for some types of liability, including 14 insured-versus-insured claims, to the minimum limits required by the FRL even though 15 the policy provides greater coverage for other types of claims. 16 In Collins, Farmers issued a motor vehicle liability policy that was virtually 17 identical to the policy in this case, including a liability limit of $100,000 per person and 18 $300,000 per occurrence and an exclusion stating that "coverage does not apply to * * * 19 1 In 2007, the legislature amended ORS 742.450 by adding subsection (8): "Every motor vehicle liability insurance policy issued for delivery in this state shall contain a provision that provides liability coverage for each family member of the insured residing in the same household as the insured in an amount equal to the amount of liability coverage purchased by the insured." Aside from that amendment, which was not in effect at the time of the accident in this case, the legislature has not altered the provisions of any statute relevant to this case since Collins. Subsequent references to ORS 742.450 are to the 2005 version of the statute. 4 [l]iability for bodily injury to an insured person." Collins, 312 Or at 339 (boldface type 1 omitted). The plaintiff, a family member of the insured, was injured while a passenger in 2 the insured's car. As a family member of the insured, the plaintiff was an insured person 3 under the policy. Farmers notified the plaintiff that it would only provide $25,000 in 4 coverage, the minimum amount required by the FRL. The plaintiff asserted that the 5 absolute exclusion violated Oregon law and was therefore completely unenforceable. 6 The plaintiff argued that he was entitled to $100,000 in coverage, the full amount stated 7 on the declarations page of the policy. Id. at 340. 8 After describing the relevant components of the FRL, the court stated that 9 Oregon law implies in every motor vehicle liability insurance policy issued in the state a 10 provision that the policy includes the minimum coverage required by ORS 742.450, ORS 11 806.080, and ORS 806.270. Id. at 342. "Coverage other than that required by law may 12 be limited by any lawful exclusion." Id. at 343. More specifically, the court stated: 13 "The manifest purpose of ORS 742.464 is to permit an insurer to 14 write any other lawful coverage that the insurer wishes to write, in addition 15 to the required coverage. Such coverage may include higher limits than 16 those required by ORS 742.450 and 806.080. But as to such higher limits, 17 the mandatory requirements of ORS 742.450 and 806.080 do not apply. 18 The insurer may limit such additional coverage by any exclusion not 19 otherwise prohibited by law." 20 Id. at 342. 21 The court then examined whether the absolute exclusion for insured-versus- 22 insured claims in that policy -- an exclusion, as noted, identical to the one in this case -- 23 5 limited coverage to the FRL minimum. Because the law implies in every insurance 1 policy the minimum requirements of the FRL2 and because coverage beyond those 2 minimums could be limited by any lawful exclusion, the court held that the absolute 3 exclusion "although ineffective as to the first $25,000 of coverage, [was] effective as to 4 any coverage in addition to $25,000." Id. at 343. 5 A dissenting opinion in Collins argued at length that the plaintiff should 6 have had $100,000 of coverage under the policy. The dissent took issue with the 7 majority's interpretation of ORS 742.464. In its view, that statute required an insurance 8 policy to first grant the minimum coverage required by the FRL before the policy could 9 exclude excess coverage. Collins, 312 Or at 351 (Unis, J., dissenting). Because the 10 exclusion in Collins denied all coverage for insured-versus-insured claims instead of 11 granting the minimum required by the FRL, ORS 742.464 did not allow Farmers to 12 2 Unlike the policy in this case, the policy in Collins included a provision that "[p]olicy terms which conflict with laws of Oregon are hereby amended to conform to such laws." 312 Or at 343. The court, however, noted that that provision is merely an embodiment of ORS 742.038(2), which provides: "Any insurance policy issued and otherwise valid which contains any condition, omission or provision not in compliance with the Insurance Code, shall not be thereby rendered invalid but shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy been in full compliance with the Insurance Code." Thus, the court in Collins would have construed the policy to comply with Oregon law even had the policy not included the provision mention above. 312 Or at 343. See also Fleming v. United Services Automobile Assn., 329 Or 449, 459, 988 P2d 378 (1999) (ORS 742.038(2) "requires courts to construe an otherwise valid insurance policy to bring the policy into full compliance with the Insurance Code."). 6 exclude any excess coverage. Id. at 352. The dissent concluded: 1 "If the insurer wishes to exclude from excess coverage persons required * * 2 * to be covered for the statutory minimum, it must first affirmatively grant 3 the statutorily-required minimum coverage for those persons, ORS 4 742.464, and must state the limits of liability, ORS 742.450(1)." 5 Id. (emphasis omitted). 6 The dissent also voiced concern that the majority position would encourage 7 insurers to rely on automatic inclusion of the statutory minimum coverage in policies 8 they issue rather than writing policies that state precisely the actual coverage purchased 9 by the insured. "The danger is that an insured and other parties might assume that the 10 contract provisions are lawful and mean what they say and might thereby forgo making 11 claims for coverage that Oregon law requires insurance companies to provide." Id. at 353 12 (internal quotation marks and citation omitted). The dissent argued that such a result 13 "rewards an insurance company for selling an insurance policy that it did not certify 14 under [the FRL] and that it should have known did not comply with [the] FRL because it 15 contained an exclusion which improperly denied liability coverage required by [the] 16 FRL." Id. at 347-48. 17 In this case, defendant argues that we should overrule Collins because it 18 was wrongly decided and because Hamilton calls the reasoning of Collins into question. 19 Plaintiff, on the other hand, asserts that the principle of stare decisis prohibits this court 20 from overruling precedent without sufficient justification, which defendant, in plaintiff's 21 view, has not provided. Plaintiff argues that the issues raised by defendant were fully 22 considered by the Collins court and that Hamilton does not conflict with Collins. 23 7 Because the parties disagree about how stare decisis should be applied in 1 this case, we turn to a review of that doctrine. "[T]he principle of stare decisis dictates 2 that this court should assume that its fully considered prior cases are correctly decided. 3 Put another way, the principle of stare decisis means that the party seeking to change a 4 precedent must assume responsibility for affirmatively persuading us that we should 5 abandon that precedent." State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613 (2005). As 6 this court has often stated, the motivating force behind the doctrine of stare decisis is 7 "moral and intellectual, rather than arbitrary and inflexible." Stranahan v. Fred Meyer, 8 Inc., 331 Or 38, 54, 11 P3d 228 (2000) (quoting Landgraver v. Emanuel Lutheran, 203 9 Or 489, 528, 280 P2d 301 (1955)). 10 Our cases discussing stare decisis identify various considerations that this 11 court has weighed in deciding whether to follow or to overrule an earlier decision. We 12 have emphasized the "undeniable importance of stability in legal rules and decisions," 13 Stranahan, 331 Or at 53, an importance based on the values of predictability, fairness, 14 and efficiency that are furthered by adherence to precedents. But we also have 15 recognized "the need * * * to correct past errors," id., and to depart from precedent when 16 the statutory context for a particular decision has substantially changed, e.g., Holcomb v. 17 Sunderland, 321 Or 99, 105, 894 P2d 457 (1995), or when a party affirmatively 18 demonstrates that "an earlier case was inadequately considered or wrong when it was 19 decided." G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 20 (1988). Although our cases apply stare decisis differently in different contexts, as 21 discussed in greater detail below, it is a unitary doctrine that applies generally to this 22 8 court's decisions. Put differently, the same considerations underlie the presumption that 1 we will adhere to precedent whether the case involves constitutional interpretation, 2 statutory interpretation, or common-law rule -- but the import of those considerations will 3 vary depending on the case.3 4 Before returning to the parties' differing views on the application of stare 5 decisis in this case, we pause to sketch briefly our approach to stare decisis in several 6 common types of cases. In the area of constitutional interpretation, our cases emphasize 7 that decisions "should be stable and reliable," because the Oregon Constitution is "the 8 fundamental document of this state." Stranahan, 331 Or at 53. On the other hand, there 9 is a "similarly important need to be able to correct past errors" because "[t]his court is the 10 body with the ultimate responsibility for construing our constitution, and if we err, no 11 other reviewing body can remedy that error." Id. In Stranahan, this court went on to 12 3 We do not undertake in this opinion to identify an exhaustive list of "considerations" that may be appropriate in determining whether a particular precedent should be followed or abandoned. The circumstances in which stare decisis applies are simply too varied. We note, however, that in addition to the considerations discussed in this opinion, this court has inquired into the age of the precedent at issue and the extent to which it had been relied upon in other cases. See Ciancanelli, 339 Or at 290-91 (distinguishing Stranahan, where precedent being reconsidered was less than 10 years old and had been little relied upon, with precedent challenged there, which was more than 20 years old and had been followed in many cases). We also acknowledge that the "degree" of the error in the earlier case and the extent of any resulting injustice or harm have both played roles, although impossible to quantify, in our cases. See Severy/Wilson v. Board of Parole, 349 Or 461, 474, 245 P3d 119 (2010) (an earlier interpretation of statute may "be so deficient" that reexamination is appropriate) (emphasis added); Safeway Stores v. State Bd. Agriculture, 198 Or 43, 80, 255 P2d 564 (1953) (court may depart from erroneous precedents which result in "grievous wrong" or are "injurious or unjust in their operation") (quoting 21 CJS, Courts, § 193, 322). 9 describe the circumstances under which it would revisit an earlier decision interpreting 1 the Oregon Constitution: 2 "[W]e remain willing to reconsider a previous ruling under the Oregon 3 Constitution whenever a party presents to us a principled argument 4 suggesting that, in an earlier decision, this court wrongly considered or 5 wrongly decided the issue in question. We will give particular attention to 6 arguments that either present new information as to the meaning of the 7 constitutional provision at issue or that demonstrate some failure on the part 8 of this court at the time of the earlier decisions to follow its usual paradigm 9 for considering and construing the meaning of the provision in question." 10 331 Or at 54. See also Ciancanelli, 339 Or at 289-91, 321-22 (applying Stranahan; 11 rejecting effort to overturn 20-year-old precedent). 12 In applying the principle of stare decisis to common-law precedents, we 13 have relied upon similar considerations, although we have articulated them somewhat 14 differently. In G.L., for example, we listed three alternative bases, which, if affirmatively 15 asserted by a party, would "ordinarily" cause us to reconsider a nonstatutory rule or 16 doctrine: 17 "(1) that an earlier case was inadequately considered or wrong when it was 18 decided; (2) that surrounding statutory law or regulations have altered some 19 essential legal element assumed in the earlier case; or (3) that the earlier 20 rule was grounded in and tailored to specific factual conditions, and that 21 some essential factual assumptions of the rule have changed." 22 306 Or at 59 (citations omitted). 23 G.L., however, does not purport to cover all circumstances in which we will 24 revisit common-law precedent. Rather, G.L. identifies the typical grounds for 25 reconsidering a decision, namely where a decision was demonstrably wrong or where the 26 statutory or factual underpinnings of a decision have changed. G.L. has been criticized 27 10 for making the application of stare decisis too rigid. See Schiffer v. United Grocers, Inc., 1 329 Or 86, 104-05, 989 P2d 10 (1999) (Durham, J., concurring) (so stating); Keltner v. 2 Washington County, 310 Or 499, 512-13, 800 P2d 752 (1990) (Unis, J., dissenting) ("The 3 self-imposed rule of judicial restraint [adopted in G.L.] earns this court the dubious 4 distinction of being the only state in the union to limit its traditional judicial common 5 law-making authority so substantially."). But G.L. itself does not purport to establish a 6 rigid "rule" for applying stare decisis to common-law decisions; rather, it illustrates 7 common reasons that this court might be willing to reexamine precedent. 8 This court has addressed stare decisis as it applies to statutory 9 interpretation on a number of occasions, and not always consistently. At times we have 10 articulated a strict version of what is often referred to as the "rule of prior interpretation." 11 Under that rule, "[w]hen this court interprets a statute, the interpretation becomes a part 12 of the statute, subject only to a revision by the legislature." State v. King, 316 Or 437, 13 445-46, 852 P2d 190 (1993); see also Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 14 600 (1992) (same). That statement in King to the contrary notwithstanding, this court has 15 in fact declined to follow earlier decisions interpreting a statute when it has concluded 16 that changes to other statutes, which provide the context for the statute at issue, require 17 reconsideration of the prior decisions, see Holcomb, 321 Or at 105, and when it has been 18 persuaded that its earlier interpretation was seriously in error. See Severy/Wilson v. 19 Board of Parole, 349 Or 461, 474, 245 P3d 119 (2010). 20 The strict application of the rule of prior construction has long been 21 criticized as wrong in principle and unduly restrictive in practice, see State ex rel 22 11 Huddleston v. Sawyer, 324 Or 597, 638-44, 932 P2d 1145 (1997) (Durham, J., concurring 1 in part and dissenting in part) (critiquing rule of prior interpretation), and we take this 2 opportunity to review and, for the reasons that follow, disavow it. The modern 3 application of the rule first surfaced in State v. Elliott, 204 Or 460, 465, 277 P2d 754 4 (1955) (adopting rule), cert den, 349 US 929 (1955). When the rule was announced in 5 Elliot, the court did not explain why (or how) an interpretation of a statute becomes part 6 of the statute itself. Elliot simply asserted that a prior interpretation "became a part of the 7 statute as if written into it at the time of its enactment." 204 Or at 465. The authorities 8 Elliot cited for that proposition are of little help. The first, State ex inf. Harvey v. 9 Missouri Athletic Club, 261 Mo 576, 606, 170 SW 904, 912 (1914), stated the rule of 10 prior interpretation, but then declined to follow it because the prior case law was contrary 11 to the purpose of the statute in question. The second authority, an article from American 12 Jurisprudence, does not even discuss stare decisis and instead deals with the 13 interpretation of one state's statutes by courts in a different state. 14 The rule of prior interpretation, as articulated in Missouri Athletic Club, is 15 based on the theory of legislative acquiescence. 261 Mo at 605, 170 SW at 911. That 16 theory posits that a judicial decision interpreting a statute becomes ratified by legislative 17 silence and thus can only be changed by the legislature. Jack L. Landau, Some 18 Observations about Statutory Construction in Oregon, 32 Willamette L Rev 1, 18-19 19 (1996). Legislative acquiescence, however, is a legal fiction that assumes, usually 20 without foundation in any particular case, that legislative silence is meant to carry a 21 particular meaning -- as relevant here, affirmation of the judicial decision at issue. Id. at 22 12 19-20. In reality, the legislature may decline to address a judicial decision for any 1 number of reasons, none of which necessarily constitutes an endorsement of the 2 decision's reasoning or result; this court does not surrender its authority to reexamine a 3 prior interpretation of a statute merely because the legislature has been silent on the issue. 4 In Severy/Wilson, this court articulated a less rigid approach to precedent 5 interpreting a statute: 6 "Although this court makes every attempt to adhere to precedent, in 7 accordance with the doctrine of stare decisis, it has, from time to time, 8 found an earlier interpretation of a statute to be so deficient that it has 9 concluded that some reexamination of the prior statutory construction was 10 appropriate." 11 349 Or at 474. In Severy/Wilson, this court overruled a precedent that was "internally 12 inconsistent" and "ignore[d] the words of the statute." Id. Similarly, in Holcomb, this 13 court overruled precedent interpreting a statute when the stated bases for the prior case 14 did not apply to Holcomb, were no longer correct due to changes in the statutory context, 15 or provided only marginal support for the prior decision. 321 Or at 105. 16 Thus, our more recent cases discussing stare decisis have, appropriately, 17 abjured the strict rule of prior interpretation articulated in King and have instead relied 18 upon considerations similar to those that we have used in examining constitutional and 19 common-law precedents. That does not mean that we perceive no difference between our 20 task in interpreting a statute and our task in interpreting a constitutional provision or a 21 rule of common law. On the contrary, as discussed above, Stranahan makes the point 22 that, because this court is the ultimate interpreter of state constitutional provisions -- 23 subject only to constitutional amendment by the people -- if we have erred in interpreting 24 13 a constitutional provision, there is no one else to correct the error. That is not true in the 1 interpretation of statutes. Our responsibility in statutory interpretation is to "pursue the 2 intention of the legislature, if possible." ORS 174.020(1)(a). After we have interpreted a 3 statute, the legislature's constitutional role allows it to make any change or adjustment in 4 the statutory scheme that it deems appropriate, given this court's construction of the 5 statute (and, of course, subject to constitutional limitations). The legislature can -- and 6 often does -- amend a statute that this court has interpreted to clarify or change the statute 7 or otherwise to advance the policy objectives that the legislature favors. 8 For those reasons, we disavow the inflexible rule of prior interpretation as 9 set out in cases such as Elliott and King. In applying stare decisis to decisions construing 10 statutes, we will rely upon the same considerations we do in constitutional and common- 11 law cases, although, as noted, the weight given to particular considerations will not 12 necessarily be the same. 13 As the discussion above indicates, the application of stare decisis is not 14 mechanistic. Rather, stare decisis is a prudential doctrine that is defined by the 15 competing needs for stability and flexibility in Oregon law. Stability and predictability 16 are important values in the law; individuals and institutions act in reliance on this court's 17 decisions, and to frustrate reasonable expectations based on prior decisions creates the 18 potential for uncertainty and unfairness.4 Moreover, lower courts depend on consistency 19 4 As Justice Brandeis put it, "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it 14 in this court's decisions in deciding the myriad cases that come before them. Few legal 1 principles are so central to our tradition as the concept that courts should "[t]reat like 2 cases alike," H.L.A. Hart, The Concept of Law 155 (1st ed 1961), and stare decisis is one 3 means of advancing that goal. For those reasons, we begin with the assumption that 4 issues considered in our prior cases are correctly decided, and "the party seeking to 5 change a precedent must assume responsibility for affirmatively persuading us that we 6 should abandon that precedent." Ciancanelli, 339 Or at 290. We will not depart from 7 established precedent simply because the "personal policy preference[s]" of the members 8 of the court may differ from those of our predecessors who decided the earlier case. G.L., 9 306 Or at 59. 10 At the same time, this court's obligation when interpreting constitutional 11 and statutory provisions and when formulating the common law is to reach what we 12 determine to be the correct result in each case. If a party can demonstrate that we failed 13 in that obligation and erred in deciding a case, because we were not presented with an 14 important argument or failed to apply our usual framework for decision or adequately 15 analyze the controlling issue, we are willing to reconsider the earlier case. See 16 Stranahan, 331 Or at 54 (so stating). Similarly, this court is willing to reconsider cases 17 when the legal or factual context has changed in such a way as to seriously undermine the 18 be settled right." Brunet v. Coronado Oil & Gas Co., 285 US 393, 406, 52 S Ct 443, 76 L Ed 815 (1932) (Brandeis, J., dissenting.) 15 reasoning or result of earlier cases. See Holcomb, 321 Or at 105.5 1 With that discussion of stare decisis as background, we return to the parties' 2 arguments. Plaintiff asserts that Collins is a case involving statutory interpretation, and 3 so defendant's argument for overruling Collins should be summarily rejected under the 4 rule of prior interpretation. As we have discussed in detail above, we reject the rule of 5 prior interpretation. Defendant, on the other hand, contends that Collins was a case 6 involving contract interpretation and thus, for stare decisis purposes, should be reviewed 7 under the assertedly more flexible standard for common-law precedents set out in G.L. 8 Collins, in fact, relied on both common-law contract principles and 9 statutory interpretation. See Collins, 312 Or at 341 ("The only question before us 10 concerns the effect of exclusion 11(a). * * * ORS 742.464 answers the question."). In 11 Collins, as here, there was no question as to the amount of coverage required by statute; 12 the parties agreed that Farmers had to provide at least $25,000 in coverage for the 13 insured's injuries, the FRL minimum. The issue was whether the exclusion was valid as 14 to the additional coverage that the policy provided for some claims. Stated differently, 15 5 Although parties seeking to overturn an adverse precedent often argue that the case they challenge was erroneous at the time it was decided, that is not always necessary. Particularly in cases involving common-law rules, an earlier precedent may have not have been "wrong" when it was decided, but changes in other statutes and the evolution of the common law may lead this court to conclude that the earlier case should no longer be followed. See, e.g., Winn v. Gilroy, 296 Or 718, 733-34, 681 P2d 776 (1984) (abrogating common-law parental immunity because common-law developments and changed statutory context demonstrated that controlling precedent had been "superseded"). 16 the parties and the court agreed that ORS 472.464 allows an insurance policy to limit 1 coverage to the minimum required by the FRL for insured-versus-insured claims. The 2 question was whether the contractual exclusion had achieved that result. 3 Whether we consider Collins to be a common-law case or one of statutory 4 interpretation makes little difference here. The sole issue in this case is whether the rule 5 announced in Collins -- that a contractual exclusion for insured-versus-insured liability is 6 effective beyond the minimum limit set by the FRL -- should be overruled. Defendant's 7 basic argument is that Collins should be overruled because the case was wrong when 8 decided. Defendant does not argue that other considerations, such as a change in the 9 legal context or a change in the factual underpinnings of Collins, support reconsidering 10 and overturning that decision. In fact, the Insurance Code and the FRL did not change in 11 any relevant way between the time Collins was decided and when the accident leading to 12 this case occurred. Similarly, the essential facts in this case are identical to those in 13 Collins, so there is no difference in the factual setting to provide a basis to depart from 14 Collins. 15 In arguing that Collins was wrongly decided, defendant contends that the 16 Collins majority impermissibly rewrote the insurance policy in that case to grant the 17 coverage required by the FRL when the policy expressly excluded such coverage. 18 Defendant asserts that, under ORS 742.464, an insurer may exclude additional coverage 19 for insured-versus-insured claims only if the policy first grants at least the required 20 minimum coverage for those claims. However, Collins explicitly considered and rejected 21 that argument. See 312 Or at 343, 343 n 3. Moreover, as noted, defendant does not argue 22 17 that the statutory or factual context of this issue has changed, so that Collins, even if not 1 erroneous when decided, should no longer be followed. Rather, by raising only issues 2 that were considered and rejected in Collins, defendant actually demonstrates that the 3 Collins majority did in fact consider the arguments that she raises and that those 4 arguments were unpersuasive to a majority of this court. 5 We assume that fully considered prior cases were correctly decided, 6 Ciancanelli, 339 Or at 290, and defendant raises no argument that was not rejected by the 7 majority in Collins. As such, there is no principled reason for this court to overrule 8 Collins on the ground that the majority was wrong. See G.L., 306 Or at 59 ("judicial 9 fashion or personal policy preference" are not "sufficient grounds" to reverse well 10 established precedent). Were we writing on a blank slate, we might agree with defendant 11 that the Collins dissent had the better argument, but unless we ignore the doctrine of stare 12 decisis, that prospect is an insufficient basis for overruling Collins. 13 In the area of commercial transactions, we have noted that stability and 14 predictability strongly support adherence to precedent. Noonan v. City of Portland, 161 15 Or 213, 239, 88 P2d 808 (1939). That is so because parties rely on the rules of law 16 announced by this court to structure their transactions, and this court should not upend 17 those expectations without sufficient reason. See Wilson v. Willamette Industries, 280 Or 18 45, 52-53, 569 P2d 609 (1977) (so stating); Huddleston, 324 Or at 644 (Durham, J., 19 concurring in part and dissenting in part) (precedent interpreting statutes that govern 20 commerce "should not be reconsidered, except in the narrowest of circumstances, in 21 order to serve the public's strong need for stability in commercial transactions"). That 22 18 need for predictability and stability in commercial transactions provides further support 1 for adherence to precedent in this case. 2 We turn to defendant's contention that, despite Collins having decided the 3 precise issue presented in this case, we should rule in defendant's favor because of this 4 court's more recent decision in North Pacific Ins. Co. v. Hamilton, 332 Or 20, 22 P3d 739 5 (2001). In that case, following an accident, the insured filed a claim against the driver, a 6 family member, seeking the full coverage stated on the declarations page of the policy. 7 North Pacific responded that only $25,000, the FRL minimum, was available in liability 8 coverage under the policy. The policy contained a provision that North Pacific claimed 9 was intended to exclude excess coverage for insured-versus-insured claims beyond the 10 minimum amount required by the FRL. Id. at 22-23. The exclusion provided, "We do 11 not provide Liability Coverage for any person * * * [f]or bodily injury or property 12 damage to you or any family member to the extent that the limits of liability for this 13 coverage exceed the limits of liability required by the Oregon financial responsibility 14 law." Id. at 23 (boldface type omitted). That phrasing was an attempt by North Pacific to 15 embody the holding in Collins. Id. at 26. 16 This court, however, distinguished the exclusion in Hamilton from the one 17 in Collins, "which was worded as a simple, absolute exclusion from coverage." Id. at 27. 18 The Hamilton exclusion operated only "to the extent that the limits of liability for this 19 coverage exceed the limits required" by the FRL. Id. at 23. Hamilton thus required the 20 insured to look to the FRL to divine the circumstances in which the exclusion applied and 21 the attendant coverage. Even assuming that an insured was sufficiently sophisticated to 22 19 locate the FRL in the Oregon Revised Statutes, the words used by North Pacific in the 1 exclusion did not track the wording of the FRL, which does not contain the phrase "limits 2 of liability." Id. at 27-29. Further, as used in the policy, "limits of liability" referred to 3 the maximum amount of coverage available under the policy; yet the FRL makes no 4 mention of maximum limits of liability and instead sets the minimum amount of coverage 5 insurers are required to provide. Id. at 28-29. Accordingly, the court held that the 6 exclusion was so ambiguous as to be indecipherable: "[T]he ordinary purchaser of 7 insurance would not be able to determine what [the exclusion] means and, more 8 particularly, would not be able to determine that it is meant to reduce the limits of 9 liability for certain claimants below the amount that appears on the declarations page." 10 Id. at 29. Although Collins established that an insurer could limit liability to the FRL 11 minimum, the exclusion drafted by North Pacific had not done so. Id. 12 Following the methodology for interpreting insurance contracts set out in 13 Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 469, 836 P2d 703 (1992), 14 the court construed the ambiguous exclusion against North Pacific and held, as a matter 15 of insurance contract law, that the exclusion was not enforceable to any degree. 16 Accordingly, that provision was eliminated from the policy, and North Pacific was liable 17 for the full coverage listed on the declarations page. Hamilton, 332 Or at 29. 18 The parties agree that Hamilton did not expressly overrule Collins. Indeed, 19 Hamilton cited Collins as establishing "that an insurance company may write an 20 insurance policy that limits coverage" for insured-versus-insured claims to the FRL 21 minimum, id., and it contrasted the exclusion in Collins, which did just that, with the 22 20 ineffective exclusion in Hamilton. Id. at 27. Thus, at the time this court decided 1 Hamilton, it did not view the two cases as in conflict. Despite that fact, defendant argues 2 that Collins cannot be reconciled with the court's approach in Hamilton. In defendant's 3 view, in both cases, "the basic problem is that the insured is confused and misled." 4 Defendant's argument hangs on the notion that it is inconsistent for this 5 court to enforce an exclusion that did not accurately reflect Oregon law but to refuse to 6 enforce an exclusion that attempted to follow the law but did so in an ambiguous manner. 7 That perceived inconsistency, however, misses the mark. This court decided Hamilton 8 based on common-law principles of insurance policy interpretation. See Hamilton, 332 9 Or at 29 ("It is the insurer's burden to draft exclusions and limitations that are clear."). 10 The exclusion in that case was unenforceable because the insurer failed to draft it in a 11 comprehensible manner. Id. Collins, on the other hand, was decided based on the 12 conflict between an unambiguous exclusion that denied all coverage for insured-versus- 13 insured claims and the unambiguous statutory requirement for minimum coverage. 14 Because the exclusion was lawful under ORS 742.464 but the FRL imported a minimum 15 coverage of $25,000 into the policy, the exclusion remained effective, but only as to the 16 excess coverage granted by the policy. Collins, 312 Or at 343. Because Hamilton and 17 Collins were decided under distinct legal theories construing differently worded 18 exclusions, those cases do not directly conflict. 19 Even if we were to agree that Hamilton provides the proper approach to 20 examining the exclusion in this case, such an inquiry simply leads back to the question 21 posed by Collins, namely, the effect of an absolute exclusion for insured-versus-insured 22 21 claims. As a matter of contract law, exclusion 12(a)6 in this case is perfectly clear: the 1 insurer will provide no liability coverage for insured-versus-insured claims. Based on 2 that unambiguous phrasing, the intent of the parties was that no coverage would be 3 available. See Hoffman, 313 Or at 469 (goal of interpreting an insurance policy is to 4 determine the intent of the parties based on the terms and conditions of the policy). Thus, 5 in contrast to Hamilton, where the exclusion was unenforceable because it was 6 ambiguous, the exclusion here is unambiguous and thus valid as a matter of contract law. 7 The question then becomes whether and to what extent the exclusion is also valid under 8 the relevant statutes, and, as discussed above, Collins held that it was valid as to amounts 9 in excess of the statutory minimum. 10 Finally, defendant argues that the primary problem with the exclusion in 11 Hamilton was not that it was ambiguous but that it was misleading. In defendant's view, 12 because the absolute exclusions in this case and Collins are also "misleading" -- in that 13 the exclusions do not accurately reflect the coverage that the insurer is directed by law to 14 provide -- the absolute exclusions should be unenforceable as well. That argument, 15 however, disregards the reasoning in Hamilton. This court did not hold that the exclusion 16 in Hamilton was misleading; rather, the legally significant fact was that the insured could 17 not understand the meaning of the exclusion itself -- it was "incomprehensible." 18 Hamilton, 332 Or at 29. In this case, as in Collins, the exclusion is misleading only to the 19 6 Again, exclusion 12(a) states, "coverage does not apply to * * * [l]iability for bodily injury to an insured person." 22 extent that it is inconsistent with the coverage required by the Insurance Code and the 1 FRL. Collins resolved that inconsistency by holding that the exclusion was 2 unenforceable as to the minimum coverage required by those statutes, but enforceable as 3 to coverage in excess of that amount. Moreover, defendant does not allege that she was, 4 in fact, misled by exclusion 12(a) or that she relied on that exclusion to her detriment. 5 Nor did the plaintiff in Collins make such an allegation. 6 The proponent of overturning precedent bears the burden of demonstrating 7 why prior case law should be abandoned. Ciancanelli, 339 Or at 290. As noted, Collins 8 and Hamilton are not directly in conflict, and defendant advanced no argument that this 9 court has not previously considered for reaching a different result from that in Collins. 10 Defendant failed to carry the burden for overturning a fully considered precedent of this 11 court. 12 The decision of the Court of Appeals and the judgment of the circuit court 13 are affirmed. 14 1 DURHAM, J., specially concurring. 1 The central question posed by this case is whether this court should 2 continue to recognize the unfortunate decision in Collins v. Farmers Ins. Co., 312 Or 3 337, 822 P2d 1146 (1991), as a precedent under the court's doctrine of stare decisis. The 4 majority's answer -- that Collins is "still good law" ___ Or at ___ (slip op. at 1) -- should 5 not be taken as a compliment to either the reasoning or result adopted in that case. 6 Rather, the majority concludes that defendant's arguments for overturning Collins fall 7 short of meeting the requirements of stare decisis. 8 As I explain below, I join in the majority's conclusion, but not because 9 defendant has made an insufficient showing that Collins was decided erroneously. The 10 opposite is true. 11 The inquiry here, however, is broader than an assessment of whether 12 Collins was wrongly decided. We must evaluate, in addition, the extent to which the 13 Collins decision, even if erroneous, has caused parties, such as plaintiff, to rely justifiably 14 on the rule announced in Collins to conduct their commercial transactions in a way that 15 that case seems to permit. When viewed in that light, it appears that the Collins decision 16 gave approval to the marketing of motor vehicle liability insurance policies that, contrary 17 to law, explicitly eliminate all coverage for a claim by one insured against another 18 insured under the same policy. In short, plaintiff's argument -- that, in these 19 circumstances, the policy's minimum coverage of $25,000 for bodily injury to one person 20 in one accident is the limit of its obligation to defendant -- is supported by a prior 21 decision of this court in a virtually identical case. Although this court correctly has 22 2 declined to follow Collins in other coverage interpretation disputes, as discussed below, 1 the societal interest in the stability of commercial transactions that the doctrine of stare 2 decisis protects is especially strong when this court's precedent already has accepted, in 3 an identical dispute, plaintiff's request to partially enforce its absolute exemption. 4 Collins was a 4-to-3 decision in this court. Justice Unis authored a lengthy 5 dissenting opinion, which Justices Van Hoomissen and Fadeley joined. I will not repeat 6 all the points registered in the dissent. To be candid, it does not appear to this writer that 7 the majority and dissenting opinions succeeded in addressing the same issues. 8 According to the Collins majority, the issue in that case was whether a 9 motor vehicle liability policy afforded the statutorily required minimum coverage of 10 $25,000 for a claim by one insured party against another insured party under the same 11 policy, even though the policy contained an express exclusion of any coverage for that 12 kind of claim.1 The plaintiff argued that the exclusion in the policy was unenforceable 13 1 The Collins majority stated: "Under Oregon law, every motor vehicle liability insurance policy issued for delivery in Oregon must, at the least, provide coverage in the amounts required by statute. ORS 742.450.1" 312 Or at 340 (text of footnote omitted). In the footnote, the Collins majority opinion set out the text of the pertinent provisions of ORS 742.450, including subsections (1) and (2), and ORS 806.080. However, the court's sentence, quoted above, which purported to summarize what ORS 742.450 required "at the least," in fact distorted the text of that statute against the position of the insured. Id. As I explain, ORS 742.450 obligates the insurer to do more than "provide coverage in the amounts required by statute[,]" as Collins stated. Id. Subsections (1) and (2) both obligate the insurer, in issuing a motor vehicle liability insurance policy, to include in the policy an agreement that states the 3 because it violated the pertinent state statute, ORS 742.450, in two respects. 1 First, ORS 742.450(2) required the policy to "contain an agreement or 2 indorsement stating that, as respects bodily injury and death or property damage, or both, 3 the insurance provides * * * [t]he coverage described in ORS * * * 806.080 [i.e., $25,000 4 because of bodily injury to or death of one person in any one accident]." The plaintiff 5 pointed out that the policy in question failed to contain the required agreement; rather, it 6 expressly excluded coverage for that kind of claim when state law required the insurer to 7 expressly cover that kind of claim. 8 Second, ORS 742.450(1) provided: 9 "Every motor vehicle liability insurance policy issued for delivery in this 10 state shall state * * * the coverage afforded by the policy, * * * and the 11 limits of liability." 12 According to the plaintiff, the insurer's statutory obligation to state the coverage and the 13 limits of liability afforded by the policy in the policy itself protected the interest of the 14 insurance-consuming public in allowing policyholders to determine their policy's 15 coverage, as well as exclusions and exceptions to that coverage, from the face of the 16 policy and, thus, obviate the need to research insurance statutes to determine the extent of 17 coverage that the policy provides. The Collins court should have addressed whether the insurer could satisfy those aspects of subsections (1) and (2) by seeking a partial enforcement of its absolute policy exclusion. But the Collins majority opinion never addressed those matters, in part because the court improperly narrowed the issue under ORS 742.450, asking only whether the policy "provide[d] coverage in the amounts required by statute." Id. (emphasis added.) Thus, I do not agree that Collins considered but rejected the arguments that defendant raises here. 4 any coverage. 1 The Collins majority began by acknowledging only one aspect of ORS 2 742.450 on which the plaintiff relied: the duty under subsection (2) to provide coverage 3 in the amounts required by the statute. 312 Or at 340. The Collins majority then stated 4 that the "only question before us concerns the effect of exclusion 11(a). Is the exclusion 5 to be disregarded only as to the amount of the minimum liability coverage required by 6 ORS 742.450 (and ORS 806.080)? Or is the exclusion to be disregarded totally?" Id. at 7 341. The Collins majority proceeded to effectively reform the terms of the absolute 8 exclusion in the policy. In revising the policy's absolute exclusion in that manner, the 9 Collins majority disregarded this court's long-standing rule that the court will enforce the 10 policy's lawful terms as written and will not attempt to rewrite them, to suit one party's 11 preferences, through the guise of interpreting the policy. See Sitzman v. John Hancock 12 Mut. Life, 268 Or 625, 632, 522 P2d 872 (1974) ("we cannot rewrite the insurance policy 13 or construe the same beyond its clear language"). It concluded that the exclusion was not 14 effective as to the first $25,000 of coverage but was effective as to all coverage above 15 that statutorily required amount. Collins, 312 Or at 347. 16 The Collins majority never considered, much less interpreted, subsection 17 (1) of ORS 742.450, on which both the plaintiff and the dissent relied. Consequently, the 18 Collins majority never evaluated whether its theory of partial enforcement of the policy's 19 absolute exclusion still left the policy in violation of state law because the policy sold to 20 the plaintiff failed to state the coverage and limits of liability, as ORS 742.450(1) 21 required. 22 5 The Collins majority found support for its theory in ORS 742.464, which 1 provides: 2 "Any policy which grants the coverage required for a motor vehicle 3 liability insurance policy under ORS 742.450, 806.080 and 806.270 may 4 also grant any lawful coverage in excess of or in addition to the required 5 coverage, and such excess or additional coverage shall not be subject to the 6 provisions of ORS 742.031, 742.400 and 742.450 to 742.464. With respect 7 to a policy which grants such excess or additional coverage only that part of 8 the coverage which is required by ORS 806.080 and 806.270 is subject to 9 the requirements of those sections." 10 The Collins majority's reliance on that statute fails to support the ultimate 11 answer given in Collins. That is because the governing statute, ORS 742.450(1) and (2), 12 imposed two significant requirements, not one, on insurers that marketed motor vehicle 13 liability insurance policies in this state. Those requirements, as noted above, required the 14 delivered policy (1) to state the policy's coverage and limits of liability, and (2) to 15 contain an agreement providing (among other things) the $25,000 minimum coverage. 16 The Collins majority asserted that ORS 742.464 permitted the majority to read into the 17 defendant's policy a provision granting the minimum coverage of $25,000 required by 18 ORS 742.450(2) and ORS 806.080 (even though, obviously, the policy explicitly 19 excluded that coverage). 312 Or at 342-43. That approach, however, utterly fails to 20 address, and clearly does not satisfy, the equally important requirement in ORS 21 742.450(1) that the policy must state the coverage that it affords and the limits of liability 22 that apply, including statutorily required minimum coverage. The Collins majority gave 23 not a word of explanation about how a policy that explicitly denied any coverage for 24 insured-versus-insured claims nonetheless could satisfy the obligation to state expressly 25 6 in the policy that it granted the statutory minimum coverage for those claims. 1 As a result of the theory that the Collins majority adopted in the context of 2 insured-versus-insured claims, the insurance-consuming public lost the assurance that the 3 legislature sought to provide in ORS 742.450(1) and (2) -- that every motor vehicle 4 liability insurance policy will contain an agreement providing the statutorily mandated 5 coverage and that the policy will state the coverage and limits of liability in its text. The 6 Collins decision leaves consumers at a serious disadvantage, despite the legislature's 7 effort to protect them in those circumstances.2 If policyholders read their insurance 8 policies, they will learn only that their insurer has completely excluded any coverage of 9 an insured-versus-insured claim, even though state law requires the insurer to provide 10 minimum coverage of $25,000 for such a claim. The predictable effect of that 11 circumstance is that policyholders will not request coverage, which state law requires 12 insurers to provide, on insured-versus-insured claims. 13 2 For many decades, the Oregon legislature has required insurers to state in their motor vehicle liability policies the coverage that the policy affords and the limits of liability under the policy. See, e.g., ORS 486.540 (1953), which provided: "Every motor vehicle liability policy shall state * * * the coverage afforded by the policy * * * and the limits of liability, and shall contain an agreement or indorsement which provides that the insurance is provided thereunder in accordance with the coverage defined in this chapter as respects bodily injury and death or property damage, or both, and is subject to all the provisions of this chapter." The legislature consistently has retained those substantive statutory requirements although it has renumbered that statute several times during the intervening years. Those requirements now appear in ORS 742.450. It seems safe to say that the statutory rule that Collins modified was well-established Oregon law. 7 This court has declined to extend the rationale of Collins in later cases that 1 also involved broad policy exclusions and the minimum coverage requirement of the 2 Financial Responsibility Law (FRL), ORS 806.060, and ORS 806.070. In North Pacific 3 Ins. Co. v. Hamilton, 332 Or 20, 23, 22 P3d 739 (2001), the insurer sought to obtain the 4 benefit of the Collins rationale by drafting its motor vehicle liability insurance exclusion, 5 "Exclusion 10," which excluded claims by one insured family member against another 6 insured, to apply "to the extent that the limits of liability for this coverage exceed the 7 limits of liability required by the Oregon financial responsibility law." The Hamiltons, 8 husband and wife, were policyholders and named insureds. The husband was injured in 9 an automobile accident; the wife was the driver of the car. The policy provided for 10 $60,000 of coverage for each accident for bodily injury, and the husband requested that 11 coverage. The insurer refused, contending that Exclusion 10 limited any bodily injury 12 claim by one insured family member against another under the same policy to the 13 statutory minimum coverage of $25,000. The insurer argued that the wording of 14 Exclusion 10 was intended to embody the holding in Collins by confining any insured 15 family member claim to the minimum $25,000 coverage provided by statute. 16 The court in North Pacific adopted a markedly different analysis than that 17 used in Collins. Unlike in Collins, the North Pacific court focused on whether the insurer 18 had clearly phrased Exclusion 10. The court concluded that the exclusion was ambiguous 19 and, thus, unenforceable, stating: 20 "This court's decision in Collins establishes that an insurance 21 company may write an insurance policy that limits coverage in that manner, 22 but the policy in the present case does not do so." 23 8 Id. at 29. The court held that, because Exclusion 10 was ambiguous and unenforceable, 1 the insured husband was entitled to liability coverage in the amount of $60,000, as 2 provided by the policy for bodily injury claims generally. Id. 3 The North Pacific court's description of Collins as a case pertaining to 4 insurer authority to limit insured-versus-insured claims by the device of an exclusion is 5 not fully accurate. Rather, Collins addressed only the legal effect of the exclusion in that 6 case. 312 Or at 341. The Collins court concluded that "any lawful exclusion" could limit 7 "coverage other than that required by law[,]" with the consequence being that the 8 exclusion in Collins was not effective as to the first $25,000 of coverage but was 9 effective as to any coverage above $25,000. Id. at 343. 10 If the North Pacific court had had any continuing confidence in the 11 correctness of Collins, it easily could have held that Exclusion 10, at a minimum, was a 12 lawful, even if ambiguous, exclusion and that its inartful reference to the "limits of 13 liability for this coverage" did not obscure its exclusion of coverage exceeding that 14 "required by the Oregon financial responsibility law." North Pacific, 332 Or at 23. 15 Instead, unlike in Collins, the North Pacific court voiced a concern that the 16 ordinary purchaser of insurance would be unable to understand the scope of Exclusion 17 10. The North Pacific court concluded that Exclusion 10 was distinguishable from the 18 exclusion in Collins, because Exclusion 10 was so confusing that it failed to confine the 19 insurer's exposure to the $25,000 coverage required by statute. Id. at 29. 20 The court's effort in North Pacific to distinguish Collins leaves a curious 21 state of affairs in the law. Under Collins, if the insurer uses clear wording and expressly 22 9 excludes any coverage for insured-versus-insured claims, even though the law requires 1 $25,000 in minimum coverage for such claims, the court will partially enforce the 2 exclusion and confine the coverage to the $25,000 statutory minimum coverage. 3 However, under North Pacific, if the insurer's exclusion does not directly contradict the 4 statutorily mandated minimum coverage requirement, and merely expresses an exclusion 5 of coverage above statutory minimum amounts with some ambiguity, the court will not 6 enforce the exclusion at all and will permit the insured claimant to recover coverage up to 7 the limit stated on the declaration page for claims of bodily injury. 8 The court sought to explain the basis for that distinction in Wright v. State 9 Farm Mutual Auto. Ins. Co., 332 Or 1, 22 P3d 744 (2001), which the court decided on the 10 same date as North Pacific. In Wright, the automobile insurer asserted that its policy 11 excluded coverage for claims of bodily injury to insured family members. The wording 12 of the policy exclusion was similar to that examined in North Pacific. The policy 13 provided that it excluded any coverage for claims of bodily injury to the insured or "any 14 other insured or member of an insured's family residing in the insured's household [,] to 15 the extent the limits of liability of this policy exceed the limits of the liability required by 16 law." Id. at 6. Relying on that exemption, the insurer refused to pay any amount above 17 the minimum $25,000 coverage required by statute for the death of the insured plaintiffs' 18 son, who was killed in a collision in his parent's vehicle. The insurer argued that, because 19 the son resided in the plaintiffs' household, Collins required the court to construe the 20 policy to exclude coverage "to the extent that" it exceeded $25,000. Id. 21 This court followed North Pacific in concluding that the exemption was 22 10 unenforceable, and the reasoning that the court relied on is pertinent to our discussion of 1 Collins: 2 "We held in North Pacific that the wording of the foregoing 3 exclusion was ambiguous because it failed to provide proper notice to the 4 insured that liability coverage under the policy is limited to the statutorily 5 required minimum coverage for injured insureds and their family members. 6 Id. at 29. We construed the provision against the insurer, the party who 7 drafted the policy. Under that construction, we held that the insured was 8 entitled to liability coverage in the amount provided on the declarations 9 page of the policy. Id. at 29. 10 "The wording of the exclusion in the automobile policy in the present case 11 is as obtuse, if not more so, than the wording that we construed in North 12 Pacific. The reference in the exclusion to 'the limits of liability required by 13 law' does not inform a policyholder what limit, if any, is applicable in a 14 given situation and does not even direct the policyholder to a particular 15 body of law to find out what that limit is.[3] Resort to the context in which 16 the phrase is used in the exclusion, as well as to other provisions of the 17 policy, does not clarify the matter. The exclusion remains inherently 18 ambiguous, if not incomprehensible. As we did in North Pacific, we hold 19 that the exclusion in the automobile policy is unenforceable." 20 Wright, 332 at 7-8 (emphasis added). 21 According to North Pacific and Wright, the dispositive problem with the 22 exemptions in those cases was that they failed to clearly notify the insured that the policy 23 limited coverage to injured insureds and the insured's family members to the statutorily 24 required minimum coverage. That reasoning is sound, but it came too late to change the 25 3 The court's comment in Wright that the exemption under review "does not even direct the policyholder to a particular body of law to find out what that limit is" is dictum. Wright, 332 at 8. It is at least doubtful whether a policy would comply with the obligation in ORS 742.450(1) to state the policy's coverage and limits of liability by, for example, referring the policyholder to limits on coverage in the FRL without stating those limits in the policy. 11 incorrect reasoning applied in Collins. That is, if the court was not willing to enforce the 1 exclusions in North Pacific and Wright, where the insurer had attempted to limit claims 2 by injured insureds but stumbled in that effort due to ambiguous phrasing, certainly the 3 court should not have been willing to enforce the exemption in Collins, where the 4 exemption unambiguously and incorrectly stated that the policy afforded no coverage at 5 all for claims by injured insureds. In both circumstances, the policy wording "failed to 6 provide proper notice to the insured that liability coverage under the policy is limited to 7 the statutorily required minimum coverage[,]" Wright, 332 Or at 7, and, accordingly, the 8 result in each of the cases should have been the same. 9 Despite the virtually identical failure of notice to policyholders in Collins, 10 North Pacific, and Wright, this court chose not to overrule Collins in North Pacific and 11 Wright but to distinguish Collins instead. It was not essential to nullify Collins to reach a 12 correct answer in North Pacific and Wright. But we still must decide whether Collins has 13 continuing precedential force in this case, where the policy exemption is on all fours with 14 that examined in Collins. 15 The record indicates that, after Collins came down, plaintiff and other 16 insurers rewrote the pertinent exclusion for insured-versus-insured claims in their 17 automobile liability policies to incorporate exemptions similar or identical to those later 18 examined in North Pacific and Wright. After North Pacific and Wright declared that the 19 revised exemptions were ambiguous and ineffectual, because they failed to give notice to 20 policyholders that the policies limited coverage to $25,000, plaintiff again responded by 21 rewriting its exclusion to return to the absolute phrasing of the policy exemption 22 12 addressed in Collins. 1 The motivation for that revision is clear and is not seriously questioned by 2 defendant. By that tactic, plaintiff sought to claim that the revised exemption was 3 enforceable against any insured-versus-insured claim beyond the minimum coverage of 4 $25,000 required by state law, as Collins had held. Because this court had distinguished, 5 not overruled, Collins in North Pacific and Wright, plaintiff had no incentive to eliminate 6 the ambiguity in wording noted in North Pacific and Wright, and to give "proper notice to 7 the insured" as Wright put it, 332 Or at 7, so that the exemption would satisfy ORS 8 742.450(1) and (2) by stating accurately the policy's coverage and limits of liability. 9 As the majority indicates, this court considers a number of factors in 10 deciding whether to follow or to overrule a prior decision of this court. This court's 11 disagreement with the result reached in a prior case ordinarily is not an adequate 12 justification for overturning the prior decision. 13 Collins was an incorrect decision, in my view, because, as discussed above, 14 the court disregarded important parts of the pertinent statutory text and reached a result 15 that contradicts the legislature's intent to require insurers to state a policy's coverage and 16 limits on liability in the text of the policy itself. The court effectively rewrote the policy 17 exclusion, contrary to the court's ordinary interpretive methodology. The policy text 18 gave no notice to policyholders that the coverage, as rewritten by the court, was limited 19 to the $25,000 statutory minimum coverage. Those defects justify the conclusion that 20 Collins was wrong when this court decided it. 21 Other factors, however, also must be considered. Here, the record shows 22 13 that plaintiff relied on Collins in redrafting its automobile liability policy exemption and 1 in marketing its automobile liability policies. In fact, plaintiff restored to its exemption 2 the exact wording that this court had addressed in Collins. Under that circumstance, a 3 decision in this case to overrule Collins would upset the reasonable expectations of 4 plaintiff and, presumably, other insurers about the case law that governs the interpretation 5 of the exemption under review. 6 We also consider other factors. The legislature has not modified the 7 legislative or administrative scheme surrounding the exemption in question in a way that 8 might justify a reconsideration of Collins by this court.4 Collins, decided by this court in 9 1991, is neither a particularly old nor a particularly new opinion. Finally, because 10 Collins construed the terms of an automobile liability policy, that decision likely affected 11 a substantial number of commercial transactions in that form of insurance, as well as the 12 decision-making of governmental agencies and administrative policymakers who oversee 13 the regulation of the automobile insurance market in Oregon.5 14 4 The unchanged character of the legislative and administrative scheme since Collins was decided is not the same thing as so-called "legislative acquiescence." I do not rely at all on the latter, because the absence of an intervening legislative change does not signify legislative satisfaction with any court decision. 5 The record contains little information about the purported justification for an exclusion of coverage of insured-versus-insured claims from automobile liability policies. Defendant suggests that the exclusion is aimed at eliminating fraudulent claims. Certainly that is a proper goal. However, the exclusion paradoxically denies coverage for all claims, not only for fraudulent ones, despite the existence of ample evidence and good faith to support a claim by an injured insured and the existence of other effective means whereby an insurer can protect itself against a false or fraudulent claim. Those are 14 In my view, this is a circumstance in which the need for stability and 1 predictability in the automobile insurance industry, as well as the evidence of plaintiff's 2 reliance on the ruling, support adherence to Collins under the stare decisis doctrine, even 3 though Collins was wrongly decided. But I also urge the legislature to consider the 4 problems surrounding Collins, particularly the failure of that decision to heed the 5 legislature's efforts to assure that policyholders will receive reasonable notice, in the text 6 of their policies, if the policy confines its coverage of insured-versus-insured claims to 7 the minimum statutory coverage. 8 For the reasons stated above, I specially concur in the majority's decision. 9 De Muniz, C. J., and Walters, J., join in this opinion. 10 11 questions that are properly addressed by the legislature.

c15a72b67aaf32c437dffc6e687c1c2578f2b9da5e36d04f39b16a5f3e81da94

2011-09-09T00:00:00Z

3405299a-6577-4a9b-80bd-a6b4207aad89

Oregon v. Ryan

S059065

oregon

Oregon Supreme Court

Filed: September 9, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. JOHN NORMAN RYAN, Respondent on Review. (CC 070749206; CA A137536; SC S059065) En Banc On review from the Court of Appeals.* Argued and submitted on June 8, 2011. Janet A. Klapstein, Senior Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Kenneth A. Kreuscher, Portland Law Collective, Portland, argued the cause argued the cause and filed the brief for respondent on review. Margaret Garvin, Alison Wilkson, Robin J. Selig, and Janine Robben, filed a brief on behalf of amici curiae National Crime Victim Law Institute, Oregon Law Center, and Oregon Crime Victims Law Center. DE MUNIZ, C. J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. Kistler, J., concurred and filed an opinion. *Appeal from Multnomah County Circuit Court, Youlee Y. You, Judge. 237 Or App 317, 239 P3d 1016 (2010). 1 DE MUNIZ, C. J. 1 This case involves the intersection of free speech rights under Article I, 2 section 8, of the Oregon Constitution, and the crime of violating a stalking protective 3 order, ORS 163.750. Defendant violated the terms of a stalking protective order by 4 contacting the victim through a third party and was subsequently found guilty by a jury 5 of two counts of violating ORS 163.750. The Court of Appeals reversed defendant's 6 convictions. That court reasoned that Article I, section 8, required that ORS 163.750 be 7 judicially narrowed to require "an unequivocal threat of the sort that makes it objectively 8 reasonable for the victim to believe that he or she is being threatened with imminent and 9 serious physical harm," and so the state had failed to meet its burden of proof on both 10 counts. State v. Ryan, 237 Or App 317, 325, 239 P3d 1016 (2010). On review, we 11 reverse the Court of Appeals and affirm defendant's judgment of conviction. We hold 12 that, because defendant's communications with the victim were already prohibited by the 13 stalking protective order, the state was not required by Article I, section 8, to prove under 14 ORS 163.750 that defendant had communicated an unequivocal threat to the victim. 15 The pertinent facts are not disputed. Because the trial court denied 16 defendant's motion for judgment of acquittal, we state the facts in the light most favorable 17 to the state. See, e.g., State v. Casey, 346 Or 54, 56, 203 P3d 202 (2009) (stating 18 standard). 19 The victim is an editor with the Portland Tribune, a weekly newspaper. In 20 2005, the newspaper sponsored a social event to which the public was invited. Defendant 21 attended the event, although the victim does not recall meeting defendant there. 22 2 Soon afterward, defendant began writing to the victim. Among other 1 things, defendant's letters seemed to assume that he and the victim were involved in a 2 relationship. In one letter, defendant described himself and the victim as being "'like a 3 modern Romeo and Juliet.'" After the victim wrote about her seven-year-old son in the 4 paper, defendant sent a letter stating that he would "'like your son to come with us on 5 these dates,'" although there were no dates. In another letter, defendant stated that his life 6 was "'very much like a real life computer virus that affects people, malicious 7 contamination, then anyone can be infected.'" Defendant did not in any of those 8 communications expressly threaten to harm the victim or her family. 9 After the letters started, they began coming more frequently, sometimes 10 several per week, and defendant began to show up at the newspaper office asking for the 11 victim. Defendant also left the victim phone messages, both at her home and at her work. 12 Defendant located the victim's parents and went to their house. The victim, her 13 coworkers, and her fiancé repeatedly told defendant to stop attempting to contact the 14 victim. 15 The victim became concerned that defendant might become violent if his 16 fantasies of a relationship with the victim were dispelled. She was also frightened by 17 defendant's references in his letters to her son and by the fact that defendant had 18 discovered where her parents lived. On March 14, 2007, the victim obtained a temporary 19 3 stalking protective order against defendant.1 1 The temporary stalking protective order directed defendant "to stop any 2 contact with the person protected by this order, and any attempt to make contact with the 3 person protected by this order." (Capitalization deleted.) The order also defined 4 "contact," as including, among other things,"[c]ommunicating with the other person by 5 any means, including through a third person." See ORS 30.866(2) (temporary stalking 6 protective order "may include, but is not limited to, all contact listed in ORS 163.730"); 7 ORS 163.730(3)(f) (defining "contact" to include "[c]ommunicating with the other person 8 through a third person"). Defendant received notice of the order. 9 Nevertheless, defendant continued to attempt to contact the victim, using 10 her father as a "filter" to avoid communicating with her directly. On or about May 7, 11 2007, defendant sent a letter to the victim's father. Defendant asked the father to thank 12 the victim "for her support and answering questions regarding intuition and gifted 13 people," and to "wish her a happy Mother's Day * * * as appropriate." Defendant 14 enclosed a copy of a letter to a local pastor. Among other things, the letter stated: 15 1 The temporary order later became permanent, albeit after the events at issue in this case. See Van Buskirk v. Ryan, 233 Or App 170, 225 P3d 118, rev dismissed, 348 Or 218 (2010) (affirming on appeal that permanent stalking protective order). In Van Buskirk, the Court of Appeals agreed with the defendant that his communications alone did not provide a basis for the entry of the stalking protective order. However, that court sustained the entry of the stalking protective order, reasoning that "[i]n light of [defendant's] many communications, the noncommunicative contacts form a pattern of behavior that made [the victim's] apprehension reasonable." Id. at 177. 4 "Indications are that [the victim] would like a love so strong, so 1 realistic and grounded that it will grow in splendor and last until we die. I 2 would like this as well and believe I am uniquely suited to the task." 3 On or about May 14, 2007, defendant had a package delivered to the 4 victim's father's workplace. The package contained a Mother's Day card, a music CD, 5 and another letter. The letter referred to defendant's several attempts to contact the victim 6 through intermediaries, including forwarding a dozen roses as a Mother's Day gift. The 7 letter also asked the victim's father to pass along to the victim, defendant's "thanks, as 8 appropriate," and his "gratitude, if appropriate." 9 On July 30, 2007, defendant was charged under ORS 163.750 with three 10 counts of violating a stalking protective order. At trial, defendant moved for judgment of 11 acquittal on each charge on the ground (among others) that Article I, section 8, required 12 the state to prove (in addition to the stated elements of the crime) that he had made an 13 unequivocal threat that caused the victim to fear imminent and serious personal violence, 14 and that the threat was objectively likely to be followed by illegal acts. See State v. 15 Rangel, 328 Or 294, 303, 977 P2d 379 (1999) (imposing a similar limitation on the crime 16 of stalking under ORS 163.732, when communications formed the factual basis for that 17 crime). The trial court denied defendant's motion, and later denied defendant's request 18 for a jury instruction that would have required the jury to find the same additional 19 elements. The jury found defendant guilty of two counts relating to the May 7 and May 20 14 letters, and acquitted defendant of a third count. 21 Defendant appealed to the Court of Appeals, renewing his argument that his 22 communications to the victim were protected by Article I, section 8, because they did not 23 5 involve the level of threats identified by this court in Rangel. The Court of Appeals 1 agreed. After reviewing the opinion in Rangel, the court concluded that Article I, section 2 8, protected communications otherwise prohibited by ORS 163.750, unless those 3 communications involved an unequivocal threat that created "'fear of imminent and 4 serious personal violence * * * and is objectively likely to be followed by unlawful acts.'" 5 Ryan, 237 Or App at 325 (alteration in original; quoting Rangel, 328 Or at 303). Because 6 none of the communications for which defendant was convicted contained such threats, 7 237 Or App at 325, the Court of Appeals concluded that the trial court should have 8 granted defendant's motion for judgment of acquittal as to those counts. Id. at 328. One 9 judge concurred, but wrote separately to express her view that Rangel was too restrictive 10 when applied to stalking. Id. at 329 (Rosenblum, P. J., concurring). 11 We allowed the state's petition for review to consider, in the context of 12 defendant's overbreadth challenge, the extent to which the free speech rights analysis of 13 Rangel may apply to the crime of violating a stalking protective order. To answer that 14 question, we begin with the applicable statutes. 15 A person may obtain a stalking protective order in two ways. One method 16 involves filing a complaint with law enforcement. See ORS 163.735 - 163.744 (outlining 17 procedure). The other method -- the one used by the victim in this case -- does not 18 require law enforcement involvement. The victim instead directly petitions the circuit 19 court to issue a civil stalking protective order. ORS 30.866. 20 Under either method, however, the standard for issuing a stalking protective 21 order is the same. The circuit court must find that: 22 6 "(a) The person intentionally, knowingly or recklessly engages in 1 repeated and unwanted contact with the other person or a member of that 2 person's immediate family or household thereby alarming or coercing the 3 other person; 4 "(b) It is objectively reasonable for a person in the victim's situation 5 to have been alarmed or coerced by the contact; and 6 "(c) The repeated and unwanted contact causes the victim reasonable 7 apprehension regarding the personal safety of the victim or a member of the 8 victim's immediate family or household." 9 ORS 30.866(1); see ORS 163.738(2)(a)(B) (identical).2 10 When the trial court enters a stalking protective order, it may prohibit any 11 contact between the defendant and the victim: 12 "In the order, the court shall specify the conduct from which the 13 respondent is to refrain, which may include all contact listed in ORS 14 163.730 and any attempt to make contact listed in ORS 163.730." 15 ORS 163.738(2)(b); see ORS 30.866(3)(a) (for civil stalking protective orders, trial court 16 may "enter a court's stalking protective order and take other action as provided in ORS 17 163.738"); ORS 30.866(2) (temporary civil stalking protective order "may include, but is 18 not limited to, all contact listed in ORS 163.730"). A stalking protective order that 19 prohibits "contact" may reach any number of ways in which a defendant could interact 20 with a victim. See ORS 163.730(3) (defining "contact").3 "Contact" includes almost any 21 2 In this case, defendant was charged with misconduct that occurred while he was subject to a temporary stalking protective order. Such temporary stalking protective orders are authorized by statute. See ORS 30.866(2) (civil stalking protective orders); ORS 163.738(2)(a)(A) (criminal stalking protective orders). The temporary nature of the stalking protective order is not relevant to any of the issues presented in this case. 3 ORS 163.730 provides, in part: 7 form of communication with the victim, including writing or speaking to the victim in 1 any way or contacting the victim through a third party. ORS 163.730(3)(d) - (f). 2 An order incorporating that statutory prohibition on communications in 3 theory could implicate Article I, section 8. However, defendant presents a hybrid 4 overbreadth challenge to ORS 163.750 that argues inconsistently about the legal 5 "(3) 'Contact' includes but is not limited to: "(a) Coming into the visual or physical presence of the other person; "(b) Following the other person; "(c) Waiting outside the home, property, place of work or school of the other person or of a member of that person's family or household; "(d) Sending or making written or electronic communications in any form to the other person; "(e) Speaking with the other person by any means; "(f) Communicating with the other person through a third person; "(g) Committing a crime against the other person; "(h) Communicating with a third person who has some relationship to the other person with the intent of affecting the third person's relationship with the other person; "(i) Communicating with business entities with the intent of affecting some right or interest of the other person; "(j) Damaging the other person's home, property, place of work or school; "(k) Delivering directly or through a third person any object to the home, property, place of work or school of the other person; or "(L) Service of process or other legal documents unless the other person is served as provided in ORCP 7 or 9." 8 significance of the court's order in this case. On the one hand, defendant asserts that he 1 does not in this case challenge any aspect of the stalking protective order itself. 2 Furthermore, defendant concedes that violation of a stalking protective order may be 3 punished by contempt without violating Article I, section 8. As defendant stated in his 4 brief, "defendant here does not attack the validity of the underlying stalking protective 5 order and does not argue that he is free simply to ignore the protective order." (Emphases 6 in original.) On the other hand, he invites the court to assume that the order here was 7 indisputably unlawful, because it reached protected speech. But defendant cannot have it 8 both ways. As we conclude below, defendant cannot succeed in his asserted facial 9 challenge for overbreadth by pointing to the terms of the unchallenged court order in this 10 case. 11 Defendant challenges only his conviction for the crime of violating a 12 stalking protective order, ORS 163.750. That statute provides, in part: 13 "(1) A person commits the crime of violating a court's stalking 14 protective order when: 15 "(a) The person has been served with a court's stalking protective 16 order as provided in ORS 30.866 or 163.738 or if further service was 17 waived under ORS 163.741 because the person appeared before the court; 18 "(b) The person, subsequent to the service of the order, has engaged 19 intentionally, knowingly or recklessly in conduct prohibited by the order; 20 and 21 "(c) If the conduct is prohibited contact as defined in ORS 22 163.730(3)(d), (e), (f), (h) or (i), the subsequent conduct has created 23 reasonable apprehension regarding the personal safety of a person protected 24 by the order. 25 "(2)(a) Violating a court's stalking protective order is a Class A 26 misdemeanor." 27 9 Ordinarily, the crime of violating a stalking protective order requires only 1 intentional, knowing, or reckless disobedience of the order after it has been served (or 2 service has been waived). ORS 163.750(1)(a) - (b). When certain types of misconduct 3 are involved, however, the state also must prove that the misconduct created a reasonable 4 apprehension for the personal safety of a person protected by the stalking protective 5 order. ORS 163.750(1)(c). The types of misconduct requiring that additional proof of a 6 reasonable apprehension for personal safety -- i.e., misconduct involving the forms of 7 contact described by ORS 163.730(3)(d), (e), (f), (h), or (i) -- all involve a defendant's 8 communication with the victim.4 Thus, the statute does criminalize certain speech, 9 although it reflects some sensitivity to free speech rights by requiring that the state prove 10 an additional element -- reasonable apprehension regarding personal safety of a person 11 4 The forms of conduct that require additional proof are: "(d) Sending or making written or electronic communications in any form to the other person; "(e) Speaking with the other person by any means; "(f) Communicating with the other person through a third person; "* * * * * "(h) Communicating with a third person who has some relationship to the other person with the intent of affecting the third person's relationship with the other person; [or] "(i) Communicating with business entities with the intent of affecting some right or interest of the other person[.]" ORS 163.730(3)(d), (e), (f), (h), & (i). 10 protected by the order. 1 In this case, defendant was convicted of one of the communicative types of 2 misconduct -- communicating with the victim through a third person, ORS 163.730(3)(f) 3 -- requiring the state to also prove that defendant's conduct created a reasonable 4 apprehension regarding the personal safety of the victim. Defendant asserts, however, 5 that the additional proof requirement for communicative activity required by the statute is 6 not sufficient to comply with Article I, section 8. According to defendant, unless ORS 7 163.750 is judicially narrowed to require proof of an unequivocal threat making it 8 objectively reasonable for the victim to fear imminent and serious personal violence from 9 the speaker, the statute is overly broad and violates his right to free speech under Article 10 I, section 8.5 More specifically, defendant relies on this court's interpretation of Article I, 11 section 8, in Rangel. We turn to that case. 12 Rangel involved a challenge to the constitutionality of a related statute, 13 ORS 163.732, which defines the crime of stalking. Briefly, that statute makes it a crime 14 to knowingly alarm or coerce a victim by engaging in repeated, unwanted contacts that 15 reasonably alarm or coerce the victim and that also create a reasonable fear for personal 16 5 Article I, section 8, of the Oregon Constitution provides: "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.-" 11 safety.6 The stalking statute uses the same statutory definition of "contact" as the crime 1 at issue in this case. ORS 163.730(3). Thus, the stalking statute could be violated by 2 communicative activity. 3 In Rangel, the court began by noting that ORS 163.732 was directed at a 4 forbidden effect -- repeated and unwanted contacts -- and expression was one means by 5 which that forbidden effect could be produced. 328 Or at 298-99. Accordingly, the court 6 had to consider whether the statute was overbroad -- specifically, "whether [the statute] 7 reaches privileged communication and, if it does so more than rarely, then whether a 8 narrowing construction is possible to save it from overbreadth." Id. at 299 (footnote 9 omitted). Given the expansive definition of "contact" under ORS 163.730(3), the court 10 concluded that the crime of stalking could reach "protected expression in a variety of 11 political and social settings," and that those instances would not be rare. 328 Or at 301- 12 02. 13 6 Specifically, ORS 163.732(1) provides: "A person commits the crime of stalking if: "(a) The person knowingly alarms or coerces another person or a member of that person's immediate family or household by engaging in repeated and unwanted contact with the other person; "(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and "(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household." 12 Having concluded that ORS 163.732 was overbroad, the Rangel court 1 turned to "whether we can interpret the stalking statute to eliminate any overbreadth 2 while maintaining reasonable fidelity to the legislature's words and apparent intent." 328 3 Or at 302. The court concluded that it could. The crime of stalking requires that the 4 defendant knowingly alarm or coerce the victim, and the court determined that both alarm 5 and coercion require a threat. Id. at 302-03. The court reasoned that, to pass 6 constitutional scrutiny under Article I, section 8, that threat must "instill[] in the 7 addressee a fear of imminent and serious personal violence from the speaker," must be 8 "unequivocal," and must be "objectively likely to be followed by unlawful acts." 328 Or 9 at 303; see id. at 306 (summarizing court's conclusion). After judicially narrowing ORS 10 163.732 to reach only those kinds of unequivocal threats, the court concluded that the 11 statute was not overbroad under Article I, section 8. 328 Or at 306. 12 Defendant contends -- and the Court of Appeals agreed -- that the Rangel 13 analysis applies equally to the statute at issue in this case, ORS 163.750. Specifically, 14 defendant asserts that the statute at issue here is overbroad. He agrees that the statute 15 would be constitutional if judicially narrowed to apply only to the sort of unequivocal 16 threat described in Rangel. However, defendant argues, because the state offered no 17 proof that defendant had made the kind of unequivocal and imminent threat that Rangel 18 requires, the trial court should have granted his motion for judgment of acquittal on each 19 of the counts for which he was convicted. 20 The state responds that defendant is making an impermissible collateral 21 attack on the underlying stalking protective order. This court has previously explained 22 13 that a party may be punished by contempt for disobeying a court order, even if the order 1 was erroneous or exceeded the court's authority: 2 "If a court has jurisdiction over the parties and the subject matter, and its 3 order or decree is not complied with, that court may hold the noncomplying 4 party in contempt even if it later appears that the original order or decree 5 was either erroneous or in excess of the court's authority. The integrity of 6 the judicial process demands compliance with court orders until such time 7 as they are altered by orderly appellate review. Litigants are not entitled to 8 sit in judgment on their own cases, and they must follow the appropriate 9 channels for review of decisions they believe to be invalid. Unless and 10 until an invalid order is set aside, it must be obeyed. Only when there has 11 been no other opportunity to raise the issue can the validity of the 12 underlying order be litigated in a subsequent contempt proceeding." 13 State ex rel Mix v. Newland, 277 Or 191, 200, 560 P2d 255 (1977). 14 Although defendant was not charged with contempt, the state contends that 15 the same principle applies here. If defendant wanted to challenge the constitutionality of 16 the stalking protective order, the state maintains, he should have done so on direct appeal, 17 not by disobeying the order and then challenging his subsequent conviction for violating 18 ORS 163.750.7 19 Defendant does not dispute the rule cited by the state. Instead, he counters 20 that the doctrine does not apply here, because he claims that he does not challenge the 21 stalking protective order. As we noted previously, defendant stated that he "does not 22 attack the validity of the underlying stalking protective order and does not argue that he is 23 7 As noted previously, defendant did challenge the validity of the stalking protective order and the Court of Appeals sustained the entry of the order. See ___ Or at ___ n 1 (slip op at 3 n 1). 14 free simply to ignore the protective order." (Emphases in original.) He made the same 1 concession in the trial court and in the Court of Appeals.8 Yet, he argues, inconsistently, 2 that this court should recognize that the trial court's order in this case limits speech to a 3 greater degree than Rangel allowed and was unlawful for that reason. Defendant asserts 4 that, even if we accept his argument, "the underlying protective order will be unchanged." 5 Defendant also suggests in his brief, and later conceded at oral argument, that he could 6 constitutionally be held in contempt for violating the stalking protective order. Despite 7 defendant's somewhat inconsistent arguments here, we agree with defendant that his 8 concession that the stalking protective order is valid and constitutional answers the state's 9 8 At trial, the following colloquy occurred: "[THE STATE:] If [defendant] is suggesting that the Stalking Order itself is -- is in error, then -- then that's -- that's a case for another Court. We're saying there is -- there is a live and valid Stalking Order which prohibits any contact. "THE COURT: Okay. And let me ask [defendant], what's your response to that? Because aren't you just challenging the underlying validity of the Stalking Protective Order? "[DEFENDANT:] I am not. "THE COURT: And -- and isn't the -- I mean, isn't the Order itself saying that you may not have contact? I mean, the Order * * * doesn't -- itself exclude protected speech. It says, 'No contact.' "[DEFENDANT:] And, Your Honor, if the State brought a Contempt of Court charge against my client because my client violated an Order of the Court, that's one thing. And they do that in Violating Restraining Order cases, where there is no constitutional issue because it is a clear Contempt." 15 argument that defendant is making an impermissible collateral attack on the stalking 1 protective order. As we will explain, ORS 163.750 is not overbroad, at least in the 2 context of the particular arguments that defendant makes. 3 "An overbroad statute is one that proscribes speech or conduct that the 4 constitution protects." Rangel, 328 Or at 299 (citation omitted). The crime at issue here, 5 ORS 163.750, applies only to those communications already prohibited by the stalking 6 protective order. (In fact, it only applies to a subset of those prohibited communications - 7 - those that create a "reasonable apprehension regarding the personal safety of a person 8 protected by the order.") The statute does not apply to any communications not already 9 prohibited by a stalking protective order. 10 Defendant suggested in his brief, and later conceded at oral argument, that 11 he could constitutionally be held in criminal contempt for violating the stalking protective 12 order. Like criminal contempt, ORS 163.750 punishes a person for violating a court 13 order. The restriction on defendant's speech rights occurred (if at all) when the trial court 14 entered a stalking protective order that barred defendant from communicating with the 15 victim in any way. As explained above, ORS 163.750 does not reach any speech not 16 otherwise prohibited by the concededly lawful order. Therefore, a defendant who seeks 17 to challenge a conviction under ORS 163.750 on free speech grounds first must 18 successfully attack the underlying stalking protective order. Because defendant conceded 19 the validity of the stalking protective order in this criminal proceeding, his 20 16 communications to the victim in violation of the order were not protected by Article I, 1 section 8. 9 2 We conclude that the trial court correctly denied defendant's motion for 3 judgment of acquittal on the two counts for which he was convicted.10 4 The decision of the Court of Appeals is reversed. The judgment of the 5 circuit court is affirmed. 6 7 9 As noted earlier, defendant did challenge the constitutional validity of the stalking protective order and that challenge was rejected by the Court of Appeals. See ___ Or at ___ n 1 (slip op at 3 n 1). We express no opinion on the proper mechanism or procedure for challenging the constitutional validity of a previously entered stalking protective order in the context of a subsequent criminal prosecution. 10 Although the Court of Appeals did not reach a second assignment of error by defendant, we conclude that no remand is necessary here. The defendant's second assignment of error relied on the same legal argument to assert that the trial court should have instructed the jury that it could not convict without finding the sort of unequivocal threat described in Rangel. Our reasoning here disposes of that second assignment of error as well. 1 KISTLER, J., concurring. 1 I join the majority's opinion but write separately to address one aspect of 2 defendant's overbreadth argument. ORS 163.750(1) makes it a crime to violate a stalking 3 protective order if (a) the person has been served with a copy of the order, (b) the person 4 "intentionally, knowingly or recklessly engages in conduct prohibited by the order," and 5 (c) if the prohibited conduct was communicative, the conduct created a "reasonable 6 apprehension regarding the personal safety of [the] person protected by the [stalking 7 protective] order." 8 In this case, the stalking protective order prohibited defendant from having 9 any contact, communicative or otherwise, with the victim. As the majority notes, 10 defendant does not argue that the stalking order in this case violates Article I, section 8, 11 nor would such an argument be an easy one to make. The stalking order that gives rise to 12 this case is speech-neutral. It prohibits defendant from having "any contact" with the 13 victim without regard to what defendant might or might not say, or even if he says 14 nothing at all. Cf. United States v. O'Brien, 391 US 367, 377, 88 S Ct 1673, 20 L Ed 2d 15 672 (1968) (explaining when a speech-neutral law may be applied to expressive conduct 16 consistently with the First Amendment). Defendant also does not argue, correctly in my 17 view, that ORS 163.750 would violate Article I, section 8, if all that statute did was to 18 make it a crime to violate the stalking protective order in this case. Because a stalking 19 protective order that prohibits a person from having any contact with the victim does not 20 violate Article I, section 8, punishing a person for violating that order cannot give rise to 21 an Article I, section 8 violation. 22 2 Defendant appropriately focuses his argument more narrowly on ORS 1 163.750(1)(c). As noted, that subsection provides that, when the conduct that violates a 2 stalking protective order involves communication, the state must show that that "conduct 3 created reasonable apprehension regarding the personal safety of a person protected by 4 the order." Defendant argues that, because subsection (1)(c) makes speech an element of 5 the crime, that subsection must be scrutinized for overbreadth. See State v. Plowman, 6 314 Or 157, 164, 838 P2d 558 (1992) (quoting State v. Robertson, 293 Or 402, 417-18, 7 649 P2d 569 (1982)). Defendant contends that, to avoid overbreadth, we should construe 8 subsection (1)(c) narrowly, in the same way that this court construed a comparable 9 subsection of a related statute in State v. Rangel, 328 Or 294, 306, 977 P2d 379 (1999). 10 Although the subsection at issue in this case and the subsection at issue in 11 Rangel are worded similarly, they serve different functions. The subsection at issue in 12 Rangel defined the predicate acts necessary to prove the crime of stalking. See id. at 296 13 (setting out ORS 163.732(1)(c)). By contrast, the subsection at issue in this case narrows 14 the class of prohibited conduct that will result in criminal liability under ORS 163.750. 15 If, as explained above, Article I, section 8 permits the state to punish defendant for any 16 conduct that violates the stalking protective order in this case, Article I, section 8, does 17 not prohibit the state from punishing defendant for only some of that conduct -- i.e., 18 noncommunicative conduct and communicative conduct that causes reasonable 19 apprehension regarding the personal safety of persons protected by the stalking protective 20 order. 21 To be sure, the fact that the state may prohibit an entire category of speech 22 3 does not mean that it can distinguish within that category on the basis of content of the 1 speech or its viewpoint. See R.A.V. v. St. Paul, 505 US 377, 391, 112 S Ct 2538, 120 L 2 Ed 2d 305 (1992) (holding that, even though the city could prohibit fighting words 3 generally, it could not prohibit only those "'fighting words' that insult, or provoke 4 violence, 'on the basis of race, color, creed, religion, or gender'"). Subsection (1)(c), 5 however, does not distinguish among prohibited contacts on that basis; it does not punish 6 only those contacts that convey a particular message or advocate a specific viewpoint. 7 Rather, subsection (1)(c) distinguishes among prohibited contacts based on whether the 8 contact "created reasonable apprehension regarding the personal safety of a person 9 protected by the [stalking protective] order." That distinction is, in my view, a 10 permissible one. With that observation, I concur in the majority's opinion. 11 12

f59b7dc33cf213898f28d2d3501b33e8254bf73676dc0e1328c590dd871a8372

2011-09-09T00:00:00Z

4f57f01f-d8cb-4bf4-9d51-a4cd21113de9

State v. Knowles

289 Or. 803, 618 P.2d 1245

oregon

Oregon Supreme Court

618 P.2d 1245 (1980) 289 Or. 803 STATE of Oregon, Appellant-Respondent, v. Jeffrey B. KNOWLES, Respondent-Petitioner. TC 1136; CA 14735; SC 26735. Supreme Court of Oregon. Argued and Submitted April 9, 1980. Decided October 21, 1980. *1246 Mike Kilpatrick, Mount Vernon, argued the cause for respondent-petitioner. With him on the petition and brief were Milo Pope and Kilpatrick & Pope, Mount Vernon. Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellant-respondent. With him on the briefs were James A. Redden, former Atty. Gen., James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Before DENECKE, C.J., and HOWELL, LENT, PETERSON and TANZER, JJ. Argued and Submitted at Portland April 9, 1980. LENT, Justice. The issue is whether, under ORS 131.515(2), a conviction on a plea of guilty to unlawful possession of an elk bars a subsequent prosecution of the defendant for unlawfully taking a deer when both animals, freshly killed, had been discovered in plaintiff's possession at the same time and place. The historical facts are not disputed. On December 3, 1978, an Oregon State Police officer followed signs of activity into a forested area in Harney County and came upon defendant and two companions in a remote area in possession of an elk and a deer. The defendant was leaning over the dead elk, apparently sawing off the horns. A deer lay nearby. Both animals appeared to have been freshly killed and gutted. Within 30 yards of the scene the officer found the place where the elk had been killed and gutted. The officer followed a blood trail left in the snow where the deer had been dragged for about 100 yards but did not follow the trail to its end because he was losing contact with the defendant and his companions. The officer then cited the three for illegal possession of an elk. He did not cite for the deer because he wished to consult with his superior officers on the matter. The citation[1] ordered defendant to appear on December 5 in the Justice's Court at Burns in Harney County. Pursuant to the request of defendant, however, he and the officer appeared in that court on December 4, and defendant entered a guilty plea to the charge concerning the elk and was ordered to pay a fine. Approximately a month later the officer "swore out a felony complaint" against defendant on the basis of the taking of the deer.[2] A preliminary hearing was held on this charge in February, 1979, and the defendant was ordered bound over to circuit court. In March, 1979, defendant was charged in circuit court by district attorney's information of a felony for the taking of the deer. Or.Const. Art. VII (Amend.), § 5(5). Upon defendant's motion the circuit court dismissed on the grounds of former jeopardy, and the State appealed. The Court of Appeals reversed, 43 Or. App. 567, 603 P.2d 1211 (1979), on the basis of State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975). We there held that a conviction on a guilty plea to a charge of theft did not bar a subsequent prosecution for murder even if both offenses arose out of the same "transaction" and were triable in the same court and even if the prosecutor knew or reasonably should have known of the facts relevant to the murder at the time of the guilty plea to theft. We allowed defendant's petition for review, ORS 2.520, 288 Or. 527 (1980), to *1247 consider whether our decision in Hammang has present validity under ORS 131.505 and 131.515.[3] Those sections of the code were not applicable to Hammang's prosecution although they were discussed in the various opinions in Hammang. Some attention to the chronology of that case is necessary to point up the manner in which the various opinions treated the role of the statutes. On June 25, 1973, Hammang stole the gun used on that same day to kill another. The homicide was known to the police immediately. On the following day Hammang admitted to the police that at the time of the killing he had been in the car in which the victim was killed, and Hammang accused one English as the killer. On July 2 English was indicted for murder. On August 6 Hammang was convicted on a plea of guilty of the crime of theft of the gun. On December 11 English was convicted of negligent homicide for the killing. On December 21 Hammang was indicted for murder for the same homicide. The indictment alleged that Hammang had acted jointly with English in the shooting of the victim. Hammang's trial commenced and on March 15, 1974, Hammang moved to dismiss on the ground of former jeopardy. The motion was denied and, upon a jury verdict of guilty, he was sentenced to life imprisonment on March 21, 1974. Hammang appealed, assigning as sole error the denial of his motion. Of the statutes in question, he cited in his brief only ORS 131.505(4), which defines "criminal episode." The state cited none of those statutes, asserting that they were not applicable because prosecution commenced prior to January 1, 1974. The Court of Appeals stated that the case presented the question whether the two criminal charges "were known or reasonably should have been known to the prosecution within the meaning of the double-jeopardy rule of State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972)." The Court of Appeals affirmed, finding that there was ample evidence to support the trial court's implicit finding that the prosecution neither knew nor should have known of Hammang's participation in the murder at the time he pleaded guilty to theft. State v. Hammang, 19 Or. App. 265, 527 P.2d 137 (1974). According to the majority opinion, this court allowed review 271 Or. at 751, 534 P.2d 501. The majority went on to note that in Brown this court had construed Oregon Constitution, Article I, section 12,[4] as meaning that a second prosecution is for the same offense and is therefore constitutionally barred if the charges arise out of the same transaction and could have been tried in the same court and if the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution. This court further observed that Hammang and the state disagreed as to whether there was the requisite prosecutorial knowledge and whether the theft and murder were part of the same act or transaction. Having accurately stated the issue as framed by the parties and having stated the purpose of allowing review, the majority proceeded with an opinion which came to grips with neither matter. Rather, the majority distinguished and partly, at least, overruled Brown. The majority discussed the case in terms of the opinion in Brown and held the rule of Brown inapplicable 271 Or. at 756, 534 P.2d 501. Having found that the rule of Brown was not applicable to Hammang's case, the majority concluded: 271 Or. at 758, 534 P.2d 501. The majority opinion referred to the statutes only to answer the dissenters' argument that ORS 131.505 and 131.515, if applicable, would require reversal of Hammang's conviction. The majority conceded that a "literal" reading of the statutes favors the dissenters' position, but held that a "literal" reading produced what the majority found to be an "absurd" result. The majority could find no legislative intent to produce the result required by applying the words of the legislature actually used and, therefore, refused to hold that Hammang had been "prosecuted for an offense" when he had been charged with theft and that action terminated in his plea of guilty. In his dissent, Justice McAllister argued that if ORS 131.505 and 131.515 were applicable, their plain words required a finding in Hammang's favor if it were established that both the theft and murder arose out of the same criminal episode and if both offenses were reasonably known to the prosecutor when the first prosecution was commenced. Justice McAllister concluded that the statutes did not work a change in the rule of Brown and, therefore both Brown and the policy expressed by the soon to be operative statutes required reversal. In his separate dissent, Justice Tongue agreed with the majority that the result produced by a literal application of the statutes was "unreasonable" but, since the language of the statutes was clear and unambiguous, that language should be given effect "even though the result is one which the legislature did not intend." He expressed concern over the policy of a court rejecting the result conceded to flow from the plain words of a statute because that result appears to the court to be unreasonable. This review of Hammang establishes only that the case is not dispositive of the case at bar, for the discussion in Hammang concerning the statutory law now in effect was nothing but dictum. It remains for the court to determine in the case at bar what effect the statutes have on this case. There is no need to decide this case under either Brown or Hammang, which both predate legislative rules applicable to this case. The statutes applicable are: Defendant's position is that the statutes and the rule of Hammang are in conflict and the courts must dispose of his case under the statutes. The state's position apparently is that Hammang is in point, that this court there anticipated a construction of the statutes and that that construction requires rejection of the plea of former jeopardy. More specifically, defendant relies upon a claim of immunity from prosecution under ORS 131.515(2).[7] The policy underlying that subsection is that there should not be unnecessary separate trials stemming from conduct which constitutes more than one offense.[8] The policy is to be effectuated by a rule of compulsory joinder.[9] If the prosecutor fails to accomplish that joinder, the sanction for that failure is statutory prohibition of subsequent prosecutions. The subsection is not dependent upon any constitutional text or concept; the subsection is an independent method of preventing prosecutorial harassment of a defendant who has committed multiple offenses in a single criminal episode. In determining whether this defendant is entitled to the benefit of the statute, we should first inquire whether he has been "prosecuted for an offense" with respect to the elk, for if there was no prosecution there, this prosecution with respect to the deer cannot be the separate prosecution proscribed by the statute. The statutory scheme, including ORS 131.505(5)(a), is clear. Defendant was prosecuted for the offense of unlawful possession of the elk when he was charged with that offense by an accusatory instrument, namely, the "Oregon Uniform Game * * * Citation and Complaint," in Justice's Court in Burns, Oregon, and that action terminated in conviction upon his plea of *1250 guilty. ORS 131.005(1) and ORS 131.505(5)(a). Insofar as dictum in our decision in Hammang is to the contrary, it is overruled. Having determined that defendant was prosecuted for an offense with respect to the elk, we inquire whether all three of the elements necessary to the statutory bar of a separate prosecution exist. If any of the three are not established, the claim of former jeopardy under ORS 131.515(2) must fail. The disposition of this particular case is determined by considering the element of prosecutorial knowledge. Defendant urges that the "appropriate prosecutor" must mean the police officer. The state contends that the term means the district attorney. We agree with the state's position. ORS 8.650 provides that the district attorney is the public prosecutor in each county, and ORS 8.660 provides that he shall conduct all prosecutions on behalf of the state except in the prosecution of certain traffic infractions. But is he the "appropriate" prosecutor? The respective commentaries to the various preliminary drafts of the statute now codified as ORS 131.515(2) use the term "district attorney" and "prosecutor" interchangeably. The matter was specifically addressed at the October 14, 1971, meeting of the Criminal Law Revision Commission, Subcommittee 1. As we have previously noted, the extensive minutes of the Commission and its subcommittees provide a rich source for determination of the drafter's intent, State v. Garcia, 288 Or. 413, 416, 605 P.2d 671, 673 (1980). The minutes of the October 14, 1971 meeting reveal: In addition, throughout the several minutes of various meetings of the subcommittee and the full commission, one will search in vain to find any other meaning ascribed to the "appropriate prosecutor" other than that of district attorney. Indeed, there is discussion as to whether the district attorney is to be charged with constructive knowledge of what a police officer may actually know. If the commission had any idea that the term "prosecutor" referred to anyone other than a district attorney there would be no reason for such a discussion. We believe it is clear that the intent of the drafter was to refer to the district attorney[10] and that the adjective "appropriate" was concerned with issues of mixed venue or jurisdiction. The "appropriate prosecutor" in this case, therefore, was the district attorney for Harney County. The question which then arises is whether the prosecution with respect to the elk was "reasonably known" to the prosecutor. Since the trial judge ruled in defendant's favor on the motion to dismiss, we must assume that he found, as a historical fact, that the several offenses concerning the elk and the deer were "reasonably known" to the district attorney at the time of the commencement of the first prosecution. Compare, Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). An appellate court can reject that finding only if the court can affirmatively say there is no evidence to support the finding. Or.Const. Art. VII (Amend.), § 3. Defendant concedes that there is no evidence that the district attorney had actual knowledge of the two offenses at the time defendant was prosecuted with respect to the elk. The adverb "reasonably" requires attention, for it is not clear what meaning was intended by the drafter. Resort to page 20 of the Final Draft and Report of the Criminal Law Revision Commission, November 1972, yields the reason for insertion of that adverb: Defendant points to no evidence in the record from which it could be found that the district attorney "reasonably" knew of the offense concerning the deer at the time defendant was prosecuted with respect to the elk. Our own search for such evidence is likewise fruitless. We can, therefore, affirmatively say there is no evidence to support the trial court's implicit finding of the requisite knowledge on the part of the prosecutor. Defendant does not rely upon a constitutional argument in his petition for review. State v. Brown and State v. Hammang, both supra, were concerned with the Oregon Constitution. In his petition for review, defendant states: There is no reason, therefore, to determine if a constitutional argument would be of avail to defendant. By so noting we do not express any opinion as to the merits of such an argument. It follows that the decision of the Court of Appeals must be affirmed, but for the reasons expressed herein. The case must be remanded to the Court of Appeals to remand it to the circuit court for further proceedings. Affirmed. TANZER, J., specially concurred and filed an opinion. TANZER, Justice, specially concurring. I join my four colleagues in their statutory analysis, as far as it goes. It does not, however, go the dispositive distance. To say that this case presents no constitutional claim is to ignore the entire record and to deny defendant his due. Defendant's assertion of his statutory right is not an abandonment or waiver of his constitutional right. He has asserted his constitutional right in the trial court, the Court of Appeals, and here. The quotation from his petition, upon which the majority relies to avoid the constitutional issue, merely reflects defendant's understanding that the double jeopardy statutes are broader than their constitutional counterpart. By pressing his statutory argument and retaining his constitutional argument as a fallback, defendant recognized that State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975), is against him and that courts prefer a statutory rationale where possible. He has waived nothing. *1252 Defendant has consistently, if not articulately, based his position on constitutional grounds as defined in State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972). In the district court, he cited only two authorities, both cases based upon Art. I sec. 12 of the Oregon Constitution: Brown and State v. Sleeper, 36 Or. App. 227, 584 P.2d 333 (1978). The state appealed, stating the only "Question Presented" to be: Defendant responded that the statute protected him regardless of the rule in Hammang. Because of the posture of the case, it was unnecessary for him as respondent to reassert his constitutional argument. The Court of Appeals reversed, construing ORS 131.505(5) by reference to the analogous constitutional reasoning of Hammang. We allowed review to determine the applicability of Hammang. Again, defendant argued that the statute was broader than Hammang. There is no hint in any of defendant's arguments in any court that defendant intends to abandon or waive his constitutional claim if his statutory argument fails. For the majority to so hold is, I believe, to play technical games with the defendant's rights. Because the entire court holds that the statute does not bar this prosecution, defendant's challenge requires us to reach the constitutional issue. Moreover, the majority is avoiding the difficult and unpleasant task of facing up to a theoretically flawed body of constitutional law which developed commencing with our abandonment of traditional double jeopardy principles in State v. Brown. When faced with such a problem in the case law, we can either find a real or fancied technical reason to walk away from it, as the majority does here, or we can face up to it. Review is an opportunity to deal with such problems, not to avoid them. Accordingly, I am publishing my analysis as a separate opinion in the hope that it will cast some light when a future majority decides to tackle this bothersome issue. It is axiomatic that the court will decide any case on a constitutional basis only if it cannot be resolved on a basis of lesser legal magnitude, usually statutory. In this case, however, that is more easily said than done. A purely statutory approach to the Oregon law of double jeopardy, such as that attempted by the majority, is impossible and misleading because the concepts embodied in our statutes regulating successive prosecutions have been adopted, explained and applied in our cases as constitutional doctrine.[1] Thus, it is impossible to determine the meaning and scope of the pertinent statutes without also examining constitutional case law. It is the preliminary purpose of this opinion to sort out what is statutory and what is constitutional in the Oregon law of double jeopardy. Because the analysis is involved, an outline may be helpful so that the reader may follow my analytical path more easily. In brief, my opinion will demonstrate the following: I do not disagree with the statutory analysis by the majority, but my approach is different. The pertinent statute is ORS 131.515(1) and (2): This statute was enacted by the 1973 legislature as part of a comprehensive revision of criminal procedure based upon the Proposed Criminal Procedure Code drafted by the Criminal Law Revision Commission. ORS 131.515 corresponds to section 27 of the proposed code which was enacted without change in wording. The commentary of the Criminal Law Revision Commission explaining section 27 is instructive regarding legislative intent. The Commission took pains to explain that the origins of subsections (1) and (2) are different: subsection (1) is constitutional;[3] subsection (2) is legislative. The recognition by the Commission that the constitutional prohibition of double jeopardy in subsection (1) and the legislative "general policy" against multiple prosecutions are distinct concepts was analytically correct. This follows because subsection (2) contains two exceptions that are immaterial to whether multiple prosecutions are for "one offence": (1) knowledge by the prosecutor of other offenses committed as part of the same episode, and (2) venue in the same court. The constitutional bar against double jeopardy embodied in subsection (1) has no exception for cases involving unknowing prosecutors. Nor does the constitutional bar except cases with different venue. The bar of Article I, section 12 of the Oregon Constitution is absolute within *1254 the scope of its application; without exception, absent a waiver, successive prosecution for the "same offense" is barred. There can be no valid statutory exceptions to a constitutional prohibition. State ex rel. Oregonian Publishing Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980). Exceptions can only apply to a bar to prosecution which is beyond the scope of the constitutional bar. The Commission recognized correctly that subsection (1) embodies an absolute constitutional bar against double jeopardy regardless of prosecutor's knowledge and rules of venue, and that subsection (2) is a legislative protection arising from "general policy" considerations of "fair trial and due process of law" regulating a class of multiple prosecutions in addition to that which is barred by the double jeopardy clause. The distinction, however, was not preserved in State v. Brown. Any attempt at straightforward statutory analysis of double jeopardy founders on our decision in State v. Brown, because that opinion interwove separate statutory and constitutional strands of the Oregon law of double jeopardy. A review of the Brown opinion is instructive. In Brown, a plea of former jeopardy to a charge of being an exconvict in possession of a firearm was upheld after a previous conviction on a guilty plea for carrying a concealed weapon, both charges arising from the same incident. The court initially recognized the traditional "same evidence" test: former jeopardy exists if one charge requires proof of elements identical to those which prove the other charge, see, e.g., State v. McDonald, 231 Or. 48, 365 P.2d 494 (1961) cert. den. 370 U.S. 903, 82 S. Ct. 1247, 8 L. Ed. 2d 399 (1962). It then stated that the test was not firmly established in Oregon or federal constitutional law, but cited no Oregon or federal cases casting doubt upon it or establishing any other constitutional test. It stated generally that the purpose of the double jeopardy clause was protection against harassment by successive prosecutions. It then concluded, without explanation, that the "same evidence" test did not adequately provide such protection. To formulate a new and satisfactory constitutional rule to provide supplemental protection, the court in Brown looked to the "same transaction" test as embodied in statutes (not constitutional law) from a few other states, the American Law Institute Model Penal Code Proposal, and, particularly, section 27 of the Proposed Criminal Procedure Code, which was later enacted as ORS 131.515. The court expressly recognized that the proposed Oregon statute would bar prosecution more extensively than the New York statute, the Hawaii rule or the Model Penal Code because it would require joinder of charges of offenses with different elements directed at different evils. Nevertheless, it then adopted the concept of subsection (2) of the proposed statute, with some word changes, as constitutional doctrine: The change in wording is significant because it points up the logical and semantic consistency of the statutory formulation compared to the inconsistency of the newly announced constitutional rule. The words of the proposed statute recognized that multiple offenses may arise from one transaction: In contrast, the Brown rule is that two or more offenses constitute the same offense if they arise from the same transaction: The semantic illogic is obvious. We later characterized it succinctly as "the one transaction-one offense equation."[5] It is this shift in meaning, equating "same offense" with all the offenses arising from the same "transaction," which this court later abandoned in Hammang. The Brown rule is unsupportable not only because it fails to give the phrase "same offense" its plain meaning, but also because it suffers from the two logical infirmities which the Criminal Law Revision Commission avoided: whether prosecutions are or are not for the "same offense" has nothing to do with (1) the state of the prosecutor's knowledge, or (2) the jurisdictional rules of a statutory two-level trial court system. Those two qualifications are valid only under subsection (2) of the proposed statute because it purports to limit reprosecution as a matter of statutory policy, not as an absolute constitutional bar. In redefining "offenses" to mean "transaction," we adopted in Brown a novel rule of constitutional law for Oregon at variance with every other American jurisdiction, citing no authority or precedent of constitutional law in Oregon or elsewhere. Because the theory was flawed, its application was troublesome. Indeed, in State v. Boyd, 271 Or. 558, 562, 533 P.2d 795 (1975), we recognized "the confusion and perplexity which has followed in the wake of our decision in State v. Brown." Rather than reconsider that decision in Boyd, however, we formulated a mechanical procedure to attempt to avoid injustice. In the year following our decision in Brown, the legislature enacted ORS 131.515, 1973 Or. Laws, ch. 836, § 27, but the subsequent case law has consistently focused on the Brown constitutional doctrine and tended to ignore the statute. Hence, constitutional cases cannot be avoided in the disposition of this case. A critical issue of this case under either the constitutional or the statutory rule is whether defendant's former conviction based on his guilty plea bars this subsequent prosecution in light of State v. Hammang, supra. There, the defendant's earlier conviction for theft of a gun was held not to bar prosecution for murder with that gun because the theft conviction was based on the defendant's guilty pleas.[6] The rationale of the majority opinion was based on Brown. Two judges dissented on the basis of ORS 131.515(2) and the majority responded by explaining the statute. Thus, Hammang begins as a constitutional opinion and, without explanatory transition, ends as a statutory one. To determine the application of Hammang to this case and its effect on the continuing validity of Brown, it will be profitable to examine the opinion closely. The Hammang opinion begins by noting that Brown proscribes multiple prosecutions, but not multiple charges. Only when the prosecution of a charge commences does Brown require consolidation of all charges to avoid jeopardy in bar of a future prosecution. 271 Or. at 755, 533 P.2d 795. Assuming no unreasonable delay, the determination of when to commence prosecution of each charge is for the state. Hence, a guilty plea to one charge cannot be given the effect of restricting the state's control over initiation of prosecution.[7] The opinion *1256 goes on to reason that there is no undue harassment by successive prosecution where the first is commenced and adjudicated on defendant's guilty plea: By treating the Brown doctrine as a policy rule to be applied where the policy requires and not applied where the circumstances do not threaten the danger which the policy is designed to avoid, this court in Hammang dealt with it as something very different than an absolute constitutional bar. The court did not even treat the Brown doctrine as a bar which the defendant waived by his guilty plea.[8] Rather, it applied Brown as if it were in the nature of a rule of administration. Theoretically, Brown was severely undermined to the point of being silently overruled by the theory adopted in Hammang.[9] Justices McAllister and Tongue dissented on the ground that subsequent prosecution should have been barred under ORS 131.515(2) if "both offenses" (note the inconsistency of that plural phrase and the Brown phrase in the singular, the "`same offense'") 271 Or. at 758, 533 P.2d 795, were reasonably known to the prosecutor and triable in the same court. They relied upon ORS 131.505(5)(a), which provides that one is prosecuted within the meaning of ORS 131.515(2) if the action "terminates in a conviction upon a plea of guilty." The dissenters would have remanded for a determination regarding the prosecutor's knowledge. The majority responded to the statutory argument of the dissent by holding that ORS 131.505 and 131.515 are not contrary to its constitutional reasoning. It pointed out that the dissenters erred by their failure to distinguish between multiple prosecutions arising from the same offense and those arising from the same transaction. That distinction, however, had been eliminated by the "one transaction-one offense equation" of Brown. In so reasoning, the court in Hammang repudiated the wording change from the proposed statute to the constitutional rule which eliminated that distinction and formed the very heart of the Brown rationale: In determining the scope of ORS 131.505, the majority recognized, as it had not done in Brown, that subsections (1) and (2) of ORS 131.515 are, respectively, constitutional and legislative: The majority went on, however, to hold that the legislature intended to apply the guilty plea definition of prosecution in ORS 131.505(5)(a) only to the constitutional rule embodied in subsection (1) and not to the statutory rule of subsection (2). In so doing, and in affirming the conviction, the court necessarily abandoned the wholly constitutional approach of Brown and adopted by application the two-level approach consisting of the traditional "same evidence" constitutional rule augmented legislatively by the "extended protection," 271 Or. at 757, 533 P.2d 795, of ORS 131.515(2). After Hammang, there was simply nothing left of the theoretical foundation of Brown. What, then, is the state of the law in light of ORS 131.505, 131.515, Brown and Hammang? The effect of Hammang was (a) to abandon the reasoning of Brown as constitutional law, except as it might apply by analogy to ORS 131.515(2), and thereby (b) to return to a division between constitutional and statutory law, and (c) to hold that the termination of a prior charge by a conviction upon a guilty plea would not constitute jeopardy in bar of a subsequent prosecution for another offense committed as a part of the same act or transaction, but to imply that it would bar a subsequent prosecution for the same offense. The majority concludes that because Hammang is a constitutional case and this one is statutory, we need not consider it. They should have observed that we took review to consider the application of Hammang to this case and Hammang is what everybody has been arguing about. I would reach the issue. The evidence at the hearing indicates that the state intends to prove that defendant was in unlawful possession of both animals at the same time and place. Although the two charges under the same statute, ORS 496.992, are phrased differently to reflect violation of different administrative rules, see OAR 635-65-760(8) and 635-65-765(7), both relate to the same public purpose and both involve the same general criminal objective. For that reason, I conclude that the charges are for offenses arising from the same criminal episode as that term is defined by ORS 131.505(4).[10] Therefore, the first consideration is the application of the legislative element of the statute, ORS 131.515(2). A criminal proceeding culminating in a conviction upon a guilty plea is assuredly a *1258 "prosecution" as that word is used in common parlance. The dissenters in Hammang argued that such a conviction is also a prosecution under ORS 131.505(5)(a): The majority in Hammang rejected that view. They reasoned that the ORS 131.505(5)(a) definition of prosecution applied only to the constitutional bar in ORS 131.515(1), not to the legislative bar of ORS 131.515(2), for two reasons. First, the commentary to the proposed code, in discussing the criminal episode rule, spoke only of "multiple trials." Second, the majority inferred that the legislature could not have intended the "absurd result" of allowing a defendant to bar prosecution of related charges by his guilty plea. 271 Or. at 757-58, 533 P.2d 795.[11] The two reasons cited by Hammang are not persuasive. First, the reference of the commentary to prosecution by pleas of not guilty and trials does not mean that the statute excludes other prosecutions. Second, the "absurd result" can be avoided other than by giving a strained definition to words of otherwise specific meaning. I would conclude that the words "prosecuted" and "prosecution" as used in ORS 131.515(2) convey their ordinary meaning at least insofar as they include within their meanings convictions based upon guilty pleas. Thus, the definition in ORS 131.505(5)(a) applies to ORS 131.515. Defendant has been separately prosecuted. The next issue is whether this prosecution is barred by ORS 131.515(1) as a separate prosecution for the same offense. Because of the wording and history of ORS 131.515(1) as set out above, I conclude that the scope of that subsection is coextensive with that of Art. I, § 12 of the Oregon Constitution. Therefore, at the least, if the proof of one charge necessarily proves the other charge, then, absent a waiver, a second prosecution is barred. Here, proof of illegal taking of a deer requires evidence of facts different than that which would have been required to prove the charge of illegal possession of an elk. Hence, by the so-called "same evidence" test, see State v. McDonald, supra, there is no former jeopardy for the same offense. Because this is a separate prosecution for a second offense arising from the same criminal episode and because it could properly have been consolidated for trial with the first prosecution,[12] the next consideration under ORS 131.515(2) is whether the facts of the offenses were "reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution." The word "prosecutor" refers to the district attorney. The clear words of the statutes provide the answer; there is no need to go to the minutes of the drafters. The defendant admits that the district attorney did not know of the case at the time of the first proceeding, but he contends that in the prosecution of a minor charge, the policeman is the prosecutor. Defendant's contention is incorrect in light of ORS 8.650, which provides: The word "appropriate" was intended to forestall problems in cases of mixed venue and jurisdiction. It does not operate in the absence of a prosecutor to convert a police officer into the prosecutor. Here, the defendant called the police officer to court and pleaded guilty without the knowledge of the appropriate prosecutor. Hence, the *1259 earlier conviction does not bar this prosecution by operation of ORS 131.515(2). Although the series of opinions discussed above have chipped away at our holding in State v. Brown, I may safely observe that the court retains its primary concern in Brown that the same evidence test alone may not provide "a realistic limitation on successive prosecutions by the state." 262 Or. at 457, 497 P.2d 1191. Some broadening of the same evidence test is required. It would be premature, particularly in a separate opinion, to attempt to lay out in a concurring opinion a definitive exposition of the scope of Art. I, § 12, but it is appropriate to observe that a basic concept of extended protection is well established in our recent case law regarding multiple prosecution, notwithstanding the precedential misstatement in Brown. In State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979), we recognized that the manner in which the law deals with a person who commits multiple related offenses does not reflect a single, consistent policy or approach. Rather, separate bodies of statutory and common law have developed independently to deal with each aspect of the one problem. Separate strands of law regulate joinder of counts for indictments, merger or multiplicity of offenses in indictments, joinder for trial, severance for trial, merger of included offenses upon conviction, sentencing for related crimes, double jeopardy and successive prosecution for related offenses. All are aspects of the same general problem, but each has been the subject of separate case law development, often without relation to the other aspects. An example of conflicting development is the law of joinder and the law of severance of counts for trial, each of which deals with the opposite side of precisely the same problem. Yet joinder and severance law are in such irreconcilable conflict with each other, see State v. Brown, supra, and State v. Leverich, 269 Or. 45, 522 P.2d 1390 (1974), that we were able to resolve the conflict only by creation of a mechanical procedure which operates without regard to the rights of the state or the interest of the courts in the efficient administration of justice. State v. Boyd, supra. With such theoretical fragmentation, one would expect the case law to yield different answers to the same question at different stages of the proceedings (e.g., factually related burglary and attempted theft may be the subject of separate counts, but not of separate sentences). As the survey in Cloutier shows, however, there is a high degree of harmony in the results of our case law and the unifying factor appears to be our consistent intention to effectuate express or inferred legislative intent. It is fundamental that we look to legislative intent to determine whether conduct constitutes an offense because an offense exists only if it has been statutorily defined. ORS 161.505 acknowledges this simple premise: Whether related conduct which offends one statute is one offense or is divisible into more than one offense depends upon the statutory definition of the offense. Sometimes the statutes are explicit. For example, a simultaneous assault upon two persons would be two offenses because ORS 131.505(3) so provides: Also, sometimes the statutes specify that each day or other time period of continuing criminal conduct is a separate offense. See Cloutier, 286 Or. at 598, 596 P.2d 1278. The inquiry remains the same if the applicable statutes are not explicit; generality of statutes simply makes the divining of legislative intent an imprecise process, subject to a degree of speculation and policy judgment, but one which we nevertheless perform. Our consistent approach in recent cases has been to look to the legislative formulation of the offense, whether explicit or implicit, to determine at various stages *1260 of prosecution whether conduct constitutes one or more offenses.[13] In State v. Gratz, 254 Or. 474, 461 P.2d 829 (1969), we held that an indictment charging one robbery of two people in two counts to be valid on demurrer because the statutory purpose of the offense of robbery was intended to protect individual persons. In State v. Welch, 264 Or. 388, 505 P.2d 910 (1973), we held that two sentences based on two convictions on two counts for publishing two checks by making one bank deposit of two checks could not stand because the legislature, had it considered the matter, would not have intended more than one punishment; the case was remanded for a single sentence, but the opinion was silent as to the correctness of the multiple counts and multiple convictions. In State v. Gilbert, 281 Or. 101, 574 P.2d 313 (1978), we reversed the dismissal of indictments for theft by possessing weapons stolen from different owners although defendant had been acquitted on the first such indictment. We held that the first prosecution did not constitute former jeopardy because, we inferred, the legislature intended possession of each weapon to be a separate offense.[14] In so doing, we recognized that our task of statutory interpretation often involves policy judgment: It is also significant that in Gilbert we expressly did not imply a view regarding multiple sentences because, as we also pointed out in Cloutier, different legislative and constitutional policies apply to the adjudicative stage and the penal stage of the prosecution. This review of Gratz, Welch and Gilbert demonstrates a consistent judicial approach at various stages of the prosecution in determining singularity or multiplicity of offenses arising from violation of one statute; in each case we discerned whether the legislature intended that the conduct constitute one offense or more. We followed that intent, not as a matter of judicial submission to legislative prerogatives, but, rather, because conduct is an offense only if the legislature so defines it. This approach, together with the traditional "same evidence" test, is also the essential basis for the merger doctrine developed by this court, see State v. Fish, 282 Or. 53, 577 P.2d 500 (1978), and State v. Roach, 271 Or. 764, 534 P.2d 508 (1975), as well as our rules regarding trial of lesser included offenses, see State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975). They also provide a sound basis, practically and theoretically, for the application of ORS 131.515(1) and Art. I, § 12. Because unlawful possession of an elk and taking of a deer out of season in violation of the same statute are not proved by the same evidence, it must next be determined whether the legislature intended that such conduct be one offense or two. The common victim is the state of Oregon. In a less technical sense, however, ORS 496.992 *1261 is intended to protect Oregon's animal life. These offenses involve distinct acts: the taking of one protected animal and the possession of another, killed at different times and places, albeit on the same day in the same general area. Because the crimes are Class A misdemeanors, ORS 496.992(2), the potential penalty for an offense involving one animal is substantial, but it would be disproportionately light if the unlawful killing of many animals on the same day could only be prosecuted as one offense,[15] although this observation might not apply to other protected species such as fish. For all these reasons, I infer that the legislature intended or, had it considered the problem, it would have intended[16] that the unlawful conduct involving each animal be a separate offense. Accordingly, I join with the majority to conclude that this is not another prosecution for the same offense and is not barred under ORS 131.515(1) by the former prosecution. [1] The officer issued an "Oregon Uniform Game, Commercial Fish and Marine Citation and Complaint." See, ORS 1.525(c). [2] A second conviction within ten years of the first for illegally taking a game animal of the kind with which we are here concerned is a Class C felony. ORS 496.992(3). [3] The sections were enacted by Oregon Laws 1973, chapter 836, sections 26 and 27. They were to apply to criminal actions and proceedings commencing upon or after January 1, 1974. Or. Laws 1973, ch. 836, §§ 2 and 358. The prosecution in State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975) commenced prior to January 1, 1974. [4] Or.Const. Art. I, § 12, provides: "No person shall be put in jeopardy twice for the same offence [sic], * * *" [5] ORS 161.085(4): "`Conduct' means an act or omission and its accompanying mental state." ORS 161.505: "An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. An offense is either a crime or a violation or a traffic infraction." [6] ORS 131.515(3) deals with offenses of different degrees, lesser included offenses and attempts, none of which is involved in this case. [7] Defendant does not assert ORS 131.515(1) is other than a restatement of the state constitutional guarantee against double jeopardy. The Criminal Law Revision Commission published its "FINAL DRAFT AND REPORT" (Report) of the proposed Oregon Criminal Procedure Code in November, 1972. The commentary contained in the Report is clear: "Subsection (1) reiterates the specific constitutional prohibition against double jeopardy." p. 19. We have no occasion in this case to test the accuracy of the commentary. [8] See Report, page 19. [9] See Report, page 20, for commentary explaining that subsection (2) was intended to "expand" compulsory joinder of "related offenses." Moreover, the legislative history indicates the same. The March 12, 1973, minutes of the Senate Judiciary Committee, page 2, show: "CHAIRMAN BROWNE asked if section 27 was a joinder statute in addition to dealing with jeopardy. Mr. Paillette said it was a mandatory or compulsory joinder statute." See, also, the May 7, 1973, minutes of the House Judiciary Committee. [10] There is no occasion in this case to determine whose actual knowledge shall be imputed to the district attorney for purposes of the statute. [1] And, conversely, a constitutional double jeopardy challenge has been resolved against the defendant by sole reference to the statutes. See State v. Gilbert, 281 Or. 101, 574 P.2d 313 (1978). [2] Subsection (3) deals with lesser included offenses and is not relevant to this case. [3] Art. I, § 12, Or.Const. provides: "No person shall be put in jeopardy twice for the same offence [sic] * * *." [4] The paragraph continues: "* * * The Oregon Supreme Court recently held that, under the Oregon Constitution, `a second prosecution is for the "same offense" and prohibited if (1) the charges arise out of the same act or transaction, (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution.' State v. Brown, [262 Or. App. at 458, 497 P.2d 1191]. Although the opinion contains some obvious differences in language from that proposed here, the court does adopt the compulsory joinder concept." State v. Brown and its interrelationship with this legislation is discussed hereafter in this opinion. [5] State v. Boyd, 271 Or. 558, 563, 533 P.2d 795 (1975). [6] The Court of Appeals had come to the same conclusion because the prosecutor did not have sufficient information for a murder charge against the defendant at the time of the guilty plea to theft. State v. Hammang, 19 Or. App. 265, 527 P.2d 137 (1974). This court did not rely upon that rationale. [7] "* * * If the state has all the information it needs to prosecute each of the charges arising out of one transaction, there still is no constitutional requirement that the state proceed forthwith to consolidate the charges and begin the prosecution. And the state's duty to proceed is not enlarged by the circumstances that the defendant unilaterally decides to enter a plea of guilty to one of the charges. Unless the state does more than acquiesce in the entry of the plea of guilty, the state's options as to how it wishes to proceed remain the same. Thus, after the defendant pleads guilty to one of the charges, the state may thereafter prosecute the defendant for the other charges arising out of the same transaction. There is no duty on the part of the state to inform the defendant before he enters his plea of guilty that other charges arising out of the same transaction may be filed." 271 Or. at 755-56, 533 P.2d 795. [8] Nor would I in this case reach the issue of whether a guilty plea constitutes a waiver of former jeopardy rights and, if so, under what circumstances. [9] In a footnote, the Hammang opinion acknowledges that Brown is overruled insofar as it applies to former jeopardy based on guilty pleas, because Brown was also based on a guilty plea, but it goes on to say that the rationale of Brown is not repudiated. 271 Or. at 757 n. 4, 533 P.2d 795. In view of the majority's reply to the dissenters, however, it is hard to discern much of Brown's theory that remains. [10] ORS 131.505(4): "As used in ORS 131.505 to 131.525, unless the context requires otherwise: "* * * "(4) `Criminal episode' means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective." [11] The failure to accord its literal meaning to the word "prosecution" is criticized in Cannon, Double Jeopardy in Oregon, 14 Will.L.J. 21, 36 (1977). [12] The venue exception element of Brown has also been abandoned in favor of a more workable rule. In State v. Leverich, 269 Or. 45, 50-51, 522 P.2d 1390 (1974), we held that the Brown phrase "could have been tried in the same court" means "could properly be consolidated." [13] Although the dissenting judge in Cloutier disagreed with the result of our application of the principles in Cloutier and State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), to penal objectives, he endorsed the approach: "[The pre Woolard rule] was a clear and workable rule and one which was based upon the assumption that it was the prerogative of the legislature to define crimes and to provide for punishment for each of such crimes. * * * "* * * "Consistent with that rule, this court has held that whether a defendant may in fact be convicted and sentenced for two offenses arising out of the same course of conduct depends upon the intent of the legislature in enacting the statutes creating the offenses." (Citations omitted.) 286 Or. at 605, 606-607, 596 P.2d 1278. [14] State v. Clark, 46 Or. 140, 80 P. 101 (1905), holding to the contrary for purposes of indictment, was superseded by ORS 131.505(3) and implicitly overruled by Gilbert. In Gilbert, the defendant's preliminary election to be tried separately on each charge obviated any problem under ORS 131.515(2). [15] The information purports to charge a Class C felony, ORS 496.992(3), based on an alleged previous conviction of a game law violation within the past ten years. The previous conviction appears to be the earlier charge of unlawful possession of an elk. The Court of Appeals did not reach defendant's challenge to the use of that conviction to enhance this charge. In view of my having characterized this charge as a misdemeanor, it is appropriate to also note that I do not believe that the legislature intended that enhancement of the charge be based upon a prior conviction for another offense arising from the same criminal episode. Among other reasons, to hold otherwise would be to gut the defendant's right to severance of charges. See State v. Fitzgerald, 267 Or. 266, 516 P.2d 1280 (1973), State v. Boyd, supra. [16] See State v. Welch, 264 Or. at 394, 505 P.2d 910.

8cd32fd1c6232db1bfa6ff2fa8812008fe93b652e787500e132a258d34ad6dab

1980-10-21T00:00:00Z

cc0d9b80-eb35-4d5b-8c28-bbb380bbf434

Kaseberg v. Davis Wright Tremaine, LLP

S059154

oregon

Oregon Supreme Court

1 Filed: November 10, 2011 1 2 IN THE SUPREME COURT OF THE STATE OF OREGON 3 4 DARELL KASEBERG, 5 Petitioner on Review, 6 v. 7 8 DAVIS WRIGHT TREMAINE, LLP, 9 a Washington limited liability partnership, 10 Respondent on Review. 11 12 (CC 071113766; CA A141824; SC S059154) 13 14 En Banc 15 16 On review from the Court of Appeals.* 17 18 Argued and submitted September 21, 2011. 19 20 R. Daniel Lindahl, Lindahl Law Firm, PC, Portland, argued the cause and filed the 21 petition for petitioner on review. With him on the petition was Paul R. Rundle, Rundle Law, 22 PLLC, Vancouver, Washington. 23 24 Xin Xu, Kennedy, Watts, Arellano & Ricks LLP, Portland, argued the cause and filed the 25 brief for respondent on review. 26 27 Michael A. Greene, Portland, argued the cause for petitioner on review and filed a brief 28 for amicus curiae Oregon Trial Lawyers Association. 29 30 WALTERS, J. 31 32 The decision of the Court of Appeals is reversed. The judgment of the circuit court is 33 reversed, and the case is remanded to the circuit court for further proceedings. 34 35 *Appeal from Multnomah County Circuit Court, Charles E. Corrigan, Judge Pro Tem. 36 240 Or App 352, 247 P3d 773 (2010). 37 38 2 WALTERS, J. 1 In this legal malpractice case, we apply the "discovery rule" and decide that 2 the trial court erred in concluding, on defendant's motion for summary judgment, that 3 plaintiff's claim was time-barred. 4 We state the facts adduced by the parties on summary judgment in the light 5 most favorable to plaintiff, the nonmoving party. Hampton Tree Farms, Inc. v. Jewett, 6 320 Or 599, 613, 892 P2d 683 (1995). In 2000, plaintiff, a farmer for over 30 years, was, 7 and had been, farming two properties -- Grass Valley Ranch, which he owned, and 8 Antelope Ranch, which he leased to farm. Other farmers, the Wheelers, agreed to loan 9 plaintiff needed capital. To secure repayment of the loan, plaintiff agreed to deed the 10 Grass Valley Ranch to the Wheelers, and the Wheelers agreed to lease the Grass Valley 11 Ranch back to plaintiff and to grant him an option to purchase upon repayment. To 12 secure payment of the lease obligations, the Wheelers placed a lien against the proceeds 13 of the sale of crops grown on the Grass Valley and the Antelope ranches. 14 After the Wheelers had made at least partial advances and plaintiff had 15 deeded the Grass Valley Ranch to them, disagreements arose. The Wheelers claimed that 16 plaintiff was in arrears on repayments and plaintiff claimed that the Wheelers had failed 17 to advance promised funds necessary to the success of the venture. In 2001, plaintiff 18 filed for bankruptcy, and the parties also disagreed about the effect of that proceeding on 19 their contractual obligations and plaintiff's option to repurchase the Grass Valley Ranch. 20 The Wheelers brought two actions against plaintiff -- one for breach of contract, the other 21 to evict plaintiff from the Grass Valley Ranch. Plaintiff hired a lawyer, Iain Levie, then 22 3 employed with defendant, to represent him in the lawsuits. 1 When the eviction trial began on January 30, 2002, both parties had an 2 incentive to resolve their disputes. Plaintiff wanted to continue to farm the Antelope 3 Ranch and to plant wheat on that property in the coming 2002 season. Plaintiff had 4 planted barley there in the 2001 season, but he wanted to substitute wheat in the 2002 5 season because the government-backed insurance coverage for wheat planted that year 6 was higher than that for barley. To obtain the higher insurance benefit, however, plaintiff 7 was required to plant the wheat by February 15, 2002. (The planting deadline for 8 government-backed insurance for barley was March 15, 2002.) Plaintiff had received 9 confirmation from his bank that it was ready to advance the necessary funds, but the loan 10 was contingent on removal of the Wheelers' crop lien. Plaintiff wanted the Wheelers to 11 release their lien in time to enable him to obtain the funds and plant wheat on the 12 Antelope Ranch property before the February 15 deadline. The Wheelers had a similar 13 incentive to reach an agreement with plaintiff. The Wheelers wanted to plant wheat on 14 the Grass Valley Ranch, and, if they could obtain immediate possession of that property, 15 they too could meet the February 15 deadline and be assured of maximum insurance 16 benefits. 17 Before, and on the day of, the eviction trial, plaintiff told Levie that he 18 would be willing to give up his right to repurchase the Grass Valley Ranch if the 19 Wheelers would remove their crop lien in time for plaintiff to meet the February 15 20 planting deadline. During the lunch break, Levie met with the Wheelers' lawyer and they 21 negotiated an oral settlement agreement that they subsequently reported to the court and 22 4 recited on the record. Plaintiff was not present at that meeting. As recited, the agreement 1 gave the Grass Valley Ranch to the Wheelers and permitted plaintiff to farm the Antelope 2 Ranch. The agreement required plaintiff to (1) relinquish any interest or claim of interest 3 in, and surrender possession of, the Grass Valley Ranch; (2) disclose by February 11, 4 2002, all government payments and other funds that he received from crop sales from 5 2000 through January 30, 2002; (3) immediately endorse and deliver to the Wheelers the 6 crop insurance proceeds for 2000 and 2001; and (4) remove his possessions from the two 7 residences on Grass Valley Ranch by February 28, 2002 and within 45 days after the 8 settlement, respectively. The agreement further provided that a judgment of restitution 9 would issue. In exchange, the Wheelers agreed to dismiss their breach of contract action 10 and to "execute whatever documents [were] necessary to remove all liens from the 11 Antelope property, with respect to any future * * * farming activities." The Wheelers 12 also agreed that they would not "do anything through their own actions which would 13 interfere with [plaintiff's] ability to continue ranching activities anywhere other than * * * 14 the Grass Valley property." The court asked the parties whether they stipulated to the 15 agreement as recited and they indicated that they did. At that time, Mr. Wheeler 16 understood that plaintiff intended to plant wheat on the Antelope Ranch before the 17 February 15 deadline, that plaintiff needed financing to do so, and that plaintiff could not 18 get that financing until the Wheelers removed or subordinated their crop lien. 19 In the days and weeks following the January 30 agreement, plaintiff 20 learned, and informed Levie, that the Wheelers had not removed the crop lien. Levie 21 responded that the Wheelers were in breach of the settlement agreement. On February 22 5 15, 2002, the Wheelers still had not removed the crop lien, and plaintiff was unable to 1 timely plant wheat on the Antelope Ranch as he had intended. 2 On February 24, 2002, the parties entered into an eight-page written 3 settlement agreement. The agreement provided that it was "effective January 30, 2002," 4 and contained the following recital: 5 "The parties have agreed to settle the claims arising out of the FED Action 6 and the Contract Action. The terms of the parties' settlement were placed 7 on the record before the court on January 30, 2002." 8 One of the terms of the written settlement agreement provided: 9 "7.2 Subject to [plaintiff's] performance of his obligations hereunder and 10 the terms of this Agreement, Wheelers shall have no interest or right to 11 claim any interest in any crop proceeds or any government support 12 payments due with respect to the Antelope Property for crops grown during 13 2002 or thereafter, and Wheelers shall on request execute such documents 14 as may be necessary to release such lien claims of record. Wheelers agree 15 not to initiate any public comments about [plaintiff] which would demean 16 his reputation. However, Wheelers shall be entitled to fully answer all 17 questions put to them about their relationship with [plaintiff]." 18 Some time in March 2002, the Wheelers subordinated the crop lien, 19 permitting plaintiff to obtain a bank loan and to plant barley in time to meet the later 20 government insurance deadline applicable to barley. However, because full insurance 21 coverage for barley was less than that for wheat, plaintiff was aware that he could suffer a 22 monetary loss. 23 In February, March, April, and May 2002, plaintiff talked with Levie about 24 what recourse he had as a result of the Wheelers' untimely action. Levie told plaintiff 25 that plaintiff had a "great case" against the Wheelers. In March 2002 and thereafter, 26 Levie said that he would represent plaintiff against the Wheelers and encouraged plaintiff 27 6 to believe that he would prevail in that litigation. Levie did not suggest to plaintiff that 1 Levie had been negligent in any regard or that his representation had contributed to 2 plaintiff's damages. It did not occur to plaintiff that Levie was in any way responsible for 3 those damages and, in fact, Levie's statements about the Wheelers' liability had the 4 opposite effect -- plaintiff was optimistic about recovering his anticipated losses from the 5 Wheelers and understood that he would have six years to do so. Levie told plaintiff that 6 the applicable statute of limitations -- the limitations period for breach of contract -- was 7 six years. 8 Sometime later, plaintiff learned that Levie was no longer employed by 9 defendant. At that time, plaintiff again had discussions with Levie about pursuing the 10 Wheelers for breach of contract. Levie did not change his prior position or advice. 11 Eventually, however, Levie suggested that plaintiff hire a different lawyer to file a claim 12 against the Wheelers. Plaintiff was referred to a new lawyer, who met with him in 13 approximately late November or early December 2006. After several weeks of 14 investigation by that lawyer, plaintiff learned that "such a claim may not be or may no 15 longer be viable based on some problems that appeared to be related to [his 16 representation by defendant]." That was the first time that it occurred to plaintiff that 17 anyone other than the Wheelers could be responsible and liable for his damages. 18 Plaintiff filed this action against defendant on November 19, 2007. 19 Plaintiff alleged that defendant, through Levie's acts or omissions, was negligent in the 20 7 negotiation and expression of the oral settlement agreement.1 In alleging defendant's 1 negligence, plaintiff used a defined phrase, "the Missing Term," to mean 2 "any term requiring that removal of the Antelope Ranch lien by the 3 Wheelers be accomplished immediately or within such other deadline as 4 would have been sufficient to allow time for [plaintiff] to plant wheat on 5 the Antelope Ranch within the February 15, 2002 deadline, and * * * such 6 other related provision or provisions in the Oral Settlement reasonably 7 necessary or appropriate to make such term effective and enforceable, 8 including but not limited to a 'time-is-of-the-essence' clause[.]" 9 Plaintiff alleged that defendant (1) failed to negotiate for inclusion of the Missing Term 10 in the oral settlement; (2) failed to express the Missing Term as a term of the oral 11 settlement agreement; and (3) failed to advise plaintiff regarding the benefits of 12 negotiating and the consequence of omitting the Missing Term. Plaintiff alleged that if 13 defendant had taken the actions that it failed to take, the Wheelers would not have 14 objected to including the Missing Term in the oral or written settlement agreement and 15 would have voluntarily removed the crop lien by February 15 or been ordered by the 16 court to do so. Finally, plaintiff alleged that as a direct result of defendant's negligence, 17 he was unable to plant wheat by the federal crop insurance deadline and suffered net lost 18 profits of $269,414.51. 19 1 Plaintiff also alleged that defendant was negligent in failing to take action to enforce the oral settlement agreement. However, after the trial court issued its written decision on defendant's motion for summary judgment, plaintiff stipulated that the trial court's decision as to plaintiff's allegations of negligent negotiation and expression effectively disposed of plaintiff's allegations as to negligent enforcement. On appeal, the parties proceed in accordance with that stipulation and address only the merits of the trial court's decision on plaintiff's allegations of negligent negotiation and expression. For that reason, we do not separately address plaintiff's allegations of negligent enforcement. 8 Defendant moved for summary judgment, contending that plaintiff's action 1 was time-barred because plaintiff did not commence it within two years from the date of 2 accrual. ORS 12.110(1). See also Stevens v. Bispham, 316 Or 221, 223, 851 P2d 556 3 (1993) (applying statute to legal malpractice claims). Defendant argued that plaintiff's 4 action had accrued no later than February 15, 2002, when he knew that he would be 5 unable to plant wheat on the Antelope Ranch in time to meet the insurance deadline and 6 knew or should have known that defendant was a cause of that damage. Instead of filing 7 his action within two years of that date, plaintiff had waited until November 20, 2007, 8 nearly six years later, to file his action against defendant. 9 The trial court decided that the facts presented on summary judgment did 10 not present a genuine issue of fact as to whether plaintiff knew or, in the exercise of 11 reasonable care, should have known, more than two year before he filed this action, that 12 defendant had failed to negotiate the Missing Term and have that term included in the 13 oral settlement agreement and consequently, that plaintiff's action was time-barred. 14 Plaintiff appealed and the Court of Appeals affirmed without opinion. Plaintiff sought 15 review, which we allowed. The issue before us is whether there are genuine issues of 16 material fact as to when plaintiff's malpractice action accrued and whether those facts 17 precluded summary judgment for defendant. ORCP 47 C; Jones v. General Motors 18 Corp., 325 Or 404, 420, 939 P2d 608 (1997). 19 Before we analyze the proffered facts and the arguments that the parties 20 make from those facts, we review the "discovery rule" that this court uses to determine 21 when a claim for legal malpractice accrues. Stevens, 316 Or at 227; U.S. Nat'l Bank v. 22 9 Davies, 274 Or 663, 666, 548 P2d 966 (1976). The statute of limitations does not begin 1 to run until the client knows or, in the exercise of reasonable care, should know "'every 2 fact which it would be necessary for the [client] to prove * * * in order to support his 3 right to judgment.'" Stevens, 316 Or at 227; Davies, 274 Or at 666-67 (both quoting 4 Franks, Limitations of Actions 11 (1959)). The three elements of a claim for professional 5 negligence are (1) harm, (2) causation, and (3) tortious conduct. Gaston v. Parsons, 318 6 Or 247, 256, 864 P2d 1319 (1994). Thus, a claim for legal negligence accrues "when the 7 client both suffers damage and knows or, in the exercise of reasonable care, should know 8 that 'the substantial damage actually suffered was caused by' the lawyer's acts or 9 omissions." Stevens, 316 Or at 227 (quoting Davies, 274 Or at 670 (emphasis in 10 original)). 11 The discovery rule applies an objective standard -- how a reasonable person 12 of ordinary prudence would have acted in the same or a similar situation. Gaston, 318 Or 13 at 256.2 The discovery rule does not require actual knowledge; however, mere suspicion 14 also is insufficient. Id. The statute of limitations begins to run when the plaintiff knows 15 or, in the exercise of reasonable care, should have known facts that would make a 16 reasonable person aware of a substantial possibility that each of the elements of a claim 17 2 Although Gaston is a medical malpractice case, and the court interpreted a different statute of limitations, ORS 12.110(4), its discussion of the discovery rule is applicable here. In Gaston, the court interpreted ORS 12.110(4) to incorporate the same discovery rule that this court has recognized as applicable in actions governed by subsection (1) of that statute, including actions for legal malpractice. 318 Or at 253. 10 exists. Id. 1 Application of the discovery rule presents a factual question for 2 determination by a jury unless the only conclusion that a jury could reach is that the 3 plaintiff knew or should have known the critical facts at a specified time and did not file 4 suit within the requisite time thereafter. T. R. v. Boy Scouts of America, 344 Or 282, 296, 5 181 P3d 758 (2008). As the following cases demonstrate, legal malpractice claims may 6 present particular challenges for determining, as a matter of law, when the statute of 7 limitations begins to run. 8 Davies, a legal malpractice case, presents one example. In Davies, the 9 defendants advised the plaintiff's decedent to accept trust funds of a corporation in 10 payment for his stock. The decedent did so, and, in 1971, the corporation sued the 11 decedent, alleging that such use of the funds violated the law. In 1973, the decedent 12 settled the lawsuit by paying $170,000 to the corporation. In 1974, the plaintiff filed a 13 legal malpractice action against the defendants, seeking, as damages, the legal expenses 14 he incurred in defending the suit by the corporation and the sum that he paid the 15 corporation in settlement. The defendants contended that the decedent's claim against his 16 attorneys accrued when the corporation sued him, "or, in any event, as soon thereafter as 17 decedent could hire competent counsel and could ascertain whether the claim against him 18 was likely to be a valid one[.]" 274 Or at 668. 19 There was no doubt, the court said, that the decedent had suffered damage 20 at the time the corporation sued him. As of that date, the decedent was required to incur 21 legal expenses to defend against the suit. What was not so clear, however, was whether 22 11 those damages were caused by the defendants' negligent advice. The court observed that, 1 "[i]n many situations[,] the closeness of the legal questions involved would 2 make it impossible to ascertain until the ultimate determination of the case 3 whether it was brought as the result of the attorney's bad advice or whether 4 it was the result of a misapprehension on the part of the party who sued as 5 to his legal rights." 6 Id. at 668. Therefore, the court held, the statute of limitations did not necessarily accrue 7 when the decedent was sued and there was a possibility that he had been the recipient of 8 improper advice; accrual depended on "a 'later event' (the appearance of decedent's 9 probable liability)." Id. at 670. In Bollam v. Fireman's Fund Ins. Co., 302 Or 343, 350, 10 730 P2d 542 (1986), the court characterized the holding in Davies as follows: 11 "This court held that on the record before it the limitations period did not 12 run as a matter of law until the action between the client and corporation 13 determined whether the attorneys' advice was incorrect." 14 As Davies demonstrates, when a client receives advice from a lawyer, the 15 client does not necessarily act unreasonably in trusting that advice. A lawyer is in a 16 relationship of trust and confidence to a client. See In re Drake, 292 Or 704, 713, 642 17 P2d 296 (1982) ("The relationship between lawyer and client is one of trust and 18 confidence."). When a potential tortfeasor is in a relationship of trust and confidence to a 19 plaintiff and makes assurances to the plaintiff, those assurances may "have a bearing on 20 whether a reasonable person would be aware of a substantial possibility of tortious 21 conduct." Gaston, 318 Or at 257. In Gaston, the plaintiff learned, after surgery, that his 22 left arm was numb and did not function. Although the plaintiff therefore knew that he 23 had suffered some harm, the defendant, the plaintiff's surgeon, assured the plaintiff that 24 the loss of function was temporary and that he would regain the use of his arm within six 25 12 months to two years. The question on appeal was whether a reasonable person in the 1 plaintiff's position should have suspected the defendant's malpractice and made an 2 investigation. 3 The court concluded that it could not decide that question as a matter of 4 law. The court noted that symptoms may follow from surgery without necessarily 5 indicating tortious conduct, and decided that, given the relationship of trust and 6 confidence between the parties, the defendant's assurances raised a genuine question of 7 fact and precluded summary judgment. Id. at 257-58. 8 Finally, as Gaston demonstrates, more than one person may be potentially 9 responsible for a client's harm. Because the conduct that may give rise to a claim against 10 the client's lawyer may be quite different from the conduct that may give rise to a claim 11 against another actor, the client's awareness of the role of one potential tortfeasor may not 12 necessarily alert the client to the role of the other. T.R., 344 Or at 292. In T.R., the 13 plaintiff knew that a police officer, who was a city employee, had sexually abused him. 14 However, the court held, that information did not necessarily alert the plaintiff to the 15 possibility that the city itself had a role that could render plaintiff liable, under 42 USC 16 section 1983, for the plaintiff's harm.3 The court explained that, when two or more 17 persons may have a role in causing a plaintiff's injury and the facts that should alert a 18 plaintiff to a defendant's role are different as to each, the date of accrual also may be 19 3 To establish a city's liability under Section 1983, a plaintiff must establish that the city has a policy, custom, or usage that violates a plaintiff's rights. Id. at 290. 13 different as to each. Id. at 292. When the plaintiff is aware that one person has caused 1 harm to the plaintiff, the plaintiff's claim against another defendant accrues when (1) the 2 plaintiff knows, or a reasonable person should know, that there is enough of a chance that 3 the defendant had a role in causing the plaintiff's injury to require further investigation; 4 and (2) an investigation would have revealed the defendant's role. Id. at 296. In T.R., the 5 plaintiff had questioned two other city officers about the abuser, and a jury could have 6 found that the officers had "exhibited acceptance" of the abuser's conduct or had 7 "discouraged any further inquiry." Id. at 298. The court concluded from that evidence 8 that a jury could have found that the plaintiff reasonably believed that further inquiry 9 would not be productive or reveal the city's role in causing his harm. Id. at 298-99. 10 With that background in mind, we turn to the facts adduced on summary 11 judgment in this case. On February 15, 2002, plaintiff believed that the Wheelers were 12 contractually obligated to remove their crop lien in time to enable him to plant wheat by 13 the insurance deadline. Plaintiff knew both that they had not done so and that he would 14 suffer economic harm as a result. Therefore, on that date, plaintiff knew or should have 15 known that he had a claim against the Wheelers for breach of contract. The issue that this 16 case presents is whether, as of that date, plaintiff also knew or, in the exercise of 17 reasonable care, should have known, as a matter of law, that there was such a substantial 18 possibility that Levie was negligent and that his negligence had a role in causing 19 plaintiff's damages, that plaintiff should have conducted a further investigation that 20 would have revealed Levie's role. 21 Defendant argues that plaintiff was present in court on January 30, 2002, 22 14 when the settlement agreement was recited on the record and that he knew, or reasonably 1 should have known, on that date, that the settlement agreement did not include a 2 requirement that the Wheelers remove their lien in time for him to meet the February 15 3 deadline. Moreover, defendant contends, immediately thereafter and over a number of 4 days, plaintiff expressed multiple times to Levie that the Wheelers had not removed the 5 lien and directed Levie to take action to get it removed. Plaintiff later testified, in 6 response to deposition questions by defendant, that if Levie had asked the Wheelers to 7 remove the lien, they would have done so. Consequently, defendant asserts, when the 8 Wheelers did not act by February 15, plaintiff should have known that Levie had not 9 done as directed and that his failure to do so could be a cause of plaintiff's harm. In 10 defendant's words, plaintiff should have known that "some harm had been incurred and 11 that he had a claim against [defendant]" (emphasis in original). A reasonable person, 12 defendant argues, would not have slept on his rights and waited nearly six years to 13 consult another lawyer; a reasonable person would have been aware of the substantial 14 possibility that Levie had acted negligently and contributed to plaintiff's harm and 15 immediately investigated his options. 16 Certainly, defendant is correct that a jury could draw the conclusions for 17 which it argues. However, for the reasons we explain, a reasonable jury also could draw 18 a contrary conclusion. In response to defendant's motion for summary judgment, plaintiff 19 adduced evidence that raised a genuine issue of fact as to when plaintiff knew or should 20 have known of defendant's role in causing the loss that he incurred. 21 Plaintiff proffered evidence that his purpose in entering into a settlement 22 15 agreement with the Wheelers was to obtain a release of their crop lien in time to permit 1 him to plant wheat before the February 15 deadline and that he informed Levie of that 2 purpose. Plaintiff was not present when Levie negotiated the settlement agreement with 3 the Wheelers, but when he heard Levie state in open court that the Wheelers had agreed 4 to "execute whatever documents necessary to remove all liens from the Antelope 5 property, with respect to any future * * * farming activities[,]" he believed that the 6 Wheelers had agreed do so immediately. Plaintiff testified that, when the judge accepted 7 the agreement, he believed that the parties were required to comply. Plaintiff also 8 testified that when he asked Levie about the Wheelers' failure to remove the crop lien in 9 the days and weeks following the January 30 agreement, Levie responded that the 10 Wheelers were in breach of the agreement. 11 Thus, plaintiff proffered evidence from which a jury reasonably could find 12 that, on February 15, 2002, plaintiff did not have actual knowledge that Levie's acts or 13 omissions were a cause of his damages. Plaintiff believed that the Wheelers' timely 14 performance was required and that they had failed to meet their contractual obligations. 15 As to whether plaintiff's belief was objectively reasonable, Levie's advice that the 16 Wheelers were in breach of the agreement is significant. Levie was plaintiff's lawyer. As 17 noted, an assurance made by a person in a relationship of trust and confidence to the 18 plaintiff, such as a lawyer, has a bearing on whether a reasonable person would be aware 19 of a substantial possibility of tortious conduct. The oral settlement agreement, as recited, 20 was silent as to the time for the Wheelers' performance, but Levie assured plaintiff that 21 the Wheelers were nevertheless obligated to perform and that their failure to do so by 22 16 February 15 was a breach of contract. If the agreement recited in open court had 1 expressly granted the Wheelers the right to wait until after February 15 to remove the 2 crop lien, perhaps we could conclude, as a matter of law, that a reasonable person in 3 plaintiff's position would not have credited Levie's assurance. But given that the 4 agreement, as recited, did not include such a term, the effect of Levie's assurance on a 5 reasonable layperson in plaintiff's circumstances raises a genuine question of fact for a 6 jury. 7 Important to that conclusion is the fact that, before February 15, 2002, no 8 court had determined and no court has since determined, that the agreement, as recited, 9 did not require the Wheelers' timely performance. A contract that is silent with regard to 10 time of performance must be performed within a reasonable time, and reasonableness is 11 determined by reference to all the facts and circumstances. Browne & Co. v. John P. 12 Sharkey Co., 58 Or 480, 482, 115 P 156 (1911). The contractual duty of good faith and 13 fair dealing prevents a party from performing the contract in such a way as to deprive the 14 other party of the fruits of the contract as long as the term that the other party seeks to 15 impute does not contradict an express term of the agreement. Uptown Heights Associates 16 v. Seafirst Corp., 320 Or 638, 644-45, 891 P2d 639 (1995). Plaintiff's purpose in seeking 17 release of the crop lien was to enable him to plant wheat by February 15. Plaintiff 18 explained that purpose to Levie, and Mr. Wheeler was aware of plaintiff's purpose when 19 he entered into the agreement. Furthermore, the terms of the written agreement between 20 the parties were consistent with that purpose. The written agreement that the parties 21 signed on February 24, but that was effective on January 30, required, "[s]ubject to 22 17 [plaintiff's] performance[,]" that the Wheelers remove the lien "on request." 1 Thus, plaintiff had a cognizable legal argument that the agreement required 2 the Wheelers to remove the crop lien within a reasonable time -- by a date that would 3 permit plaintiff to plant wheat by the February 15 deadline -- and that the Wheelers had a 4 duty of good faith and fair dealing that prohibited them from depriving plaintiff of the 5 benefit of his bargain. As of February 15, 2002, no court had rejected those arguments. 6 As Levie advised, plaintiff could have filed an action against the Wheelers for breach of 7 contract. If plaintiff had done so and been successful, he would not have had a 8 malpractice claim against Levie, because plaintiff's success would have indicated that 9 Levie had not been negligent, or, that even if Levie had been negligent, his negligence 10 had not caused plaintiff harm. If plaintiff had filed an action against the Wheelers and 11 been unsuccessful because a court determined that the oral settlement agreement did not 12 require the Wheelers' timely performance, then a court would have determined that Levie 13 had not protected plaintiff's interests and plaintiff's malpractice action against Levie 14 certainly would have accrued, at the very latest, at the time of that determination. See 15 Davies, 274 Or at 669-70 (legal malpractice claim accrues as a matter of law on 16 determination of case that results from attorney's advice). 17 In the absence of such a judicial determination, a jury could find that 18 plaintiff reasonably believed, on February 15, 2002, that the Wheelers were in breach of 19 18 contract and that the Wheelers, and not his lawyer, were responsible for his damages.4 1 Defendant's argument -- that a reasonable person in plaintiff's circumstances should have 2 reached the conclusion that, on February 15, 2002, Levie was at fault -- has merit, and 3 ultimately may be persuasive. However, for the reasons we have explained, we cannot 4 reach that conclusion as a matter of law. 5 We emphasize that our decision in this case is based on the facts in the 6 record before us. This record does not include evidence that plaintiff acquired 7 information at some time after February 15, 2002, but before he talked with his new 8 counsel in 2007, from which a court could decide, as a matter of law, that plaintiff knew 9 or should have known that there was a substantial possibility that Levie was to blame for 10 his damages. There is no evidence, for instance, of the specific dates on which plaintiff 11 talked to Levie about pursuing a claim against the Wheelers or Levie's explanation for 12 not filing what he portrayed as a "great case." Defendant does not argue that Levie's 13 failure to file a claim against the Wheelers within a reasonable time after he promised to 14 do so or without a credible explanation for declining to act would have led a reasonable 15 person to question Levie's credibility and to suspect his negligence. On this record, we 16 4 The fact that plaintiff testified in deposition in 2008 that he believed that, if Levie had asked, the Wheelers would have removed the crop lien, does not compel a contrary conclusion. In 2002, plaintiff reasonably could have trusted Levie and believed that Levie was telling him the truth when he said that it was the Wheelers who refused to act. Years later, after learning from new counsel that Levie may have failed to protect his interests, plaintiff could have realized that the fault lay with Levie, and not with the Wheelers, and testified accordingly. 19 decide that a genuine question of fact existed as to when plaintiff's claim accrued, and 1 that defendant was not entitled to summary judgment. 2 The decision of the Court of Appeals is reversed. The judgment of the 3 circuit court is reversed, and the case is remanded to the circuit court for further 4 proceedings. 5

465d582740c7a6338790abf049bb65f00d718beccf4ae80ebc70194ab52dc3a7

2011-11-10T00:00:00Z

2247dd3a-1416-4569-b197-90de836d31b8

White v. Public Employees Retirement Board

S059213

oregon

Oregon Supreme Court

1 Filed: December 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON URSULA WHITE, BRUCE N. REITER, and MARGARET RETZ, Plaintiffs-Appellants, v. PUBLIC EMPLOYEES RETIREMENT BOARD, Defendant-Respondent, and STATE OF OREGON, LANE COUNTY, CITY OF EUGENE, MULTNOMAH COUNTY, CITY OF PORTLAND, CITY OF ROSEBURG, CITY OF HUNTINGTON, CANBY UTILITY BOARD, and ROGUE VALLEY IRRIGATION. Intervenors-Respondents. (CC 040404118, 041111848; CA A142773; SC S059213) On certified appeal from the Court of Appeals on appeal from a judgment of the Circuit Court for Multnomah County, Henry J. Kantor, Judge. Argued and submitted May 3, 2011. Gregory A. Hartman, Bennett, Hartman, Morris & Kaplan, LLP, Portland, argued the cause for plaintiffs-appellants. With him on the briefs were Michael J. Morris and Aruna A. Masih. Joseph M. Malkin, pro hac vice, San Francisco, California, argued the cause for defendant-respondent Public Employees Retirement Board. With him on the briefs were Sarah Marriott and Townsend Hyatt. William F. Gary, Harrang Long Gary Rudnick P.C., Eugene, argued the cause for intervenors-respondents Lane County, et al. With him on the briefs was Sharon A. Rudnick. Jeremy D. Sacks, Stoel Rives LLP, Portland, filed a brief for intervenor- respondent State of Oregon. With him on the brief was Amy Edwards. 2 Before De Muniz, C. J., Durham, Balmer, Kistler, Walters, and Linder, JJ.* BALMER, J. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings. *Landau, J., did not participate in the consideration or decision of this case. 1 BALMER, J. 1 Plaintiffs, one retired member and two active members of the Public 2 Employees Retirement System (PERS), challenge certain actions of the Public 3 Employees Retirement Board (PERB), alleging that those actions violated PERB's 4 fiduciary duty to manage PERS for the exclusive benefit of PERS members. 5 Specifically, plaintiffs allege that PERB breached its fiduciary duty when it settled City of 6 Eugene v. State of Oregon, Marion County Circuit Court No. 99C-12794 (and 7 consolidated cases), on the terms that it did and when it implemented that settlement 8 agreement and took related actions through a series of administrative orders, calculations, 9 and allocations. 10 Respondent PERB and intervenors -- the State of Oregon and various 11 public employers -- reply that PERB's settlement of the City of Eugene case was 12 reasonable and consistent with PERB's statutory and common-law duties, as were the 13 actions that PERB took pursuant to the settlement agreement.1 They assert that PERB's 14 other actions challenged by plaintiffs were required by the PERS Reform and 15 Stabilization Act of 2003 or by court order and, in any event, were consistent with 16 PERB's fiduciary obligations to PERS beneficiaries. The trial court entered judgment in 17 favor of PERB and intervenors, and plaintiffs appealed. The Court of Appeals certified 18 the appeal to this court, ORS 19.405. We agree in substantial part with the trial court's 19 1 Because the arguments of PERB and intervenors are generally aligned, we sometimes refer to them collectively as "defendants." 2 analysis and disposition, although we conclude that there are disputed factual issues with 1 respect to one of plaintiffs' claims and that the trial court erred in granting summary 2 judgment for defendants on that claim. We therefore affirm in part, reverse in part, and 3 remand to the trial court. 4 I. BACKGROUND 5 We begin by describing briefly the City of Eugene litigation and the 6 agreement settling that case, the 2003 PERS legislation (as it relates to the issues here), 7 and PERB's subsequent administrative actions. We then return to the allegations in 8 plaintiffs' complaint. 9 In City of Eugene, several public employers, including the City of Eugene, 10 challenged PERB orders issued in 1998 and 2000 that increased the contribution rates 11 that determine the amounts public employers must pay into PERS on behalf of employees 12 who are PERS members. See City of Eugene v. PERB, 339 Or 113, 117-18, 117 P3d 13 1001 (2005) (summarizing allegations in complaint). Those employer contributions, 14 along with employee contributions and investment earnings on those contributions, 15 constitute the fund -- the Public Employees Retirement Fund (PERF or the fund) -- from 16 which member pensions are paid. The employers also challenged a PERB order that 17 credited the regular accounts of PERS Tier One members -- members who joined PERS 18 before 1996 -- with 20 percent earnings for the 1999 calendar year. Id. The employers 19 argued that the contribution rate orders were unlawful because PERB, in violation of 20 statutory requirements, had failed to fund a contingency reserve account and a "gain-loss" 21 reserve account, had required employers to match the earnings in members' variable 22 3 accounts, and had failed to adopt updated actuarial factors. The employers also claimed 1 that PERB abused its discretion when it made the crediting decision for the 1999 calendar 2 year. 3 In 2001, Judge Lipscomb, the Marion County Circuit Court judge handling 4 the City of Eugene case, granted the employers' motion for partial summary judgment, 5 agreeing that PERB had not administered the fund consistently with statutory 6 requirements and that it had abused its discretion in crediting Tier One accounts with 20 7 percent earnings for 1999. In response to an argument raised by eight PERS members 8 who had intervened in City of Eugene, the trial court concluded that PERB also breached 9 its fiduciary duty with respect to the 1999 earnings allocation order when it credited to 10 employer accounts some of the income earned on funds in the variable account. The trial 11 court vacated the challenged orders and remanded to PERB with instructions to issue new 12 orders consistent with its rulings. Id. at 118-19. PERB appealed the trial court judgment. 13 It also sought a stay of the judgment, first from the trial court and, later, from the Court of 14 Appeals. Both requests were denied. Id. at 119-20. As one step towards complying with 15 the City of Eugene judgment, PERS recalculated the crediting order for 1999 and 16 determined that if PERB had properly funded the contingency and gain-loss reserve 17 accounts, an appropriate credit to Tier One accounts would have been 11.33 percent, 18 rather than the 20 percent that PERB had initially ordered. 19 Meanwhile, the legislature enacted the PERS Reform and Stabilization Act 20 of 2003 and several other bills changing the operation of PERS. Among other things, the 21 legislature restructured PERB itself and "effectively codif[ied]" the 11.33 percent figure 22 4 as the correct 1999 crediting decision. See Strunk v. PERB, 338 Or 145, 216, 108 P3d 1 1058 (2005) (so describing 2003 legislation). 2 In February 2004, PERB entered into a settlement agreement with the City 3 of Eugene plaintiffs by which "PERB agreed to issue, by July 1, 2004, new orders that 4 would comply with both the trial court's judgment and the terms of the [PERS reform 5 legislation]." City of Eugene, 339 Or at 120.2 PERB also agreed to dismiss its appeal of 6 the trial court judgment and to pay specified attorney fees to the plaintiffs. Intervenors in 7 the City of Eugene case did not agree to the settlement and opposed PERB's motion to 8 dismiss the pending appeal of the trial court's judgment. This court granted PERB's 9 motion to dismiss, holding that, in light of the settlement agreement, the new PERB 10 orders, and the legislative changes to PERB, the appeal was moot. City of Eugene, 339 11 Or at 128. Subsequently, this court entered an order vacating the trial court judgment that 12 had been the subject of the appeal. City of Eugene v. PERB, 341 Or 120, 137 P3d 1288 13 (2006). 14 II. THE PARTIES' CONTENTIONS 15 In this action, plaintiffs challenge the settlement of the City of Eugene 16 litigation and the administrative actions taken in 2004 by PERB to implement that 17 2 PERB entered into a virtually identical settlement agreement with the Eugene Water and Electricity Board (EWEB), which had brought a similar but separate action against PERB. For convenience, we refer only to the settlement agreement in the City of Eugene litigation. Our discussion of the issues, however, applies equally to plaintiffs' claims regarding the EWEB litigation and settlement agreement. 5 settlement. They seek judicial review of PERB's actions under the Administrative 1 Procedures Act (APA) and, in the alternative, common-law remedies for PERB's alleged 2 breach of fiduciary duty.3 Specifically, plaintiffs challenge the following actions of 3 PERB: (1) the dismissal of PERB's appeal of Judge Lipscomb's decision in the City of 4 Eugene case; (2) the issuance of new employer contribution orders for 1998 and 2000; (3) 5 the issuance of a new crediting decision for PERS accounts for 1999; (4) the transfer of 6 $61 million from the contingency reserve to employer accounts based on PERB's 7 recalculation of the 1998 and 2000 contribution orders; (5) the transfer of amounts 8 credited to employer accounts for 1999 under the "employer in variable" rule to the 9 contingency reserve; (6) the adoption of a new administrative rule for the calculation of 10 the "money match" benefit for PERS members participating in the variable account 11 program; and (7) the payment of attorney fees to the plaintiffs in City of Eugene and the 12 similar case filed by the Eugene Water and Electricity Board (EWEB). 13 3 Plaintiffs seek judicial review of PERB's actions -- including entering into the settlement agreement and issuing the orders discussed above -- as "orders other than contested cases." ORS 183.484(1). They also challenge the same actions under a common-law breach of fiduciary duty theory. As to plaintiffs' ORS 183.484(1) claim, defendants argued that the trial court lacked jurisdiction to review the decision to enter into the settlement agreement because that decision was not a "final order" for purposes of judicial review. (They recognized, however, that the trial court had jurisdiction to consider plaintiffs' claims under their alternative common-law fiduciary duty theory.) The trial court rejected defendants' jurisdictional argument and decided all the claims on the merits. For present purposes, we may assume, without deciding, that PERB's decision to enter the settlement agreement in City of Eugene was an "order" in other than a contested case and that the trial court had jurisdiction to review the decision under ORS 183.484(1). 6 Plaintiffs allege that those actions violated PERB's common-law fiduciary 1 duties and its "statutory fiduciary duties and obligations." Plaintiffs argue that PERB's 2 decision to settle was made without evaluating and weighing "the relatively small cost of 3 proceeding with the Supreme Court appeal and the potentially enormous benefit to PERS 4 members from the reversal of the trial court's decision." Plaintiffs assert that PERB's 5 actions reduced member benefits by $1.6 billion; had no "discernible benefit" to PERS 6 members, PERB, or the fund; and were outside the range of discretion delegated to PERS 7 by applicable statutory and trust law. They seek to set aside the settlement agreement and 8 the 2004 PERB orders that implemented the agreement.4 9 PERB and intervenors respond that PERB's actions were consistent with its 10 statutory and common-law trust obligations. They assert that plaintiffs incorrectly view 11 any action that does not maximize benefit payments to members as a breach of fiduciary 12 duty and that PERB instead must administer PERS in accordance with statutes that set the 13 terms of the PERS contract, including benefit levels -- and that PERB did so. They 14 further argue that, in making decisions to settle or pursue litigation, and when exercising 15 discretion in allocating funds to specific accounts, PERB may consider the stability and 16 4 In their challenge under the APA, plaintiffs seek to set aside PERB's actions because PERB "erroneously interpreted a provision of law and * * * a correct interpretation compels a particular action." ORS 183.484(5)(a). In the alternative, plaintiffs assert that PERB's action breached its statutory and common-law fiduciary duties to plaintiffs and that those actions should be set aside under the court's equitable powers. Because the substantive issues are the same under either theory, we do not distinguish between plaintiffs' APA and common-law claims, except as specifically noted elsewhere in this opinion. 7 viability of the fund and the longer term interests of all PERS beneficiaries -- and not 1 simply the employee accounts or future benefit levels for active PERS members. 2 III. ANALYSIS 3 Before examining plaintiffs' challenges to specific PERB actions, we 4 briefly review the PERS trust and PERB's general obligations to PERS members.5 The 5 legislature established PERF as a "trust fund," with PERB as the "trustee." ORS 6 238.660(1).6 See also Strunk, 338 Or at 157 (describing PERB as "trustee" and assets of 7 PERF as held "in trust"); Arken v. City of Portland, 351 Or 113, 120, 263 P3d 975 (2011) 8 (same). Trusts are to be administered in accordance with the trust instrument, and trusts 9 created by statute, like the trust that establishes the fund here, "are administered as 10 express trusts, the terms of which are either set forth in statute or are supplied by the 11 default rules of general trust law." Restatement (Third) of Trusts § 4 comment g (2003). 12 See Arken, 351 Or at 163 (so stating). Although common-law trust principles generally 13 apply to the administration of statutory trusts, such as PERS, the applicable statutory 14 rules "often present fundamentally different considerations [than those involved in 15 nonstatutory trusts], thus expressly or impliedly calling for application of different rules * 16 5 We have described the structure and operation of PERS and the 2003 legislation in detail in other decisions. See, e.g., Strunk, 338 Or at 157-66; Arken v. City of Portland, 351 Or 113, 120-22, 263 P3d 975 (2011); we will not repeat that discussion here. 6 ORS 238.660(1) provides, in part, that "[PERF] is declared to be a trust fund, separate and distinct from the General Fund," and that PERB "is declared to be the trustee of the fund." We quote and discuss ORS 238.660(1) at greater length below. 8 * *." Restatement § 1 comment a. 1 As to the "default rules of general trust law," at the time of the PERB 2 actions challenged here, the Oregon Uniform Trustees' Powers Act (UTPA), former ORS 3 128.003 to 128.045 (2003), was in effect.7 Those statutes describe the general powers of 4 a trustee and identify some aspects of a trustee's fiduciary duties, including to act as a 5 "prudent person" in exercising its trust responsibilities. Former ORS 128.009(1); see 6 also Restatement § 77 (trustee has duty to administer trust as prudent person would, 7 including exercise of reasonable care, skill, and caution). As relevant here -- and as we 8 discuss in detail below -- a trustee has the authority "to settle a claim by or against the 9 trust." Former ORS 128.009(3)(s). 10 The parties do not disagree, in the main, about the trust law principles that 11 apply to PERB in its administration of PERS and the fund. They agree that PERB is 12 obligated to comply with the statutes that establish PERS and with generally applicable 13 trust standards mentioned above, such as the UTPA and the common law of trusts. They 14 agree that PERB had (and has) a fiduciary duty to PERS members (including retired and 15 active members), and that it was (and is) obligated to act for the benefit of PERS 16 members. That said, the parties differ in their views of some of the applicable legal 17 standards, and they disagree fundamentally in how those standards should be applied to 18 7 The Oregon Uniform Trust Code (UTC) was enacted in 2005 and replaced the UTPA. Or Laws 2005, ch 348, § 128. The UTC does not apply to judicial proceedings commenced before January 1, 2006, such as this case. ORS 130.910(1)(a),(b). 9 the facts here. 1 As to the legal standards, plaintiffs emphasize the legislature's 2001 2 amendments, Oregon Laws 2001, chapter 945, sections 2 to 3, to two statutes that address 3 PERB's responsibilities as trustee for the fund, ORS 238.601 and ORS 238.660(1). ORS 4 238.601 describes the legislature's purpose in establishing PERS. It provides, in part: 5 "It is the intent of the Legislative Assembly that the [PERB], in performing 6 its duties as trustee of [PERF], recognize that the continued stability and 7 viability of [PERS] depends on the ability of public employers and 8 taxpayers to pay the costs of the system. Consistent with this intent, the 9 board shall administer the system to create and maintain long-term stability 10 and viability in the system, and shall act to achieve full funding for the 11 benefits provided by the system, giving equal consideration to the interests 12 of the public employer and the employee to the extent that treatment does 13 not violate the fiduciary duties of the board. Nothing in this section shall 14 be construed to impose a fiduciary duty on the board to consider the 15 interests of public employers, and the board shall consider the interests of 16 the public employers only with respect to matters unrelated to the board's 17 fiduciary duties as trustee of the fund." 18 ORS 238.660(1), which declares the PERS trust and makes PERB the 19 trustee, similarly provides, in part: 20 "Consistent with the legislative intent expressed in ORS 238.601, 21 and to the extent it is consistent with the board's fiduciary duties, the board 22 shall give equal consideration to the interests of the participating public 23 employers and the interests of members. Nothing in this subsection shall 24 be construed to impose a fiduciary duty on the board to consider the 25 interests of public employers, and the board shall consider the interests of 26 public employers only with respect to matters unrelated to the board's 27 fiduciary duties as a trustee of the fund." 28 Plaintiffs assert that the final sentences in those statutes were added by the 29 legislature in 2001 to make it clear that PERB has no obligation "to consider the interests 30 of public employers" and that PERB is to consider the interests of employers "only with 31 10 respect to matters unrelated to [PERB's] fiduciary duties as trustee of the fund." In 1 plaintiffs' view, that change demonstrates that whenever PERB has any discretion in 2 administering PERS -- as opposed to specific obligations imposed or actions prohibited 3 by statute -- it must show "uncompromising rigidity" in acting solely for beneficiaries. 4 Plaintiffs argue that traditional notions of fiduciary duty, reinforced by the 2001 5 amendments, demonstrate that PERB's obligation to maximize member benefits trumps 6 its statutory obligation to consider "the long-term stability and viability" of PERS, ORS 7 238.601. 8 PERB and intervenors, on the other hand, focus on the statutory 9 requirements that control many of PERB's decisions -- such as the obligation to fund a 10 contingency reserve, ORS 238.670(1), and to provide PERS members with the pension 11 benefits to which they are entitled under the terms of the PERS statutes. They also 12 emphasize the requirement in ORS 238.601 that "the board shall administer the system to 13 create and maintain long-term stability and viability in the system." In the view of PERB 14 and intervenors, PERB meets its fiduciary duty to all PERS members if it pays the 15 benefits provided by law and maintains the long-term stability and viability of the system. 16 They argue that no principles of trust or fiduciary duty law require a trustee to maximize 17 benefits to certain categories of beneficiaries, and that, in making trust decisions, the 18 trustee properly may take into account preservation of the trust corpus and avoidance of 19 unreasonable risks to the trust and its beneficiaries. They note that, when a trustee acts 20 reasonably, given all the circumstances, and does not engage in self-dealing or other 21 plainly improper conduct, courts are -- and should be -- reluctant to second-guess the 22 11 trustee's judgment. 1 We do not fully agree with the applicable legal standards as articulated by 2 either side. Plaintiffs are correct that the wording added to ORS 238.601 and ORS 3 238.660(1) in 2001 expressly rejects the idea that PERB owes any "fiduciary duty" to 4 public employers. However, plaintiffs are incorrect in stating that ORS 238.660(1) 5 requires PERB to direct all earnings in excess of the assumed earnings rate (currently 8 6 percent) "to member employee accounts." Contrary to plaintiffs' assertions, there is no 7 statutory obligation for PERB to credit Tier One regular accounts with more than the 8 assumed earnings rate, even in years when earnings exceed that level. That was a central 9 holding of Strunk: PERS members have 10 "no contractual right * * * to the crediting of annual earnings in excess of 11 the assumed earnings rate to their regular accounts. Instead, * * * for Tier 12 One members, annual crediting at -- but not in excess of -- the assumed 13 earnings rate is the promise that the legislature extended." 14 338 Or at 202.8 Accordingly, plaintiffs are incorrect when they suggest that it is a breach 15 of PERB's statutory obligation for PERB to fail to credit earnings in excess of the 16 assumed earnings rate to employee accounts. 17 Moreover, plaintiffs misstate the legal standard when they suggest that 18 8 See also Strunk, 338 Or at 200 (PERS statutes "evince[] no support for the proposition that Tier One members contractually are entitled to any overage [above the assumed earnings rate] that is not applied to administrative expenses or reserves") (emphasis in original); id. at 201 ("Notably absent [from the PERS statutes] is any directive that, following [application to deficits and reserves], PERB must apply any remaining earnings to PERS members' regular accounts.") (Emphasis in original.) 12 PERS necessarily breaches its fiduciary duty to PERS members if it "administer[s] the 1 system to create and maintain long-term stability and viability in the system," ORS 2 238.601, and in so doing fails to maximize the benefits that will be paid to PERS 3 members. On the contrary, common-law trust principles recognize that a trustee must 4 consider not only the amount of income or the near-term benefits for trust beneficiaries, 5 but also the need to protect and preserve the corpus of the trust itself -- another way of 6 referring to the stability and viability of the trust. See Restatement § 90 comment e 7 (trustee must manage trust to protect capital and secure reasonable return). 8 That principle is particularly important given the nature of the PERS trust. 9 A creature of statute, PERS includes tens of thousands of differently situated 10 beneficiaries -- retired members with widely varying levels of benefits, some of whom 11 will be receiving benefits for decades to come; family members of PERS members, who 12 may receive death benefits at some future date; active members making decisions about 13 retirement or about nonretirement pay-out options; active members who may be a few 14 days or several decades from retirement, with vastly different pension rights. PERB 15 owes duties to all those retired and active members. To suggest, as plaintiffs do, that it is 16 a breach of fiduciary duty for PERB to consider the stability and viability of PERF or 17 PERS, or to take any action with respect to excess funds other than crediting them to Tier 18 One employee accounts, is an unreasonably narrow view of a trustee's responsibility -- 19 and a view that is not supported by case law or statute. 20 The Restatement makes it clear that a trustee's obligations are not met 21 simply by maximizing current allocations to beneficiaries -- and certainly not to one 22 13 group of beneficiaries. A trustee has a duty of impartiality and, "with respect to the 1 various beneficiaries of the trust," must administer the trust "impartially and with due 2 regard for the diverse beneficial interests created by the terms of the trust." Restatement 3 § 79(1)(a).9 Thus, PERB must first comply with specific statutory mandates and 4 prohibitions and, when exercising its discretion beyond those requirements, must 5 consider the diverse interests of PERS and all PERS beneficiaries. As the trial court 6 correctly stated: 7 "It simply is not possible for PERB to protect the beneficial interests of 8 PERS members without ensuring the continuing stability and viability of 9 PERS and PERF. * * * In order to fulfill its combined duties to safeguard 10 PERF for past, present and future PERS members and the system as a 11 whole, PERB must have broad authority and discretion to take actions it 12 reasonably concludes are necessary so long as such actions are not 13 prohibited by the statutory terms of the trust." 14 Moreover, if a trustee makes the distributions to beneficiaries that are 15 required by the terms of the trust -- here, the PERS statutes -- the trustee has discretion 16 with respect to whether and when it makes additional distributions, retains assets for 17 future distributions, or otherwise uses trust assets for the benefit of trust beneficiaries. 18 See 3 Scott and Ascher on Trusts § 18.2, 1338 (4th ed 2007) ("A trustee's powers 19 ordinarily are discretionary, unless the terms of the trust or applicable law makes them 20 9 Indeed, in Arken, we recently held that it would be a breach of the fiduciary duty owed to PERS members generally to treat as administrative expenses overpayments erroneously made to a category of PERS retirees -- the so-called "window retirees." To allow one group of retirees to retain the erroneously paid amounts, with the costs being borne by the administrative account -- and thus by all active PERS members -- would improperly favor one group of beneficiaries over another. See 351 Or at 162-65. 14 mandatory."). As long as the trustee meets its duties of loyalty, prudence, and 1 impartiality, the trustee's conduct "is subject to supervision by a court only to prevent 2 abuse of discretion." Restatement § 87. We discuss those legal principles and their 3 application to the PERB actions at issue here in greater detail below. 4 PERB and intervenors likewise misstate the applicable law in some 5 respects. As noted, they argue that if retirees receive "the benefits provided by the 6 legislature in the PERS statutes," then PERB will have met all the obligations it has to 7 them. That conclusion ignores the statutory and common-law fiduciary duties that PERB 8 owes to PERS members. Those obligations go beyond a PERS member's right to receive 9 the specific benefits to which he or she is entitled by statute. PERB owes duties of 10 loyalty, prudence, and competence to PERS members -- and the fact that PERS retirees 11 receive the dollar amount of benefits to which they are contractually entitled does not 12 necessarily mean that PERB has met those fiduciary obligations. For example, if PERB 13 woefully mismanaged PERS for decades, but the legislature stepped in and appropriated 14 sufficient funds to pay statutorily required pension benefits, the retirees might not have a 15 breach of contract or other claim against the state itself, but that would not mean that 16 PERB had met its fiduciary obligations to those retirees. Similarly, if PERF were fully 17 funded in terms of its anticipated liabilities and reserve accounts and continued for years 18 to generate earnings substantially in excess of the assumed earnings rate, but PERB 19 refused to credit any of those additional earnings to employee accounts, then PERB 20 15 arguably would have failed to meet its common-law fiduciary obligation to certain PERS 1 members -- even if they received their statutorily mandated pension amounts.10 Whether 2 PERB has met its fiduciary obligations to members is not determined solely by whether 3 they receive, at retirement, the pensions to which they are contractually entitled. 4 Similarly, PERB and intervenors oversimplify the operation of PERF when 5 they assert that transfers of funds from one account to another account within PERF (in 6 this case transfers between the contingency reserve and the accounts of certain 7 employers) "have no effect" because "[a]ll the money remain[s] in the system and [is] 8 available to pay for benefits and the system's administrative expenses." That argument 9 proves too much. It would justify just the sort of accounting mischief that Judge 10 Lipscomb identified in the City of Eugene case. It should be obvious that the allocation 11 of funds to a contingency or other reserve, to administrative accounts, to employer 12 accounts, or to employee accounts can have a significant impact on employer 13 contribution rates, future discretionary allocations to member accounts, and other PERS 14 financial decisions. Contrary to PERB's assertions, the fact that dollars remain "in the 15 10 This would be analogous to a closely held corporation that consistently increased its retained earnings, but failed to issue dividends to shareholders. In those circumstances, a minority shareholder may have a breach of fiduciary duty claim against the directors. Even then, however, courts ordinarily will find a breach of the directors' fiduciary duty to shareholders only when the directors have acted in bad faith or unreasonably, in light of all the circumstances. Zidell v. Zidell, Inc., 277 Or 413, 420-21, 560 P2d 1086 (1977) (declining to find breach of fiduciary duty in directors' refusal to declare dividends, despite substantial and increasing retained earnings, where directors had not acted in bad faith and had reasonable explanation for their decision). 16 system" does not, ipso facto, mean that PERB has complied with its statutory or 1 common-law obligations to PERS members (or to public employers). 2 To summarize, we agree with both parties that PERB owes fiduciary duties 3 to PERS retirees and active members. We further agree that PERB must comply with 4 statutes that require specific allocations or payments to beneficiaries and to various 5 reserve and other accounts. As to actions that are not mandated or prohibited by statute, 6 we agree with the parties that PERB has discretion in administering the fund and that it 7 must exercise that discretion consistently with its fiduciary duties. We disagree with 8 plaintiffs' view that PERB necessarily breaches its fiduciary duty if it fails to credit to 9 active member accounts (or at least the regular accounts of active Tier One members) all 10 earnings above the assumed earnings rate that are not statutorily directed to specific 11 purposes. Rather, as a trustee, PERB also has a duty to protect the corpus of the fund and 12 to manage the fund for the benefit of all PERS beneficiaries. And we disagree with 13 PERB and intervenors that PERB's fiduciary obligations are satisfied if PERS members 14 receive the minimum benefits to which they are contractually entitled. Rather, PERB, in 15 exercising its discretion to allocate earnings not otherwise statutorily directed, may 16 allocate amounts to administrative, contingency, or other accounts -- or to employee 17 accounts -- and may take other steps to ensure the long-term stability and viability of 18 PERS, as long as it acts in with prudence, loyalty, and impartiality, and takes actions in 19 what it reasonably determines to be the interests of all PERS members. 20 A. PERB's Settlement of the City of Eugene Litigation and Dismissal of its Appeal 21 With that background, we return to plaintiffs' challenges to specific PERB 22 17 actions. It is helpful to focus first, as plaintiffs do, on their basic argument that PERB 1 breached its fiduciary duty by settling the City of Eugene litigation and dismissing its 2 appeal of the trial court judgment in that case. In doing so, we will discuss the 3 obligations of trustees with respect to bringing and defending claims involving a trust, a 4 discussion to which we will return as we consider other specific actions taken by PERB 5 following the settlement agreement. 6 Plaintiffs assert that the settlement of the City of Eugene case and dismissal 7 of the appeal was a breach of fiduciary duty because "the huge losses which would be 8 suffered by [PERS] beneficiaries" if the trial court decision was not appealed were far 9 outweighed by the "negligible cost of a Supreme Court appeal." Plaintiffs are incorrect 10 in suggesting that the successful appeal of City of Eugene would necessarily have 11 increased benefits to PERS beneficiaries in any particular amount.11 The fact that an 12 appeal might have resulted in more money in the PERS system and available to be 13 credited to various accounts does not mean that any individual employee account 14 necessarily would have been credited with any additional amount or that any member 15 11 PERB must comply with certain statutory directives, including maintaining adequate reserves, ORS 238.670, and paying member benefits, ORS 238.200, ORS 238.320, ORS 238.250. And, as this court held in Strunk, it must credit the assumed earnings rate on Tier One regular accounts and pay cost of living adjustments (COLAs) for retired members. 338 Or at 204-08, 213-15. However, beyond those specific directives, PERB has discretion to use moneys in the fund for statutory purposes as it sees fit. See ORS 238.661 ("Moneys in the [PERF] are continuously appropriated to [PERB] to carry out the purposes of [chapter 238 and 238A]."). 18 would have received higher benefits.12 Nevertheless, plaintiffs have properly alleged that 1 PERB failed to meet its fiduciary duties to them and other PERS beneficiaries by settling 2 the case and implementing the settlement, and they are correct that PERB's actions, if 3 improper, caused them harm by reducing the amounts public employers must pay into 4 PERF, lowering fund reserves, and potentially affecting benefits, at least for Tier One and 5 Tier Two active members. We therefore turn to a consideration of the standards by 6 which to evaluate the claim that a trustee has breached its fiduciary duty in settling a legal 7 action involving the trust. 8 A trustee's obligation with respect to litigation is an application of the 9 trustee's general obligation to act with prudence, loyalty, and impartiality in the interests 10 of the beneficiaries. See Restatement §§ 77-79 (identifying those duties). The test for 11 determining whether a trustee has fulfilled its duty in the context of settling a lawsuit 12 involving the trust is whether the trustee has acted "reasonably," Restatement § 76 13 comment d, or, as it is sometimes phrased, has "not acted unreasonably." 3 Scott and 14 Asher on Trusts § 17.10 at 1224. 15 12 Indeed, plaintiffs make that very point in refuting -- correctly -- PERB's argument that it makes no difference whether funds are allocated to employer accounts or to the contingency account because the funds "never leave the system." See ___ Or at ___ (slip op at 15-16). Allocations to employee, employer, contingency, administrative, or other accounts can (depending on many factors, including PERB policy choices) affect employer contribution rates and, at least for active Tier One and Tier Two members, retirement benefits. But the same argument demonstrates why an increase or decrease in the overall fund or in total fund liabilities by a specific amount does not necessarily mean that actual benefits to individual retirees will increase or decrease by that amount. 19 When making decisions involving claims and litigation, a trustee must 1 consider the "risks and benefits" -- as it must when making other decisions involving the 2 trust -- but the test itself is whether the decision is a reasonable course of action in terms 3 of the trust's interests. See Pillsbury v. Karmgard, 22 Cal App 4th 743, 762-63, 27 Cal 4 Rptr 2d 491 (1994) (trustee exercised proper business judgment in declining to bring 5 lawsuit where trustee considered risks and benefits and concluded that litigation was not 6 in trust's best interest). To repeat, the standard for examining a trustee's conduct with 7 respect to litigation is the traditional objective test of reasonableness in the 8 circumstances: Just as a trustee must take "reasonable steps to enforce all claims held in 9 trust," 3 Scott and Ascher on Trusts § 17.9 at 1220, a trustee has a "duty to defend claims 10 against the trust," and that duty "is to do what is reasonable under the circumstances." Id. 11 § 17.10 at 1224. A trustee "has a certain amount of discretion and is liable only for abuse 12 of that discretion by failing to do what is reasonable under the circumstances." Id. 13 (emphasis added). Indeed, "[i]t is not necessarily improper for a trustee to pay a claim, 14 even if the trustee does not believe that the claim is well founded, if, under all the 15 circumstances, including the amount involved and any surrounding doubts, it is 16 reasonable to do so." Id. § 17.10 at 1224-25 (emphasis added). 17 The same rule applies, of course, to a trustee's decision to appeal or not to 18 appeal an adverse court decision. During litigation, "reasonable steps" to defend a trust 19 when it has been sued "may include taking an appeal to a higher court, compromise or 20 arbitration of claims by or against the trust, or even abandoning a valid claim or not 21 resisting an unenforceable claim if the costs and risk of litigation make such a decision 22 20 reasonable under all the circumstances." Restatement § 76 comment d (emphasis added). 1 Put differently, "A trustee who loses in the trial court may be under a duty to appeal to a 2 higher court, if, under all the circumstances, it would be unreasonable not to do so." 3 3 Scott and Ascher on Trusts § 17.10 at 1225 (emphasis added). 4 Although our cases have not discussed the specific issue of a trustee's 5 fiduciary duty in bringing, defending, or settling a lawsuit, when we have reviewed the 6 actions of trustees, we have consistently adhered to the objective standard of assessing 7 the "reasonableness of [the trustee's] judgment." Rowe v. Rowe et al, 219 Or 599, 609, 8 347 P2d 968 (1959). We pause to briefly discuss Rowe, because that case is particularly 9 apropos here. Rowe involved a "discretionary" trust, where the trust instrument did not 10 give specific directions to the trustee as to how to administer the trust -- although the 11 trustee, of course, was required to act in the best interests of the beneficiaries. Id. at 604. 12 Similarly, once PERB has met its obligations under the PERS statutes and this court's 13 cases -- to allocate reserves as required by statute, pay statutorily required benefits, and 14 credit Tier One member regular accounts with the assumed earnings rate -- it has 15 discretion to use the moneys in the fund "to carry out the purposes" of PERS (and the 16 successor state retirement plan that the legislature established in 2003). ORS 238.661. 17 In Rowe, one of the beneficiaries argued that the trustee should pay out all 18 the accumulated income in the trust, rather than continuing to hold some of the income in 19 trust, and the trial court agreed. This court reversed, holding that there was no evidence 20 that the trustee had acted in bad faith, dishonestly, or from an improper motive. Rowe, 21 219 Or at 609-10. Because the trustee had acted in good faith, the only question was the 22 21 "reasonableness of his judgment" in deciding not to pay out immediately all of the trust's 1 accumulated income. This court stated: 2 "It is quite possible that we would have been more liberal in our treatment 3 of the life beneficiaries had the power to decide been vested in us. But we 4 have no right to substitute our judgment for that of the trustee. We are 5 permitted to control the trustee only if we can say that no reasonable person 6 vested with the power which was conferred upon the trustee in this case 7 could have exercised that power in the manner in which it was exercised. 8 We cannot say that the trustee's conduct in the instant case was 9 unreasonable in this sense." 10 Id. at 609-10 (citations omitted). 11 Thus, the proper inquiry here is whether, under all the circumstances, it was 12 unreasonable for PERB to settle the City of Eugene litigation and dismiss its appeal. For 13 that reason, we reject plaintiffs' initial suggestion that PERB's fiduciary duty was simply 14 to "weigh[] the negligible cost of a Supreme Court appeal against the huge losses which 15 would be suffered by its beneficiaries."13 That standard incorrectly states the law 16 because, as just discussed, a trustee's obligation with respect to claims involving the trust 17 is not a simple balancing of the out-of-pocket cost of litigation against the amount that 18 13 As noted above, the factual premise of plaintiffs' assertion is inaccurate because the "huge loss[]" to which plaintiffs refer is based on PERS's estimate of the amount by which its overall accrued liabilities (and thus the amounts that would have to be contributed to or earned by the fund) were reduced by the City of Eugene judgment. By the time that case was settled, however, all but one of the issues in the case had already been resolved by legislative action or by this court's decision in Strunk. See City of Eugene, 339 Or at 127 (so stating). And, as discussed above, even if PERB had prevailed on appeal, an increase in the amount of money in the PERS system does not necessarily mean any increase in the retirement allowance paid to any particular PERS beneficiary. See ___Or at ___ (slip op at 17-18). 22 might be recovered (discounted, presumably, by the possibility of not prevailing). 1 Plaintiffs' position, however, can be recast in terms of the applicable fiduciary duty 2 standard discussed above, as follows: Because the potential benefits to PERS of a 3 successful appeal of the City of Eugene judgment were substantial and the corresponding 4 financial cost of pursuing the appeal (and even of paying additional attorney fees to the 5 opposing side should the appeal be unsuccessful) was modest, it was objectively 6 unreasonable for PERB to settle the case and dismiss the appeal. 7 We turn to that argument. Under the terms of the settlement, PERB agreed 8 to recalculate the amounts that the public employers who were the plaintiffs in the City of 9 Eugene case were required to pay into PERS on behalf of their employees, to reduce the 10 amount credited to Tier One employee accounts for 1999 from 20 percent to 11.33 11 percent, to fund reserve accounts as required by statute, and to take similar actions in its 12 administration of the PERS system. Those actions, taken as a whole, had the effect of 13 reducing the contributions that public employers otherwise would have been required to 14 make to PERS; other things being equal, that reduction decreased the funds available for 15 possible allocation to member accounts. In those circumstances, plaintiffs argue, it was 16 unreasonable for PERB to settle the case and dismiss the appeal. 17 For the reasons that follow, we disagree. The PERB board members 18 testified that they evaluated the City of Eugene case and concluded that it was in the best 19 interests of the PERS system and its members to settle the case on the terms that it did. 20 The board based that conclusion on several factors, including (1) that PERB was unlikely 21 to prevail on appeal; (2) that achieving the certainty of a settlement and putting the City 22 23 of Eugene litigation behind PERS would benefit PERS and its members; and (3) that 1 settlement would help protect the stability and viability of the PERS system. We review 2 each of those considerations in turn. 3 PERB appointed a committee of board members to review the litigation, 4 and the committee evaluated the case with counsel. They concluded that Judge 5 Lipscomb's ruling was probably correct, that major parts of it had been written into law 6 by the legislature, and that the appeal therefore was unlikely to be successful. At the time 7 of settlement in early 2004, PERB already was facing a trial court judgment ordering it to 8 make most of the accounting and other changes to which it agreed in the settlement 9 agreement. Following extensive trial court proceedings, including summary judgment 10 motions and a bench trial, Judge Lipscomb had issued detailed opinions, generally 11 finding in favor of the public employer plaintiffs and against PERB. As noted, PERB 12 had asked the trial court to stay the judgment, but it had refused. PERB had then asked 13 the Court of Appeals to stay the judgment, but it too had refused, stating that PERB was 14 "unlikely to prevail on the merits." The PERB board reasonably believed that it was 15 unlikely to prevail on appeal and that settlement of the case was therefore appropriate. 16 PERB board member Dalton testified that, in his view, "[Judge] Lipscomb was right in 17 the major finding." Similarly, board member Rocklin explained that she did not think 18 that certain actions of PERB challenged in City of Eugene "could be successfully 19 24 defended * * *."14 1 The board also believed -- reasonably -- that the chances of prevailing on 2 appeal were very limited because almost all of the issues that had been decided by the 3 trial court and that otherwise might have been addressed on appeal had, in the meantime, 4 been enacted as part of the 2003 legislation, thus superseding Judge Lipscomb's 5 judgment. That legislation "effectively codif[ied] the 11.33 percent figure as the correct 6 1999 crediting decision," City of Eugene, 339 Or at 127 (quoting Strunk, 338 Or at 216), 7 and it imposed, as a statutory requirement, PERB's existing (but long-ignored) policy for 8 funding the gain-loss reserve. Id. (citing Or Laws 2003, ch 67, § 5). Additionally, the 9 2003 legislation required PERB to adopt new actuarial equivalency factors, as Judge 10 Lipscomb had ordered, and to apply those factors retrospectively to certain members who 11 began service before 1999. See Strunk, 338 Or at 225-30 (describing issue and 2003 12 legislation). And it required PERB to recalculate existing rate orders based on the 2003 13 legislation. Or Laws 2003, ch 67, § 15.15 14 As part of the settlement agreement, PERB agreed to implement those 15 14 At her deposition, Rocklin stated, "There were, certainly in my mind, parts of Judge Lipscomb's decision that I did not think could be successfully defended on appeal." The context of the statement, however, makes it clear that she was referring to PERB's earlier actions (rather than to Judge Lipscomb's decision) as that which she believed could not be defended on appeal. 15 The legislature based the 2003 legislation, in substantial part, on a finding that PERB had committed "errors" that resulted in some employees "receiving benefits that exceed the benefits provided by law." Or Laws 2003, ch 67 (preamble). 25 legislative mandates. Plaintiffs identify no legal basis on which an appellate court 1 reviewing the City of Eugene judgment could have avoided the effect of those legislative 2 directives, even if it had concluded that the portions of the trial court judgment on which 3 they were based were erroneous at the time that the judgment was issued. The board 4 determined that PERB was not likely to prevail if it pursued the appeal of the City of 5 Eugene judgment. Nothing in this record suggests that that determination was 6 unreasonable. 7 Moreover, as events transpired, PERB's assessment was generally correct. 8 When some of Judge Lipscomb's rulings in the City of Eugene judgment were presented 9 to this court in Strunk -- through challenges to the 2003 legislation, which incorporated 10 those rulings -- this court rejected the positions taken by plaintiffs here. This court, for 11 example, upheld the changes to the actuarial equivalency factors ordered by Judge 12 Lipscomb and included in the 2003 legislation. Strunk, 338 Or at 232-36; City of Eugene, 13 339 Or at 125-26. This court also addressed the statutory requirement that PERB fund 14 the contingency account established by ORS 238.670(1), as required in the City of 15 Eugene judgment, and the court rejected the position asserted by plaintiffs here. City of 16 Eugene, 339 Or at 126 (quoting Strunk, 338 Or at 159). And, as noted, this court viewed 17 the 11.33 percent crediting decision for 1999 and the funding goal for the gain-loss 18 reserve account -- other issues that were on appeal in City of Eugene -- as having been 19 codified in the 2003 legislation and no longer subject to dispute. City of Eugene, 339 Or 20 at 127. Indeed, as we stated in City of Eugene, "the only substantive 21 issue presented [in the City of Eugene appeals] that has not been resolved by the 22 26 intervening legislative amendments to PERS or by this court's decision in Strunk is 1 whether the trial court erred when it agreed with employers that PERB unlawfully had 2 required employers to match the earnings on members' variable accounts." 339 Or at 3 127. If PERB had continued with its appeal of Judge Lipscomb's decision, it is unlikely 4 that PERS or its members would have achieved any particular benefit beyond what the 5 plaintiffs achieved in Strunk. Given those circumstances, we conclude that the PERB 6 board members appropriately evaluated PERB's prospects for success in the appeal of the 7 City of Eugene judgment and reasonably concluded that they were unlikely to prevail and 8 obtain reversal of any substantial part of the trial court judgment. 9 Second, PERB wanted to achieve some degree of certainty for the PERS 10 members who were making decisions about possible retirement during this time period. 11 PERB also considered the benefits of certainty for the PERS system as a whole, which 12 was struggling to deal with the multiple and sometimes conflicting directives from the 13 courts and from the legislature. At the time of settlement in early 2004, PERB was faced 14 with a trial court judgment requiring it immediately to make complex and far-reaching 15 changes to the administration of PERS, including recalculations of employer contribution 16 levels, allocations to various reserve funds, and crediting decisions for tens of thousands 17 of individual accounts going back at least six years. Moreover, the 2003 legislature had 18 restructured the board itself and established various new accounting and other directives 19 for PERB to implement. 20 Board members testified that one important reason for the settlement 21 agreement was that PERB could not implement all aspects of both the City of Eugene 22 27 judgment and the 2003 legislation, because some of those directives conflicted. In 1 particular, Judge Lipscomb had vacated the 1999 crediting order and directed PERB to 2 issue a new order allocating 1999 earnings, but based on first funding the required 3 reserve accounts and making other administrative changes. The 2003 legislation, in 4 contrast, proposed to remedy that overcrediting prospectively by changing the statute 5 regarding the crediting of the assumed earnings rate for Tier One accounts and requiring 6 that COLAs for certain retirees be frozen to offset the effect of the 1999 overcrediting. 7 However, that legislation -- which ordinarily would have superseded the prior court order 8 -- had been challenged as unconstitutional by PERS members. By entering into the 9 settlement agreement, PERB was able to obtain the agreement of the City of Eugene 10 plaintiffs that it would not have to reallocate 1999 earnings, as required by Judge 11 Lipscomb, unless the provisions of the 2003 legislation regarding assumed interest 12 crediting and COLAs were held unconstitutional. PERB argues that the settlement 13 agreement allowed it to navigate conflicting legal requirements and limit its enormously 14 complex and expensive accounting and administrative burdens. Several board members 15 testified that it was in the best interests of PERS members to achieve the relative certainty 16 that the settlement brought and to implement the changes required by the 2003 legislation 17 and the City of Eugene judgment in a way that would be "least painful" for PERS 18 members. Nothing in the record suggests that the PERB board members did not believe 19 in good faith that that aspect of the settlement agreement was an important benefit for 20 28 PERS members (and for the administration of PERS overall) and was a reasonable 1 consideration in settling the case.16 2 Finally, the PERB board members testified that they believed that the 3 settlement was in the best interests of PERS -- including the long-run interests of PERS 4 retirees and active members -- because a settlement would help protect the financial 5 viability and stability of the PERS system. As discussed previously, plaintiffs argue that 6 considerations of financial "stability" and "viability" of PERS can play no part in 7 determining whether PERB met its fiduciary obligations to PERS and its members. In 8 their view, those terms are simply code words for reducing costs to public employers and 9 thus any reliance on those concepts interferes with PERB's obligation to maximize the 10 benefits that PERS members will receive. 11 It is basic trust law that a trustee has a duty to "protect[] trust property" and 12 to ensure, consistently with any requirements and prohibitions specific to the trust, that 13 funds are managed in a way that will benefit all trust beneficiaries. Restatement §§ 76, 14 79. The uncontradicted testimony of the board members establishes that they had those 15 considerations in mind when they approached their decision about whether and on what 16 terms to settle the City of Eugene litigation. PERB had just been told directly by the 17 courts and by the legislature that it had been mismanaging PERS for years. As this court 18 16 In Strunk, this court did strike down the legislature's chosen method for correcting the 1999 overcrediting decision. That does not, however, affect our conclusion that PERB reasonably saw that provision in the settlement agreement as providing a benefit to PERS members at the time PERB entered into the agreement. 29 later said in Strunk, PERS had unfunded actuarial liabilities in 2003 as high as $17 billion 1 and, despite sustained economic growth and average investment returns of approximately 2 15 percent between 1991 and 2000, the ratio of PERS assets to projected future liabilities 3 during that period actually declined. 338 Or at 163. The board wanted to put PERS on a 4 more stable financial footing and take steps to ensure that PERS could meet its 5 obligations to existing retirees and active members. 6 PERS also faced possible additional legislative action as a result of press 7 and public criticism of the system -- whether fair or not -- that could have been adverse to 8 the interests of PERS members. The board members' testimony indicates that they 9 viewed protecting the financial interests of retirees and active members as their 10 paramount duty -- and that they believed in good faith that restoring the financial 11 integrity of PERS was essential to that goal. As the trial court noted, no competent 12 evidence before the court challenged the board's "good faith and reasonable belief * * * 13 that settlement of the City of Eugene appeals would promote the long-term stability and 14 viability of PERS * * *." Having reviewed the summary judgment record, we agree. 15 Nothing in this record suggests that PERB's decision to enter into the settlement 16 agreement and, as part of that agreement, to dismiss the appeal of the City of Eugene 17 judgment, was unreasonable. In those circumstances, "we have no right to substitute our 18 judgment for that of the trustee." Rowe v. Rowe et al, 219 Or 599, 610, 347 P2d 968 19 (1959). 20 We turn then to plaintiffs' arguments that specific PERB actions were 21 unreasonable and in breach of PERB's statutory and common-law fiduciary duties. 22 30 B. PERB's Order Setting New Employer Rates for 1998 and 2000 1 Plaintiffs challenge PERB's October 2004 orders that calculated new 2 employer rates for 1998 and 2000. Plaintiffs allege that those rate orders violated PERS 3 statutes and constituted a breach of PERB's fiduciary duty. (In a related claim, discussed 4 below, plaintiffs argue that PERB improperly transferred money from the contingency 5 reserve to the employer accounts of the plaintiffs in City of Eugene as a result of 6 recalculating employer contributions based on those new rate orders.) PERB responds 7 that its actions were required by the City of Eugene judgment and the settlement 8 agreement. To the extent that some aspects of PERB's calculations were not so 9 mandated, PERB argues, they were not inconsistent with any statutory requirements and 10 were within PERB's discretion. 11 We agree with PERB. As discussed above, in City of Eugene, the trial 12 court held that PERB had failed to follow the PERS statutes and had otherwise 13 improperly managed PERS for many years. The judgment in that case ordered PERB, 14 applying the correct legal and accounting principles, to "issue new employer rate orders 15 for 1998 and 2000, and a new earnings allocation order for the 1999 investment year." In 16 the settlement agreement, PERB agreed to recalculate the 1998 and 2000 orders 17 "as if PERB's practices and actuarial assumptions with respect to [various 18 allocation issues] had been consistent with the law as interpreted in the 19 [City of Eugene] judgment and as if PERB had, for 1999, originally 20 allocated earnings of 11.33% to Tier 1 regular member accounts, allocated 21 7.5% of earnings to the contingency reserve and had fully funded the gain- 22 loss reserve * * *." 23 For the reasons discussed at length above, the execution of the settlement agreement was 24 31 consistent with PERB's statutory and fiduciary duties, and thus its implementation of that 1 agreement by, among other things, issuing new employer rate orders for 1998 and 2000 2 did not breach those duties. See City of Eugene, 339 Or 122-23 (settlement agreement 3 implemented trial court judgment and new employer rate orders were entered "pursuant" 4 to settlement agreement). 5 C. PERB's Order Revising the Crediting of 1999 Earnings 6 Plaintiffs next argue that PERB's 2004 order reallocating 1999 earnings for 7 Tier One regular accounts to reflect a crediting of 11.33 percent, rather than 20 percent, 8 was a breach of fiduciary duty. Even putting the settlement agreement to one side, 9 plaintiffs make no coherent argument as to how the revised crediting decision itself 10 breached any fiduciary duty. Instead, they assert that neither the City of Eugene 11 judgment nor the 2003 PERS legislation required PERS to reallocate 1999 earnings. 12 That argument ignores the applicable breach of fiduciary standard: an objective 13 assessment of the "reasonableness of [the trustee's] judgment." Rowe, 219 Or at 609. 14 Under that standard, for reasons we will set out, the trial court correctly held that PERB 15 did not breach any fiduciary duty. 16 The judgment in City of Eugene vacated PERB's earlier 1999 crediting 17 order and directed PERB to enter a new order. PERB had no choice but to comply with 18 that order. (As noted, PERB sought a stay of the trial court judgment, but that request 19 was denied by the trial court and by the Court of Appeals.) Although the judgment did 20 not specify the amount that should have been allocated to Tier One regular member 21 accounts (in place of the 20 percent in the original order), the trial court's opinion stated 22 32 that the calculation must include funding of the contingency reserve required by ORS 1 238.670(1) (and not funded for more than 20 years) and funding of the gain-loss reserve 2 that was authorized by ORS 238.670(3) (1999) and required by an existing PERB policy 3 that PERB had failed to comply with. Judge Lipscomb did not himself decide what the 4 appropriate crediting amount might be, but directed PERB to make a new determination 5 "in a much less aggressive, and in a much more prudent fashion, in accordance with 6 statutory obligations * * *." 7 Recalculating the 1999 crediting order taking the reserve requirements into 8 account, PERS actuaries arrived at the 11.33 percent figure that PERB used in the new 9 crediting order. Plaintiffs do not challenge the 11.33 percent figure as the result of an 10 arithmetic error or as otherwise objectively unreasonable. And the 2003 PERS 11 legislation "effectively codif[ied] the 11.33 percent figure as the correct 1999 crediting 12 decision." Strunk, 338 Or at 216 (citing Or Laws 2003, ch 67, §§ 9, 13, as amended by 13 Or Laws 2003, ch 625, § 12). PERB used the crediting amount that the legislature 14 indicated was appropriate.17 15 17 Plaintiffs observe that the references to the 11.33 percent crediting amount in the 2003 legislation and in the settlement agreement were in the context of an alternative remedy for the 1999 overcrediting, to be implemented only if this court held that the legislature's preferred remedy for overcrediting -- a freeze on COLAs and a change in Tier One members' earnings guarantee -- was held to be unconstitutional. That observation, however, does not alter the fact that the legislature plainly determined that 11.33 percent was "the correct 1999 crediting decision." Strunk, 338 Or at 216. As it turned out, of course, this court did conclude -- in response to a constitutional challenge by PERS members -- that altering the Tier One earnings guarantee and freezing COLAs was unconstitutional, id. at 204-08, 223-25, thus establishing the premise underlying the 33 Plaintiffs do not explicitly argue that the 11.33 percent crediting is a breach 1 of fiduciary duty because member accounts -- or at least Tier One member regular 2 accounts -- must receive all, or most, of any fund earnings beyond statutorily required 3 reserves and necessary administrative expenses. That position, however, is implicit in 4 other aspects of plaintiffs' arguments. To the extent that that is plaintiffs' position, we 5 reject it for the reasons set out at ___ Or at ___ (slip op at 11) above. Tier One members 6 have a contractual right to be credited the assumed earnings rate (currently 8 percent) on 7 their regular accounts. In the revised crediting order, PERB credited them 11.33 percent, 8 a figure calculated by PERS actuaries based on the fund's earnings that year and adequate 9 funding of reserve and other accounts. 10 Because the revised crediting order was issued to implement a settlement 11 agreement that PERS reasonably decided to enter into, the order was not a breach of any 12 duty. Moreover, plaintiffs offer no reason -- and we can identify none -- why it would be 13 objectively unreasonable for PERS to issue a new crediting order that was consistent with 14 applicable statutes, an enforceable court judgment, and the legislature's determination of 15 the appropriate crediting amount. Accordingly, we conclude that PERB's issuance of the 16 revised 1999 crediting order was not a breach of its fiduciary duty. 17 D. PERB's Transfer of the $61 Million from the Contingency Reserve to Employer 18 Accounts 19 Plaintiffs next argue that PERB breached its fiduciary duty by transferring 20 crediting order challenged here. 34 $61 million from the contingency reserve to the employer accounts of the City of Eugene 1 plaintiffs in 2004. That transfer is related to the revised employer contribution rates 2 described above. Pursuant to the settlement agreement, PERS directed its outside actuary 3 to determine the difference between (a) the employer contributions made by the City of 4 Eugene plaintiffs based on (depending on the particular plaintiff) the 1998, 2000, and 5 2003 contribution rates established by PERB and (b) the contributions that those 6 employers would have made under the revised rates discussed above (that is, the rates as 7 adjusted in 2004 to reflect the changes ordered by Judge Lipscomb and agreed to in the 8 settlement agreement). PERB determined that amount -- which it viewed as an 9 "overpayment" by those public employers -- to be approximately $61 million. PERB 10 then transferred that amount from the contingency reserve to the respective employer 11 accounts. 12 Before the trial court, plaintiffs argued that PERB breached its fiduciary 13 duty in making the $61 million transfer. The trial court granted defendants' motion for 14 summary judgment, holding that PERB "had discretion to establish * * * a method to 15 remedy the certain shortfall" that would result from the City of Eugene judgment and the 16 settlement agreement. The trial court recognized that the transfer was "inconsistent with 17 the exact terms" of the settlement agreement and that other "sound methods" may have 18 existed, but it nevertheless found PERB's solution "rational." 19 Before this court, plaintiffs argue that PERB breached its fiduciary duty 20 both in transferring funds from the contingency reserve -- funds that otherwise would 21 have been available for other purposes, including crediting to Tier One accounts -- to the 22 35 employer accounts of the City of Eugene plaintiffs and in calculating the amount to be 1 transferred. They assert that the transfer and the calculation method were not required by 2 the terms of the settlement agreement; that the method failed to properly take into 3 account changes in PERS as a result of the 2003 legislation; and that the calculations 4 relied upon estimates and "hypotheticals" about retiree payouts, rather than actual costs. 5 Plaintiffs argue that this court's decision in Arken provides further support for their 6 breach of fiduciary duty claim because Arken held that it was a breach of that duty for 7 PERB to treat excessive payments to certain retirees as administrative expenses, thus 8 shifting the cost of those improper payments to all PERS members. They assert that 9 PERB's use of the contingency reserve to reimburse employers for the excessive 10 contributions that the employers had made (some of which, in turn, were paid out as 11 excessive benefits to certain retirees) shifted the costs of those excessive payments from 12 the retirees who received them (and their former employers) to all PERS members, in 13 violation of PERB's fiduciary duty as outlined in Arken. Moreover, plaintiffs suggest, 14 this court's approval in Arken of the direct recoupment from certain retirees of 15 overpayments made due to PERB's excessive crediting decision for 1999 undercuts 16 PERB's rationale for the $61 million transfer in the first place. 17 Defendants concede that neither the City of Eugene judgment nor the 18 agreement settling that case expressly require PERB to "transfer" any amounts to the 19 employer accounts of the City of Eugene plaintiffs. They offer, however, a three-step 20 argument in support of the $61 million transfer. First, they assert that "PERB was 21 required * * * to make [the City of Eugene plaintiffs] whole for the actuarial value of the 22 36 benefits PERB committed to pay to these employers' retirees and current employees 1 which exceed those for which employers lawfully could be charged." Second, they assert 2 that section 1.5 of the settlement agreement implements that requirement because it 3 obligates PERB to recalculate employer contribution rates, using various assumptions, 4 and to "treat the difference between [each employer's] contribution made pursuant to the 5 former contribution rate orders and the corrected contribution rate orders as excess 6 employer contributions." Third, defendants claim that the $61 million transfer was an 7 appropriate means of ensuring that the City of Eugene plaintiffs would not have to pay for 8 excessive amounts paid or payable to their retirees based on the erroneous rate orders. 9 Defendants argue that no statute, rule, or common-law duty prohibits PERB 10 from transferring funds from the contingency reserve to specific employer accounts to 11 remedy overpayments by those employers. The contingency reserve, they point out, may 12 be used by PERB "[t]o pay any legal expenses or judgments that do not arise in the 13 ordinary course of adjudicating an individual member's benefits or an individual 14 employer's liabilities" and "[t]o provide for any other contingency that the board may 15 determine to be appropriate." ORS 238.670 (1)(b), (c). In their supplemental briefing, 16 defendants respond to this court's decision in Arken -- which affirmed PERB's authority 17 to recoup certain excessive benefits from the retirees who received them -- by noting that 18 the reasonableness of PERB's decisions in 2004, including the $61 million transfer, must 19 be evaluated as of the time that those decisions were made, and not with the benefit of 20 hindsight. Defendants acknowledge that Arken "changes at least one of the assumptions 21 underlying" the settlement agreement, but argue that, in 2004, "it was entirely reasonable 22 37 for PERS to assume that it would not be able to recoup most of the unlawful benefits." In 1 those circumstances, defendants argue, PERB's decision to transfer funds from the 2 contingency reserve to the public employer accounts was objectively reasonable. 3 For the reasons that follow, we conclude that the trial court erred in 4 granting summary judgment for defendants. We first reject the argument that PERB's 5 decision to transfer $61 million from the contingency reserve to certain employer 6 accounts can be justified as required by the settlement agreement. The settlement 7 agreement makes no mention of any such transfer, nor does it even suggest that the 8 parties contemplated an actual transfer of funds to the public employer accounts. Rather, 9 it refers only to the way the public employers' contribution overpayments are to be 10 treated by PERB and to the fact that PERB will use funds in the contingency reserve to 11 cover any costs that it incurs "that are not covered by the [public employers'] recalculated 12 rates." Thus, although we have concluded that the terms of the settlement agreement 13 were reasonable and consistent with PERB's fiduciary duty, that conclusion does not 14 dispose of plaintiffs' claim that the $61 million transfer was neither of those things. The 15 reasonableness of the transfer must be evaluated on its own. 16 On this record, we cannot determine whether PERB's decision to transfer 17 the $61 million was consistent with its fiduciary duty. Here, as discussed in detail above, 18 because no specific statute or trust provision either required or prohibited the transfer, the 19 standard for determining whether PERB violated its fiduciary duty is whether, in light of 20 all the circumstances, its action was objectively reasonable. Although the trial court 21 concluded that PERB's decision to approve the transfer was "rational," in our view that 22 38 determination depends on facts that the parties dispute. 1 We return to the provisions of the settlement agreement that set out PERB's 2 obligations regarding employer contributions that the City of Eugene plaintiffs had made 3 pursuant to rate orders that had been held to be unlawful. Section 1.5 of the settlement 4 agreement provides that PERB will recalculate the employer rate orders based on the City 5 of Eugene judgment -- and no one disputes that PERB did so. Plaintiffs do not identify 6 any particular calculation or other errors by PERB or suggest the correct amount of the 7 overcharge. The settlement agreement also provides that PERB will treat the difference 8 between the contributions made under the initial orders and the amounts that should have 9 been contributed as "excess employer contributions." Under those provisions, it appears 10 that any overpayments by public employers based on the erroneous rate orders were not 11 intended to be (and were not) refunded from the employer accounts within PERF to the 12 employers themselves, but rather were to remain in the employer accounts as "excess 13 employer contributions" to be used for the purposes identified. No party argues that 14 those parts of the settlement agreement were not implemented or that the overpayments 15 were not treated, for accounting purposes, as specified in the settlement agreement. 16 From the record before us, it appears that the public employer plaintiffs in 17 the City of Eugene case would have suffered harm based on their overpayments to their 18 employer accounts only when funds were transferred out of those accounts and to the 19 benefits-in-force (BIF) reserve, when particular employees retired between 1998 and July 20 1, 2004, under benefit formulas that were later determined to be excessive. It appears 21 that the $61 million transfer was intended to ensure that the City of Eugene plaintiffs 22 39 would be made whole for the cost to them of any excessive payments made to their 1 retirees. The factual dispute that we perceive is whether the actual amounts transferred 2 out of the employer accounts of the City of Eugene plaintiffs to the BIF for the benefit of 3 those who retired with improperly high benefits amounted to approximately $61 million. 4 Plaintiffs argue that the amount of the transfer had little to do with the 5 actual amounts that the City of Eugene plaintiffs were required to transfer to the BIF for 6 those retirees. They note that PERS's actuaries were not asked to, and did not, consider 7 the actual number of retirements for any of the City of Eugene plaintiffs during the 8 relevant time period. They point to the deposition testimony of one of PERS's actuaries 9 who conceded that PERB's methodology could grossly overestimate the cost of those 10 retirees to an employer. Defendants respond that the transfer was to "cover the 11 actuarially-forecasted cost of providing projected future benefits," and was never 12 intended to be a dollar-for-dollar reimbursement of overpayments by those public 13 employers. 14 As noted, the trial court agreed that a shortfall was "certain," and, further, 15 that the transfer was a "rational" method to remedy that shortfall. We agree with the trial 16 court that some shortfall was certain -- it was clear that some employees of the City of 17 Eugene plaintiffs had retired during the relevant period and were receiving benefits that 18 later were determined to be excessive. PERS presumably transferred amounts from 19 employer accounts to the BIF for the benefit of those retirees, and those amounts were 20 presumably larger than they would have been, but for the excessive benefits the retirees 21 were to receive. But we disagree with the trial court that the record provides a sufficient 22 40 factual basis to conclude that the transfer of $61 million from the contingency reserve to 1 the public employer accounts was a reasonable or rational method to "remedy" the 2 shortfall. In our view, it is not possible to determine whether the $61 million transfer -- 3 which was based solely on the difference in the initial and the revised employer 4 contribution rates -- was reasonable without at least some consideration of the 5 relationship between that amount and the actual financial harm to the City of Eugene 6 plaintiffs. 7 On remand, the trial court must consider whether the $61 million 8 transferred bore a rational relationship to some actual financial harm suffered by the City 9 of Eugene plaintiffs -- such as amounts that were transferred from the employer accounts 10 of the City of Eugene plaintiffs to the BIF reserve for the benefit of retirees who retired 11 with excessive benefits and that cannot be recovered from those retirees.18 Moreover, the 12 trial court also should consider whether a transfer in that amount, or in some other 13 amount, is consistent with PERB's fiduciary obligations. Those inquiries may involve 14 actuarial analyses and projections, such as those considered by PERB when it calculated 15 and made the transfer, but they must also involve consideration of actual or estimated 16 18 Plaintiffs argue that PERB improperly used estimates, hypotheticals, and actuarial assumptions in arriving at the $61 million transfer figure. We do not agree with plaintiffs that those techniques can play no role in determining the amount of any shortfall or of a transfer of funds, as occurred here. PERS is a complex system, and estimates, projections, and point-in-time comparisons are a necessary part of administering the system. Here, however, there is a factual dispute over whether the $61 million transfer was rationally related to the harm suffered by the City of Eugene plaintiffs. 41 numbers of relevant retirees of the City of Eugene plaintiffs and the actual or estimated 1 impact of those retirements on the employer accounts.19 It may also be appropriate for 2 the trial court to consider PERB's policies for accounting for overpayments to retirees 3 that are later recovered under ORS 238.715. In Arken, this court held that PERB could 4 recover overpayments to retirees, including at least some of the overpayments that led to 5 the excessive public employer contributions at issue here. Arken v. City of Portland, 351 6 Or 113, 172, 263 P3d 975 (2011). We express no opinion as to the impact of those 7 policies, if any, on the reasonableness of the $61 million transfer, but it appears that at 8 least some of the "losses" to the City of Eugene plaintiffs were related to excess benefits 9 paid to the "window retirees," and it now appears that PERS will recover some portion of 10 those overpayments.20 11 For the foregoing reasons, we conclude that there are disputed issues of fact 12 regarding the harm to the City of Eugene plaintiffs as a result of the overpayments and the 13 relationship between the harm that they suffered and the $61 million transfer. Because of 14 19 Plaintiffs point out that, according to PERS's actuary Dale Orr, PERS no longer uses the "truing up" method of ensuring that sufficient funds are in the BIF, but rather allocates BIF assets and liabilities among employers based on the actual retirements of each employer's employees. The record does not disclose when that change was made or whether that change may affect PERS's ability to provide information relevant to the factual disputes that we have identified. 20 We recognize that PERB's conduct in approving the transfer must be evaluated as of the time of the transfer (2004), and not in light of later events. Nevertheless, PERS policies (if any) as to accounting practices for overpayments to retirees that are later recovered may be relevant to a determination as to whether PERB's decision to approve the transfer was objectively reasonable. 42 those disputes, it is not possible, on this record, to determine whether that transfer was an 1 objectively reasonable method to remedy that harm, when considered in addition to the 2 provisions of the settlement agreement. Accordingly, the trial court erred in granting 3 summary judgment for defendants on that claim. 4 E. Employer-in-Variable Issue: Transfer of Improperly Credited Amounts from 5 Employer Accounts to Contingency Reserve 6 As discussed previously, several PERS members intervened in the City of 7 Eugene litigation to defend the PERB policies that the public employer plaintiffs had 8 challenged and to assert claims of their own. Judge Lipscomb agreed with the 9 intervenors on one issue, concluding that PERB had breached its fiduciary duty to PERS 10 members when it credited to employer accounts some of the income earned on funds in 11 the variable account in 1999. He held that, because the employer moneys had not been 12 invested in the variable account during that year, it was improper for PERB to divert 13 earnings from funds in the variable account to employer accounts. Judge Lipscomb did 14 not specify how that improper allocation should be remedied. In the settlement 15 agreement, PERB agreed to "transfer[] from employer accounts to the contingency 16 reserve * * * the amount determined by the PERS actuary to have been improperly 17 credited to employer accounts according to the judgment." PERB later implemented that 18 provision of the agreement. 19 Plaintiffs assert that this aspect of the settlement agreement, and its 20 implementation, violate PERB's fiduciary duty to PERS members. They argue that the 21 agreement was made "without regard to the interests of members" and that the 22 43 reallocation was "in a manner consistent with the employers' interests rather the interests 1 of the employees who prevailed on the issue." In their view, those amounts "are earnings 2 in excess of the assumed earnings rate," and "PERB [was] required to direct those 3 earnings to member employee accounts."21 Defendants respond that PERB acted 4 reasonably in reallocating those amounts to the contingency reserve, given the substantial 5 underfunding of that reserve in earlier years and the underfunded status of PERS as a 6 whole. They further argue that nothing required PERB to allocate all earnings in excess 7 of the assumed earnings rate to employee accounts. 8 We agree with defendants. As stated earlier, plaintiffs' assertion that 9 earnings above the assumed earnings rate must be credited to employee accounts is 10 incorrect. PERB acted improperly, as Judge Lipscomb held, when it credited some of the 11 variable account earnings to employer accounts, but the remedy that PERB adopted -- 12 transferring the improperly credited amounts from the employer accounts to the 13 contingency reserve -- was reasonable. The contingency reserve benefits PERS members 14 by ensuring sufficient moneys to fund the PERS system, including appropriate crediting 15 to employee accounts, coverage of administrative expenses, and payment of retiree 16 benefits when due. See ORS 238.670(1) (describing purposes of contingency reserve). 17 Those purposes benefit all PERS members. PERB board members concluded that it was 18 21 Plaintiffs do not argue that PERB's reallocation decision caused PERS members with variable accounts to receive lower earnings on those accounts than they were contractually entitled to receive. 44 in the best interests of PERS members and consistent with ORS 238.670(1) to transfer the 1 amounts from the variable account that PERB had incorrectly credited to employer 2 accounts to the contingency reserve. There was and is no statutory requirement that all 3 earnings in excess of the assumed interest rate be allocated to Tier One regular accounts. 4 PERB exercised its discretion to use those earnings to help rebuild the contingency 5 reserve. Nothing in the record suggests that that decision was unreasonable. 6 F. Adoption of "Money-Match" Calculation Rule 7 Plaintiffs also challenge PERB's adoption of OAR 459-013-0280, which 8 sets out the method for calculating money match benefits for PERS members who 9 participate in the variable account program. We briefly describe the context in which that 10 rule was adopted. 11 In his decision in City of Eugene, Judge Lipscomb agreed with the public 12 employer plaintiffs that PERB's requirement that employers match the earnings in their 13 employees' variable annuity accounts was inconsistent with the PERS statutes and "has 14 required employers to pay much larger contributions to the fund than would be necessary 15 to fund the statutorily authorized pensions and has increased their unfunded liabilities." 16 In the settlement agreement, PERB agreed to promulgate a rule that essentially adopted 17 what Judge Lipscomb had determined was the correct way to calculate the money-match 18 benefit for members who participated in the variable account. PERB adopted such a rule, 19 effective in July 2004. 20 In the single paragraph in their brief devoted to this challenge, plaintiffs 21 assert that the calculation method set out in the rule is "convoluted and illogical" and 22 45 refer to a brief filed by the intervenors in the City of Eugene appeal. Plaintiffs, however, 1 offer no argument to this court, and have presented no evidence in this case, that the 2 calculation method set out in the rule was objectively unreasonable or inconsistent with 3 any statute or that only some other calculation method would be consistent with PERB's 4 fiduciary duty. Nor do they explain why it was unreasonable for PERB to adopt a rule 5 that was consistent with the directive of the trial court order in City of Eugene. 6 Accordingly, plaintiffs' claim that PERB breached its fiduciary duty in adopting the rule 7 fails. 8 G. Payment of Attorney Fees 9 Finally, plaintiffs argue that PERB breached its fiduciary duty by paying 10 attorney fees to the plaintiffs in the City of Eugene litigation. They argue that PERB 11 should not have paid the plaintiffs' costs, including expert witness costs; that it was 12 improper to pay any fees in excess of what would have been awarded by the court in a 13 proceeding under ORCP 68; and that the fee award did not properly distinguish between 14 fees related to claims on which the plaintiffs prevailed and fees related to the plaintiffs' 15 unsuccessful claims. Plaintiffs' arguments are unpersuasive. 16 First, the trial court judgment awarded attorney fees to the public 17 employers who were the plaintiffs in the City of Eugene case, and plaintiffs offer no 18 argument as to how, in those circumstances, it could have been a breach of fiduciary duty 19 for PERB to agree to pay some attorney fees as part of a settlement agreement and then to 20 pay those fees. Second, plaintiffs ignore the procedural posture in which this issue arises. 21 We are not reviewing a trial court order awarding fees in a particular amount. Instead, 22 46 we are reviewing action that PERB took to implement one part of an arm's-length 1 settlement agreement. The standards are different. As discussed above, a trustee's duty 2 in defending litigation involving the trust is to do what is reasonable, and the trustee "has 3 a certain amount of discretion and is liable only for abuse of that discretion by failing to 4 do what is reasonable under the circumstances." 3 Scott and Ascher on Trusts § 17.10 at 5 1224. That discretion necessarily includes the decision to settle a case, the terms of 6 settlement, and, if not unreasonable, the agreement to pay attorney fees as part of the 7 settlement. 8 PERB's counsel reviewed the billing records of plaintiffs' attorneys in the 9 City of Eugene litigation and used that information in negotiating the settlement 10 agreement, including the amount that PERB agreed to pay in attorney fees. It is 11 undisputed that the amount that PERB paid was less than the amount that the plaintiffs' 12 counsel billed and collected from the City of Eugene plaintiffs. Plaintiffs in this case 13 have presented no evidence that PERB failed properly to evaluate the decision to pay fees 14 or the amount of the fees that it agreed to pay, as part of determining that it was in the 15 best interests of PERB to settle the City of Eugene litigation. There is no support in the 16 record for the claim that PERB acted unreasonably in agreeing to pay the fees that it did. 17 IV. CONCLUSION 18 For the reasons set out above, PERB's decision to settle the City of Eugene 19 case and dismiss its appeal of the trial court judgment in that case was reasonable and did 20 not breach its fiduciary duty to PERS members. Additionally, the specific actions that 21 PERS agreed to take in the settlement agreement, and later did take, were not 22 47 unreasonable in the circumstances. Accordingly, those actions did not breach PERB's 1 common-law or statutory fiduciary duties to PERS members, nor were they based on an 2 erroneous interpretation of law and therefore subject to being reversed or remanded under 3 ORS 183.484(5). 4 We conclude, however, that the trial court erred in granting summary 5 judgment in favor of defendants on plaintiffs' claim that PERB breached its fiduciary 6 duty by transferring $61 million from the contingency reserve to the employer accounts 7 of the City of Eugene plaintiffs as a remedy for excessive payments that those employers 8 had made as a result of PERS's improper crediting and other decisions in earlier years. 9 That transfer was not required by the terms of the settlement agreement. Moreover, as 10 discussed above, factual disputes preclude a determination, on this record, that the 11 transfer was objectively reasonable in light of all the circumstances and consistent with 12 PERB's fiduciary duty. We therefore reverse that portion of the trial court judgment and 13 remand the case to the trial court for further proceedings. 14 The judgment of the circuit court is affirmed in part and reversed in part, 15 and the case is remanded to the circuit court for further proceedings. 16

7bbe171ab1dcfa3144f4fd9d892d8dd8347d5797ecfd0e26ca795eee480f7f08

2011-12-30T00:00:00Z

ab2b3c52-2fa4-4598-a802-d19bfe4f3ce7

Oregon v. Baker

S058967

oregon

Oregon Supreme Court

1 Filed: September 1, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. HEZAKIAH BENJAMIN BAKER, Respondent on Review. (CC 071766AFE; CA A137073; SC S058967) En Banc On review from the Court of Appeals.* Argued and submitted May 4, 2011. Ryan Kahn, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Garrett A. Richardson, Multnomah Defenders, Inc., Portland, argued the cause and filed the brief for respondent on review. DE MUNIZ, C. J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. *Appeal from Jackson County Circuit Court, Patricia Crain, Judge. 237 Or App 342, 240 P3d 735 (2010). 1 DE MUNIZ, C. J. 1 Defendant was charged, in Jackson County, with multiple counts related to 2 the manufacture and possession of marijuana.1 Before trial, defendant moved to suppress 3 evidence seized by Medford city police officers who, without a warrant, entered 4 defendant's residence to investigate a 9-1-1 domestic disturbance call. The trial court 5 denied defendant's motion. The Court of Appeals reversed and remanded, concluding 6 that the warrantless entry of defendant's residence was not authorized under an 7 "emergency aid exception" to the warrant requirement and thus violated defendants rights 8 under Article I, section 9, of the Oregon Constitution. State v. Baker, 237 Or App 342, 9 240 P3d 735 (2010). We allowed the state's petition for review and, for the reasons set 10 out below, reverse the Court of Appeals decision. 11 We take the facts from the record and the Court of Appeals' opinion. In 12 April 2007, an anonymous female called 9-1-1 and reported a domestic disturbance at a 13 neighbor's house. The caller stated that she could hear yelling and screaming coming 14 1 Defendant was charged with five marijuana- related crimes: (1) unlawful manufacture of marijuana within 1,000 feet of a school (ORS 475.858); (2) unlawful manufacture of marijuana -- substantial quality (ORS 475.856); (3) unlawful delivery of marijuana (ORS 475.860); (4) unlawful possession of marijuana (ORS 475.864); and (5) endangering the welfare of a minor (ORS 163.575) . Defendant entered a conditional plea of guilty to counts three and five, and reserved the right to appeal the trial court's denial of his pretrial motion to suppress the marijuana, pursuant to ORS 135.335(3). The remaining counts against him were dismissed. See State v. Dinsmore, 342 Or 1, 6, 147 P3d 1146 (2006) (ORS 135.335(3) permits defendant to plead guilty to some charges, and to have others dismissed, while retaining the right to appeal adverse rulings on pretrial motions). 2 from inside the residence and that she thought there might be a child inside. The caller 1 stated that she had heard the female resident of the house, Sherry Turnage, use a 2 prearranged code word indicating to the caller that police assistance was needed. That 3 information was, in turn, related to Officer Venables who was dispatched to the 4 residence. Venables believed that the situation amounted to an "extreme emergency," 5 and sped to the location using his patrol car's lights and siren. Officer Wileman was also 6 dispatched to the residence. Like Venables, Wileman believed that the situation 7 constituted an emergency because, as a child, his own family had frequently used code 8 words to indicate "something important." 9 When the officers arrived at the residence, they saw two individuals sitting 10 on the front porch of the house; both seemed nervous, but not afraid or startled. When 11 asked, they confirmed that a dispute was ongoing inside the residence and that that was 12 why they were outside. Both Venables and Wileman could hear yelling coming from 13 inside the house; they could not, however, understand what was being said. The front 14 door to the residence was locked, and the two people on the front porch informed 15 Venables that he could gain access through the back door. Venables did not knock on the 16 front door or otherwise make contact with the people inside, for fear of escalating the 17 situation. 18 Walking toward the back of the property, Venables stopped at a window on 19 the side of the house, and observed defendant and Turnage arguing; Venables could not 20 determine what was being said, nor did he observe any indication of a physical 21 altercation between the occupants. On reaching the back of the house, Venables 22 3 continued to observe its occupants through another window next to the back door. 1 Turnage saw Venables and yelled "cops," at which point defendant began to pick buds off 2 a marijuana plant in the room. At the same time, Venables opened the back door and 3 identified himself and Wileman. Venables then began investigating whether an assault 4 had taken place. 5 Venables interviewed Turnage, and Wileman interviewed defendant. Both 6 Turnage and defendant were free of marks and bruises and, after his preliminary inquiry, 7 Venables determined that no assault had occurred. Venables then turned his attention to 8 the marijuana plant and, while searching other parts of the residence, discovering several 9 more plants in the house. 10 Before trial, defendant moved to suppress the marijuana seized after the 11 officers entered his residence, arguing that the warrantless entry onto the rear of his 12 property along the side of his house violated Article I, section 9, of the Oregon 13 Constitution. Specifically, defendant argued that the officers' continuation past the initial 14 approach to the front of his house without a warrant, was unlawful because it was not 15 otherwise authorized under an emergency aid exception to the warrant requirement.2 The 16 trial court rejected defendant's motion, concluding that the officers were authorized under 17 2 Defendant did not contest the officers' physical entry into his house, once they reached the back door. Presumably, defendant limited his argument in that fashion because, once the officers saw defendant through the rear window of the house removing buds from the marijuana plant, they were authorized to enter the residence under an exception to the warrant requirement for preventing the destruction of evidence. 4 the emergency aid exception to proceed around the side of defendant's residence and, 1 therefore, did not violate Article I, section 9, of the Oregon Constitution when they 2 entered the residence. 3 On appeal, defendant again argued that the police had violated defendant's 4 rights under Article I, section 9, when they entered onto his property without a warrant, 5 because the evidence did not support an objective reasonable belief that an emergency 6 existed at that time. In response, the state argued that use of the code word and the 7 neighbor's report of hearing yelling from inside the residence, in addition to the yelling 8 heard by the police officers at the location, permitted the officers to proceed beyond the 9 front of the house and enter defendant's house under the emergency aid exception to the 10 warrant requirement. The Court of Appeals disagreed with the state, citing the four-part 11 test that it had announced in State v. Follett, 115 Or App 672, 840 P2d 1298 (1992). 3 In 12 3 In State v. Follett, 115 Or App 672, 680, 840 P2d 1298 (1992), the Court of Appeals held that "the Emergency Aid Doctrine provides an exception to the warrant requirement of Article I, section 9, when these conditions are met: "(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life. "(2) The emergency must be a true emergency -- the officer's good faith belief alone is insufficient. "(3) The search must not be primarily motivated by an intent to arrest or to seize evidence. "(4) The officer must reasonably suspect that the area or place to be 5 doing so, the Court of Appeals noted that 1 "if objective indicia of a life-threatening emergency were present up to the 2 point that the officers reached the back door of the house, then their entry 3 into the house and seizure of the marijuana plants conceivably could have 4 been justified under the plain view and exigent circumstances doctrines." 5 Baker, 237 Or App at 347. The Court of Appeals nevertheless concluded that 6 "[w]hen the officers saw through the side window that the couple was 7 engaged in only a verbal, nonviolent argument unaccompanied by other 8 evidence indicative of life-threatening violence, it ceased to be objectively 9 reasonable for the officers to believe that immediate intervention by them to 10 protect life was necessary." 11 Id. at 349. As a result, the Court of Appeals reversed the trial court's order denying 12 defendant's motion to suppress the marijuana and we allowed the state's subsequent 13 petition for review. 14 As a threshold matter, we observe that the Court of Appeals decided this 15 case on a legal theory that was different from the one that defendant pursued at trial and 16 on appeal. In those forums, defendant argued that the evidence was not sufficient under 17 an emergency aid exception to permit the police to proceed around the side of the house 18 without a warrant. The Court of Appeals, however, focused its analysis on whether an 19 emergency continued to exist after the officers had looked through the house's side 20 searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency." (Footnote omitted.) 6 window and observed only a verbal argument between the residents. Id. at 347. For 1 purposes of this opinion, we confine our review to the issue as defendant raised it below. 2 On review, the state contends that, as applied to this case, the four-part test, 3 established by the Court of Appeals in Follett, is too narrow, because it can be triggered 4 only when police officers have an objectively reasonable belief that their assistance is 5 needed for the protection of life, or that life-threatening injury is imminent. Instead, the 6 state argues that an emergency aid exception to the warrant requirement should authorize 7 the police to enter a residence based on a reasonable belief that entry is necessary to assist 8 persons who have suffered, or are threatened with, serious physical injury or harm. For 9 his part, defendant agrees that the threat of "serious physical injury," and not the risk of 10 life-threatening injury, is all that should be required under an emergency aid exception. 11 Nevertheless, defendant argues that the Court of Appeals correctly determined that here, 12 the officers did not have a reasonable belief that Turnage was in imminent danger of 13 serious physical injury or harm. 14 We begin with Article I, section 9, of the Oregon Constitution, which 15 provides: 16 "No law shall violate the right of the people to be secure in their 17 persons, houses, papers, and effects, against unreasonable search, or 18 seizure; and no warrant shall issue but upon probable cause, supported by 19 oath, or affirmation, and particularly describing the place to be searched, 20 and the person or thing to be seized." 21 Under Article I, section 9, warrantless entries and searches of premises are per se 22 unreasonable unless falling within one of the few "specifically established and well- 23 delineated exceptions" to the warrant requirement. State v. Davis, 295 Or 227, 237, 666 24 7 P2d 802 (1983) (citing Katz v. United States, 389 US 347, 357, 88 S Ct 507, 514, 19 L Ed 1 2d 576 (1967)). The state has the burden of proving that circumstances existing at the 2 time were sufficient to satisfy any exception to the warrant requirement. Id. at 237. 3 Here, the state argues that the officers' eventual warrantless entry into defendant's 4 residence was justified under an emergency aid exception to the Article I, section 9 5 warrant requirement. 6 For purposes of Oregon law, this court has acknowledged the existence of a 7 so-called emergency aid exception in only two cases: State v. Davis and State v. 8 Bridewell, 306 Or 231, 236, 759 P2d 1054 (1988).4 In Davis, a man had told police that 9 his girlfriend might be being raped in a motel room by a man he had seen carrying an 10 automatic pistol. When the police knocked on the room, the woman opened the door and 11 walked out without appearing frightened or disheveled. The police then entered the 12 room of the defendant -- a convicted felon -- and found a gun and drugs. Later, 13 defendant moved to suppress that evidence, relying on the Fourth Amendment and 14 Article 1, section 9. This court noted that the circumstances that had originally led the 15 police to the room arguably fell within the scope of the emergency aid exception. Davis, 16 295 Or at 239-40. Without adopting or further describing the exception, however, this 17 4 Other state supreme courts have also recognized emergency aid as an appropriate exception to the constitutional warrant requirement under their own search and seizure provisions. See, e.g., State v. Schultz, 170 Wash 2d 746, 248 P3d 484, 488 (Wash 2011) (emergency aid as exception to the warrant requirement of Article 1, section 7, of the Washington Constitution); and State v. Ford, 188 Vt 17, 998 A2d 684, 688-89 (Vt 010) (exception to Article 11 of the Vermont Constitution). 8 court concluded that the state could not rely on the exception once the woman had 1 walked out of the room, because the emergency had dissipated. Id. Accordingly, the 2 court held that, "[a]bsent articulable facts that evidence a compelling and urgent need for 3 entry, the Oregon Constitution demands a warrant be issued." Id. at 243. 4 Later, in Bridewell, this court acknowledged that Davis had implicitly 5 adopted the emergency aid exception, stating: 6 "Apart from the emergency/exigent circumstances exception to the 7 warrant requirement, this court tacitly has embraced the emergency aid 8 doctrine in a criminal context. See State v. Davis, supra. The emergency 9 aid doctrine is distinct from the emergency/exigent circumstances exception 10 to the warrant requirement because the former does not require probable 11 cause to believe that a crime has been committed. In Davis, the trial court 12 concluded that the police did not have probable cause to enter when 13 investigating a disturbance in a motel room. In reviewing that case, we 14 observed the recognition of the emergency aid doctrine in both federal and 15 state courts. We also observed that 'this court has not had occasion to 16 apply' the emergency aid doctrine. State v. Davis, supra, 295 Or at 238. 17 After concluding that the circumstances in Davis arguably fell within the 18 scope of the emergency aid doctrine, we held that any 'emergency' 19 previously existing had dissipated when the purported victim left the motel 20 room. 21 "However, even where courts may accept a reasonable belief or 22 suspicion, as opposed to probable cause, as a basis to apply the emergency 23 aid doctrine to law enforcement activities, this means a true emergency. As 24 noted above, the facts of this case do not meet that threshold requirement." 25 306 Or at 236-37. 26 This court has recognized exceptions to the Article I, section 9, warrant 27 requirement to protect the safety of officers or others. See, State ex rel Juv. Dept. v. 28 M. A. D., 348 Or 387, 233 P3d 437 (2010) (permitting school official to search based on 29 specific and articulable facts demonstrating immediate threats of harm to students and 30 9 staff); State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987) (permitting limited detention 1 based on specific and articulable facts demonstrating imminent threat of serious personal 2 injury to officers or others present). A similar kind of societal interest -- the need to 3 immediately render aid to a person or to prevent the immediate threat of serious personal 4 injury or harm -- is present here. We thus agree that, under certain circumstances, the 5 need to render emergency aid or prevent serious injury or harm is an appropriate 6 justification for an immediate warrantless entry under Article I, section 9. Consequently, 7 we conclude that an emergency aid exception to the Article I, section 9 warrant 8 requirement is justified when police officers have an objectively reasonable belief, based 9 on articulable facts, that a warrantless entry is necessary to either render immediate aid to 10 persons,5 or to assist persons who have suffered, or who are imminently threatened with 11 suffering, serious physical injury or harm.6 12 5 In our view, it does not matter whether the need to render immediate aid is triggered by a human source or a condition idiopathic to the person needing aid. 6 The elements of an emergency aid exception to the Fourth Amendment warrant requirement were first set out by the United States Supreme Court in Mincey v. Arizona, 437 US 385, 392-93, 98 S Ct 2408, 57 L Ed 2d 290 (1978). In Mincey, the Court described in broad terms the contours of an emergency aid exception to the warrant requirement: "We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. * * * 'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.' And the police may seize any evidence that is in 10 Having set out the elements of an emergency aid exception to Article I, 1 section 9, we next determine whether those elements were satisfied here. This court 2 reviews decisions on motions to suppress evidence for errors of law, and is bound by the 3 trial court's findings of fact if they are supported by the record. State v. Vasquez- 4 Villagomez, 346 Or 12, 23, 203 P3d 193 (2009). As described above, the Court of 5 Appeals concluded that, once Officer Venables observed through the side window that 6 defendant and Turnage were simply engaged in a nonviolent verbal argument, the 7 officers ceased to have an objectively reasonable belief that their entry into defendant's 8 house was necessary to prevent serious injury. 9 However, as we have noted, the issue that defendant framed before the trial 10 court was not whether an emergency continued to exist after Officer Venables made the 11 observation through the side window, nor whether police were authorized to enter the 12 house once they reached the back of the house. Rather, defendant's argument was that, 13 without a warrant, the police officers lacked authority to go onto his property beyond the 14 initial approach to the front of the house and that, by doing so, they unlawfully invaded 15 the "curtilage" of his residence.7 As a result, defendant contended below that the 16 plain view during the course of their legitimate emergency activities." (Citations and footnotes omitted.) In a more recent case, the Supreme Court stated that the reasonableness of an officer's belief that emergency aid is necessary must be viewed under an objective standard. See Brigham City, Utah v. Stuart, 547 US 398, 403-04, 126 S Ct 1943, 164 L Ed 2d 650 (2006) (setting objective reasonableness as the standard). 7 Article I, section 9, protects the privacy interest in land within the curtilage 11 observations made through the windows and the evidence seized after the "trespass" 1 beyond the front approach should have been suppressed. Consequently, we will consider 2 only whether the officers had, at the time they proceeded beyond the front of the house, 3 an objectively reasonable belief, based on articulable facts, that it was necessary to do so 4 to assist persons suffering from, or imminently threatened with, serious physical injury or 5 harm. 6 Here, Venables and Wileman had received information that yelling and 7 screaming were coming from defendant's house, that a child might be inside the 8 residence, and that a code word indicating a need for police intervention had been given. 9 Based on those facts, Venables believed that an emergency existed and, using his 10 vehicle's lights and siren, sped to the location. Wileman also had concluded that an 11 emergency existed. When the officers arrived at defendant's house, they could hear 12 arguing and yelling from within it. Those facts supported an objectively reasonable 13 belief that an emergency existed, based on the common-sense understanding that a person 14 does not go through the trouble of creating a code word indicating that police assistance 15 is required, and coordinating with another person to recognize that code word, unless 16 there is a genuine concern that circumstances can exist that will prevent the person 17 seeking help from receiving it. There are facts in this record that support the officers' 18 of a dwelling. Curtilage is "'the land immediately surrounding and associated with the home.'" State v. Dixon/Digby, 307 Or 195, 209, 766 P2d 1015 (1988) (quoting Oliver v. United States, 466 US 170, 180, 104 S Ct 1735, 80 L3d 2d 214 (1984)). 12 objective reasonable belief that, at the time they proceeded past the front boundaries of 1 the house, an emergency existed in which there was a threat of serious physical injury or 2 harm to a person or persons inside the house. Accordingly, the officers were authorized 3 under the emergency aid exception to enter the property at the side and rear of 4 defendant's house without a warrant. Their subsequent observations through the 5 windows of the house, warrantless entry into the home, and the seizure of evidence 6 therein did not violate Article I, section 9. 7 The decision of the Court of Appeals is reversed. The judgment of the 8 circuit court is affirmed. 9

afd89500ce3686e3afd1f7f03539030fb564a5703f42fda906b06123acb271f2

2011-09-01T00:00:00Z

346109c5-9bd9-48a5-a71b-f0b9de6502b5

Rasmussen v. Kroger

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS MODIFIED BALLOT TITLES CERTIFIED May 23, 2011 Rasmussen v. Kroger (S059261)(350 Or 281). Having received no timely filed objections, the court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative Petition No. 10 (2012), ORS 250.085(9). Rasmussen v. Kroger (S059264)(350 Or 271). Having received no timely filed objections, the court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative Petition No. 12 (2012), ORS 250.085(9).

ee92a7eac4c26462467ce53964bffcd4b94daea09745469de4575006d535f67b

2011-05-23T00:00:00Z

97a3cc39-82e3-4d4e-b1ea-d8e8506db979

State v. Barger

200801740

oregon

Oregon Supreme Court

Filed: April 21, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. BARRY LOWELL BARGER, Petitioner on Review. (CC 200721991, 200801740; CA A138678 (Control); A138679; SC S058345) En Banc On respondent on review's petition for reconsideration filed March 7, 2011; considered and under advisement on March 30, 2011.* Erika L. Hadlock, Senior Assistant Attorney General, Salem, filed the petition for reconsideration. With her on the petition were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. No appearance contra. PER CURIAM The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified. *233 Or App 621, 226 P3d 718 (2010), rev'd, 349 Or 553, 247 P3d 309 (2011). PER CURIAM The state seeks reconsideration of this court's opinion in State v. Barger, 349 Or 553, 247 P3d 309 (2011). We allow the petition for reconsideration, modify our earlier opinion as described below, and, as modified, adhere to that opinion. In this case, the court consolidated the review of two separate Lane County Circuit Court cases. In one, Case No. 200801740, defendant had been convicted of several counts of Encouraging Child Sexual Abuse in the Second Degree. In the other, Case No. 200721991, defendant had been convicted of a variety of sex crimes. This court reversed the convictions for Encouraging Child Sexual Abuse in the Second Degree in the first case, holding that evidence that defendant had accessed and viewed images of child sexual abuse on the internet would not, by itself, support an inference that defendant had "possessed" or "controlled" those images within the meaning of ORS 163.686. The court concluded with the following disposition: "The decision of the Court of Appeal is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court with instructions to enter a judgment of acquittal." 349 Or at 567. The state seeks reconsideration, expressing concern that, although the court's opinion addressed only defendant's convictions for Encouraging Child Sexual Abuse in the Second Degree in Case No. 200801740, and not any of the convictions in the other case, this court's instructions to the circuit court to enter a judgment of acquittal could be construed to apply to both cases. We allow reconsideration to clarify the scope of our disposition and of our instructions on remand. Although the body of our opinion is clear, we agree that our instructions on remand should be more explicit to avoid potential confusion. Accordingly, we withdraw the final dispositional paragraph of our previous opinion and insert in its place the following paragraph: "The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court in Case No. 200801740 is reversed, and the case is remanded to the circuit court with instructions to enter a judgment of acquittal in Case No. 200801740. The judgment of the circuit court in Case No. 200721991 is affirmed." The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified.

c1c5bc9aed7e9634d9006ddf355090fb671f99978872fb1825053a65520996a5

2011-04-21T00:00:00Z

fb0e01b6-195e-46ec-a906-ca4218148c5f

Rasmussen v. Kroger

S059264

oregon

Oregon Supreme Court

Filed: May 5, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON GAIL RASMUSSENand BETHANNE DARBY, Petitioners, v. JOHN R. KROGER,Attorney General,State of Oregon, Respondent. (SC S059264) En Banc On petition to review ballot title filed March 11, 2011; considered and under advisement April 13, 2011. Thomas K. Doyle, Bennett, Hartman, Morris & Kaplan LLP, Portland, filed the petition and the reply memorandum for petitioners on review. Douglas F. Zier, Senior Assistant Attorney General, Salem, filed the answering memorandum for respondent on review. With him on the memorandum were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. DURHAM, J. The ballot title is referred to the Attorney General for modification. DURHAM, J. Petitioners seek review of the certified ballot title for Initiative Petition 12 (2012). The proposed measure, if approved by the voters, would amend the state constitution to require elections officials to count every qualified voter's signature on an initiative or referendum petition. Additionally, it would prevent the application of laws intended to prevent forgery or fraud in the circulation of petitions to block such signatures from being counted toward the required number of signatures on a petition.(1) Petitioners are Oregon electors who submitted comments regarding the Attorney General's draft ballot title. For that reason, petitioners are entitled to seek review of the certified ballot title. ORS 250.085(2). The Attorney General certified the following ballot title for Initiative Petition 12: "Amends Constitution: Prohibits election laws from excluding qualified voters' signatures on initiative/referendum petitions; creates enforceable right "Result of 'Yes' Vote: 'Yes' vote prevents enforcement or enactment of many controls on initiative/referendum signature collection and verification. Allows private lawsuits to compel counting qualified voters' signatures. "Result of 'No' Vote: 'No' vote retains existing laws and regulations that control the initiative and referendum signature collection and verification process for determining if measure qualifies for ballot. "Summary: Amends constitution. Initiative and referendum petitions qualify for the ballot based on the number of qualified registered voters' signatures. Currently, constitutional provisions, statutes, and administrative rules regulate signature collection, verification, and counting to prevent fraud, forgery, and improper signature-gathering. Measure prohibits excluding from the count a qualified voter's signature on an initiative/referendum petition, even if the signature was obtained in violation of election laws. Measure does not bar enactment of future laws to prevent forgery or fraud in petition circulation, but prohibits such laws from resulting in the exclusion of a qualified voter's signature. Provides any qualified voter who signed petition with right to sue, on behalf of self or any other qualified signing voter, to require counting qualified voters' signatures. Other provisions." Petitioners challenge each part of the certified ballot title. For the reasons that follow, we agree in part with petitioners' arguments and refer the ballot title to the Attorney General for modification. This court reviews the certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035. ORS 250.085(5). Before addressing those requirements, we summarize the legal context in which Initiative Petition 12, if approved, would apply. See Caruthers v. Kroger, 347 Or 660, 663, 227 P3d 723 (2010) (Caruthers I) (following that approach in reviewing the ballot title for a similar measure, Initiative Petition 43 (2010)).(2) The Oregon Constitution reserves to the people the powers of initiative and referendum. Or Const, Art IV, § 1(2)(a) (describing power of initiative); Art IV, § 1(3)(a) (describing power of referendum). The people's exercise of those powers depends, in part, on the submission of a petition supported by the required number of signatures of qualified voters. The enactment of a statute by initiative requires qualified signatures equal to six percent of the total votes cast for all candidates for Governor at the last preceding election at which a Governor was elected to a four-year term. Or Const, Art IV, § 1(2)(b). For an initiative amendment to the constitution, the number of required qualified signatures is eight percent of such votes. Or Const, Art IV, § 1(2)(c). For a referendum, the signatures of four percent of such votes must support the petition, Or Const, Art IV, § 1(3)(b), although no signatures are needed for a referendum ordered by the Legislative Assembly. Or Const, Art IV, § 1(3)(c). The Oregon Constitution forbids petition sponsors to compensate a petition circulator on the basis of the number of signatures that the circulator collects on a petition. Article IV, section 1b, of the Oregon Constitution which the people added to the constitution by initiative in 2002, provides: "It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition. Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained." The Oregon Constitution authorizes the legislature to enact laws providing the manner of exercising the powers of initiative and referendum. Article IV, section 1(5) of the Oregon Constitution, provides, in part: "The manner of exercising those powers shall be provided by general laws[.]" The legislature, relying on that authorization, has enacted several statutes that control the collection and counting of signatures on initiative and referendum petitions. Additionally, the Secretary of State, acting pursuant to authority delegated to that officer by the legislature,(3) has adopted administrative rules that further regulate the collection and counting of such signatures. In Caruthers I, this court summarized several of the signature-gathering defects, identified in the pertinent statutes and rules, that require the Secretary of State to refrain from counting the signatures on a petition sheet: "'(1) The sheet is not verified by the person who circulated it (ORS 250.042, OAR 165-014-0030(3)(c)), OAR 165-014-0270); "'(2) The sheet was circulated for collection of signatures by a paid circulator who was not registered as such with the Secretary of State (ORS 250.048); "'(3) The sheet was circulated during a period of time in which the right to circulate it was suspended for failure of a chief petitioner to provide certain statutorily required "accounts" (ORS 260.262(6)(b)); "'(4) The petition being circulated is not the same as the version approved by the Secretary of State for circulation (OAR 165-014-0030(3)(a)); "'(5) The sheets do not comply with the requirements of ORS 260.567 (prohibiting circulators from filling in information for petition signers) (OAR 165-014-0030(3)(c)), OAR 165-014-0275(2)); or "'(6) The sheet was circulated by a paid circulator who is unable to produce an identification and registration badge issued by the Secretary of State (OAR 165-014-0280(5)(c)).2 "2 The foregoing list is not exhaustive, and we make no attempt to itemize the additional provisions relating to the Secretary of State's authority over circulation of initiative petition signature sheets found in HB 2005 (2009), which the legislature enacted at its last session. Or Laws 2009, Ch 533." 347 Or at 665. In addition, the Secretary of State may not "count" the signatures on a petition signature sheet if the circulator fails to verify the sheet as required by law. ORS 250.042; OAR 165-014-0030(3)(b); OAR 165-014-0270. Initiative Petition 12 would nullify many of the current legal procedures and requirements, summarized above, that provide that signatures gathered in violation of those requirements shall not be counted. It would do so by creating a constitutional right in favor of every qualified voter who signs a petition for an initiative or referendum. That new right would entitle every such voter to have his or her signature "counted" on the petition, even if the steps followed in collecting and submitting the signatures and petition signature sheets violated laws enacted to prevent forgery or fraud in the circulation of a petition. In addition, the proposed measure would authorize any qualified voter who signed the petition in question to enforce the new constitutional right, on behalf of that voter or any other voter who signed the petition, by commencing an action in circuit court. With that legal context in mind, we turn now to petitioners' challenges to the certified ballot title. ORS 250.035(2)(a) requires a ballot title caption to contain a "caption of not more than 15 words that reasonably identifies the subject matter of the state measure." Petitioners contend that the phrase "creates enforceable right" in the caption is politically charged, is not neutral, and could mislead voters into supporting the proposed measure. See Dirks v. Myers, 329 Or 608, 616, 993 P2d 808 (2000) (explaining that court has resisted attempts to incorporate into ballot title caption terms or phrases that "tend more to promote or defeat passage of the measure than to describe its substance accurately"). The Attorney General responds that the word limit for a caption precluded a more detailed description of the enforcement remedy. Additionally, the Attorney General acknowledges that this court in Caruthers I required modification of the phrase "right to have signature counted" in a caption for a similar proposed measure, but argues that the phrase challenged here, "creates enforceable right," does not create the same impression and is not impermissibly loaded. In Caruthers I, this court stated: "We note at the same time that it also is true, as petitioner argues, that the Attorney General's caption suffers from another defect. Petitioner argues that the Attorney General's use in the caption of a phrase like 'right to have signature counted' unnecessarily introduces a 'loaded term' into the caption, one that is designed to create the impression that certain classes of signatures arbitrarily are given no weight in the initiative and referendum process. The phrase is found in the measure itself. As petitioner points out, however, this court previously has been critical of using wording drawn from a proposed measure in a caption if that wording '"is not neutral and might mislead voters into supporting the proposal without understanding its true effects."' Mabon v. Myers, 332 Or 633, 638 n 2, 33 P3d 988 (2001), quoting Earls v. Myers, 330 Or 171, 176, 999 P2d 1134 (2000). We agree with petitioner that that same concern is pertinent here. On referral, the Attorney General should select other words to identify the proposed measure's subject." Caruthers I, 347 Or at 668. In our view, the danger identified in Caruthers I is present in the caption under review, even though the wording is not identical. The phrase "creates enforceable right" conveys to the voter that the proposed measure establishes a new right, thus identifying a positive result or benefit for voters, but fails to accurately describe the scope of the right that the measure could create. The caption must state accurately the scope of the legal change that the new right would create. A failure in that regard impermissibly produces an incomplete picture of the new right that the measure would enact, thus conveying to voters a potentially misleading argument supporting the measure's passage. See Dale v. Kulongoski, 321 Or 108, 113, 894 P2d 462 (1995) (applying principle). We also are not persuaded that the applicable word limit compels the use of the phrase "creates enforceable right" in the caption. The Attorney General may solve the problem noted by modifying the remainder of the caption to describe adequately the right that the measure would create. See Kain v. Myers, 336 Or 116, 121, 79 P2d 864 (2003) (discussing that principle). The word limit does not justify using a potentially misleading description of that right in the caption. The "yes" vote result statement in a ballot title must contain a "simple and understandable statement of not more than 25 words that describes the result if the state measure is approved." ORS 250.035(2)(b). Petitioners argue that the certified "yes" vote result statement is inaccurate because the proposed measure does not "prevent[] * * *enactment" of controls of any kind. The Attorney General does not quarrel with petitioners' contention on the merits.(4) Instead, the Attorney General argues that petitioners' objection was not made to the Secretary of State and, thus, this court should not consider it. ORS 250.085(6) states the controlling rule: "When reviewing a title certified by the Attorney General, the Supreme Court shall not consider arguments concerning the ballot title not presented in writing to the Secretary of State unless the court determines that the argument concerns language added to or removed from the draft title after expiration of the comment period provided in ORS 250.067." The Attorney General's draft ballot title for the proposed measure included the following "yes" vote result statement: "'Result of 'Yes" Vote: Yes' vote sets aside many existing controls on initiative/referendum signature collection and verification process; prohibits enactment of substitutes that would disqualify voters' signatures." The word "enactment" appears in both the draft and certified "yes" vote result statements. Petitioners did not object to that word before the Secretary of State. The Attorney General modified the wording of the draft "yes" vote result statement in producing the certified ballot title. The certified "yes" vote result statement also incorporated the term "enactment," although in a slightly different context. Whereas the draft "yes" vote result statement stated that the proposed measure "prohibits enactment of substitutes that would disqualify qualified voters' signatures[,]" the certified "yes" vote result statement states that a yes vote on the measure "prevents enforcement or enactment of many controls on initiative/referendum signature collection and verification." Petitioners do not argue that the alteration of the context in which the term "enactment" appears in the certified ballot title constitutes an addition or removal of language, or that their argument "concerns" language added or removed, within the meaning of ORS 250.085(6). Accordingly, in compliance with the legislature's requirement, we shall not consider petitioners' argument. Petitioners raise other objections to the ballot title. We conclude that the other objections are not well taken and do not require discussion. We refer the ballot title to the Attorney General for modification. ORS 250.085(8). The ballot title is referred to the Attorney General for modification. 1. Initiative Petition 12 (2012) provides: "The people add the following section to Article IV of the Constitution: "(1) Each qualified voter who signs an initiative or referendum petition shall have an individual, enforceable right to have his or her signature counted on the petition, provided the petition has been filed with the election official assigned to process such petition. "(2) Laws may be enacted to prevent forgery or fraud in the circulation of a petition. However, such laws shall not be applied in any manner so as to prevent a qualified voter's signature from being included in the determination whether the petition contains the required number of signatures of qualified voters. "(3) The rights guaranteed by this amendment may be enforced by any qualified voter who signed the initiative or referendum petition, individually or on behalf of any other qualified voter who signed the initiative or referendum petition, by commencing an action in circuit court in the same manner as the commencement of a civil action. "(4) For purposes of this amendment, 'counted' means to include the qualified voter's signature in the appropriate elections officer's determination whether the petition contains the required number of signatures of qualified voters." 2. After referral of the ballot title in Caruthers I, the Attorney General certified a modified ballot title. This court reviewed that modified ballot title and referred it for further modification. Caruthers v. Kroger, 348 Or 63, 228 P3d 549 (2010). The Attorney General certified a second modified ballot title. Following review, this court certified that ballot title. Caruthers v. Kroger, 348 Or 269, 230 P3d 923 (2010). 3. See, e.g., ORS 250.015 (delegating to the Secretary of State the authority to make rules concerning the form and numbering of signature sheets for initiative and referendum petitions); ORS 250.045(3) (providing that the secretary shall, "by rule * * * establish procedures for verifying whether a prospective petition for a state measure to be initiated contains the required number of signatures of electors"); ORS 250.048 (delegating to the secretary the authority to make rules concerning the registration and training of paid petition circulators); ORS 250.105(1)(d) (providing that the Secretary "shall adopt rules establishing procedures for verifying signatures on an initiative or referendum petition"); ORS 250.105(5) (providing that the secretary shall, "by rule * * * designate a statistical sampling technique to verify whether a petition contains the required number of signatures of electors"). 4.  A careful reading of the text of Initiative Petition12 discloses that the proposed measure does not prevent "enactment" of any law or rule, a point that the certified summary makes explicitly. Because our decision refers the ballot title to the Attorney General for modification, the Attorney General has authority to remedy that potential inaccuracy in the "yes" vote result statement in a revised ballot title. See Sizemore/Terhune v. Myers, 342 Or 578, 591, 157 P3d 188 (2007) (recognizing Attorney General's authority on referral).

1537cdccc3a5db357c49dcc5fb2e7116b338ec7832f02a433bb4071651f6cf43

2011-05-05T00:00:00Z

846cd97a-86c0-46f3-b553-eec27c45300d

Willis v. Winters

S058645

oregon

Oregon Supreme Court

Filed: May 19, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON CYNTHIA TOWNSLEY WILLIS, Petitioner-Respondent,Respondent on Review, v. MICHAEL WINTERS,in his official capacity as Sheriff of Jackson County, Respondent-Appellant,Petitioner on Review. (CC 07-2755-Z7; CA A139875; SC S058645 (Control)) PAUL SANSONE, Plaintiff-Respondent,Respondent on Review, v. ROB GORDON,in his official capacity as the Sheriff of Washington County, Respondent-Appellant,Petitioner on Review. STEVEN SCHWERDT, Plaintiff-Respondent,Respondent on Review, v. ROB GORDON,in his official capacity as the Sheriff of Washington County, Respondent-Appellant,Petitioner on Review. LEE WALLICK, Plaintiff-Respondent,Respondent on Review, v. ROB GORDON,in his official capacity as the Sheriff of Washington County, Respondent-Appellant,Petitioner on Review. (CC C073809CV, C0073810CV, C073811CV; CA A139802; SC S058642) En Banc On review from the Court of Appeals.* Argued and submitted March 3, 2011. Elmer M. Dickens, Senior Assistant County Counsel, Washington County Counsel, Office of County Counsel, Hillsboro, argued the cause and filed the briefs for petitioner on review Robert Gordon, Sheriff of Washington County. James R. Kirchoff, Jackson County Counsel, Medford, argued the cause for petitioner on review Michael Winters. With him on the brief was G. Frank Hammond. Leland R. Berger, Portland, argued the cause for respondents on review Cynthia Townsley Willis, Paul Sansone, Steven Schwerdt, and Lee Wallick. With him on the brief was John C. Lucy. Denise G. Fjordbeck, Attorney-in-Charge Civil/Administrative Appeals, Salem, filed a brief on behalf of amicus curiae State of Oregon. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Margaret H. Leek Leiberan, Jensen & Leiberan, Beaverton, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon, Inc. DE MUNIZ, C. J. The decisions of the Court of Appeals are affirmed. The judgments of the circuit courts are affirmed. *Appeal from Jackson County Circuit Court, Mark S. Schiveley, Judge. 235 Or App 615, 234 P3d 141 (2010). Appeal from Washington County Circuit Court, Steven L. Price, Judge. 235 Or App 695, 234 P3d 150 (2010). DE MUNIZ, C. J. In these consolidated cases, the sheriffs of Jackson and Washington counties withheld concealed handgun licenses from persons who met all of the statutory conditions for issuance of such licenses, but who admitted to regular use of medical marijuana pursuant to registry identification cards issued under the Oregon Medical Marijuana Act, ORS 475.300 to 475.346. When the sheriffs' actions were challenged in court, the sheriffs responded that, to the extent that Oregon's concealed handgun licensing scheme does not concern itself with the applicants' use of medical marijuana, it is preempted by a federal prohibition on the possession of firearms by persons who, under federal law, are "unlawful user[s] * * * of a[] controlled substance." 18 USC § 922(g)(3). Both trial courts and, later, the Court of Appeals, rejected that preemption argument and held that the concealed handgun licenses were wrongfully withheld. We allowed the sheriffs' petitions for review and now add this court's voice to the lower courts': We hold that the Federal Gun Control Act does not preempt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses. Before turning to the facts of the two cases, we describe some of the relevant statutory background. At the outset, we observe that Oregon's concealed handgun licensing statute does not purport to regulate the possession of firearms.(1) Rather, the statute deals with a particular placement or use of a firearm -- the carrying of a firearm concealed on one's person or its concealment, within the possessor's reach, in a vehicle. In Oregon, it is a crime -- a misdemeanor -- to carry a firearm that is concealed in either of those ways. ORS 166.250(1)(a), (b). However, that criminal prohibition does not apply to certain specified categories of persons, including "a[ny] person who is licensed under ORS 166.291 and ORS 166.292 to carry a concealed handgun." ORS 166.260(1)(h). To obtain a concealed handgun license (CHL), a person must meet certain residency, age, and background requirements. ORS 166.291(1) (set out below, __ Or at __ (slip op at 3-4)). None of those requirements turns on the mere use of marijuana or other controlled substances; however, one requirement for obtaining a CHL is that the person "has not been convicted of an offense involving controlled substances." ORS 161.291(1)(L) (emphasis added). To obtain a CHL, a person must submit an application, along with a fee, to the sheriff of the county in which the applicant resides. ORS 166.291(1)(a), (5). The form of the application is dictated by statute: It sets out the various statutory requirements for issuance of a CHL and a declaration that the applicant meets those requirements, which the applicant must sign. ORS 166.291(4). Upon a person's submission of an application: "[t]he sheriff of a county, * * * upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person: "(a)(A) Is a citizen of the United States; or "(B) Is a legal resident alien who can document continuous residency in the country for at least six months and has declared * * * the intent to acquire citizenship status * * *; "(b) Is at least 21 years of age; "(c) Is a resident of the county; "(d) Has no outstanding warrants for arrest; "(e) Is not free on any form of pretrial release; "(f) Demonstrates competence with a handgun [in certain specified ways]: "* * * * * "(g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony; "(h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application; "(i) Has not been committed to the Oregon Health Authority under ORS 426.130; "(j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; "(k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; "(L) Has not been convicted of an offense involving controlled substances or participated in a court-supervised drug diversion program [with certain listed exceptions]: "* * * * * "(m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738 [(i.e., a stalking citation or domestic violence restraining order)]; "(n) Has not received dishonorable discharge from the Armed Forces of the United States; and "(o) Is not required to register as a sex offender in any state." ORS 166.291(1) (emphasis added). There is one exception to the requirement that a license be issued to any applicant who meets the standards set out at ORS 166.291(1): "Notwithstanding ORS 166.291(1), and subject to review as provided in subsection (5) of this section, a sheriff may deny a concealed handgun license if the sheriff has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant's mental or psychological state or as demonstrated by the applicant's past pattern of behavior involving unlawful violence or threats of unlawful violence."(2) ORS 166.293(2). With that statutory background in mind, we turn to the two cases that are before us. In Willis v. Winters, 235 Or App 615, 234 P3d 141 (2010), an applicant wished to renew an expired CHL and submitted a renewal application to the sheriff of the county where she resided (Jackson County), as required by ORS 166.295(1)(a).(3) The application form was substantially in the form required by ORS 166.291(4) (described above, __ Or at __ (slip op at 2-3)); however, it contained additional questions about the applicant's use of drugs that the Jackson County Sheriff had added on his own initiative. In her responses to those additional questions, the applicant indicated that she used marijuana regularly and that her use had been authorized by a medical doctor. The sheriff denied the application on the ground that, under federal law, 21 USC § 841(a)(1), the applicant's use of marijuana was unlawful, and, as an illegal user of marijuana, she was prohibited from possessing firearms under 18 USC section 922(g) of the Gun Control Act of 1968, Pub L 90-618, 82 Stat 1213 (1968). The sheriff acknowledged that the applicant possessed an Oregon Medical Marijuana card that purported to authorize her use of marijuana, but he concluded that the federal prohibition on possession of firearms by unlawful users of controlled substances preempted Oregon's concealed handgun licensing law. The sheriff argued, in addition, that his issuance of a CHL to the applicant was prohibited under 18 USC section 922(a)(6),(4) because it would likely deceive firearms dealers with respect to the lawfulness of selling firearms to the applicant. The applicant sought judicial review of that denial in the Circuit Court for Jackson County, as provided in ORS 166.293(5). The circuit court rejected the sheriff's preemption arguments and ordered him to renew the applicant's CHL. The Court of Appeals affirmed. Willis, 235 Or App at 629. We describe the Court of Appeals opinion in Willis below. The facts of Sansone v. Gordon, 235 Or App 695, 234 P3d 150 (2010), are substantially the same, except that that case involved the sheriff of Washington County and three separate applicants who resided in that county. Each of the three applicants sought to obtain or renew a CHL; each filled out an application that contained questions about marijuana use that the sheriff had added to the form; each received a letter from the sheriff denying the application and explaining that Oregon's concealed handgun licensing statutes were preempted by federal drug and firearm statutes and that issuance of the CHLs would violate 18 USC section 922(a)(6); and each sought review of the denial in Washington County Circuit Court as provided in ORS 166.293(5). The court consolidated the cases and ultimately ordered the sheriff to issue or reinstate the applicants' CHLs. On the sheriff's appeal, the Court of Appeals affirmed, citing its opinion in Willis, which it had issued the week before. Sansone, 235 Or App at 696. In Willis, the Court of Appeals resolved the issue of whether the federal prohibition on possession of firearms by "unlawful user[s] of controlled substances," 18 USC § 922(g)(3), preempted the Oregon statutes concerning CHLs by applying the preemption analysis employed by this court in Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159, 230 P3d 518 (2010). Invoking a distinction drawn in Emerald Steel between provisions that "affirmatively authorize" conduct that federal law prohibits and provisions that exempt conduct from criminal prosecution, the Court of Appeals held in Willis that Oregon's concealed handgun licensing statute is not preempted by federal law, because it does not affirmatively authorize what the federal statute prohibits -- i.e., possession of firearms by unlawful drug users -- but, instead, merely exempts licensees from state criminal liability for the possession of a concealed handgun. 235 Or App at 627. The Court of Appeals in Willis also considered, and rejected, an alternative argument proffered by the sheriffs for refusing to issue a CHL to a medical marijuana user -- that a sheriff's issuance of a CHL to such a person would violate a federal law, 18 USC § 922(a)(6), because it would likely mislead gun dealers "with respect to a[] fact material to the lawfulness of the sale [of firearms]" to the person (the material fact being that the sheriff had conducted a background check and had determined that the person was not prohibited from possessing firearms). The Court of Appeals concluded that that argument was based on an erroneous assumption that Oregon law requires a county sheriff to determine whether an applicant's possession of firearms would be unlawful before issuing a CHL to the applicant. Id. at 627-29. Ultimately, the court concluded that the denial of petitioner's CHL application was erroneous and affirmed the trial court's decision. As noted, the Court of Appeals shortly thereafter affirmed the trial court's decision in Sansone, relying on its decision in Willis. The respondents in Willis and Sansone, i.e., the sheriffs of Jackson and Washington counties, separately petitioned for review by this court. We allowed their petitions and consolidated their cases for purposes of review. For the reasons discussed below, we conclude that (1) a sheriff's duty under the Oregon concealed handgun licensing law, to issue CHLs to qualified applicants without regard to their use of medical marijuana, is not preempted by 18 USC section 922(g)(3); and (2) neither is a sheriff excused from that duty on the ground that issuance of a concealed handgun license to a medical marijuana user would violate a federal law prohibiting the making of any statement that is likely to deceive a gun dealer regarding the lawfulness of the sale of a firearm. We address the preemption issue first. The power of Congress to preempt state law arises from the Supremacy Clause of Article VI of the United States Constitution, which provides that the laws of the United States are "the supreme law of the land," and that the state courts "shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." The United States Supreme Court has identified three circumstances that result in the preemption of state law by federal law: (1) when the federal law expressly provides for preemption; (2) when a congressional statutory scheme so completely occupies the field with respect to some subject matter that an intent to exclude the states from legislating in that subject area is implied; and (3) when an intent to preempt is implied from an actual conflict between state and federal law. Crosby v. National Foreign Trade Council, 530 US 363, 372, 120 S Ct 2288, 147 L Ed 2d 352 (2000). The third type of preemption exists not only when it is physically impossible to comply with both the state and federal law, but when "under the circumstances of the particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 US 52, 67-68, 61 S Ct 399, 85 L Ed 581 (1941). Only the third type of preemption -- preemption implied from an actual conflict -- is relevant in the present case. That is so because the Gun Control Act of 1968 (the federal statute at issue) expressly renounces any Congressional intent to preempt state law unless the law is in "direct and positive" conflict with the Act. 18 USC § 927.(5) As will be seen, the real point of contention in this case concerns the second of the two kinds of conflict preemption -- "obstacle" preemption. Federal cases teach us that "obstacle preemption" questions are to be resolved by examining the federal law to ascertain its purposes and intended effects, examining the state statute to determine its effects, and comparing the results to determine whether the latter statute in some way obstructs the accomplishment of the objectives that have been identified with respect to the former statute. See, e.g., Perez v. Campbell, 402 US 637, 644, 91 S Ct 1704, 29 L Ed 2d 233 (1971) (obstacle preemption analysis involves construction of federal and state statutes and then determination of whether they are in conflict); Crosby, 530 US at 373 ("What is a sufficient obstacle [to federal objectives] is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects[.]"). When traditional regulatory powers of the states are implicated (as in the present case), that analysis incorporates a presumption that Congress did not intend to preempt. See Rice v. Santa Fe Elevator Corp., 331 US 218, 230, 67 S Ct 1146, 91 L Ed 1447 (1947) (preemption analysis assumes that "historic [']police['] powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress"); see also Murphy v. Waterfront Commission of New York, 378 US 52, 96, 84 S Ct 1594, 12 L Ed 2d 678 (1964) (Justice White concurring) (states have primary responsibility for the administration of the criminal law and federal preemption of areas of crime control traditionally reserved to the states has been relatively unknown). With the foregoing approach to obstacle preemption questions in mind, we turn to the statutes at issue.(6) Earlier in the opinion, we described the relevant Oregon statutes at length. Briefly, those statutes (1) define as a crime the possession of firearms by certain classes of persons, but do not include either lawful or unlawful "users" of controlled substances in any of those classes (ORS 166.250(1)(c)); (2) define as a crime the concealed (but not the open) carrying of a firearm and the concealment of a firearm on one's person or within its possessor's reach in a motor vehicle, unless the person has a valid concealed handgun license (ORS 166.250(1)(a) and (b), ORS 166.260(1)(h)); and (3) require county sheriffs to issue a CHL to any applicant for a license who meets certain age, residency and background requirements, without regard to the applicant's use of controlled substances (ORS 166.291).(7) The federal statute at issue, 18 USC § 922(g), provides, in relevant part: "It shall be unlawful for any person -- "* * * * * "(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC § 802)); "* * * * * "* * * to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." (Emphasis added.) The federal statute thus makes it a federal crime for a person who uses marijuana in violation of federal law to possess a firearm in or affecting commerce. The United States Supreme Court has construed section 922(g) in terms of "keep[ing] firearms away from the persons Congress classified as potentially irresponsible and dangerous." Barrett v. United States, 423 US 212, 218, 96 S Ct 498, 46 L Ed 2d 450 (1976) (construing earlier version of section 922(g)); see also Dickerson v. New Banner Institute, Inc., 460 US 103, 112 n 6, 103 S Ct 986, 74 L Ed 2d 845 (1983) (in enacting 18 USC § 922(g), Congress sought to keep firearms out of the hands of "presumptively risky people"). Because, under the federal Controlled Substances Act, 21 USC §§ 801- 971, marijuana is a Schedule I controlled substance with no lawful uses, 21 USC § 812(b)(1), (c)(10), marijuana users necessarily are "unlawful users" for purposes of 18 USC section 922(g)(3) -- and in a class of persons from whom Congress wishes to keep guns. Thus, the federal "purpose[] and intended effect[]" that is relevant to our inquiry is that of keeping firearms away from marijuana users, without regard to the lawfulness of such use under the laws of their state of residence. The method Congress chose to accomplish that purpose is to make it a crime for all marijuana users to "possess firearms in or affecting commerce." Congress did not choose to effectuate its policy by enacting a law governing the conduct of state sheriffs -- by, for example, prohibiting state law enforcement officers from issuing gun licenses to marijuana users. Consequently, there is no direct conflict between the federal and state statutes under consideration, in the sense of it being impossible to comply with both. That leaves us to consider the other potential basis for conflict preemption: Does ORS 166.291, which requires county sheriffs to issue CHLs to qualified applicants even if they use marijuana in violation of federal law, stand as an obstacle to the full accomplishment and exercise of the federal firearms statute's purpose? The sheriffs contend that it does, because it allows marijuana users -- persons who are deemed by Congress to be unqualified to possess firearms -- to obtain licenses that effectively authorize their possession of firearms. But, as we have already observed, __ Or at __ (slip op at 1-2), that contention does not accurately reflect the actual terms of the CHL statute. Putting aside the question of whether the CHL statute affirmatively "authorizes" anything, the fact remains that the statute is not directly concerned with the possession of firearms, but with the concealment of firearms in specified locations -- on one's person or in one's car. Although, in their briefing, the sheriffs treat that distinction as having no practical significance, there is nothing in the federal preemption analysis that would support that kind of broad brush approach. In fact, it is clear that, when the federal courts attempt to determine whether a state law stands as an obstacle to congressional purposes, they attempt to define the effect of the state statute with considerable precision. See, e.g., Florida Avocado Growers v. Paul, 373 US 132, 144-46, 83 S Ct 1210, 10 L Ed 2d 248 (1963) (California statute that, for purpose of protecting California consumers, prohibited sale of avocados with oil content of less than eight percent, was not preempted by federal standards that established lower oil content for determining when avocados were sufficiently mature to be picked, processed, and transported). Neither is the statute an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials. In fact, it is possible that the sheriffs in this case could themselves enforce section 922(g)(3) of the federal Gun Control Act against medical marijuana users who possess guns in violation of federal law. The federal act makes such possession illegal, the sheriffs generally are authorized to enforce federal as well as state law, and no state law prohibits the sheriffs from taking such enforcement actions. But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana. In other words, the real thrust of the sheriffs' argument appears to be that the state's choice not to use its gun licensing mechanism to enforce the federal policy is preempted, even though the federal law that the sheriffs rely on does not in any way mandate the use of state gun licensing schemes in any particular way. One obvious problem with that position is that it presumes that Congress has authority that, in fact, it does not have. It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program. Printz v. United States, 521 US 898, 925-31, 117 S Ct 2365, 138 L Ed 2d 914 (1997); New York v. United States, 505 US 144, 161-69, 112 S Ct 2408, 120 L Ed 2d 120 (1992). Although the United States Constitution establishes the supremacy of the federal government in most respects, it reserves to the states certain powers that are at the core of state sovereignty. New York, 505 US at 156-61. One expression of that reservation of powers is the notion that Congress lacks authority "to require the states to govern according to Congress's instructions." Id. at 162.(8) It follows from that "anti-commandeering" principle that Congress lacks authority to require the states to use their gun licensing mechanisms to advance a particular federal purpose. If Congress lacks the constitutional authority to commandeer the state gun licensing statutes in that fashion, then we can hardly imply an intent to commandeer state gun licensing laws from a federal statute that does not even mention them. Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state's decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it. Ultimately, then, we reject the sheriffs' contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground. The sheriffs offer an alternative legal justification for their refusal to issue CHLs to petitioners -- that, by doing so, they would be violating a federal prohibition on knowingly making a "false" oral or written statement that would be "likely to deceive" gun dealers with respect to the lawfulness of selling a firearm to petitioners. 18 USC § 922(a)(6).(9) The sheriffs observe that 18 USC section 922(t)(1) requires gun dealers, before transferring any firearm to any person not licensed under federal law to deal in guns, to contact the "national instant criminal background system" for a determination that that person's receipt of a gun would not be unlawful. The sheriffs further observe that, under 18 USC section 922(t)(3), that requirement "shall not apply to a firearm transfer between a [licensed gun dealer] and another person if -- "(A)(i) such other person has presented to the [licensed gun dealer] a permit that -- "(I) allows such other person to possess or acquire a firearm; "(II) was issued not more than 5 years earlier by the State in which the transfer is to take place; and "(ii) the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law." The sheriffs contend that a prospective gun purchaser's presentation of a license issued under ORS 166.291(1) would have a tendency to lead a gun dealer to believe that the requirements of 18 USC section 922(t)(3) had been satisfied (i.e., that the issuer of the license had performed a background check and had determined that the licensee's possession of a firearm was lawful) and that the requirement that the dealer contact the national instant criminal background system before selling a gun to the licensee was waived. The sheriffs argue that, in light of that tendency, their issuance of a CHL to a person who is known to use medical marijuana (and who therefore is known to be prohibited from owning firearms under federal law) would be likely to deceive gun dealers about the lawfulness of selling a firearm to the person and thus would violate 18 USC section 922(a)(6).(10) The sheriffs' argument is problematic for two reasons. First, it does not address the fact that, to violate 18 USC section 922(a)(6), the statement regarding the lawfulness of the contemplated firearms transfer that is "likely to deceive" the gun dealer must in fact be "false." An Oregon CHL issued in conformity with the requirements of ORS 166.291(1) is not false: It may indirectly convey an assurance that the licensee meets the requirements for issuance of such a license under ORS 166.291(1),(11) but it does not purport to assure the lawfulness of the licensee's possession of firearms under federal law, even indirectly. Second, there is little likelihood that a gun dealer who is attempting to follow the applicable law would be "deceiv[ed]" into a belief that the requirements of 18 USC section 922(t)(3) had been satisfied by a prospective buyer's presentation of an Oregon CHL. That federal statute excepts a firearm transfer from the requirement of a national instant criminal background check only if the prospective buyer presents a permit, issued in the last five years by the state in which the transfer is to take place, that allows the person to possess or acquire a firearm, and "the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law." 18 USC § 922(t)(3)(A)(ii) (emphasis added). Under that provision, the national instant criminal background check is not waived by the mere fact that a government official in the relevant state has issued a gun license of some undefined variety to the prospective buyer. Rather, waiver of the background check depends on the law of the state that issued the permit. No Oregon law requires verification of compliance with federal law as a condition of issuance of a CHL. Any gun dealer that accepts an Oregon CHL as proof that the requirements of 18 USC section 922(t)(3) have been satisfied does so in disregard of Oregon's statutory scheme and cannot be said to have been deceived by anything other than the gun dealer's own lack of awareness of Oregon law. To conclude: the sheriffs in this case are not excused from their duty under ORS 166.291(1) to issue CHLs to qualified applicants, without regard to the applicant's use of medical marijuana, on the ground that issuance of CHLs to medical marijuana users would violate a federal prohibition on making false statements about the lawfulness of transferring firearms to such persons. Neither are the sheriffs excused from that statutory duty on the ground that it is preempted by federal law. The sheriffs were without authority to deny petitioner's CHL applications. The decisions of the Court of Appeals are affirmed. The judgments of the circuit courts are affirmed. 1. As a general proposition, individuals in Oregon have a right to possess firearms for defense of self and property, under Article I, section 27, of the Oregon Constitution. See generally State v. Hirsch/Friend, 338 Or 622, 114 P3d 1104 (2005). However, ORS 166.250(1)(c) makes it a crime for certain categories of persons -- minors, felons, etc. -- to "possess" firearms. Another subsection of the same statute explicitly provides that a person who is not within any of the excepted categories does not violate the law by "owning, possessing or keeping within the person's place of residence or place of business any handgun." ORS 166.250(2)(b). Yet another subsection provides that such a person does not violate the law by carrying a firearm "openly" in a belt holster. ORS 166.250(3). 2. There is no claim in the present case that the sheriffs denied any of the petitioner's applications under ORS 166.293(2) or believed that any of the petitioners were likely to be a danger to themselves or others, or to the community at large. 3. Under ORS 166.295(1)(a), the requirements for renewal of a CHL are identical to the requirements for an initial license set out at ORS 166.291, except that the applicant for renewal need not provide fingerprints and character references. 4. 18 USC section 922(a)(6) makes it unlawful "for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter[.]" 5. 18 USC section 927 provides: "No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together." Consistently with the United States Supreme Court's preemption analysis in the face of identical wording in the federal statute at issue in Wyeth v. Levine, 555 US 555, ___, 129 S Ct 1187, 1196-1204, 173 L Ed 2d 51, 61-70 (2009), we assume that the words "direct and positive conflict" refer to the third type of preemption identified in Crosby -- preemption implied from an actual conflict -- and that such a conflict can be demonstrated by showing that compliance with both the federal and state law is impossible or that the state law "stands as an obstacle" to the full realization of the objectives expressed in the federal law. See Emerald Steel, 348 Or at 175 n 15 (following Wyeth approach to similarly worded savings clause in the Controlled Substances Act, 21 USC §§ 801- 971). 6. Rather than employing this basic federal approach to obstacle preemption problems, the parties (and the Court of Appeals) have couched their arguments primarily in terms of whether ORS 166.291 "affirmatively authorizes" possession of firearms by marijuana users or merely permits marijuana users to be exempted from criminal liability under ORS 166.250(1)(a) and (b) for Unlawful Possession of a Firearm. Those arguments clearly are directed at this court's decision in Emerald Steel, which held that a provision of the Oregon Medical Marijuana Act that "affirmatively authorized" the possession of marijuana for medical uses was preempted by the federal Controlled Substances Act, because it stood as an obstacle to a congressional purpose that inhered in that act -- of prohibiting marijuana possession for any purpose. 348 Or at 178. However, Emerald Steel should not be construed as announcing a stand-alone rule that any state law that can be viewed as "affirmatively authorizing" what federal law prohibits is preempted. Rather, it reflects this court's attempt to apply the federal rule and the logic of the most relevant federal cases to the particular preemption problem that was before it. And particularly where, as here, the issue of whether the statute contains an affirmative authorization is not straightforward, the analysis in Emerald Steel cannot operate as a simple stand-in for the more general federal rule. 7. As discussed above, ORS 166.293(2) permits a sheriff to decline to issue a CHL if the sheriff has "reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large," based on certain specified factors. The sheriffs here did not rely on that statute in denying the permits in these cases. 8. The United States Supreme Court has further observed that, while Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power to compel the states to require or prohibit those acts. New York, 505 US at 166. However, Congress can encourage states to adopt or enforce federal policy preferences with financial and other sorts of incentives. Id. at 166-68. 9. 18 USC § 922(a)(6) provides that it shall be unlawful: "for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter[.]" 10. The sheriffs appear to have abandoned their related argument in the Court of Appeals that issuance of a CHL to a known medical marijuana user is a "false" (rather than deceptive) statement, because it actually asserts that the issuer has performed a background check and has determined that the licensee lawfully may possess firearms. 11. On its face, a CHL provides certain pertinent information about the licensee, the name of the issuer of the license, and the date and place of its issuance, all under the heading "Oregon Concealed Handgun License." See ORS 166.292(3) (setting out form of concealed handgun license). If an interested party were to examine the statutory standards for issuance of an Oregon CHL, they might reasonably assume that the issuer had concluded that the licensee satisfied the requirement set out at ORS 166.291(1).

211fc73afa0d305df9fe93bf4915f42869a7edcd4fb126a8da03f389246f34b8

2011-05-19T00:00:00Z

502d2e66-f121-48bd-9691-3c271ae3305e

Oregon v. Davis

S058641

oregon

Oregon Supreme Court

Filed: September 22, 2011. IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. TERRY DEAN DAVIS, Respondent on Review. (CC 02C45953, CA A134216, SC S058641) En Banc On review from the Court of Appeals.* Argued and submitted March 7, 2011. Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for petitioner on review. Rolf C. Moan, Assistant Attorney General, filed the briefs. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. George W. Kelly, Eugene, argued the cause and filed the brief for respondent on review. WALTERS, J. The decision of the Court of Appeals is reversed in part and affirmed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings. *Appeal from Marion County Circuit Court, Susan M. Tripp, Judge. 235 Or App 327, 230 P3d 987 (2010). 1 WALTERS, J. 1 In this criminal case, the state argues that the Court of Appeals erred in 2 reversing one of the trial court's rulings excluding certain evidence. Defendant, in 3 response, challenges two of the trial court's other evidentiary rulings excluding evidence, 4 which the Court of Appeals had affirmed.1 Defendant was charged with murder and 5 manslaughter based on allegations that he shook the victim, his 15-month-old daughter, 6 and inflicted fatal abdominal and brain injuries on the night that she died. Defendant 7 contended that the victim's autopsy revealed that the victim had been injured at least 8 several days before the night of her death and that nothing that he intentionally did to the 9 victim on that evening caused the catastrophic brain hemorrhage that killed her. As 10 relevant to this case, defendant attempted to introduce evidence that the victim had been 11 subjected to physical abuse throughout her short life; that a friend of the victim's mother 12 saw the victim four days before her death and concluded that the victim looked like the 13 friend's own daughter, who had suffered a brain injury as a baby; and that that friend 14 relayed that conclusion to the victim's mother. In each instance, the trial court excluded 15 the evidence. Defendant was convicted of one count of murder and one count of 16 manslaughter. 17 Defendant appealed his convictions to the Court of Appeals and that court 18 1 Under ORAP 9.10(1), a party filing a response to a petition for review may include a contingent request for review of any question properly before the Court of Appeals. 2 reversed the judgment of the trial court, concluding that the trial court erred in excluding 1 testimony that, four days before the child's death, a friend told the victim's mother that the 2 victim resembled the friend's child, who had suffered a brain injury. State v. Davis, 235 3 Or App 327, 230 P3d 987 (2010). However, the Court of Appeals affirmed without 4 discussion the trial court's rulings as to the evidence of the victim's prior physical abuse 5 and the statement of the mother's friend that, four days before she died, the victim 6 resembled the friend's own child, who had suffered a brain injury. Id. We granted the 7 state's petition for review and, for the reasons that follow, now affirm in part and reverse 8 in part the decision of the Court of Appeals, 9 Except where noted, the following facts are undisputed. Defendant's 10 daughter, the victim in this case, was 15 months old when she died on June 30, 2002. 11 The victim lived with her mother, Ecklund, and several of Ecklund's other children. 12 Ecklund and defendant were not married and lived apart. The victim stayed with 13 defendant overnight at his home from time to time. 14 The Court of Appeals described the events of the days preceding the child's 15 death as follows: 16 "Ecklund, the victim, and Ecklund's other children vacationed in 17 Mexico and California in the middle of June 2002. During the trip, the 18 victim fell off a motel bed. Ecklund told police later that she 'couldn't get 19 there fast enough' and that the victim hit the 'top of her head' in the fall. 20 Ecklund testified, however, that the victim exhibited no signs of distress 21 after the fall. 22 "Shortly after the family's return to Oregon, on June 24, the victim 23 had an overnight visit with defendant. She returned to Ecklund's care the 24 following day. On June 25, Ecklund noticed that the victim was not feeling 25 well; she was vomiting and her eyes were 'glassy.' Ecklund asked her 26 3 friend Payne, a registered nurse, to stop by and examine the victim.[2] 1 Payne did so and noticed that the victim was unresponsive. The trial court 2 excluded as hearsay Payne's testimony that she had told Ecklund that the 3 victim's condition looked just like that of Payne's daughter when she had 4 suffered a traumatic brain injury years before. Payne tested the victim for 5 dehydration by pinching the victim's skin and noticed that the victim's eyes 6 were glassy and somewhat 'rolled up' in her head; Payne recommended that 7 Ecklund have the victim examined by a doctor. During her testimony at 8 trial, Ecklund did not recall Payne's visit or recommendation. 9 "Ecklund took the victim to Santiam Hospital a few hours after 10 Payne's examination. There, the victim was evaluated, treated for 11 dehydration and a viral infection, and given intravenous fluids. Her 12 symptoms resolved, and the victim returned home the next morning. 13 "Defendant testified that, on June 29, around 7:00 p.m., he picked up 14 the victim for an overnight visit. The victim was fussing and crying when 15 defendant arrived, but showed no other signs of illness or injury. Once they 16 arrived at defendant's home, defendant gave the victim a bath and changed 17 her diaper. He then began doing some household chores while the victim, 18 another child of defendant, and defendant's small dog played together in the 19 garage. When defendant returned to the garage, he found the victim lying 20 on her side on the floor. Defendant testified that the other child told him 21 that the small dog had knocked over the victim. Defendant picked up the 22 victim, but decided that she seemed unhurt. 23 "Later that evening, defendant ordered a pizza, which was delivered 24 after 10:00 p.m. The victim was uninterested in the pizza, but ate a few 25 pieces of pineapple. The victim spat up or vomited, and defendant testified 26 that he noticed that the victim had a blank affect and had become limp. He 27 called Ecklund at 10:58 p.m. to tell her that something was wrong with the 28 victim and asked Ecklund to come to his house to help. A few minutes 29 later, when Ecklund arrived, she found the victim limp and unresponsive 30 and told defendant to call 9-1-1. Defendant made the call and told the 31 dispatcher that the victim had recently eaten pineapple and spat up and that 32 he was concerned about a possible allergic reaction. 33 "Paramedics arrived at defendant's home around 11:00 p.m. They 34 2 Ecklund testified that she did not recall calling Payne, Payne coming over to her home to look at the victim, or anything Payne may have said to her that day. 4 found the victim lying on the floor with defendant, Ecklund, and 1 defendant's other child nearby. Defendant told the paramedics that the 2 victim had not suffered any trauma, but had been sitting on the couch and 3 went suddenly limp. The paramedics found the victim unresponsive but 4 breathing, with a body temperature of 92.7 degrees. The paramedics also 5 noticed a small bruise on her forehead and some bruising on her abdomen. 6 The paramedics testified that Ecklund did not tell them about the victim's 7 visit to Santiam Hospital several days previously. The paramedics decided 8 to transport the victim to Salem Hospital after determining that she rated 9 extremely low on a scale measuring brain functioning." 10 Davis, 235 Or App at 330-31. 11 Defendant and Ecklund followed the ambulance in a car to Salem Hospital. 12 At Salem Hospital, doctors questioned Ecklund and defendant. Defendant told the 13 emergency room physician that the child had not suffered any trauma or injury that 14 evening, and had not experienced any vomiting or other illness. Ecklund did not mention 15 her discussion with Payne, the victim's visit to the hospital four days earlier, or the 16 victim's treatment for dehydration. Testing revealed that the victim had a subdural 17 hematoma3 and needed surgery to relieve the resulting pressure on the brain. Because 18 Salem Hospital does not have pediatric neurosurgeons on staff, the treating physicians 19 decided to transport the victim to Oregon Health Sciences University Hospital (OHSU) in 20 Portland. At OHSU, doctors performed surgery to relieve the pressure on the victim's 21 brain. Subsequent testing showed that the victim's brain was no longer functioning, and 22 she was taken off life support on June 30, 2002. 23 3 A subdural hematoma is bleeding under the dura, the membrane that encases the brain. 5 A medical examiner performed an autopsy the next day. The autopsy 1 revealed, among other things, that the victim had about a quart and a half of blood in her 2 abdomen, which was due to tear in the mesentery, the lining of the abdominal cavity that 3 connects to parts of the small intestine. In addition, the victim's brain was swollen, the 4 subdural hematoma on the right side of the victim's head had been removed by the 5 surgeons who had tried to save her, and the victim had retinal hemorrhaging and bleeding 6 at the base of the optic nerve. The medical examiner later testified that the retinal 7 hemorrhage and brain injury were caused by acceleration and deceleration of the victim's 8 head, which would have been caused either by violent shaking, a violent shake followed 9 by a slam, or a single slam. The medical examiner also stated that the injuries were 10 "acute" and had to have occurred within 24 to 36 hours of the victim's death; according to 11 him, the microscopic evidence was not consistent with an older abdominal injury. 12 Finally, he concluded that the cause of the victim's death was homicide. 13 In addition to those findings related to the cause of death, the autopsy and a 14 radiology test revealed that the victim had suffered other injuries in the weeks and 15 months before her death. Among other things, the victim had healing fractures to three 16 ribs and a healing fracture on the femur, as well as possible old fractures on her tibia and 17 fibula. 18 Defendant was initially charged in 2002 with various crimes arising out of 19 the victim's death, including murder by abuse and manslaughter. To support the murder- 20 by-abuse charge, the state relied on, among other things, the healing leg and rib fractures 21 and an expert's opinion that the victim had suffered child abuse. The case went to trial in 22 6 2003. At that trial, the victim's entire medical history was admitted into evidence. The 1 jury found defendant guilty of manslaughter but could not reach a decision on the 2 remaining charges, including murder by abuse. After that trial ended, the trial court 3 declared a mistrial due to juror misconduct in that case. Defendant was reindicted in 4 2005; the state dropped the murder by abuse charge. Instead, at the criminal trial at issue 5 here, the state's theory of the case was that the victim died on June 30, 2002, due to head 6 and abdominal injuries that defendant intentionally inflicted on the victim on a particular 7 date -- on or between June 29 and 30, 2002. 8 At a pretrial hearing about a year before the second trial, the trial court 9 informed the parties that it intended to try a narrow case, given the new charges, and 10 stated that defendant had agreed that, at that point, he did not intend to offer evidence of 11 the victim's prior physical abuse unless he could establish that that physical abuse was 12 directly related to the cause of the victim's death. However, at a pre-trial hearing closer 13 to the trial date, defendant told the trial court that he intended to argue that evidence of 14 the victim's prior physical abuse was relevant for a different purpose. Defendant reported 15 that his experts had reached the conclusion that the fatal abdominal and brain injuries had 16 been inflicted not on June 29 or 30 but at least several days before the victim's death, and 17 that the victim died on June 30 as a result of a rebleed of the earlier injuries. Defendant 18 told the trial court that, in reaching that conclusion, the experts had reviewed and relied 19 on the victim's medical record, including the autopsy and radiologist's reports showing 20 healing rib and leg fractures, demonstrating that the victim had been subjected to physical 21 abuse throughout her life. Evidence of that abuse, defendant contended, was admissible 22 7 to explain the basis for the experts' conclusions. 1 The state objected, arguing that the parties had agreed not to delve into the 2 details of the victim's prior physical abuse, and that the defense experts could testify 3 about their conclusions as to when the injuries that caused the victim's death occurred 4 without talking about all the details that they had relied on to reach them. Further, 5 although the state agreed that the victim had been abused, the state argued that, because it 6 was not clear when the victim was abused or who had abused her, evidence of the prior 7 abuse would be confusing and misleading to the jury and would distract the jury from the 8 real issues in the case -- what injury caused the victim's death and when it happened. 9 The trial court excluded the evidence of the prior physical abuse. The trial 10 court first explained that that evidence was not relevant because the defense could not tie 11 the prior abuse, including the healing fractures, to the abdominal and brain injuries that 12 caused the victim's death. Further, the court explained, even if evidence of prior physical 13 abuse were relevant, it would be inadmissible under OEC 403,4 because the probative 14 value of the prior abuse was outweighed by the danger of confusion of the issues for the 15 jury. The court also concluded that the evidence of the abuse was inadmissible under 16 4 OEC 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence." 8 OEC 404(3),5 because there was no indication of who had inflicted the prior injuries or 1 whether the prior injuries were the result of an improper act. And, even if there were, the 2 court stated, the evidence would not be admissible to show that the person who inflicted 3 the injuries that led to the victim's death acted in conformity with his or her prior conduct, 4 and there was no suggestion that defendant was offering the evidence for any of the 5 permissible reasons under OEC 404(3): to show motive, opportunity, intent, preparation, 6 plan, knowledge, identity, or lack of mistake or accident. Finally, the court ruled that 7 none of the evidence of prior injuries was admissible to support the opinions of either the 8 state's or defendant's experts, unless the experts could tie a particular past injury to the 9 cause of the victim's death: 10 "They are not going to say that this was a battered child, and that's not 11 going to come up in their diagnosis, they're not going to talk about that in 12 their testimony, they're not going to talk about other injuries unless they can 13 tie them to the death."6 14 During the trial, various state witnesses testified that the victim appeared 15 5 OEC 404(3) provides: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." 6 The court also ruled that evidence of any particular hospital visit or medial contact may be admissible to the extent that the defense could "tie it to your rebleed theory or * * * to your abdominal injury theory." At trial, defendant did not attempt to show that the victim died as a direct result of any of the particular injuries evidenced in the victim's medical records. 9 normal during the day before defendant picked her up from her mother's home -- that she 1 ate and drank normally, and that she did not seem to be in any pain. The state presented 2 the testimony of the doctors who treated the victim, the medical examiner, and other 3 experts who viewed the victim's records, to the effect that the abdominal and brain 4 injuries that the victim suffered were not accidental and that it would have taken severe 5 blunt force trauma to inflict them.7 Those witnesses also testified that the abdominal 6 injury would have been quite painful, the victim would not have been able to eat 7 afterward, and that the head injury would have produced immediate and obvious 8 symptoms -- the victim would have lost coordination and she would not have been able to 9 eat or swallow. Those facts led the medical examiner to conclude that the abdominal 10 injury occurred after the victim ate pieces of pineapple on the pizza that was delivered 11 after 10:00 pm on June 29 and that the head injury occurred at some time thereafter.8 12 As noted, defendant's theory of the case was that the victim's injuries were 13 intentionally inflicted, but that the injuries occurred at least several days before the 14 evening of her death. Defendant's experts testified that the abdominal injury showed 15 microscopic signs of healing that would not have been evident unless the injury were at 16 7 The medical examiner testified that it was possible that the abdominal injury occurred accidentally, from, for example, falling off a bed or couch onto a protruding toy. 8 The radiologist at Salem Hospital agreed that there had been a recent brain injury, but he also testified that there might have been an additional, existing subdural hematoma, which could have been up to three weeks old. 10 least several days old. Moreover, those experts testified that CT scans and x-rays showed 1 evidence of an older trauma to the dura around the brain and that photos taken at the 2 autopsy revealed that clotting had begun to occur there. In that regard, one expert 3 testified that the brain injury was at least five days old. Defense witnesses opined that the 4 abdominal injury worsened over time, with the mesentery rupturing and the bleeding 5 consequently accelerating, causing coagulopathy, or an inability of the body to clot 6 properly. That, in turn, caused the existing subdural hematoma to rebleed, leading, 7 ultimately, to the victim's death. 8 Defendant's experts testified that the child could have appeared normal after 9 suffering the earlier abdominal injury and the brain injury, including eating, drinking, and 10 eliminating normally. In addition, witnesses stated that the abdominal injury might not 11 have caused constant pain, after the initial blow, because the mesentery tear was in the 12 back of the abdomen, and, if the mesentery had ruptured on the night of the victim's 13 death, the victim would have experienced unquenchable thirst, which would have driven 14 her to eat the pineapple from the pizza. Finally, one of defendant's witnesses testified 15 that the early symptoms of a deteriorating abdominal trauma were exactly the same as the 16 symptoms with which the victim presented at Santiam Hospital four days earlier, on June 17 25, leading that expert to conclude that the victim already had the abdominal injury at 18 that time. 19 Defendant also attempted to offer testimony by Ecklund's friend, Payne, 20 that, on June 25, Payne thought that the victim looked like her own daughter, who had 21 suffered a brain injury when she was a child, when she had pressure on the brain or was 22 11 dehydrated, and that Payne had relayed that belief to Ecklund. Defendant made an offer 1 of proof that Payne would have testified that she had known Ecklund for about 10 years 2 and that, on June 25, Ecklund called her over to her house to look at the victim, who was 3 not well. In the offer of proof, Payne testified that, on that afternoon, the victim was 4 lying on a cushion on the floor, lethargic. She described the victim as looking off to one 5 side, her eyes rolled back to the right and bulging and her pupils enlarged. Payne 6 testified that she thought that the victim resembled her own daughter when she was the 7 victim's age, when her daughter was suffering from swelling in the brain or was 8 dehydrated. Payne explained that her daughter, at three months of age, had suffered a 9 traumatic brain injury as a result of a car accident and had been hospitalized many times 10 and had undergone many brain surgeries. Payne acknowledged that she could not tell 11 whether her daughter was suffering from brain swelling or dehydration when her child's 12 eyes were bulging, rolled back, and non-reactive, but she recognized that those symptoms 13 were triggered by one of the two conditions. In addition, Payne testified that she told 14 Ecklund that the victim reminded her of her daughter when she was that age, and she 15 recommended that Ecklund take the victim to the hospital to be examined. Finally, Payne 16 testified that Ecklund knew that her daughter had been in a car accident as an infant and 17 had suffered a serious brain injury. 18 The trial court ruled that Payne could testify that she came to Ecklund's 19 house as a family friend at around 4:00 in the afternoon, could describe how the victim 20 looked when Payne saw her that afternoon, and could testify that she told Ecklund that 21 she thought that the victim might be dehydrated. However, the court excluded the 22 12 remainder of Payne's proffered testimony. In particular, the court ruled that Payne's 1 statements to Ecklund that the victim reminded her or her daughter were hearsay, and, to 2 the extent that that testimony might have been admissible nonetheless to show its effect 3 on the listener, the court found that it was unclear what Ecklund might have understood 4 Payne to mean. In addition, the court ruled that any testimony regarding Payne's 5 daughter was irrelevant. Finally, it rejected defendant's argument that Payne's statement 6 that the victim looked like her daughter when her daughter's brain was swelling was 7 admissible as lay opinion testimony under OEC 701, which permits opinion testimony by 8 lay witnesses if it is rationally based on the perception of the witness and is helpful to the 9 determination of a fact in issue.9 In that regard, the court ruled, 10 "I think that there is far too much possibility for the fact that it really was 11 speculation or conjecture or -- and she was not certain. And, for that 12 reason, I am not going to allow it in." 13 As noted, the Court of Appeals rejected without discussion defendant's 14 challenges to the trial court's rulings respecting the victim's prior injuries and hospital 15 9 OEC 701 provides: "If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are: "(1) Rationally based on the perception of the witness; and "(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue." 13 visits and Payne's lay opinion that the victim looked like she may have been suffering 1 from a brain injury on June 25. State v. Davis, 235 Or App at 334. The court, however, 2 reversed the trial court's ruling excluding Payne's testimony that she told Ecklund on June 3 25 that the victim reminded her of her daughter. In evaluating that issue, the Court of 4 Appeals began by observing that, although the trial court excluded that testimony as 5 hearsay, it was not hearsay, because it was not offered to prove the truth of the matter 6 asserted, viz., that the victim reminded Payne of her daughter. Id. at 335. Rather, it was 7 offered to show that Payne told Ecklund, in effect, that the victim looked like she was 8 suffering from a brain injury and that Ecklund did not report that concern to hospital staff 9 at Santiam Hospital later that day, or to the paramedics who were called to defendant's 10 house on June 29, or to any of the doctors at Salem Hospital or OHSU who treated the 11 victim on the night of her death. Defendant had argued that the victim's injuries occurred 12 several days before June 29, when the victim was not in his care, and that Ecklund knew 13 something about those injuries and had hidden that information from care providers. 14 Defendant argued that Payne's testimony supported that contention. 15 The Court of Appeals agreed with defendant. The court stated: 16 "Payne's testimony about Ecklund's knowledge of the victim's 17 potential brain injury was relevant under OEC 401. That fact had a 18 tendency to make more probable the existence of deliberate nondisclosures 19 by Ecklund of that condition to treatment providers. Those deliberate 20 nondisclosures, in turn, were of consequence to the defense theory that the 21 victim's injuries had been previously incurred. Thus, the proffered 22 evidence assists in establishing the relevance of other evidence, namely, the 23 testimony of the paramedics and emergency room doctors who said that 24 Ecklund never told them about the possibility of an earlier brain injury. 25 That evidence supports the inference that Ecklund was hiding her 26 knowledge about the victim's prior injuries. The evidence is relevant, and 27 14 the court erred in ruling that it should be excluded." 1 Id. at 336. 2 The Court of Appeals noted that the exclusion of relevant evidence does not 3 require reversal if there is little likelihood that the error affected the verdict, that is, if the 4 error is harmless. Id. The court then characterized the proper inquiry for evaluating 5 harmlessness as follows: "where there is convincing evidence of the defendant's guilt in 6 the record as a whole, and little, if any, likelihood that the error affected the jury's verdict, 7 then the error is harmless." Id. Applying that standard to the facts of the case, the court 8 concluded that the error was not harmless: 9 "The record, in short, did not contain evidence of guilt that was so 10 substantial and convincing that evidentiary error could be presumed to be 11 harmless. Instead, the jury was required to discern whether the state's 12 evidence concerning the timing of the victim's injuries constituted proof 13 beyond a reasonable doubt of defendant's guilt, in light of the contradictory 14 scientific explanation offered by defendant's experts. Any evidence of prior 15 injury to the victim's brain might have tipped the balance in defendant's 16 favor. The evidence that Ecklund hid information suggesting an earlier 17 injury was significant." 18 Id. at 337. 19 The state seeks review of that decision, arguing that evidence of Payne's 20 statement to Ecklund on June 25 and Ecklund's reaction to that statement were not 21 offered for their truth -- that is, that the victim, in fact, had a brain injury on June 25, 22 2002 -- and, therefore, were not relevant to the crucial factual question before the jury, 23 viz., whether the victim's brain injury was inflicted on June 29, 2002. In addition, the 24 state contends that Court of Appeals misapplied the standard for harmless error; properly 25 considered, the state contends, the excluded evidence in this case was unlikely to have 26 15 affected the verdict, and any error, therefore, was harmless. 1 Defendant counters that the Court of Appeals was correct to reverse the 2 trial court's ruling on that point. Additionally, defendant repeats his argument that the 3 trial court erred in excluding evidence of the victim's past injuries and evidence of 4 Payne's lay opinion that the victim looked on June 25 as if she were suffering from a 5 brain injury. 6 All of the parties' arguments in this court require a determination of 7 whether each piece of evidence was relevant. As this court often has stated, the relevance 8 standard for admissibility is a low bar. State v. Salas-Juarez, 349 Or 419, 427, 245 P3d 9 113 (2010); State v. Sparks, 336 Or 298, 307, 83 P3d 304 (2004). Under OEC 401, 10 "'relevant evidence' means evidence having any tendency to make the 11 existence of any fact that is of consequence to the determination of the 12 action more or less probably than it would be without the evidence." 13 That means that evidence is relevant "so long as it increases or decreases, even slightly, 14 the probability of the existence of a fact that is of consequence to the determination of the 15 action." State v. Barone, 329 Or 210, 238, 986 P2d 5 (1999). And, as the court recently 16 stated in Salas-Juarez, "the inference that the proponent of the evidence wishes to be 17 drawn from the evidence need not be the necessary, or even the most probable, one." 349 18 Or at 428. Our review of the trial court's decision to exclude evidence on relevance 19 grounds is for errors of law. Sparks, 336 Or at 307-08. 20 Evidence Concerning Payne's Observation of the Victim 21 We turn first to the trial court's rulings concerning Payne's testimony. 22 Because the two issues are related, we consider the state's argument that the Court of 23 16 Appeals erred in reversing the trial court's exclusion of Payne's testimony concerning 1 what she told Ecklund on June 25, 2002, together with defendant's argument that the 2 Court of Appeals erred in affirming the trial court's exclusion of Payne's lay opinion 3 testimony. 4 It is helpful to our analysis to set out the relevant part of Payne's testimony 5 from defendant's offer of proof. In response to defendant's question about what Payne 6 saw when she first arrived at Ecklund's home on June 25, Payne responded, 7 "[Payne:] Well, the thing that I observed was [the victim] was laying on 8 the floor on the pallet, down sort of in front of the couch, sort of back by a 9 coffee table, and [Ecklund] was there and she was down there by her, and 10 one of [Ecklunds's] friends, I do believe her name was Kelly, was there. 11 And [the victim] I remember laying there on her back. And as a mother of 12 somebody that's had a child that's had 15 brain surgeries, my instant 13 thought by looking at her is, Oh, my gosh, there's [Payne's daughter] when 14 she was young, when she had pressure on the brain or else she was 15 dehydrated. 16 "* * * * * 17 "She was laying there on her back with her arms sort of up and she looked 18 lucid [sic]. She was looking off to one side, and her eyes were sort of rolled 19 up to the right and they were sort of bulgy and the pupils were dilated -- 20 excuse me, they were enlarged." 21 (Emphasis added.) Defendant then asked Payne to explain her daughter's injury, to put 22 her observations of the victim in context. Payne answered, 23 "[Payne:] When [Payne's daughter] was three months old, I had a car 24 wreck which caused a skull fracture. She has a shunt. Her first surgery 25 was done probably within the first two weeks of her skull fracture, and 26 before that her signs were her eyes would roll up and go up, and all I could 27 see was mainly a lot of the white part. But after her first brain surgery, we 28 ran into problems with dehydration as she was still with the bottle and she 29 didn't talk * * *. She had multiple hospitalizations for dehydration. * * * 30 [O]ne minute she would look just fine and then the next minute she was just 31 17 lucid [sic]. * * * And of course, as [Payne's daughter] got older, it was 1 easier for me to pick up the signs of her not feeling well. 2 "[Defense Counsel:] Okay. What would those signs be? 3 "[Payne:] Some of the signs would be her eyes being bulgy and not 4 reacting, the size of her pupils not being equal, the way that she would just 5 lay around. 6 "* * * * * 7 "[Defense Counsel:] And in your taking care of your daughter * * * over 8 that period of time, did you come to understand that those very signs and 9 symptom were triggered by either brain swelling or problems that needed to 10 be relieved? 11 "[Payne:] Well, over time -- it's hard to tell because with having a shunt, if 12 you're dehydrated, the shunt is going to collapse and it's going to stick to 13 the side of the brain, and so there's no fluid in there for the shunt to go 14 across. And you think of dehydration * * *. 15 "So for me to say to look at [the victim] and say she was dehydrated 16 versus a head injury, I could not do that because it was hard for me to 17 distinguish the two because she -- my daughter always had multiple things 18 going on." 19 Later in the offer of proof, Payne also testified that she told Ecklund that the victim's 20 condition that day reminded her of her daughter. The trial court attempted to clarify 21 what, exactly, Payne had said to Ecklund: 22 "THE COURT: What I heard you say, and I -- and so I want to make sure 23 that I understand what you're saying, is that you told her that it reminds you 24 of [Payne's daughter]. 25 "[PAYNE]: Correct. 26 "THE COURT: Did you say anything more than that? Did she -- when 27 you said it reminds you of [Payne's daughter], would she know what that 28 meant? 29 "[PAYNE]: Yes." 30 On redirect examination, defendant's lawyer asked Payne to elaborate on the foregoing. 31 18 Defense counsel asked Payne whether she had shared her daughter's history with 1 Ecklund, including the facts that Payne's daughter had been in a motor vehicle accident, 2 that she had suffered a brain injury, and that she had been hospitalized many times. 3 Payne answered in the affirmative, and added that Ecklund knew that her daughter had 4 impaired intellectual and motor functioning. Payne concluded, 5 "[Payne:] I think she -- I assumed as when I said that, she reminded me of 6 [Payne's daughter], as when [Payne's daughter] was in the state of being 7 really sick." 8 As noted, with respect to Payne's testimony that she told Ecklund that the 9 victim reminded her of her own daughter, the trial court erroneously first ruled that that 10 statement was hearsay. The court then added that, even if defendant were offering the 11 statement for its effect on Ecklund, 12 "it's speculative as to what that could have meant to her. And so that, I 13 think, causes * * * the Court the concern about whether or not I should let it 14 in at all, the fact that -- that Ms. Ecklund may or may not have known what 15 that really meant. The witness' statement was that -- [']I assume that she 16 understood I meant she was really sick.['] 'Really sick' isn’t what I think 17 the defense is trying to get it in for." 18 The trial court also ruled that, "[i]f that testimony is out," then Payne's testimony 19 concerning her daughter also was inadmissible, because it was not relevant to any issue 20 before the jury. In addition, the court ruled that Payne's testimony that the victim looked 21 like she may have been suffering from a brain injury was inadmissible as lay opinion 22 under OEC 701, because Payne was not certain about her opinion that the victim might 23 have been suffering from a brain injury. At the same time, the trial court permitted Payne 24 to testify that she believed that the victim may have been suffering from dehydration. 25 19 The court also permitted Payne to testify about her observations of the victim's condition 1 when Payne arrived at Ecklund's home on June 25. 2 The Court of Appeals reversed the trial court's ruling concerning Payne's 3 statement to Ecklund, but affirmed the ruling on Payne's lay opinion. Davis, 235 Or App 4 at 337. 5 The state argues that the Court of Appeals' decision respecting Payne's 6 statements to Ecklund is incorrect because it relies on several attenuated and cumbersome 7 inferential steps that lack a factual predicate. The state argues that, at best, one could 8 infer from Payne's statement to Ecklund that the victim reminded her of her own daughter 9 that Ecklund believed that, on June 25, the victim showed symptoms of brain injury. 10 However, the state contends, that inference does not support the further inference that, on 11 June 25, the victim in fact had a brain injury. And, in any event, the fact that Ecklund 12 believed that the victim showed symptoms of brain injury on June 25 was not relevant, 13 because it would not have helped to establish that any June 25 injury played a role in the 14 victim's death. 15 The state asserts that the indictment charged defendant with causing the 16 victim's death on or between June 29, 2002, and June 30, 2002, and, therefore, the 17 dispositive issue for the jury was whether the symptoms that the victim displayed on June 18 29 and 30 necessarily reflected fatal injuries that must have been inflicted on June 29 or 19 30, when the victim was in defendant's care. According to the state, at most, the 20 excluded statement could have established what Ecklund was told about the victim's 21 symptoms on June 25 and what Ecklund believed about those symptoms on that date; it 22 20 would not have assisted the jury in deciding, as a medical matter, whether any June 25 1 injury contributed to the victim's death. 2 Although the trial court concluded that it was not clear what Payne's 3 statement to Ecklund that the victim reminded her of her own daughter would have meant 4 to Ecklund, the Court of Appeals paraphrased Payne's statement as "testimony about 5 Ecklund's knowledge of the victim's potential brain injury." Davis, 235 Or App at 336. 6 As is evident from our description of the state's argument to this court, the state appears 7 to accept that paraphrase as accurate. We agree. It is clear from Payne's testimony that 8 she and Ecklund had known each other for a long time, that Payne had told Ecklund 9 about her daughter's medical history, and that anyone talking to Payne's daughter would 10 recognize her intellectual and motor limitations. We think it is reasonable to infer from 11 those facts that Ecklund would have understood that, when Payne said that the victim 12 reminded her or her own daughter, she meant that the victim looked like someone with a 13 brain injury. 14 However, we also agree with the state that evidence that Ecklund was told, 15 on June 25, that her child looked like someone with a brain injury was not relevant to the 16 jury's determination whether defendant inflicted fatal injuries on June 29 or 30 or 17 whether, rather, on June 25, the victim already was suffering from the injuries that caused 18 her death a few days later. Assuming, arguendo, that, based on Payne's statement to her 19 on June 25, Ecklund had reason to fear, or even believed, that the victim was suffering 20 from a brain injury that day, we do not think that Ecklund's knowledge of that possibility 21 is relevant to the jury's determination whether the child, in fact, was then suffering from 22 21 the injuries that ultimately killed her. It is undisputed that Ecklund took the victim to the 1 hospital that day, and that, over the course of several hours, the victim was fully 2 examined and subjected to testing to determine what was wrong with her. Ecklund's 3 "deliberate withholding" of her fear (or belief) on that day does not make it more likely 4 that the victim actually was then suffering from a brain injury. Even under the low 5 threshold for relevance, Ecklund's belief in the possibility of a brain injury on June 25 6 does not, even slightly, either increase the probability that the defense rebleed theory was 7 the correct one, or decrease the probability that the fatal injuries occurred on June 29 or 8 30, while the victim was in defendant's care. 9 The doctors who examined the victim on June 25 concluded that she was 10 dehydrated. They treated her for that condition and the victim appeared to respond 11 favorably to that treatment. Once Ecklund was informed of that medical diagnosis of her 12 daughter's condition, Ecklund had no further reason to report Payne's observations to 13 trained paramedics or emergency room doctors. It follows that nothing at all can be 14 inferred from Ecklund's failure to relay Payne's statement to those who examined the 15 victim on June 29. 16 For those reasons, we hold that the trial court did not err in excluding 17 Payne's statement that she told Ecklund that the victim reminded her of her own daughter. 18 The Court of Appeals erred in holding to the contrary. 19 We turn to the related issue: whether the trial court erred in excluding the 20 remainder of Payne's testimony, in which she explained her daughter's condition and 21 stated that the victim looked like her daughter when she was the victim's age and when 22 22 she was suffering from her brain injury or was dehydrated. Defendant argues that that 1 testimony is admissible as lay opinion under OEC 701 and that the trial court erred in 2 excluding it. For convenience, we set out that rule again here: 3 "If the witness is not testifying as an expert, testimony of the witness 4 in the form of opinions or inferences is limited to those opinions or 5 inferences which are: 6 "(1) Rationally based on the perception of the witness; and 7 "(2) Helpful to a clear understanding of testimony of the witness or 8 the determination of a fact in issue." 9 OEC 701 provides a "liberal standard for the admissibility of lay opinion" 10 and permits a "shorthand" description of what the witness perceived, which is, in reality, 11 an opinion. State v. Lerch, 296 Or 377, 383, 677 P2d 678 (1984). As Justice Unis 12 explained in his concurring opinion in State v. Tucker, 315 Or 321, 340, 845 P2d 904 13 (1993), the requirement in subsection (1) that lay opinion must be "rationally based on 14 the perception of the witness" has two limitations. The first comes from OEC 602: the 15 witness must have personal knowledge of the facts from which the opinion or inference is 16 derived.10 The second is that 17 10 OEC 602 provides: "Subject to the provisions of [OEC 703] [dealing with expert opinion testimony], a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness." OEC 703 provides an exception to that rule for expert testimony, which does not need to be based on personal knowledge. That rule provides: 23 "there must be a rational connection between the opinion or inference and 1 the perceived factual basis from which it derives. The rational connection 2 requirement means only that the opinion or inference advanced by the 3 witness is one which a normal person could form on the basis of observed 4 facts." 5 Id. Subsection (2) provides that, to be admissible, lay opinion must be "helpful" to the 6 jury. As this court stated in State v. Wright, 323 Or 8, 17, 913 P2d 321 (1996), "[t]he 7 concept of 'helpfulness' in OEC 701 subsumes a relevancy analysis." That is, as OEC 8 701 itself provides, lay opinion evidence is helpful only if it is relevant either to "clear 9 understanding of testimony of the witness or the determination of a fact in issue." 10 As the court explained in Lerch, 11 "[a]n essential difference between opinion testimony by a lay witness and 12 an expert witness is that the lay witness is restricted to his personal 13 perceptions while an expert witness may also testify from facts made 14 known to him at or before the hearing." 15 296 Or at 384 (internal quotation marks omitted). 16 Lay opinion is commonly admissible on a variety of topics. For example, 17 the Commentary to the Oregon Evidence Code officially approves lay opinion on the 18 following subjects: (1) the speed of an automobile, (2) the identity of a person, (3) the 19 appearance of another person, (4) the sound of footsteps, (5) footprints, (6) distance, (7) 20 uncomplicated illness or injury, and (8) apparent age. 1981 Conference Committee 21 "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." 24 Commentary to the Oregon Evidence Code. In addition, Oregon case law recognizes that 1 "lay witnesses are capable of offering an opinion as to whether a person is intoxicated." 2 State v. Wright, 315 Or 124, 132, 843 P2d 436 (1992). See also State v. Clark, 286 Or 3 33, 38-40, 593 P2d 123 (1979) (lay testimony that a defendant lacked signs of 4 intoxication admissible to impeach result of chemical breath test even absent any 5 foundation laid by expert testimony). Further, a lay witness may give an opinion that a 6 stain on the floor was fecal matter. Lerch, 296 Or at 384. 7 A lay witness and an expert may testify as to the same subject matter: 8 "'The testimony of the chemist who has analyzed blood, and that of 9 the observer who has merely recognized it by the use of the senses belong 10 to the same legal grade of evidence, and though the one may be entitled to 11 greater weight than the other with the jury, the exclusion of either is not 12 sustainable.'" 13 Id., (quoting Clifford S. Fishman, 2 Jones on Evidence, § 14:4, 591-592 (6th ed 1972)). 14 In fact, if the requirements of OEC 701 are met, lay opinion on subjects well outside the 15 purview of most people is admissible. For example, in Lerch, a witness who had served 16 in an infantry unit with the United States Army for 13 months during the Korean conflict 17 was allowed to testify that he recognized the smell of decomposing human flesh in a 18 dumpster, notwithstanding that that smell would be a "rare experience to the average 19 person," because the witness's opinion was "rationally based on his perception in that he 20 had previously experienced and recognized" that smell. Id. at 387, 388. 21 Applying those standards, we conclude that Payne's testimony that the 22 victim looked like her own daughter when her daughter "had pressure on the brain or else 23 she was dehydrated," as well as the background information about her daughter's 24 25 condition, which explained the basis for her opinion testimony about the victim, satisfied 1 the requirements of OEC 701. 2 At the outset, it is important to observe that defendant's offer of proof did 3 not include testimony by Payne that, in her opinion, the victim actually was suffering 4 from a brain injury on June 25. Only an expert could make that medical diagnosis.11 5 Rather, in the offer of proof, Payne was asked to describe what she saw when she arrived 6 at Ecklund's home. In addition to describing the victim's physical appearance, Payne 7 testified that her immediate thought was that the victim looked like her daughter when 8 she was young and "had pressure on the brain or else she was dehydrated." Thus, Payne 9 did not testify from the perspective of a physician who has diagnosed a patient, but from 10 the perspective of an observer describing a person's appearance by associating it with a 11 medical condition, much as a witness may describe a person's behavior and appearance 12 by saying that the person looks intoxicated. 13 Although a person without Payne's prior experiences may not have been 14 able to describe the victim's appearance in those terms, Payne was able to do so because, 15 11 As this court stated in Ritter v. Sivils, 206 Or 410, 413, 293 P2d 211 (1956), "[i]f the issue turns upon some fact beyond the ken of laymen, expert testimony must be produced." In the same vein, in Uris v. Compensation Department, 247 Or 420, 424, 427 P2d 753 (1967), this court quoted with approval the following, from Spivey v. Atteberry, 205 Okla 493, 494, 238 P2d 814 (1951): "[W]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons." 26 like someone who has seen blood or smelled decomposing human flesh, she often had 1 observed the appearance of her child when she displayed the effects of pressure on the 2 brain or dehydration. Payne's opinion that the victim resembled her daughter when her 3 daughter was suffering from one of those two conditions was rationally based on her 4 perceptions, in that she had a lifetime of previous experience with her own child suffering 5 those conditions. 6 Payne's testimony also was "helpful to a clear understanding of testimony 7 of the witness or the determination of a fact in issue." Payne's testimony was consistent 8 with and helpful to corroborate the testimony of defendant's expert witnesses, based on 9 their examination of the physical evidence, that the victim's brain and abdominal injuries 10 occurred at least several days before she died. The state's experts testified that the fatal 11 injuries had to have been inflicted on the night of her death.12 Payne's testimony that, on 12 June 25, the victim resembled her child when her child displayed the effects of a brain 13 injury or was dehydrated was relevant. It increased the probability, even if only slightly, 14 that the defense experts were correct and the state's experts incorrect. 15 The state argues that, given that Payne was allowed to testify as to her 16 observations of the victim's condition on June 25, the excluded evidence would not have 17 made it any more probable that the victim had a brain injury on June 25. However, we 18 12 However, as noted, one of the state's experts, the radiologist at Salem Hospital, testified that the victim also had a preexisting brain injury, which might have been inflicted as long as three weeks before her death. 27 think that Payne's opinion that, on that date, the victim resembled her own child when her 1 child was suffering from pressure on the brain (or dehydration) is qualitatively different 2 from a description of the victim's symptoms, in much the same way that a witness's 3 opinion that a person looks intoxicated is qualitatively different from the simple 4 observation that a person is disheveled or flushed or glassy-eyed. In both cases, the 5 shorthand reference conveys a picture to the jury that is more complete than a mere list of 6 physical characteristics. Payne's opinion, on June 25, that the victim resembled her child 7 when she was suffering from a brain injury made it more probable that the victim did, in 8 fact, have a brain injury on June 25. And, if the victim already was suffering from a 9 brain injury on June 25, that fact, in turn, made it more probable that the victim died as a 10 result of an injury inflicted on or before that date and not on June 29 or 30, as the state 11 alleged. 12 In excluding Payne's lay opinion testimony, the trial court did not evaluate 13 that testimony in light of the requirements of OEC 701. That is, the court did not 14 consider whether that testimony was rationally based on Payne's perception or whether 15 she had personal knowledge of the facts on which she based her opinion.13 Rather, the 16 court excluded that testimony because "it really was speculative or conjecture or -- and 17 13 In fact, as discussed above, the trial court's only ruling concerning evidence relating to Payne's experience with her daughter was that, in light of the court's ruling that Payne's statement to Ecklund that the victim resembled her daughter was inadmissible because the court believed it was unclear what that statement would have meant to Ecklund, testimony about Payne's daughter was inadmissible because it was not relevant to any issue before the jury. 28 she was not certain." 1 We agree that Oregon's lay opinion rule precludes opinions based on 2 conjecture or speculation, because opinions based on speculation or conjecture generally 3 are not based on the perception of the witness or on the witness's personal knowledge. 4 Laird C. Kirkpatrick, Oregon Evidence § 701.03[3], Art VII-572 (5th ed 2007) (so 5 stating); see also Brown v. Spokane, P. & S. Ry. Co., 248 Or 110, 122, 431 P2d 817 6 (1967) (under pre-OEC law, guesses or conjecture not admissible testimony and would 7 not suffice as substantial evidence of a fact). However, OEC 701 does not require 8 certainty, as long as it is clear that the witness's opinion is based on personal knowledge 9 and not guesswork. Kirkpatrick, Oregon Evidence § 701.03[3] at 573. 10 Payne's opinion that the victim looked like her child when she "had 11 pressure on the brain or else she was dehydrated" was not based on "speculation or 12 conjecture." It was based on Payne's personal knowledge of her own daughter's 13 appearance when suffering from one of those two conditions. Payne was offering her lay 14 opinion concerning the victim's appearance as a mother of a brain-injured child; she did 15 not purport to be an expert or to diagnose the victim's condition. Payne's opinion was 16 rationally drawn from her perceptions, even though those perceptions were, as she herself 17 acknowledged, susceptible to more than one plausible interpretation. As this court stated 18 in Salas-Juarez, 340 Or at 428, "the inference that the proponent of the evidence wishes 19 to be drawn from the evidence need not be the necessary or even the most probable one." 20 Similarly, the inference that the victim was suffering from a brain injury on June 25 was 21 not the only inference that could be drawn from Payne's observations of the victim's 22 29 condition. The jury could have inferred that the victim was suffering from dehydration 1 instead. However, Payne's complete observations were, nonetheless, helpful to the jury, 2 insofar as they increased the probability, even if slightly, that defendant's experts were 3 correct that, on June 25, 2002, the victim already had suffered the brain injury that 4 eventually killed her. 5 As is evident from the foregoing, we conclude that the trial court erred in 6 ruling that Payne's inability or unwillingness to state unequivocally that the victim looked 7 like she was suffering only from a brain injury showed that she was simply guessing or 8 speculating about the victim's condition. Because that was the sole reason that the trial 9 court gave for excluding Payne's lay opinion testimony, and because Payne's opinion was 10 relevant, rationally based on her perceptions, and helpful to the jury, we conclude that the 11 trial court erred in excluding Payne's lay opinion in which she stated that the victim 12 resembled her daughter when she was experiencing brain swelling.14 The trial court also 13 erred in excluding Payne's testimony explaining her daughter's injury and resultant 14 condition, because that testimony was essential to the jury's understanding of Payne's 15 qualifications to offer her lay opinion. 16 It is axiomatic that not every evidentiary error requires reversal. Under 17 14 The trial court did not weigh the probative value of Payne's lay opinion testimony against the danger of unfair prejudice resulting from its admission, under OEC 403, and we express no opinion about the proper result of any such weighing on retrial in this case. 30 Article VII (Amended), section 3, of the Oregon Constitution,15 error is "harmless" and 1 does not require reversal whenever the court is of the opinion "that the judgment of the 2 court appealed from was such as should have been rendered in the case." See State v. 3 Willis, 348 Or 566, 571, 236 P3d 714 (2010) (so defining harmlessness). Before we turn 4 to an analysis of the prejudicial effect of the trial court's error in excluding Payne's lay 5 opinion testimony, however, we consider the state's criticism of the Court of Appeals' 6 harmless error analysis. 7 In its opinion, the Court of Appeals cited this court's opinion in State v. 8 Walton, 311 Or 223, 809 P2d 81 (1991), as the standard for evaluating harmless error. 9 Davis, 235 Or App at 336. In Walton, this court stated that error is harmless if (1) there is 10 convincing evidence of the defendant's guilt in the record as a whole, and (2) there is 11 little, if any, likelihood that the error affected the verdict. 311 Or at 231. However, as 12 the state points out, this court's case law has evolved since Walton was decided. In State 13 v. Davis, 336 Or 19, 30, 77 P3d 1111 (2003), this court clarified that it had eliminated the 14 first of those two criteria as an independent consideration in the harmless error analysis. 15 15 Article VII (Amended), section 3, provides, in part: "In actions at law, where the value in controversy shall exceed $750, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict * * * If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial[.]" 31 In State v. Hansen, 304 Or 169, 743 P2d 157 (1987), this court acknowledged that OEC 1 103(1)16 and Article VII (Amended), section 3, of the Oregon Constitution permit 2 consideration of those two factors in determining whether a trial court's evidentiary error 3 warrants reversal, but held that there was no justification for analyzing those two criteria 4 separately, because the applicable constitutional and statutory standards are fully 5 expressed in the second criterion. 304 Or at 180. As the court in Hansen went on to 6 state, 7 "[w]hether there was substantial and convincing evidence of guilt is not the 8 issue; the issue is whether the error was likely to have affected the result. 9 Of course, the less substantial the evidence of guilt, the more likely it is that 10 an error affected the result, but that is an additional reason not to bifurcate 11 the standard so as to require two independent inquiries." 12 Id. The court in Davis noted that, in Walton and in another case decided after Hansen, 13 State v. Parker, 317 Or 225, 233, 855 P2d 636 (1993), this court repeated the erroneous 14 bifurcated test for affirmance despite error. Nonetheless, the Davis court emphasized that 15 "Oregon's constitutional test for affirmance despite error consists of a single 16 inquiry: Is there little likelihood that the particular error affected the 17 verdict? The correct focus of the inquiry regarding affirmance despite error 18 is on the possible influence of the error on the verdict rendered, not whether 19 this court, sitting as fact-finder, would regard the evidence of guilt as 20 substantial and compelling. 21 "In determining whether the error affected the verdict, it is necessary 22 that we review the record. However, in so doing, we do not determine, as a 23 16 OEC 103(1) provides: "Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" 32 fact-finder, whether the defendant is guilty. That inquiry would invite this 1 court to engage improperly in weighing the evidence and, essentially, 2 retrying the case, while disregarding the error committed at trial, to 3 determine whether the defendant is guilty. Rather, when we review the 4 record, we do so in light of the error at issue. We ask whether there was 5 little likelihood that the error affected the jury's verdict. We recognize that, 6 if the particular issue to which the error pertains has no relationship to the 7 jury's determination of its verdict, then there is little likelihood that the 8 error affected the verdict. However, that is not a finding about how the 9 court views the weight of the evidence of the defendant's guilt. It is a legal 10 conclusion about the likely effect of the error on the verdict." 11 336 Or at 32. 12 With the correct standard in mind, we conclude that the trial court's error in 13 excluding Payne's lay opinion testimony was not harmless. As discussed above, in 14 evaluating whether to affirm despite evidentiary error, "we review the record * * * in 15 light of the error at issue. We ask whether there was little likelihood that the error 16 affected the jury's verdict." Davis, 336 Or at 32. In so doing, we consider the nature and 17 the context of the error. Id. at 32-33. 18 In this case, the trial court erred in excluding Payne's lay opinion testimony, 19 which defendant offered to support his theory that the injuries that killed his daughter 20 occurred several days before she died, and that nothing that defendant intentionally did to 21 the victim on June 29 or 30 caused her death. Evidence that Payne thought that the 22 victim looked like her daughter when she was suffering from a brain injury (or 23 dehydration) on June 25 supported, but was not duplicative of, defendant's experts' 24 testimony that the victim already was suffering from a brain injury at least several days 25 before she died. 26 The effect of the error was prejudicial. As noted, Payne's testimony in the 27 33 offer of proof was that the victim looked like her daughter when she was suffering either 1 from a brain injury or from dehydration on June 25. The trial court's ruling, under which 2 Payne was allowed to testify only that she thought that the victim "looked dehydrated," 3 rendered her testimony misleading, and it effectively undermined defendant's case and 4 put the state in a better position than it otherwise would have been. That is so because 5 the jury had heard that, on the evening of June 25, doctors at Santiam Hospital diagnosed 6 the victim with dehydration. Testimony that the victim looked dehydrated on June 25 7 reinforced the innocuous dehydration explanation for her symptoms that day. The 8 stricken lay opinion, on the other hand, would have provided the jury with additional 9 evidence to support a finding that the victim already was suffering from a brain injury on 10 June 25, as defendant's experts contended. In that circumstance, we cannot say that there 11 is little likelihood that that error affected the verdict. Therefore, we reverse the ruling of 12 the trial court excluding Payne's lay opinion and the decision of the Court of Appeals 13 affirming that ruling. 14 Evidence of the Victim's Prior Injuries 15 We turn to defendant's argument that the Court of Appeals erred in 16 affirming the trial court's ruling excluding evidence that the victim earlier had been 17 subjected to physical abuse. As discussed above, defendant initially was charged with, 18 among other things, murder by abuse. During defendant's first trial, the state introduced 19 evidence that the victim had been physically abused as well as evidence of her prior 20 injuries. Before the second trial, the court stated that, given the fact that defendant no 21 longer was being charged with murder by abuse, it intended to try a narrower case and 22 34 was not inclined to permit the introduction of evidence of the victim's prior abuse or 1 injuries, except to the extent that they related to the cause of her death. Defendant 2 responded, however, that, in addition to other purposes, he intended to offer evidence of 3 the victim's prior abuse and injuries to explain the basis for his experts' opinions that the 4 victim died from injuries that were inflicted at least several days before June 29, 2002. 5 He argued that his experts had reviewed the victim's medical records, including the 6 autopsy report and tests showing healing broken bones, and determined that the victim 7 had been subjected to chronic child abuse. Defendant explained that the experts would 8 testify that that determination supported their conclusions that the victim's fatal injuries 9 were inflicted in the period before June 29. 10 The trial court excluded that evidence, giving multiple alternative reasons 11 for its ruling. First, the trial court ruled that the evidence was irrelevant to defendant's 12 theory that the victim's preexisting abdominal injuries worsened on the night of her death, 13 causing her preexisting subdural hematoma to rebleed. Second, the trial court ruled that 14 the probative value of the evidence of prior injuries was outweighed by the danger of jury 15 confusion. Third, the trial court ruled that the evidence was not admissible under OEC 16 404(3), which provides: 17 "Evidence of other crimes, wrongs or acts is not admissible to prove the 18 character of a person in order to show that the person acted in conformity 19 therewith. It may, however, be admissible for other purposes, such as proof 20 of motive, opportunity, intent, preparation, plan, knowledge, identity, or 21 absence of mistake or accident." 22 In that latter connection, the court stated that the prior injuries could not be tied to any 23 particular person, and even if they could have been, they would not be admissible 24 35 because the defense had not shown that they were being offered for any admissible 1 purpose under OEC 404(3). Finally, the court ruled that neither the defense's nor the 2 state's experts were permitted to allude to the fact that the victim had been abused or that 3 their diagnoses relied on the victim's previous injuries, except to the extent that they 4 could tie the prior injuries to the medical cause of the victim's death. 5 As noted, the Court of Appeals affirmed the trial court's ruling without 6 discussion. Defendant asks this court to reverse the Court of Appeals' decision in that 7 regard. Defendant contends that he did not offer evidence of the victim's prior injuries as 8 prior bad acts to prove anyone's character under OEC 404(3), nor did he contend that 9 anyone was acting in conformity with his or her character in inflicting the victim's fatal 10 injuries. Rather, he argues, the evidence is relevant because it tends to show that the 11 victim had suffered repeated abuse, either negligently or intentionally, that the abuse 12 began long before the victim died, and that that abuse may have included abdominal and 13 head injuries that were inflicted prior to June 29 but that eventually resulted in the 14 victim's death on June 30. According to defendant, his experts based their conclusions 15 that the victim's fatal injuries occurred at least several days before the date of her death, 16 in part, on the fact that the victim had been subjected to child abuse in the past. 17 Defendant argued that his experts were entitled to explain that they reached that 18 conclusion from their review of the victim's medical records and the autopsy and tests 19 showing healing rib and leg fractures. 20 We agree with defendant that the trial court erred in excluding the evidence 21 of the victim's prior physical abuse as a basis for the expert's testimony. Defendant did 22 36 not offer that evidence to establish any particular person's conduct or character; he 1 offered it for another, permissible, purpose -- to establish the basis for his experts' 2 conclusions that the victim suffered the injuries that resulted in her death before June 29. 3 See OEC 703, 705 (expert may testify to reasons for opinion and facts on which opinion 4 is based). It is true that defendant's experts did not tie any particular prior abuse, 5 medically, to defendant's theory that, on the night she died, the victim suffered an 6 exacerbation of her abdominal injury and/or a rebleed of a preexisting subdural 7 hematoma. However, defendant did explain to the trial court that his experts concluded 8 that the fact that the victim repeatedly had been harmed in the past was one of the bases 9 for their opinions that the victim had suffered a brain and abdominal injury at least 10 several days before she died. That is, evidence that the victim had suffered frequent 11 serious injuries during the course of her life supported the experts' view that she also had 12 suffered serious injuries the week or so before her death. That, in turn, made it more 13 probable that, in the week before her death, the victim incurred the injuries that, in the 14 defense experts' view, ultimately killed her. 15 The state argues, on the contrary, that evidence of the victim's past injuries 16 was not relevant, because evidence that someone committed earlier child abuse is not 17 evidence that defendant did not commit the fatal injuries on June 29. The state contends 18 that there is no logical inferential connection between those two propositions. We think 19 that the state's argument misses the point. As we have discussed, defendant's experts 20 testified that the autopsy revealed that the victim died from injuries to her abdomen and 21 brain that were inflicted at least several days before her death. The experts would have 22 37 testified that the fact that the victim also suffered other repeated physical injuries before 1 June 29 supported those conclusions. The experts were entitled to explain the bases for 2 their opinions and were not barred from doing so by OEC 404(3).17 3 As noted, the trial court also concluded that, even if the evidence were 4 relevant, it should be excluded under OEC 403, because its probative value was 5 outweighed by the risk of jury confusion. Although the trial court did not explain its 6 ruling, the state argues that assessing who, if anyone, caused the prior injuries would 7 have been confusing and pointless. We agree that evidence of who caused the prior 8 injuries potentially would be confusing to the jury, and, more importantly, under the 9 particular circumstances presented in this case, it would not be relevant to any issue of 10 consequence to the jury's determination. Because the state elected to charge defendant 11 with intentional acts committed on or between June 29 or 30, it was not important who, if 12 anyone, injured to the victim before those dates.18 As the state acknowledges in its brief 13 17 If, on retrial, defendant again proffers and the trial court admits evidence that the victim was subject to prior physical abuse to support the conclusions of his experts, we recognize that the state may seek to use that evidence. We take no position on whether such use would or would not be permitted under the applicable rules of evidence. 18 Although the state generally is not required to prove the specific date that a crime is committed, see, e.g., State v. Yielding, 238 Or 419, 423, 395 P2d 172 (1964) (so holding), in this case, the date of the crime became a material element of the offense when the prosecutor elected to amend the indictment to charge the defendant with knowingly inflicting the fatal injuries on or between June 29 and 30, 2002, and the trial court instructed the jury that, to prove defendant guilty of murder and or manslaughter, the state was required to prove that "the act occurred on or between June 29th, 2002, and June 30th, 2002." 38 to this court, if the fatal injuries were inflicted before June 29, even if they were inflicted 1 by defendant, defendant could not be convicted of the charged offenses. The jury 2 therefore had no need to determine who, if anyone, was responsible for injuries inflicted 3 before June 29. 4 That argument also misses the point, however. Defendant's experts testified 5 that the victim died from injuries inflicted before June 29 and that those injuries (and not 6 what occurred on June 29) were the precipitating cause of the victim's death. To support 7 their testimony, defendant's experts were entitled to testify that they based their opinions, 8 in part, on the fact that the child had been the victim of ongoing abuse throughout her 9 life, as evidenced by her medical records and prior injuries. The experts' reasoning and 10 the evidence on which they relied was not only relevant, it was necessary to aid the jury 11 to evaluate their conclusions. The trial court erred in precluding the experts from 12 testifying to the bases for their opinions. 13 Like the error in excluding Payne's lay opinion testimony, the trial court's 14 error was not harmless. The expert's conclusions went "directly to the heart of 15 defendant's factual theory of the case." Davis, 336 Or at 34. The trial court's erroneous 16 exclusion of the evidence that the experts used to reach their conclusions could have 17 affected the jury's determination of whether to believe the experts and whether there was 18 reasonable doubt that defendant fatally injured the victim on June 29 or 30, 2002. On this 19 record, we cannot say that there was little likelihood that the evidence of the victim's 20 prior injuries affected the jury's verdict. 21 Because we conclude that that error was not harmless, we reverse the ruling 22 39 of the trial court excluding evidence of the victim's prior injuries, and we reverse the 1 decision of the Court of Appeals affirming that ruling. 2 The decision of the Court of Appeals is reversed in part and affirmed in 3 part. The judgment of the circuit court is affirmed in part and reversed in part, and the 4 case is remanded to the circuit court for further proceedings. 5

dfa78a40f761954fc09c3492b01ccb861ead06ee403c1011b244e1d3aab9cda3

2011-09-22T00:00:00Z

565d8924-6f2c-43ad-a4f8-2edd92090763

Girod v. Kroger

S059713

oregon

Oregon Supreme Court

Filed: December 8, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON FRED GIROD, ROD MONROE, DAVID SCHAMP, CARY JOHNSON, HOBART B. KYTR, and STEVEN ERNEST FICK, Petitioners, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S059713) En Banc On petitions to review ballot title filed September 8, 2011, considered and under advisement on November 2, 2011. Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, filed the petition and reply memorandum for petitioners Girod, Monroe, and Schamp. James M. Brown, Portland, filed the petition and reply memorandum for petitioner Johnson. Hobart B. Kytr, pro se, filed the petition and reply memorandum for himself. Thomas V. Dulcich and Sara Kobak, Schwabe, Williamson & Wyatt P.C., Portland, filed the petition and reply memorandum for petitioner Fick. Jeff J. Payne, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the memorandum were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Robert C. Lothrop and John C. Platt, Portland, filed the brief for amicus curiae Columbia River Inter-Tribal Fish Commission. LANDAU, J. The ballot title is referred to the Attorney General for modification. 1 LANDAU, J. 1 Petitioners seek review of the Attorney General's certified ballot title for 2 Initiative Petition 21 (2012), arguing that the ballot title does not satisfy the requirements 3 of ORS 250.035(2). We review a certified ballot title to determine whether it 4 substantially complies with those statutory requirements. See ORS 250.085(5) (stating 5 standard of review). For the reasons that follow, we refer the ballot title to the Attorney 6 General for modification. 7 Initiative Petition 21 would amend a number of statutory provisions 8 pertaining to the commercial harvest and sale of salmon from the Oregon portion of the 9 Columbia River. Because those statutes exist as part of a complex web of laws that 10 govern fishing in the Columbia River, we begin with a brief overview of those laws, 11 before proceeding with a summary of the initiative petition itself and the parties' 12 contentions concerning the Attorney General's certified ballot title. 13 The laws that govern fishing in the Columbia River include an interstate 14 compact between Oregon and Washington, Oregon statutes and administrative rules, 15 Washington statutes and administrative rules, federal law, and treaties with Native 16 American tribes. Also, as a result of more than 50 years of litigation over the lawfulness 17 of various Columbia River fishing practices and policies, the federal courts have issued 18 several orders designed to manage the fisheries in accordance with those laws and 19 regulations. 20 Under the terms of the Columbia River Compact (the Compact), Oregon 21 and Washington have "concurrent jurisdiction" over the Columbia River. ORS 507.010. 22 2 The boundary between the two states is the mid-channel of the river; each state may 1 enforce its own laws on its own side and, if the other state has a similar law, may enforce 2 its law on the other state's side. ORS 186.510-186.520; State v. Catholic, 75 Or 367, 3 383-84, 147 P 372 (1915). 4 The state laws that govern commercial fishing in the Columbia River are 5 numerous. Gillnet fishing is essentially the only method of commercial salmon or 6 sturgeon fishing currently allowed by the law of either state. ORS 508.775; OAR 635- 7 042-0010(2)(b); RCW 77.65.160. "Gillnets" are nets with uniformly sized mesh, 8 weighted at the bottom, so that they float in the water and drift with the tide or current. 9 Fish that are smaller than the mesh pass through, while larger fish get stuck in the mesh 10 around their gills. "Tangle nets" are similarly constructed to cause parts of the head or 11 teeth of the fish to become ensnared in the mesh. "Seines" are nets that are also weighted 12 so that they hang vertically, but they have smaller mesh and are generally used to encircle 13 an entire school of fish and are drawn closed around the school, catching everything 14 inside. The use of seines has been illegal in Oregon since 1948, when the voters adopted 15 an initiative banning their use. ORS 509.216 (current statute banning use). 16 Commercial fishing for salmon by boat in the Oregon portion of the 17 Columbia River requires a vessel permit from the Oregon Fish and Wildlife Commission. 18 ORS 508.775. No more than 200 permits may be issued each year. ORS 508.792. 19 Generally, all current permit holders may renew their permits every year. If a permit 20 holder is denied renewal, ORS 508.796 provides a method of judicial review. If fewer 21 than 200 permit holders renew their permits, the Oregon Department of Fish and Wildlife 22 3 (ODFW) may hold a lottery to assign the remaining permits to interested applicants. 1 ORS 508.792. 2 Native American rights to fish in the Columbia River were preserved by 3 treaty, and those rights are subject to only limited state regulation; that is, the law allows 4 certain time and manner restrictions for conservation purposes similar to those imposed 5 on other nontribal fisheries. Puyallup Tribe v. Dept. of Game, 391 US 392, 399, 88 S Ct 6 1725, 20 L Ed 2d 689 (1968). The United States District Court for the District of Oregon 7 retains continuing jurisdiction over agreements to enforce those treaty rights. Sohappy v. 8 Smith, 302 F Supp 899, 911 (D Or 1969) (U.S. v. Oregon). The federal district court 9 approved the most recent management plan in August 2008 (commonly known as "the 10 U.S. v. Oregon agreement"). As part of the U.S. v. Oregon agreement, the states of 11 Washington, Oregon, and Idaho; the federal government; and four Native American 12 tribes agreed to extensive rules governing fisheries and the harvest of fish in the 13 Columbia River. 14 Federal law also affects commercial fishing in the Columbia River. As 15 relevant to this petition, the Endangered Species Act regulates the harvesting of some 16 threatened salmonid species. 50 CFR §§ 223.102, 223.203 (2011). 17 Initiative Petition 21 is a seven-page measure comprising 15 sections that, 18 if adopted, would amend a variety of Oregon statutes that address the harvest and sale of 19 salmon from the Oregon side of the Columbia River. 20 Section 1 enumerates a series of findings concerning the current state of the 21 4 Columbia River wild salmon and steelhead runs. Those findings recite that the 1 commercial use of gillnets and tangle nets has resulted in the dramatic decline of fish 2 populations, that gillnets have been banned in other states because of their destructive and 3 nonselective nature, that practices other than gillnetting exist by which hatchery fish may 4 be selectively harvested, that transitioning from gillnetting to alternative practices will 5 better protect endangered salmon and steelhead, and that transitioning to such alternative 6 practices will restore critical habitats and improve hydroelectric dam operations. 7 Section 2 would amend ORS 508.775 to ban completely the use of gillnet 8 or tangle nets "to take salmon, steelhead, or other fish in the inland waters of the state of 9 Oregon." Additionally, section 2 would prohibit any "wholesaler, canner or buyer" from 10 buying salmon that has been taken "by a gillnet or tangle net from the inland waters of 11 the state of Oregon." Also, section 2 provides an exemption to both of those provisions 12 for persons fishing pursuant to tribal fishing rights. 13 Section 3 would amend ORS 509.216, which currently bans the use of seine 14 nets. Under section 3, ODFW "shall * * * permit the use of seines for the taking of 15 salmon for commercial purposes" to persons who hold a vessel permit on the effective 16 date of Initiative Petition 21. Also, ODFW "may" permit fixed fishing gear for 17 commercial salmon fishing as well. ODFW may issue one net permit for each existing 18 vessel permit; net permits would be renewable each year and transferrable. Section 3 19 also requires the commission to give "due consideration to ensuring" that fishing nets and 20 gear are "designed and used to minimize the mortality" of nontarget fish (like wild 21 salmon and steelhead). Last, section 3 provides, in part, that 22 5 "(8) In adopting commercial fisheries authorized under this 1 section, the Commission shall: 2 "(a) Comply with the terms of Columbia River fisheries 3 management agreements between the United States, Indian tribes and states 4 [i.e., the U.S. v. Oregon agreement]. 5 "(b) Ensure that the percentages of the total state, non-tribal 6 Columbia River salmon harvests, including off channel fishery 7 enhancement areas, that are landed in recreational fisheries in the Columbia 8 River and its tributaries are not reduced below the averages of the 2007- 9 2011 fisheries." 10 Section 4 similarly provides that "[t]his 2012 Act does not affect * * * [t]he 11 Columbia River Compact or fishing management agreements between the United States, 12 Indian tribes and states [or] * * * [a]ny tribal fishing rights[.]" 13 Section 5 lists several new definitions, including a definition of Oregon's 14 "[i]nland waters" as, essentially, the entire Columbia River along Oregon's northern 15 border (recall that the Compact says that the border is the middle of the river). 16 Section 6 would remove representatives of the Columbia River gillnet 17 salmon fishing industry from the commission permit board. Sections 7 through 13 would 18 change various internal references. Section 14 would repeal eight statutes, to be replaced 19 by the procedures provided under sections 1 through 13. It also would repeal ORS 20 508.460, which provides that "[a]ll gillnet licenses issued by the States of Oregon and 21 Washington are valid as to the waters of the Columbia River in Oregon and 22 Washington[.]" Section 15 sets an operative date of July 1, 2013. 23 The Attorney General certified the following ballot title for Initiative 24 Petition 21: 25 6 "Specified commercial non-tribal fishing methods/procedures 1 changed; recreational salmon fishers ensured minimum share of 2 catch 3 "Result of 'Yes' Vote: 'Yes' vote changes commercial non-tribal 4 fishing in Oregon 'inland waters' (defined) by banning gillnets, adopting 5 other regulatory changes; recreational salmon fishers ensured their 6 recent share. 7 "Result of 'No' Vote: 'No' vote continues current commercial 8 fishing practices, retains laws allowing gillnets, leaves other current 9 regulations in place; continues annual adjustment of recreational salmon 10 harvest share. 11 "Summary: Current law allows Columbia River commercial 12 salmon fishing with gillnets; requires annual adjustment of recreational 13 salmon fishers' percentage share of overall catch; allows issuing of 14 gillnet permits within limit of 200; recognizes gillnet licenses as valid in 15 Columbia River in both Oregon/Washington. Measure bans non-tribal 16 gillnet fishing in Oregon 'inland waters' (defined); permits use of 'seine 17 nets' (defined) instead; ensures that recreational salmon fishers' 18 percentage of overall catch remains at 2007-2011 levels; prohibits 19 purchase of salmon caught by gillnet by non-tribal fishers in Oregon 20 inland waters; prohibits issuing additional gillnet permits; no longer 21 recognizes validity of gillnet licenses in Oregon and Washington. 22 Measure may affect Columbia River Compact, tribal fishing rights, and 23 fishing management agreements between federal government, tribes, 24 and states. Other provisions." 25 Four sets of petitioners filed petitions challenging the Attorney General's 26 certified ballot title: (1) Girod, Monroe, and Schamp, who are the chief petitioners of 27 Initiative Petition 21; (2) Cary Johnson, a commercial fisherman; (3) Hobart Kytr, 28 administrator of "Salmon for All," a commercial fishing trade association; and (4) Steven 29 Fick, a fish processor. We have also received a brief amicus curiae from the Columbia 30 River Inter-Tribal Fish Commission. Between them, they advance a host of arguments 31 asserting various inadequacies of the ballot title. We reject all but two of those 32 arguments without discussion. 33 7 The first of the two arguments that require discussion pertains to the 1 caption. The chief petitioners argue that the caption, as certified, "does not express the 2 principal change that the measure proposes: to ban commercial fishing with gillnets in 3 the Columbia River." According to the chief petitioners, the Attorney General "appears 4 to be trying to capture as many concepts as possible within the caption, but that effort 5 results in information that is too general to aid voters." The Attorney General responds 6 that there are too many effects of Initiative Petition 21 to single out one -- the ban on 7 gillnetting -- for mention in the caption and that mentioning only that the measure 8 concerns "specified * * * methods/procedures" of fishing is adequate to inform the voters 9 about the subject of the measure. 10 ORS 250.035(2)(a) requires the Attorney General to draft a 15-word 11 caption that "reasonably identifies the subject matter of the state measure." The "subject 12 matter" of a measure refers to "the 'actual major effect' of a measure or, if the measure 13 has more than one major effect, all such effects (to the limit of the available words)." 14 Whitsett v. Kroger, 348 Or 243, 247, 230 P3d 545 (2010). To identify the "actual major 15 effect" of a measure, this court looks to "the text of the proposed measure to determine 16 the changes that the proposed measure would enact in the context of existing law" and 17 then evaluates whether the caption "reasonably identifies those effects." Rasmussen v. 18 Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). 19 A caption may describe accurately the actual major effect of a measure and 20 still not comply with the requirements of the statute if the description is "too vague and 21 gives voters no clear picture of what is at stake." Hunnicutt/Stacey v. Myers, 343 Or 387, 22 8 391, 171 P3d 349 (2007). In Novick v. Myers, 330 Or 351, 7 P3d 518 (2000), for 1 example, the proposed initiative measure would have imposed different dollar limitations 2 on campaign contributions by different classes of contributors. The ballot title that the 3 Attorney General had certified, however, merely stated that the measure "limits certain 4 campaign contributions." Id. at 354. This court concluded that the caption failed to 5 convey the crux of the measure, which was to create a system of different contribution 6 limits for different classes of contributors: "The word 'certain' in the Attorney General's 7 caption fails to identify that significant characteristic of the subject matter of the 8 proposed measure." Id. at 356. 9 The Attorney General's certified ballot title caption in this case suffers from 10 a similar deficiency. It simply states that the measure would change unspecified "fishing 11 methods/procedures," when the actual subject of the measure is the prohibition of the 12 only method that current law allows -- namely, gillnetting -- and the authorization of 13 seine or fixed gear fishing in its place. As we have noted, the findings in the measure all 14 speak of the asserted deleterious consequences of gillnetting and of the need to move to 15 more selective fishing practices; no other subject is mentioned. The measure then states a 16 ban on gillnetting in the Columbia River, along with a concomitant ban on wholesale 17 purchasing of fish caught by gillnetting. As well, it provides that the ban on gillnetting 18 does not apply to tribal fishing. It authorizes the State Fish and Wildlife Commission to 19 adopt rules allowing the use of seines and fixed fishing gear as an alternative to 20 gillnetting, prohibits the issuance of gillnet vessel licenses, and requires the removal of 21 representatives of the gillnet fishing industry from the commission permit board. Other, 22 9 subsidiary effects certainly may be described, but each flows from the central effect of 1 the measure, which is the ban on gillnetting and the authorization of seine or fished gear 2 fishing in its place. We conclude that the caption, which fails to mention the actual major 3 effect of the measure, fails to substantially comply with the requirements of ORS 4 250.035(2)(a). As a result, the ballot title must be referred to the Attorney General for 5 modification. 6 The second of the two arguments that requires discussion in this opinion 7 pertains to the summary of the measure. The chief petitioners argue that the summary is 8 deficient because it inaccurately states that Initiative Petition 21 "may affect Columbia 9 River Compact, tribal fishing rights, and fishing management agreements between federal 10 government, tribes, and states." They assert that the Attorney General has improperly 11 speculated about situations that might cause a conflict between Initiative Petition 21 and 12 other sources of law regarding the use of the Columbia River. Moreover, the chief 13 petitioners observe, the summary conflicts with section 4 of Initiative Petition 21, which 14 provides that "[t]his 2012 Act does not affect" the Compact, the U.S. v. Oregon 15 agreement, or tribal fishing rights. (Emphasis added.) 16 Johnson takes the opposite position with respect to the portion of the 17 summary that refers to the potential conflicts between Initiative Petition 21 and other 18 sources of law. He argues that the summary fails to substantially comply with ORS 19 250.035(2)(d) because the Attorney General did not go far enough in describing what he 20 asserts is a direct and irreconcilable conflict between Initiative Petition 21 and the 21 Compact. In a similar vein, the Columbia River Inter-Tribal Fish Commission agrees 22 10 with Johnson, asserting that "the proposed initiative's change to Oregon's fishery 1 management obligations is at odds with the language of the Compact." It does not 2 explain, however, why Initiative Petition 21 would be inconsistent with the Compact. 3 The Attorney General responds that, as evidenced by the conflicting 4 arguments set out by the chief petitioners, Johnson, and the commission, whether 5 Initiative Petition 21 will have an effect on the Compact, tribal fishing rights, and the 6 U.S. v. Oregon agreement is a disputed matter. The Attorney General argues that the 7 challenged phrase simply acknowledges the conflicting readings of Initiative Petition 21 8 and that the outcome of any future legal challenge regarding the potential conflict is 9 unknown. The Attorney General concludes that it was appropriate, and not speculative, 10 to point out to voters the possibility of a conflict with other important laws. 11 ORS 250.035(2)(d) provides that a ballot title summary be "[a] concise and 12 impartial statement of not more than 125 words summarizing the state measure and its 13 major effect." The function of the summary is "to provide voters with enough 14 information to understand what will happen if the measure is approved." Caruthers v. 15 Kroger, 347 Or 660, 670, 227 P3d 723 (2010). That information may include a 16 description of the effect of the measure at issue on other laws, so long as the description 17 is accurate. Berman v. Kroger, 347 Or 509, 514, 225 P3d 32 (2009). In all events, the 18 information must pertain to an identified, actual "effect" of enacting the measure; it is not 19 permissible to "speculate about the possible effects of a proposed measure." 20 Pelikan/Tauman v. Myers, 342 Or 383, 389, 153 P3d 117 (2007) (emphasis added); see 21 also Kain v. Myers (S49089), 333 Or 446, 450-51, 41 P3d 416 (2002) (ballot title need 22 11 not mention "conditional and conjectural" effects of proposed measure). 1 In this case, the summary that the Attorney General certified runs afoul of 2 that latter principle. In stating that the measure "may affect Columbia River Compact, 3 tribal fishing rights, and fishing management agreements," it merely speculates that there 4 is a possibility that the measure may affect the various laws and agreements listed in 5 entirely unspecified ways. A possibility that enactment of a measure may produce 6 unspecified consequences is not an "effect" within the meaning of ORS 250.035(2)(d). 7 The summary therefore does not substantially comply with the statutory requirement to 8 state the "effect" of the measure, and, for that additional reason, the ballot title must be 9 referred to the Attorney General for modification. 10 The ballot title is referred to the Attorney General for modification. 11

4cbf9c48edf47bc081d28dec316e50f63899248e2a5ccbf157d80abbe909e1a2

2011-12-08T00:00:00Z

ca1cf8e3-4238-4d95-825b-d587ca06b593

State v. Helzer

S058001

oregon

Oregon Supreme Court

Filed: April 7, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. KEVIN LEE HELZER, Petitioner on Review. (CC CFH050352; CA A133911; SC S058001) On review from the Court of Appeals.* Argued and submitted May 7, 2010, at Portland State University, Portland, Oregon. Marc D. Brown, Deputy Public Defender, Office of Public Defense Services Salem, argued the cause and filed the brief for petitioner on review. Karla Ferrall, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** LINDER, 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 Umatilla County Circuit Court, Jeffrey M. Wallace, Judge. 231 Or App 567, 219 P3d 617 (2009). **Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. Landau, J., did not participate in the consideration or decision of this case. LINDER, J. This is a companion case to State v. Foster, ___ Or ___, ___ P3d ___ (2011), decided this date. As does the defendant in Foster, defendant in this case challenges a warrantless search of his car, urging that an alert to the car by a drug-detection dog did not give police probable cause to search it for seizable evidence of drugs. As we will explain, we conclude that the state failed to carry its burden to establish that the dog alert in this case was sufficiently reliable to provide police with probable cause to search. We therefore reverse the decision of the Court of Appeals and the judgment of the circuit court, and remand to the circuit court for further proceedings. Officer Stokoe lawfully stopped defendant's car and, after the stop, arrested defendant on an outstanding warrant. Stokoe asked defendant for consent to search the vehicle, but defendant refused that consent. Stokoe then had his drug-detection dog, Babe, conduct a "drug sniff" around the outside of defendant's car. Babe alerted to the passenger side and trunk area of defendant's car. Stokoe let Babe enter the car, at which point Babe alerted to two bags in the back seat. Stokoe opened the bags and found methamphetamine and a pair of scales. The pair of scales later tested positive for methamphetamine residue. Defendant was charged with possession of a controlled substance. Before trial, defendant moved to suppress the evidence found in the search, arguing, as noted, that Babe's alert to his car was not sufficiently reliable to provide probable cause for the warrantless search.(1) After a hearing, the trial court denied the motion. Defendant appealed, challenging that ruling. The Court of Appeals affirmed. State v. Helzer, 231 Or App 567, 219 P3d 617 (2009). Our decision in Foster announces the legal standards that apply here. As we hold in Foster, an alert by a properly trained drug-detection dog can provide probable cause to search. Whether such an alert does so in a particular case will depend on an individualized assessment of the totality of the circumstances known to police that bear on the dog's reliability in detecting drugs. Those circumstances usually will include, but are not limited to, the dog's and its handler's training, certification, and performance in the field. The state has the burden, upon a proper challenge by the defendant, to demonstrate that the dog's alert was sufficiently reliable to provide probable cause to search. Foster, ___ Or at ___ (slip op at 9-10, 19).(2) In this case, the state relied exclusively on the testimony of Stokoe to describe how Babe had been certified and trained in drug detection, and how Stokoe had learned to work with Babe as her handler. The record made through Stokoe's examination by the state, and cross-examination by defendant, is sparse. Babe was selected for training as a drug-detection dog by a private business or organization, "Code Three Canine." Stokoe had not yet purchased Babe, and had no involvement in her training by Code Three Canine. He did not describe the nature or details of that training. Stokoe stated only that Babe had been trained to detect the odors of four controlled substances: marijuana, methamphetamine, cocaine, and heroin. After he purchased Babe, Stokoe went through a two-week training program with an instructor from Code Three Canine. The purpose of that instruction was for Stokoe to learn how to work with Babe and how to train her to maintain and improve her skills. That two-week program entailed 114 hours of training. Stokoe was not asked to describe the details of that training, either in terms of what he was taught about handling Babe to maximize her accuracy and reliability, or what he learned through that training about Babe's reliability. He testified only that he and Babe, to complete the training successfully, had to "meet the standards of the trainer at the time." After completing that training, Stokoe trained with Babe for a period of about six months. He estimated that, during that time, he trained for an additional 300 or more hours. He did not work with any formal drug-detection dog trainers. With the exception of about 10 days on which other dog-handler officers or members of his family assisted him, Stokoe worked with Babe entirely on his own. Stokoe described his ongoing training with Babe in general terms only. In his training, he rewarded Babe for an alert by playing with her using a rolled-up cloth. He said that he used "training aids" to teach Babe to find drugs. Those training aids involved use of "a sample of the drug" that ranged in amounts from "residual odors up to a pound." Stokoe also used "blanks," which consisted of empty plastic containers, to ensure that Babe alerted to drugs and not the odor of the plastic containers that he used to hide training aides. The blanks that Stokoe used included "blank" vehicles -- that is, vehicles that Stokoe believed would have no odor -- so that he could be sure that Babe was not alerting to vehicles "just because she's used to alerting to vehicles." And Stokoe described using various foods to make sure that Babe did not alert to the scent of food rather than to that of drugs. Although Stokoe kept records of his training using drug samples, he kept no records of Babe's responses on blank containers and vehicles. He trained with Babe "wherever we [could] find a place to train at." After that self-directed training period, Stokoe and Babe attended a four-day (32 hour) training session with the Oregon Police Canine Association (OPCA), which is a private organization, not a state agency. Stokoe, who was not asked what the OPCA training session involved, gave no details or even a generalized description of it. He testified only that, at the conclusion of the session, he and Babe were certified by OPCA. The state did not establish in this case what standards OPCA applied to Stokoe and Babe for that certification. The state supplemented Stokoe's testimony with documentation of alerts in the field over a several-month period. Stokoe kept no records, however, of deployments in which Babe did not alert. With that description of the record made at the motion to suppress, we turn back to whether, in this particular case, the state carried its burden to establish that Babe's alert was sufficiently reliable to establish probable cause to search. In Foster, we explained that the performance of a drug-detection dog and its handler under controlled circumstances, during formal training and certification, is especially meaningful in assessing the reliability of the individual dog's alert in a particular case. Foster, ___ Or at ___ (slip op at 19). To assess the dog's and handler's abilities based on their training and certification, however, more is needed than the fact that the two have received certification by a private organization. The record must provide information about the training that the dog and handler underwent, and the standards they had to meet to achieve certification. The state in this case, however, established little beyond the bare fact that Babe and Stokoe had been certified by OPCA. A comparison to the record made in Foster reveals the voids. See id. at ___ - ____ (slip op at 3-7) (describing record). The drug-detection dog and its handler in Foster went through their initial formal training with OPCA and continued training with the assistance of an OPCA "master trainer." The record in Foster is significantly more developed on the particular training they received initially, as well as their continued training afterwards. The record is also significantly more developed on the OPCA certification test that they took, and the standards to which they were held in order to pass it. See id. (describing same). No similar record was made in this case. In particular, the nature of Babe's initial training by Code Three Canine -- the kind of training, its length, and the standards used -- was not established by the state. Likewise, the record provides no description of or details about Stokoe and Babe's team training with Code Three Canine after Stokoe purchased Babe. Unlike in Foster, the record does not reveal what training Stokoe received to avoid handler cues or other errors that can cause a dog to alert falsely. Stokoe testified vaguely to his use of blanks and food distractions in his own training, but he provided no information beyond that to explain how his training builds accuracy and reliability in both Babe's abilities and his handling of Babe.(3) To be sure, the state also provided some documentation of Babe's performance in the field. But as we explained in Foster, although a drug-detection dog's field performance is pertinent to assessing that dog's reliability, "more telling is the dog's performance in controlled circumstances, such as those involved in testing for certification, where the dog's ability to find and signal the presence of drugs can be accurately gauged." Foster, ___ Or at ___ (slip op at 19). In this case, as we have described, the record provides no information about Babe's training through Code Three Canine and only vague information about some, and not all, of Stokoe's training with Babe. Beyond that, the record establishes only the bare fact that Babe and Stokoe were certified by the OPCA, a private organization whose training methods and standards for certifying Babe and Stokoe were not established on this record. Without more information about Babe's training and certification, the field performance records that the state produced in this case are insufficient to establish that Babe was sufficiently reliable to provide probable cause to search defendant's car.(4) Because of those deficiencies in the record, we conclude that the state did not carry its burden to show that Babe's alert in this case was sufficiently reliable to provide Stokoe with probable cause to search. The trial court therefore erred in denying defendant's motion to suppress. 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. As in Foster, __ Or at ___ n 3 (slip op at 8 n 3), the search in this case arose under the so-called "automobile" exception to the warrant requirement of Article I, section 9, of the Oregon Constitution and the parallel warrant requirement of the Fourth Amendment to the United States Constitution. See generally State v. Brown, 301 Or 268, 274-76, 721 P2d 1357 (1986) (officer may lawfully search stopped vehicle and its contents without warrant or consent if vehicle was mobile when stopped and if officer had probable cause). No issue has been raised in this case as to the application or scope of that exception. The only issue is whether, as the exception requires, Stokoe had the requisite probable cause to search. 2. The fact that a particular dog alert in a given case is not sufficiently reliable to provide probable cause does necessarily foreclose any reliance on or consideration of the alert. Assuming that the state can establish that the alert has some degree of reliability, the alert still may be considered along with other information in the totality of the circumstances analysis of whether officers searched with probable cause. See, e.g., State v. Smith, 327 Or 366, 263 P2d 642 (1998) (drug-detection dog's alert to defendant's storage facility one of several pieces of information set out in application for search warrant); see generally State v. Coffey, 309 Or 342, 347 n 7, 727 P2d 424 (1990) (significant doubts about the validity and rate of error in polygraph examinations preclude those examinations from being the sole basis for a probable cause determination, but examiner's opinion provides sufficient reliability to be considered along with other reliable information in the assessment of probable cause). In this case, however, the only information on which police relied to search defendant's vehicle was the dog's alert. The state therefore had the burden to establish that the dog's alert in this case was a sufficient basis, without more, to establish probable cause to search. 3. Some of what Stokoe described -- in particular, his reference to the use of "residual odors" to train Babe -- potentially could detract from Babe's reliability. As we explain in Foster, a "residual odor" describes a drug odor that is present even when the drug that produced the odor is not. It can occur because the odor persists after the drug has been consumed or removed, or because the odor is clinging to an object or a person who had contact with drugs in another location. Id. at __ (slip op at 5). We conclude in Foster that the fact that drug-detection dogs are capable of smelling residual odors is not, in and of itself, a basis on which to conclude that a dog's alert does not provide probable cause. The fact -- if it were established -- that a dog had been affirmatively and deliberately trained to alert to residual odors, however, could be more problematic. In this case, Stokoe at other points referred to residual "amounts" of drugs, not residual "odors." His reference to residual odors may have been an inadvertent choice of terms. In all events, regardless of Stokoe's testimony on that point, the record here inadequately establishes the quality of Stokoe's and Babe's training and certification. 4. Worth noting in that regard is that the trial court expressly found that Babe and Stokoe were "certified," but made no other pertinent findings and, in particular, did not make any express findings as to what conclusions the court drew (if any) from Stokoe's records of Babe's field performance records. Based on our review of those records, the conclusions to be drawn from them, even viewing them in the light most favorable to the trial court's ruling, are difficult to assess on the limited record before us (e.g., Stokoe's testimony explaining them was very limited; no records were kept of circumstances in which Babe did not alert when deployed; some records do not establish whether drugs found after Babe alerted were in a place consistent with where Babe alerted; some of the records are for deployments after the date of the search in this case). Although field performance records in general are pertinent to the inquiry, whether they in fact add to or detract from the reliability assessment in any particular case may depend on whether their significance is sufficiently developed through testimony at the hearing or is self-evident.

022e37013bdca08649780172a3d2ef5ee26205d873451682fa2d340f7fd3109f

2011-04-07T00:00:00Z

7a03b651-f3b1-4071-bfa1-5b66cb0bfd2a

Oregon v. Gilmore

S058602

oregon

Oregon Supreme Court

Filed: May 26, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. ROBERTA GAIL GILMORE, Petitioner on Review. (CC 0702221CR; CA A139547; SC S058602) On review from the Court of Appeals.* Argued and submitted March 8, 2011, at the University of Oregon School of Law, Eugene, Oregon. Ernest G. Lannet, Chief Deputy 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. Tiffany Keast, 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 Mary H. Williams, Solicitor General. Before De Muniz, Chief Justice, and Durham, Kistler, Walters, Linder, and Landau, Justices** KISTLER, 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 Klamath County Circuit Court, Rodger J. Isaacson, Judge. 235 Or App 380, 231 P3d 1191 (2010) **Balmer, J., did not participate in the decision of this case. KISTLER, J. After a person has been charged with a crime and the right to counsel has attached, Article I, section 11, of the Oregon Constitution prohibits the police from asking that person about the charged crime without first notifying the person's lawyer, unless the person initiated the conversation and knowingly and intentionally waived his or her right to counsel. See State v. Randant, 341 Or 64, 71-73, 136 P3d 1113 (2006). This case raises once again the question of what steps the police must take to ensure a knowing and intentional waiver. In this case, the trial court implicitly found that defendant had waived her right to counsel and denied her motion to suppress. The Court of Appeals affirmed that ruling and the resulting judgment without opinion. State v. Gilmore, 235 Or App 380, 231 P3d 1191 (2010). Having allowed review, we now reverse the Court of Appeals decision and the trial court's judgment and remand this case for further proceedings. Two women brandishing a sword robbed the Purple Parrot Lounge in Klamath Falls. As a result of that crime, the grand jury charged defendant with conspiracy to commit robbery and first-degree robbery. The trial court arraigned defendant on those charges and appointed counsel to represent her. After her arraignment, defendant remained in custody pending trial. Approximately two months later, while she was still awaiting trial, defendant sent two notes to Oregon State Police Detective Mogle asking him "to come talk to her."(1) Although the notes did not say what defendant wanted to talk about, Mogle recently had spoken to a member of defendant's family and understood that defendant "wanted to see her kids before she went to prison." After he received the second note, Mogle agreed to meet with defendant. Pursuant to a department policy that requires two law enforcement officers to be present during such a meeting, Mogle asked Klamath County Detective Johnson to accompany him. When he asked Johnson to go with him, Mogle was not aware that Johnson had arrested defendant on her pending robbery and conspiracy charges. Johnson, for his part, did not realize that the person whom Mogle was going to meet was the person whom he had arrested approximately two months earlier for the Purple Parrot robbery. When defendant was escorted into the interview room to meet with Mogle, she was surprised to see Johnson there. She asked Mogle, "Oh, no, what'd you bring him for?" Defendant said that Johnson was "the one [who] had arrested her on the case that she's got pending," and defendant and Mogle spoke briefly about "why she didn't want [Johnson] there." Johnson told defendant that department policy required that two officers be present during the meeting. When asked if that were the entirety of their conversation, Mogle testified: "No. She said that she wanted to see her kids before she went up to the pen. That she had information that Gina had done the Purple Parrot robberies in Medford [apparently a different set of robberies from the Klamath Falls Purple Parrot robbery]. And that her attorney was an asshole. And that I was to relate to the DA that if you allowed her to have programs, she would take the deal and plead right away. And also there was a conversation -- she said that she knew where the sword -- who -- the sword was -- she gave it to somebody." When asked whether he had questioned defendant about "the Purple Parrot incident," Mogle replied that he did not think that he had asked specific questions about that robbery. However, he noted that he might have said, "That was pretty stupid. Why would you be involved in that." Mogle also acknowledged that he told defendant that, "if she knew where the sword was[, s]he probably ought to give it up." In response to Mogle's statement, defendant used Mogle's cell phone to call the person who was keeping the sword. That person turned the sword over to the police. It is not clear from Mogle's testimony when, during their conversation, he discussed either the robbery or the sword with defendant or what prompted him to mention the charged crimes; specifically, it is not clear whether Mogle asked defendant about the Purple Parrot robbery only after she brought up the possibility of making a deal with the district attorney regarding that crime or whether he asked about the pending charges first. One proposition is clear from everyone's testimony, however. At no point during the meeting did either officer advise defendant of her Miranda rights, remind her that she had a right to have counsel present before discussing the pending charges, or otherwise seek to determine whether defendant knowingly and intentionally chose to waive her right to counsel regarding the pending charges. After defendant's lawyer learned of the meeting, he moved to suppress both defendant's statements about the charged crime and the physical evidence that the officers had obtained as a result of the meeting. He contended that, in questioning defendant, the officers had violated her right to counsel under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The trial court denied defendant's motion. It reasoned that, because defendant had "evinced a willingness and desire for a generalized discussion about the investigation," the officers had not violated either her state or federal right to counsel. After the trial court's ruling, defendant entered into a plea agreement with the state. It appears that defendant agreed to enter a conditional guilty plea to second-degree robbery, see ORS 135.335(3) (authorizing conditional guilty pleas), and that the state agreed to dismiss the conspiracy and first-degree robbery charges.(2) The trial court accepted the parties' plea agreement and entered judgment accordingly. The Court of Appeals affirmed the trial court's judgment, and we allowed defendant's petition for review to consider whether the officers complied with defendant's right to counsel, as guaranteed by the state and federal constitutions. We begin with defendant's state constitutional claim. The relevant principles are well established. Article I, section 11, of the Oregon Constitution guarantees, among other things, the right of a criminal defendant "[i]n all criminal prosecutions * * * to be heard by himself and counsel." That right "entitle[s a person charged with a crime] to the benefit of an attorney's presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant," without regard to "whether or not [a] defendant specifically requests an attorney's presence at the interrogation." State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983). "Ordinarily, 'there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend.'" Randant, 341 Or at 71 (quoting Sparklin, 296 Or at 93). That bar is not absolute, however. As Sparklin made clear, the right to counsel under Article I, section 11, is offense-specific; that is, "[t]he [state constitutional] prohibitions placed on the state's contact with a represented defendant do not extend to the investigation of factually unrelated criminal episodes." 296 Or at 95; see State v. Davis, 313 Or 246, 263, 834 P2d 1008 (1992) (reaffirming that principle). Beyond that, Article I, section 11, does not preclude the state from using statements about the charged crime that a defendant unilaterally volunteers. Randant, 341 Or at 71. Finally, if a defendant initiates a conversation about a charged crime with the police and knowingly waives the right to counsel, Article I, section 11, does not bar the state from using any statement that the defendant makes about the charged crime in response to police questions, even though the police did not notify the defendant's counsel in advance of their meeting. See Id. at 71-73. In this case, there is no dispute that the state had charged defendant with two crimes and that the trial court had appointed counsel to represent defendant on those charges more than two months before she met with Mogle and Johnson. There is also no dispute that Mogle's conversation with defendant was not limited to factually unrelated crimes; at least some of their conversation centered on the robbery of the Purple Parrot in Klamath Falls, which gave rise to the robbery and conspiracy charges that defendant was facing. Finally, the state does not claim that defendant unilaterally volunteered the statements that she later sought to suppress. Rather, as Mogle testified, defendant made statements about the charged crime in response to his remarks to her. The issues accordingly reduce to whether defendant initiated the conversation about the charged crimes and, if she did, whether she knowingly and intentionally waived her right to counsel before making those statements. On the first issue, the parties disagree as to who brought up the Klamath Falls robbery first -- an issue that is not completely clear from the record that the state developed at the hearing on defendant's motion to suppress. Even if we assume, however, that defendant initiated the discussion of the charged crimes, the state still had to prove that defendant knowingly and intentionally waived her right to counsel. See Randant, 341 Or at 73; State v. Meyrick, 313 Or 125, 132, 831 P2d 666 (1992) (so stating in the context of waiving the right to counsel's assistance at trial).(3) On that issue, this court held in State v. Foster, 303 Or 518, 530-31, 739 P2d 1032 (1987), and reaffirmed in Randant, that, "when a defendant voluntarily initiates contact with the police after counsel has been appointed, knowledge of the Miranda rights is sufficient to ensure that the defendant's waiver of his or her Article I, section 11, right [to counsel] is a knowing one." Randant, 341 Or at 73.(4) Not only do Miranda warnings advise defendants of the right to counsel, but they also put defendants on notice of the consequences of foregoing counsel's assistance during police questioning -- that any statement that they might make can be used against them. Cf. Patterson v. Illinois, 487 US 285, 293-94, 108 S Ct 2389, 101 L Ed 2d 261 (1988) (explaining why advising defendants of their Miranda rights is sufficient to ensure that the waiver of their Sixth Amendment right to counsel is knowing). Put differently, Miranda warnings put a defendant whose right to counsel has attached on notice not only of "a generalized right to counsel" but also of the "derivative right to the benefit of counsel's efforts to forestall involuntary and incriminating disclosures." See State v. Haynes, 288 Or 59, 71, 602 P2d 272 (1980) (identifying, in a related context, the information necessary for a knowing waiver of the Article I, section 12 right to counsel). Beyond that, a defendant's decision to speak with an officer after being advised of his or her Miranda rights provides a basis for inferring that the defendant intentionally chose to relinquish those rights. See State v. Davidson, 252 Or 617, 620-21, 451 P2d 481 (1969) (holding that the trial court could infer an intentional relinquishment of a known right from the defendant's decision to speak with an officer after having been warned of his Miranda rights). Accordingly, we have upheld, against state (and federal) constitutional challenges, the admission of a defendant's statements when the defendant initiated the conversation about the charged crimes and the officer had advised the defendant of his Miranda rights before engaging in further conversation with the defendant about those crimes. See Randant, 341 Or at 73-74; Foster, 303 Or at 522, 530-31. With those principles in mind, we turn to the facts of this case. As noted, there was no evidence at the suppression hearing that anyone had advised defendant of her Miranda rights at any point in this case. It is true, as the state notes, that the record discloses that the trial court had appointed counsel for defendant approximately two months before she met with Detectives Mogle and Johnson and that defendant had expressed a negative impression of her trial counsel during that meeting. And the state argues that the trial court could have inferred from those facts that defendant was aware that she had a right to counsel and that she chose not to exercise that right. However, even if the court could have drawn those inferences, there is no basis in this record from which the trial court also could have inferred that defendant was aware that the statements she made to the officers could be used against her, that the officers were not necessarily acting in her interest when they asked about the sword, or that her counsel could have provided her with valuable assistance in navigating her way through the interview. There is, in short, no basis in this record from which the trial court could have inferred that defendant was aware of the benefit that she was giving up by speaking with the officers without her counsel present -- information that is also necessary for a knowing waiver of the right to counsel. See Haynes, 288 Or at 71 (requiring evidence that the defendant was aware not only of the right to counsel generally but also of the benefit of counsel's assistance in "forestall[ing] involuntary and incriminating disclosures").(5) We need not decide in this case whether Miranda warnings are always required when a defendant whose Article I, section 11, right to counsel has attached initiates a discussion with officers about the charged crimes; that is, we need not decide whether a trial court could find, in the absence of Miranda warnings, that a defendant was aware of the right to counsel and the risks of foregoing counsel's assistance and intentionally chose to relinquish those rights. It is sufficient in this case to hold that, because this record does not disclose that defendant was aware of the risks of foregoing counsel's assistance, the state failed to prove that she knowingly waived her right to counsel. It follows that the trial court should have granted defendant's motion to suppress the evidence that resulted from the officers' questions about the robbery. As noted, defendant entered a conditional guilty plea after the trial court denied her motion to suppress. Because defendant has finally prevailed on that motion, she may withdraw her plea on remand if she chooses to do so. See ORS 135.335(3) (providing that remedy for defendants who enter conditional guilty pleas and finally prevail on appeal); State v. Dinsmore, 342 Or 1, 6-8, 147 P3d 1146 (2006) (discussing the remedy when a defendant enters a conditional guilty plea as part of a larger plea agreement and prevails on appeal on the issue reserved in the plea). 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. We take the facts from the hearing on defendant's motion to suppress the evidence that the police obtained as a result of their conversation with her. We state the facts consistently with Mogle's testimony at that hearing, which the trial court "adopt[ed] * * * as findings [of fact] for the purpose of the [m]otion" to suppress. 2. Defendant's plea petition incorporates by reference the terms of the "plea agreement." We note that the record contains an "offer of negotiation," which both the prosecutor and defense counsel signed. We also note that one of the terms in the offer (the offer does not bind the state if defendant appeals) appears to be at odds with one of the terms set out in the plea petition (a conditional guilty plea). It is unclear on this record whether the signed offer of negotiation is the plea agreement to which the plea petition refers, whether the parties modified the offer of negotiation, which became the plea agreement to which the plea petition refers, or whether the parties entered into a new plea agreement, which superseded the offer of negotiation. Although the exact terms of the parties' plea agreement may matter on remand, see State v. Dinsmore, 342 Or 1, 6-8, 147 P3d 1146 (2006), they do not affect our disposition of the issue that defendant has raised on review. 3. Because we assume that defendant initiated the discussion of the Klamath Falls robbery, we do not consider whether Johnson's unwanted presence had any effect on the question of initiation. 4. An officer need not go through the more extensive colloquy required when a defendant seeks to waive the right to counsel's assistance at trial. Randant, 341 Or at 73; cf. Meyrick, 313 Or at 133 (discussing procedures required before a defendant can waive the right to counsel at trial). 5. The state noted in a memorandum of additional authorities that defendant had been arraigned and that, if she had appeared at arraignment without counsel, ORS 135.040 would have required the trial court to advise her that she had the right to counsel before being arraigned. Even if we assume that the trial court gave defendant that advice at arraignment, we do not see how that advances the state's argument. Defendant's arraignment occurred approximately two months before she met with Detectives Mogle and Johnson. Not only would any advice at arraignment have come long before defendant contacted Mogle, but ORS 135.040 only required the trial court to notify defendant that she had the right to counsel. It did not require the court to advise her of either the benefits of representation or the risks of going without counsel, which is the information missing here.

79aa08ec26c46657893f93e1b08bfd53ff6f8f145ae429e6f31e0906ec2e2c1c

2011-05-26T00:00:00Z

c488751c-9004-4d5a-a639-c781ca5ffebe

In re Lawrence

oregon

Oregon Supreme Court

Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of J. MARK LAWRENCE, Accused. (OSB 08-115; SC S058778) En Banc On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 2, 2011. Paula Lawrence, McMinnville, argued and cause and filed the briefs for accused. Stacy Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM The complaint is dismissed. PER CURIAM The issue in this lawyer disciplinary proceeding is whether the accused, by releasing a partial transcript of a juvenile hearing to the press, violated Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. A trial panel found the accused guilty of violating RPC 8.4(a)(4) and suspended him for 60 days. We review the decision of the trial panel de novo. ORS 9.536(2); BR 10.6. Because we conclude that the Bar failed to prove by clear and convincing evidence that the accused's conduct caused prejudice to the administration of justice, we dismiss the complaint. The facts are straightforward and largely undisputed. In 2007, the accused represented a juvenile male who, along with another male friend, allegedly had touched or swatted several female classmates on the buttocks and had danced in front of the females in a lascivious manner. The incident occurred at the students' middle school. After being informed of the youths' behavior, the vice principal and a police officer interviewed the victims. Based on those interviews, the accused's client and his friend were arrested by a McMinnville Police Officer on February 22, 2007. On February 23, the Yamhill County Juvenile Department filed a delinquency petition alleging that the accused's client had committed acts that, if done by an adult, would have constituted five counts of first-degree sexual abuse and five counts of third-degree sexual abuse. At an initial detention hearing that same day, the court ordered the youths to remain in custody. The events giving rise to this disciplinary action arose out of a second detention hearing held on February 27, 2007, before Judge John Collins. The accused called two of the victims to testify on behalf of his client. The female victims testified that the youths were their friends and that they did not find the youths to be threatening in any way. Regarding the alleged sexual abuse, the female victims testified that the touching or swatting was not sexual in nature but rather was mere horseplay. The victims also testified that they felt pressured by the vice principal and the police officer to make the touching sound hurtful and uncomfortable when it was not. By the second detention hearing, the case was receiving substantial media attention. Judge Collins allowed the press to attend the detention hearing, but prohibited the press from recording the proceedings. The parties dispute whether the judge prohibited only video recordings or also prohibited audio recordings.(1) A number of newspaper and television stories reported the events and testimony at the hearing. After the hearing, the accused obtained a copy of the official audio recording of the hearing and had a partial transcript prepared that contained the victims' testimony. In March 2007, a reporter contacted the accused about the February 27 hearing. The reporter, who was not present at the hearing, expressed disbelief that the female victims had felt pressured by the vice principal and the police officer to make the youths' actions seem sexual. The accused offered to give the reporter a copy of the partial transcript when it was available. The accused believed that it would have been improper to give the reporter the official audio recording of the hearing but thought that the transcript could be released. The accused contacted Deborah Markham, the deputy district attorney handling the case, to see if she objected to releasing the transcript. Markham told the accused that she believed that the court would have to consent. The accused then released the transcript to the reporter without obtaining permission from Judge Collins. When Judge Collins learned that the transcript had been released -- following news reports that cited the transcript -- he called a meeting with Markham and the accused and told them to release no other transcripts. The testimony from the accused, Markham, and Judge Collins differs regarding that meeting. The accused described the meeting as relaxed and said that Judge Collins had stated that the release of the transcript was permissible. Markham testified that Judge Collins was "very concerned" about the release of the transcript and that Judge Collins said that the accused's disclosure violated the law. Judge Collins testified that the accused did not get his consent to release the transcript, but that he was not sure if the accused needed to do so under the circumstances of the case, particularly given the presence of the press at the hearing. In Judge Collins's description, the meeting was not contentious; although he requested that the parties refrain from releasing any additional transcripts, he did not "feel like [he] needed to be firm" and so did not issue an order barring further releases. In April 2008, several months after the juvenile case was resolved, Tim Loewen, director of the Yamhill County Juvenile Department, reported the accused's action of releasing the transcript to the Bar. After investigating the matter, the Bar charged the accused with violating RPC 8.4(a)(4)(2) by releasing to the press "information appearing in the record" of a juvenile case without court consent, in violation of ORS 419A.255(1) and (3).(3) The Bar alleged that the accused had "usurped" Judge Collins's authority to control the proceeding by not seeking the court's consent before releasing the transcript, and thereby had caused prejudice to the administration of justice. In the proceeding before the trial panel, the accused argued that his release of the transcript did not violate ORS 419 A. 255 for each of three independent reasons: (1) the transcript that he had prepared was not a part of the record of the case and so was not subject to ORS 419 A. 255; (2) Judge Collins had consented to the release of the information contained in the transcript when he allowed the press to attend and report on the hearing; and (3) the information in the transcript could be released under ORS 419A.255(5)(b) and (d), which list certain exceptions to the confidentiality of juvenile records. Even assuming that he did violate ORS 419 A. 255, the accused asserted, he did not violate RPC 8.4(a)(4), because his conduct was not prejudicial to the administration of justice. That was so, according to the accused, because the defendant and the victims supported releasing the transcript and because the information contained in the transcript had already been made public as a result of the press attending and reporting on the hearing. Thus, in the accused's view, no harm -- actual or potential -- resulted from his conduct. The trial panel found by clear and convincing evidence that the accused had violated RPC 8.4(a)(4) and suspended the accused from the practice of law for 60 days. The trial panel first determined that ORS 419A.255(3) prohibited the accused from releasing the partial transcript to the press without the consent of the trial court and that the accused had violated the statute in doing so. With little discussion, the trial panel then found that the evidence that the accused had violated the statute also was sufficient to show prejudice to the administration of justice and thus that the accused had violated RPC 8.4(a)(4). The accused sought review in this court. To prove a violation of RPC 8.4(a)(4), the Bar must prove (1) that the accused lawyer's action or inaction was improper; (2) that the accused lawyer's conduct occurred during the course of a judicial proceeding; and (3) that the accused lawyer's conduct had or could have had a prejudicial effect upon the administration of justice. See In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (citing In re Haws, 310 Or 741, 746-48, 801 P2d 818 (1990)) (so stating for identically worded former DR 1-102(A)(4)). Because we find the issue to be dispositive, we begin by examining the third element -- whether the accused's conduct had or could have had a prejudicial effect on the administration of justice -- and assume, without deciding, that the accused's conduct violated ORS 419A.255(3) and otherwise satisfied the test set out in Kluge and Haws. Prejudice to the administration of justice "may arise from several acts that cause some harm or a single act that causes substantial harm to the administration of justice." Kluge, 335 Or at 345. This court has identified two components to the "administration" of justice: "1) The procedural functioning of the proceeding; and 2) the substantive interest of a party in the proceeding." Haws, 310 Or at 747. "A lawyer's conduct could have a prejudicial effect on either component or both." Id. The Bar argues that the accused's conduct, a single act, resulted in prejudice to the administration of justice because it had the potential to cause substantial harm to the procedural functioning of the court. The Bar asserts, "Substantial potential harm to the administration of justice occurs whenever a lawyer interferes in or usurps the court's ability to do its job in a proceeding pending before it." The Bar states that the accused "usurped" the court's authority by not seeking Judge Collins's consent prior to releasing the transcript. The Bar cites three disciplinary cases to support its position that the accused's conduct resulted in substantial potential harm to the administration of justice. First, in In re Eadie, 333 Or 42, 36 P3d 468 (2001), this court found a violation of former DR 1-102(A)(4) where the accused lawyer submitted a proposed order containing a misrepresentation that was intended to influence the judge in changing the trial date. Id. at 58. That conduct substantially harmed the procedural functioning of the court because it resulted in the judge acquiescing to a trial date preferred by the accused and made it necessary for the judge to resolve a dispute resulting from the accused's misrepresentation and to redraft an order. Id. Second, in In re Morris, 326 Or 493, 953 P2d 387 (1998), this court concluded that the accused lawyer had engaged in a single act of conduct that had the potential to cause substantial harm, either to the procedural functioning of the court or to the substantive interests of the parties, when she knowingly filed a notarized document that she had altered. Id. at 502-03. Third, in In re Thompson, 325 Or 467, 940 P2d 512 (1997), this court found a violation of former DR 1-102(A)(4) where the accused lawyer physically confronted a judge after receiving an adverse decision. That conduct caused substantial harm to the administration of justice because the accused's ex parte communication with the judge "unfairly attack[ed] the independence, integrity, and respect due a member of the judiciary." Id. at 475. The conduct also had the potential to cause substantial harm, because it could have influenced the judge to change her decision or to recuse herself from the case. Id. In each of the preceding cases, the accused lawyer engaged in conduct that had the potential to disrupt or to improperly influence the court's decision-making process, Thompson, 325 Or at 475; that created unnecessary work for the court, Eadie, 333 Or at 58; or that had the potential to mislead the court, Morris, 326 Or at 503. Moreover, in Eadie and Morris, the accused lawyers made knowing misrepresentations to the court. Similarly, in Kluge, the accused lawyer's conduct in knowingly filing an untimely motion to disqualify the trial judge and then failing to serve the motion on opposing counsel caused prejudice to "the procedural functioning of the judicial system by imposing a substantial burden upon both opposing counsel and [the trial judge] to undo the accused's actions." 335 Or at 346. In this case, the Bar has made no showing, as required by Kluge and Haws, that the accused's conduct harmed the procedural functioning of the judicial system, either by disrupting or improperly influencing the court's decision-making process or by creating unnecessary work or imposing a substantial burden on the court or the opposing party. Nor has the Bar shown that his conduct had the potential to result in any of the above. Certainly, Judge Collins did not testify that the accused's actions interfered with Judge Collins's conduct of the juvenile proceeding. Although the Bar correctly asserts that ORS 419 A. 255 gives the trial court control over the release of protected information in a juvenile record -- and, as noted, we assume without deciding that the accused acted improperly in not seeking the trial court's consent -- the Bar's theory fails to take into account the fact that the information contained in the partial transcript that the accused released was presented in open court and had already been reported by the press.(4) It is difficult to see how the accused's release of the same information, in the context of this case, had the potential to cause any harm to the proceeding, much less substantial harm. See Kluge, 335 Or at 345 (prejudice to the administration of justice may arise from "several acts that cause some harm or a single act that causes substantial harm"). Indeed, the Bar makes no effort to show that the accused's conduct could have resulted in new information being made public or that the release of the partial transcript itself had any potential impact on the proceeding. In fact, after the press attended the hearing and the accused released the transcript, Judge Collins allowed members of the press to listen to the official audio recording of the hearing. Nevertheless, the Bar asserts that Judge Collins was sufficiently "concerned" about the release of the information to call the accused and Markham to his chambers to discuss the incident. The fact that Judge Collins was "concerned" and met with the accused and Markham does not, by itself, demonstrate the potential for substantial harm to the procedural functioning of the court. Judge Collins himself stated that, although "in a perfect world," he probably would not have wanted the transcript released, in the context of this case and the open court provision of Article I, section 10, of the Oregon Constitution, the release of the partial transcript was likely permissible without his consent because "if [the press is] * * * going to know the information and report the information, at least get it right." Judge Collins's testimony, then, does not demonstrate that the accused's conduct impacted the procedural functioning of the court, even if the accused's conduct was cause for "concern." Nor does the Bar offer any evidence to prove that the release of the partial transcript harmed the substantive interests of the accused's client, the victims, or the state. The accused released the transcript, with the support of his client, in response to an inquiry from the media and in order to respond to inaccuracies appearing in some media reports. The accused maintained the confidentiality of the victims' names in the transcript, referring to them by their initials, consistent with an earlier order by Judge Collins. In this proceeding, the accused also submitted letters from the two victims who testified (and their parents) that stated their support for the release of the partial transcript. Finally, there was no testimony from the Yamhill County Juvenile Department that the release of the partial transcript had any effect on its substantive interests or its ability to prosecute the case. The Bar appears, instead, to take the position that virtually any violation of a statute, rule, or court order that occurs during the course of a court proceeding and relates to the conduct or any procedural aspect of that proceeding necessarily is prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial potential" harm is implicit in the accused's conduct. Our cases, however, require proof by clear and convincing evidence that an accused's conduct in a specific judicial proceeding caused actual or potential harm to the administration of justice and, when only one wrongful act is charged, that actual or potential harm must be "substantial." Kluge, 335 Or at 345; Haws, 310 Or at 748. Here, the Bar's evidence did not prove that substantial harm resulted or could have resulted from the accused's conduct. We conclude that the Bar has not proved by clear and convincing evidence that the accused violated RPC 8.4(a)(4). The accused's conduct did not result in such prejudice, because there is no evidence that the release of the partial transcript, which contained solely information already presented in open court and reported by the press, harmed the procedural functioning of the judicial system. Nor is there any evidence that the substantive rights of the accused's client, the other juvenile defendant, the victims, or the state were harmed. "Prejudice to the administration of justice" requires such a showing. Haws, 310 Or at 747-48. The complaint is dismissed. 1. Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording. 2. RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of justice[.]" 3. ORS 419 A. 255 provides, in relevant part: "(1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child, ward, youth or youth offender's history and prognosis. The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys. The attorneys are entitled to copies of the record of the case. "* * * * * "(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court * * * ." 4. Article I, section 10, of the Oregon Constitution grants members of the public, including the press, the right to attend juvenile hearings. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284-85, 613 P2d 23 (1980).

82e8d5bcd9e91d382040eee17a15f133016d05cfef0b40d226a07cf2130c6346

2011-06-30T00:00:00Z

6cb289d3-a783-41ad-9b1a-9841828eacdc

In re Lawrence

oregon

Oregon Supreme Court

1 Filed: June 30, 2011 1 2 IN THE SUPREME COURT OF THE STATE OF OREGON 3 4 In Re: 5 6 Complaint as to the Conduct of 7 8 J. MARK LAWRENCE, 9 10 Accused. 11 12 (OSB 08-115; SC S058778) 13 14 En Banc 15 16 On review of the decision of a trial panel of the Disciplinary Board. 17 18 Argued and submitted May 2, 2011. 19 20 Paula Lawrence, McMinnville, argued and cause and filed the briefs for accused. 21 22 Stacy Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed 23 the brief for the Oregon State Bar. 24 25 PER CURIAM 26 27 The complaint is dismissed. 28 29 PER CURIAM 30 The issue in this lawyer disciplinary proceeding is whether the accused, by 31 releasing a partial transcript of a juvenile hearing to the press, violated Rule of 32 Professional Conduct (RPC) 8.4(a)(4), which prohibits a lawyer from engaging in 33 conduct that is prejudicial to the administration of justice. A trial panel found the 34 accused guilty of violating RPC 8.4(a)(4) and suspended him for 60 days. We review the 35 decision of the trial panel de novo. ORS 9.536(2); BR 10.6. Because we conclude that 36 2 the Bar failed to prove by clear and convincing evidence that the accused's conduct 1 caused prejudice to the administration of justice, we dismiss the complaint. 2 The facts are straightforward and largely undisputed. In 2007, the accused 3 represented a juvenile male who, along with another male friend, allegedly had touched 4 or swatted several female classmates on the buttocks and had danced in front of the 5 females in a lascivious manner. The incident occurred at the students' middle school. 6 After being informed of the youths' behavior, the vice principal and a police officer 7 interviewed the victims. Based on those interviews, the accused's client and his friend 8 were arrested by a McMinnville Police Officer on February 22, 2007. On February 23, 9 the Yamhill County Juvenile Department filed a delinquency petition alleging that the 10 accused's client had committed acts that, if done by an adult, would have constituted five 11 counts of first-degree sexual abuse and five counts of third-degree sexual abuse. At an 12 initial detention hearing that same day, the court ordered the youths to remain in custody. 13 The events giving rise to this disciplinary action arose out of a second 14 detention hearing held on February 27, 2007, before Judge John Collins. The accused 15 called two of the victims to testify on behalf of his client. The female victims testified 16 that the youths were their friends and that they did not find the youths to be threatening in 17 any way. Regarding the alleged sexual abuse, the female victims testified that the 18 touching or swatting was not sexual in nature but rather was mere horseplay. The victims 19 also testified that they felt pressured by the vice principal and the police officer to make 20 the touching sound hurtful and uncomfortable when it was not. 21 By the second detention hearing, the case was receiving substantial media 22 3 attention. Judge Collins allowed the press to attend the detention hearing, but prohibited 1 the press from recording the proceedings. The parties dispute whether the judge 2 prohibited only video recordings or also prohibited audio recordings.1 A number of 3 newspaper and television stories reported the events and testimony at the hearing. After 4 the hearing, the accused obtained a copy of the official audio recording of the hearing and 5 had a partial transcript prepared that contained the victims' testimony. 6 In March 2007, a reporter contacted the accused about the February 27 7 hearing. The reporter, who was not present at the hearing, expressed disbelief that the 8 female victims had felt pressured by the vice principal and the police officer to make the 9 youths' actions seem sexual. The accused offered to give the reporter a copy of the 10 partial transcript when it was available. The accused believed that it would have been 11 improper to give the reporter the official audio recording of the hearing but thought that 12 the transcript could be released. The accused contacted Deborah Markham, the deputy 13 district attorney handling the case, to see if she objected to releasing the transcript. 14 Markham told the accused that she believed that the court would have to consent. The 15 accused then released the transcript to the reporter without obtaining permission from 16 Judge Collins. 17 1 Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording. 4 When Judge Collins learned that the transcript had been released -- 1 following news reports that cited the transcript -- he called a meeting with Markham and 2 the accused and told them to release no other transcripts. The testimony from the 3 accused, Markham, and Judge Collins differs regarding that meeting. The accused 4 described the meeting as relaxed and said that Judge Collins had stated that the release of 5 the transcript was permissible. Markham testified that Judge Collins was "very 6 concerned" about the release of the transcript and that Judge Collins said that the 7 accused's disclosure violated the law. Judge Collins testified that the accused did not get 8 his consent to release the transcript, but that he was not sure if the accused needed to do 9 so under the circumstances of the case, particularly given the presence of the press at the 10 hearing. In Judge Collins's description, the meeting was not contentious; although he 11 requested that the parties refrain from releasing any additional transcripts, he did not "feel 12 like [he] needed to be firm" and so did not issue an order barring further releases. 13 In April 2008, several months after the juvenile case was resolved, Tim 14 Loewen, director of the Yamhill County Juvenile Department, reported the accused's 15 action of releasing the transcript to the Bar. After investigating the matter, the Bar 16 charged the accused with violating RPC 8.4(a)(4)2 by releasing to the press "information 17 2 RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of 5 appearing in the record" of a juvenile case without court consent, in violation of ORS 1 419A.255(1) and (3).3 The Bar alleged that the accused had "usurped" Judge Collins's 2 authority to control the proceeding by not seeking the court's consent before releasing the 3 transcript, and thereby had caused prejudice to the administration of justice. 4 In the proceeding before the trial panel, the accused argued that his release 5 of the transcript did not violate ORS 419A.255 for each of three independent reasons: (1) 6 the transcript that he had prepared was not a part of the record of the case and so was not 7 subject to ORS 419A.255; (2) Judge Collins had consented to the release of the 8 information contained in the transcript when he allowed the press to attend and report on 9 justice[.]" 3 ORS 419A.255 provides, in relevant part: "(1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child, ward, youth or youth offender's history and prognosis. The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys. The attorneys are entitled to copies of the record of the case. "* * * * * "(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court * * * ." 6 the hearing; and (3) the information in the transcript could be released under ORS 1 419A.255(5)(b) and (d), which list certain exceptions to the confidentiality of juvenile 2 records. Even assuming that he did violate ORS 419A.255, the accused asserted, he did 3 not violate RPC 8.4(a)(4), because his conduct was not prejudicial to the administration 4 of justice. That was so, according to the accused, because the defendant and the victims 5 supported releasing the transcript and because the information contained in the transcript 6 had already been made public as a result of the press attending and reporting on the 7 hearing. Thus, in the accused's view, no harm -- actual or potential -- resulted from his 8 conduct. 9 The trial panel found by clear and convincing evidence that the accused had 10 violated RPC 8.4(a)(4) and suspended the accused from the practice of law for 60 days. 11 The trial panel first determined that ORS 419A.255(3) prohibited the accused from 12 releasing the partial transcript to the press without the consent of the trial court and that 13 the accused had violated the statute in doing so. With little discussion, the trial panel 14 then found that the evidence that the accused had violated the statute also was sufficient 15 to show prejudice to the administration of justice and thus that the accused had violated 16 RPC 8.4(a)(4). The accused sought review in this court. 17 To prove a violation of RPC 8.4(a)(4), the Bar must prove (1) that the 18 accused lawyer's action or inaction was improper; (2) that the accused lawyer's conduct 19 occurred during the course of a judicial proceeding; and (3) that the accused lawyer's 20 conduct had or could have had a prejudicial effect upon the administration of justice. See 21 In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (citing In re Haws, 310 Or 741, 746-48, 22 7 801 P2d 818 (1990)) (so stating for identically worded former DR 1-102(A)(4)). Because 1 we find the issue to be dispositive, we begin by examining the third element -- whether 2 the accused's conduct had or could have had a prejudicial effect on the administration of 3 justice -- and assume, without deciding, that the accused's conduct violated ORS 4 419A.255(3) and otherwise satisfied the test set out in Kluge and Haws. 5 Prejudice to the administration of justice "may arise from several acts that 6 cause some harm or a single act that causes substantial harm to the administration of 7 justice." Kluge, 335 Or at 345. This court has identified two components to the 8 "administration" of justice: "1) The procedural functioning of the proceeding; and 2) the 9 substantive interest of a party in the proceeding." Haws, 310 Or at 747. "A lawyer's 10 conduct could have a prejudicial effect on either component or both." Id. 11 The Bar argues that the accused's conduct, a single act, resulted in prejudice 12 to the administration of justice because it had the potential to cause substantial harm to 13 the procedural functioning of the court. The Bar asserts, "Substantial potential harm to 14 the administration of justice occurs whenever a lawyer interferes in or usurps the court's 15 ability to do its job in a proceeding pending before it." The Bar states that the accused 16 "usurped" the court's authority by not seeking Judge Collins's consent prior to releasing 17 the transcript. 18 The Bar cites three disciplinary cases to support its position that the 19 accused's conduct resulted in substantial potential harm to the administration of justice. 20 First, in In re Eadie, 333 Or 42, 36 P3d 468 (2001), this court found a violation of former 21 DR 1-102(A)(4) where the accused lawyer submitted a proposed order containing a 22 8 misrepresentation that was intended to influence the judge in changing the trial date. Id. 1 at 58. That conduct substantially harmed the procedural functioning of the court because 2 it resulted in the judge acquiescing to a trial date preferred by the accused and made it 3 necessary for the judge to resolve a dispute resulting from the accused's 4 misrepresentation and to redraft an order. Id. Second, in In re Morris, 326 Or 493, 953 5 P2d 387 (1998), this court concluded that the accused lawyer had engaged in a single act 6 of conduct that had the potential to cause substantial harm, either to the procedural 7 functioning of the court or to the substantive interests of the parties, when she knowingly 8 filed a notarized document that she had altered. Id. at 502-03. Third, in In re Thompson, 9 325 Or 467, 940 P2d 512 (1997), this court found a violation of former DR 1-102(A)(4) 10 where the accused lawyer physically confronted a judge after receiving an adverse 11 decision. That conduct caused substantial harm to the administration of justice because 12 the accused's ex parte communication with the judge "unfairly attack[ed] the 13 independence, integrity, and respect due a member of the judiciary." Id. at 475. The 14 conduct also had the potential to cause substantial harm, because it could have influenced 15 the judge to change her decision or to recuse herself from the case. Id. 16 In each of the preceding cases, the accused lawyer engaged in conduct that 17 had the potential to disrupt or to improperly influence the court's decision-making 18 process, Thompson, 325 Or at 475; that created unnecessary work for the court, Eadie, 19 333 Or at 58; or that had the potential to mislead the court, Morris, 326 Or at 503. 20 Moreover, in Eadie and Morris, the accused lawyers made knowing misrepresentations to 21 the court. Similarly, in Kluge, the accused lawyer's conduct in knowingly filing an 22 9 untimely motion to disqualify the trial judge and then failing to serve the motion on 1 opposing counsel caused prejudice to "the procedural functioning of the judicial system 2 by imposing a substantial burden upon both opposing counsel and [the trial judge] to 3 undo the accused's actions." 335 Or at 346. 4 In this case, the Bar has made no showing, as required by Kluge and Haws, 5 that the accused's conduct harmed the procedural functioning of the judicial system, 6 either by disrupting or improperly influencing the court's decision-making process or by 7 creating unnecessary work or imposing a substantial burden on the court or the opposing 8 party. Nor has the Bar shown that his conduct had the potential to result in any of the 9 above. Certainly, Judge Collins did not testify that the accused's actions interfered with 10 Judge Collins's conduct of the juvenile proceeding. Although the Bar correctly asserts 11 that ORS 419A.255 gives the trial court control over the release of protected information 12 in a juvenile record -- and, as noted, we assume without deciding that the accused acted 13 improperly in not seeking the trial court's consent -- the Bar's theory fails to take into 14 account the fact that the information contained in the partial transcript that the accused 15 released was presented in open court and had already been reported by the press.4 It is 16 difficult to see how the accused's release of the same information, in the context of this 17 case, had the potential to cause any harm to the proceeding, much less substantial harm. 18 4 Article I, section 10, of the Oregon Constitution grants members of the public, including the press, the right to attend juvenile hearings. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284-85, 613 P2d 23 (1980). 10 See Kluge, 335 Or at 345 (prejudice to the administration of justice may arise from 1 "several acts that cause some harm or a single act that causes substantial harm"). Indeed, 2 the Bar makes no effort to show that the accused's conduct could have resulted in new 3 information being made public or that the release of the partial transcript itself had any 4 potential impact on the proceeding. In fact, after the press attended the hearing and the 5 accused released the transcript, Judge Collins allowed members of the press to listen to 6 the official audio recording of the hearing. 7 Nevertheless, the Bar asserts that Judge Collins was sufficiently 8 "concerned" about the release of the information to call the accused and Markham to his 9 chambers to discuss the incident. The fact that Judge Collins was "concerned" and met 10 with the accused and Markham does not, by itself, demonstrate the potential for 11 substantial harm to the procedural functioning of the court. Judge Collins himself stated 12 that, although "in a perfect world," he probably would not have wanted the transcript 13 released, in the context of this case and the open court provision of Article I, section 10, 14 of the Oregon Constitution, the release of the partial transcript was likely permissible 15 without his consent because "if [the press is] * * * going to know the information and 16 report the information, at least get it right." Judge Collins's testimony, then, does not 17 demonstrate that the accused's conduct impacted the procedural functioning of the court, 18 even if the accused's conduct was cause for "concern." 19 Nor does the Bar offer any evidence to prove that the release of the partial 20 transcript harmed the substantive interests of the accused's client, the victims, or the state. 21 The accused released the transcript, with the support of his client, in response to an 22 11 inquiry from the media and in order to respond to inaccuracies appearing in some media 1 reports. The accused maintained the confidentiality of the victims' names in the 2 transcript, referring to them by their initials, consistent with an earlier order by Judge 3 Collins. In this proceeding, the accused also submitted letters from the two victims who 4 testified (and their parents) that stated their support for the release of the partial 5 transcript. Finally, there was no testimony from the Yamhill County Juvenile 6 Department that the release of the partial transcript had any effect on its substantive 7 interests or its ability to prosecute the case. 8 The Bar appears, instead, to take the position that virtually any violation of 9 a statute, rule, or court order that occurs during the course of a court proceeding and 10 relates to the conduct or any procedural aspect of that proceeding necessarily is 11 prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial 12 potential" harm is implicit in the accused's conduct. Our cases, however, require proof by 13 clear and convincing evidence that an accused's conduct in a specific judicial proceeding 14 caused actual or potential harm to the administration of justice and, when only one 15 wrongful act is charged, that actual or potential harm must be "substantial." Kluge, 335 16 Or at 345; Haws, 310 Or at 748. Here, the Bar's evidence did not prove that substantial 17 harm resulted or could have resulted from the accused's conduct. 18 We conclude that the Bar has not proved by clear and convincing evidence 19 that the accused violated RPC 8.4(a)(4). The accused's conduct did not result in such 20 prejudice, because there is no evidence that the release of the partial transcript, which 21 contained solely information already presented in open court and reported by the press, 22 12 harmed the procedural functioning of the judicial system. Nor is there any evidence that 1 the substantive rights of the accused's client, the other juvenile defendant, the victims, or 2 the state were harmed. "Prejudice to the administration of justice" requires such a 3 showing. Haws, 310 Or at 747-48. 4 The complaint is dismissed. 5 6

7a886940a5e0c25b325dd020f411af0c5b4b7c8d4afa8e269d4d03874558b5c1

2011-06-30T00:00:00Z

6f482b2b-74cb-43a0-b11a-599834b81d32

Oregon v. Glushko

S059136, S059137

oregon

Oregon Supreme Court

Filed: November 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. VLADIMIR VLADIMIROVICH GLUSHKO, Petitioner on Review. (CC 209903037; CA A142224; SC S059136 (Control)) _____________________________________ STATE OF OREGON, Respondent on Review, v. HAROLD VERNON LITTLE, Petitioner on Review. (CC 981756M, 990259M; CA A141888, A141889; SC S059137) (Consolidated for argument and opinion) En Banc On review from the Court of Appeals.* Argued and submitted September 20, 2011. Zachary L. Mazer, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioners on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Rolf C. Moan, 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 Mary H. Williams, Solicitor General. LANDAU, J. The decisions of the Court of Appeals and the judgments of the circuit courts are affirmed. *Appeal from Lane County Circuit Court, Cynthia D. Carlson, Judge. 240 Or App 464, 248 P3d 451 (2011). Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 240 Or App 464, 248 P3d 451 (2011). 1 LANDAU, J. 1 ORS 135.747 provides that, 2 "[i]f a defendant charged with a crime, whose trial has not been 3 postponed upon the application of the defendant or by the consent of the 4 defendant, is not brought to trial within a reasonable period of time, the 5 court shall order the accusatory instrument to be dismissed." 6 The issue in these two cases is whether defendants' failures to appear at scheduled 7 hearings amount to "consent" to a delay in proceedings within the meaning of that statute, 8 and, if not, whether any delays caused by such failures to appear were nevertheless 9 reasonable. We conclude that a mere failure to appear does not constitute consent within 10 the meaning of ORS 135.747, but that, under the circumstances of these cases, the delays 11 were reasonable. 12 I. BACKGROUND 13 The relevant facts of each of the two cases are few and undisputed. 14 A. State v. Glushko 15 On February 22, 1999, the state charged defendant Glushko by information 16 with one count of attempt to elude, one count of reckless driving, and one count of 17 driving under the influence of intoxicants (DUII). A grand jury indicted defendant with 18 those charges on March 5, 1999. A few weeks later, on March 26, 1999, defendant was 19 arraigned and entered a "not guilty" plea. On April 30, 1999, defendant entered into a 20 diversion agreement as to the DUII charge. As part of his diversion agreement, defendant 21 signed an agreement and waiver form, in which he acknowledged that 22 "[t]he court will terminate this diversion agreement if the court finds 23 that you have violated the terms of the diversion agreement or that you 24 2 were not eligible for diversion to begin with. The court will make this 1 determination at a hearing where you can 'show cause' why you should not 2 be removed from the diversion program. * * * Notice of such hearings will 3 be sent to you by regular mail. If you fail to appear in court as directed 4 by the mailed notice, the court will terminate the diversion agreement and 5 prosecution of the offense will be resumed." 6 (Boldface in original.) As part of the diversion agreement, defendant was also required to 7 keep the court informed of his mailing address, which he originally disclosed as a 8 residence in Citrus Heights, California. 9 On June 11, 1999, defendant changed his pleas as to the first two counts, 10 attempt to elude and reckless driving, to guilty. Five days later, the trial court sentenced 11 defendant to 18 months' probation. 12 On June 25, 1999, the trial court received notice that defendant failed to 13 attend a victim impact panel, which was a requirement of his diversion program. The 14 trial court ordered defendant to appear on July 12 to determine whether his diversion 15 program should be revoked. Defendant attended that hearing, and the trial court decided 16 to allow defendant to continue his diversion program on the condition that defendant 17 attend a victim impact panel in California within 60 days. 18 On May 12, 2000, the trial court, having received information that 19 defendant had failed to complete another required treatment program, again ordered 20 defendant to appear on June 2, 2000, to show cause why his diversion program should 21 not be revoked. The order stated that "[i]f defendant fails to appear as ordered, a bench 22 warrant shall be issued for his arrest." Defendant failed to appear at that hearing. Shortly 23 after that, on June 6, 2000, the trial court terminated defendant's diversion, ordered that 24 3 the prosecution should resume, and issued a warrant for defendant's arrest. 1 Eight-and-a-half years later, on November 5, 2008, an officer executed the 2 arrest warrant. An initial hearing was held of November 14, 2008, during which the trial 3 court appointed an attorney for defendant. On November 25, 2008, defendant moved to 4 dismiss the DUII charge for failure to comply with the statutory speedy trial requirement, 5 ORS 135.747. The trial court denied the motion. Ultimately, defendant was found guilty 6 of DUII after a jury trial on April 1, 2009. 7 B. State v. Little 8 On December 18, 1998, defendant Little was cited for driving under the 9 influence of intoxicants (DUII) and ordered to appear on January 5, 1999, for 10 arraignment. Defendant did so, and at that time, the trial court entered a release order, 11 which required defendant to appear the following week on January 12. That hearing was 12 rescheduled for January 19. Defendant did not appear, and the trial court issued an arrest 13 warrant. 14 On February 19, 1999, defendant was, again, arrested for DUII. The trial 15 court entered a conditional release agreement and order, requiring defendant to appear on 16 February 23. Defendant signed the agreement, acknowledging that he had read the 17 agreement and understood the terms contained in the agreement. As relevant to our 18 analysis, the agreement provided that 19 "[f]or any failure to appear as required before a judge or other 20 judicial officer, a warrant for arrest may be issued and [defendant] shall be 21 subject to prosecution as per the following penalties: forfeiture of security 22 as per security subsection; Felony charge: fine not to exceed $100,000 23 and five (5) years imprisonment; Misdemeanor charge: fine not to exceed 24 4 $2,500 and one (1) year imprisonment." 1 (Boldface in original.) Defendant also wrote on the form that his current address was on 2 Hilltop Lane in Josephine County. That address, however, was the address of a friend 3 who defendant was visiting; defendant actually resided in California. 4 Defendant failed to appear at the hearing on February 23, and the trial court 5 issued an arrest warrant. In 2002, defendant moved to Milwaukie, Oregon. Since then, 6 defendant has maintained a residence in Oregon, maintained employment with several 7 businesses in the state, and applied for and received an Oregon identification card and, a 8 few years later, an Oregon driver's license. In 2008, defendant applied for employment 9 that required an FBI background check. The potential employer notified defendant that 10 there were two pending charges and an outstanding warrant for defendant's arrest in 11 Josephine County. 12 On August 8, 2008, defendant called the Josephine County clerk's office 13 and scheduled an appearance date to resolve the outstanding warrant. On August 13, 14 defendant appeared before the trial court. At that time, defendant received court- 15 appointed counsel, and was released on condition that he attend all future court hearings. 16 On March 3, 2009, defendant moved to dismiss all charges, asserting his 17 statutory right to a speedy trial. After a hearing on March 17, the trial court denied the 18 motion. The following day, defendant entered a conditional guilty plea, reserving the 19 right to appeal the denial of his motion to dismiss. 20 C. Proceedings Before the Court of Appeals 21 Both defendants appealed, arguing that the trial courts erred in denying 22 5 their motions to dismiss. Defendants noted that, under ORS 135.747, 1 "[i]f a defendant charged with a crime, whose trial has not been 2 postponed upon the application of the defendant or by the consent of the 3 defendant, is not brought to trial within a reasonable period of time, the 4 court shall order the accusatory instrument to be dismissed." 5 Both argued that whether or not they were deprived of their statutory right 6 to a speedy trial "hinge[d]" on the delay between the date the trial court issued the arrest 7 warrant and the date the warrant was executed. In defendant Glushko's case, the delay 8 amounted to 101 months (approximately eight and a half years). In defendant Little's 9 case, the delay was 114 months (approximately nine and a half years). 10 Defendant Glushko argued that 11 "a defendant's express consent to delay is required before that delay is 12 counted against him, and a defendant's failure to appear does not constitute 13 express consent to delay. Thus, the * * * delay in this case was not 14 attributable to defendant * * * [and] warrants dismissal, because no 15 evidence in the record indicates that the delay was reasonable." 16 Defendant Little argued likewise that he did not "expressly consent to any of that delay, 17 and the state must justify the delay to render it reasonable. As the state failed to justify 18 the delay in this case, the trial court erred by denying defendant's motion[] to dismiss." 19 The Court of Appeals affirmed both cases without an opinion. State v. 20 Glushko, 240 Or App 464, 248 P3d 451 (2011), State v. Little, 240 Or App 464, 248 P3d 21 451 (2011). Both defendants petitioned this court for review. We accepted review and 22 consolidated the cases to consider whether the failure to appear at a hearing was 23 "consent" to delay, as used in ORS 135.747 and, if it was not, whether the delay was 24 reasonable nonetheless. 25 6 D. Parties' Arguments Before This Court 1 On review, defendants argue that failure to appear at a hearing is neither 2 "an active request for delay in trial" nor "an open, clear, and unambiguous agreement to 3 delay." In order to qualify as "consent," defendants contend, one must express 4 "agreement to a request for delay by someone else." (Emphasis added.) Thus, in order 5 for a defendant to "consent" to delay, the state must first request the defendant's consent, 6 and then the defendant must provide "express consent" (i.e., consent which is "expressed 7 openly, clearly, and unambiguously"). 8 In any event, defendants assert, the delays in bringing their cases to trial -- 9 101 months in defendant Glushko's case and 114 months in defendant Little's -- were 10 unreasonable because, in both cases, the state easily could have executed the warrants at 11 an earlier time. Defendant Glushko notes that, during the six months following his 12 failure to appear, he was still on probation for other charges. Arguably, he asserts, the 13 state could have arrested him by notifying his probation officer of his failure to appear. 14 Defendant Little similarly suggests that the state could have contacted him at two 15 different points in time: (1) the state could have called his friend's phone number that he 16 listed on his release agreement, obtained his California address, and notified him of the 17 outstanding arrest warrant; or (2) the state could have arrested him once he moved to 18 Oregon and provided his current address to the Department of Motor Vehicles. 19 The state responds that, in both cases, defendants' failure to appear was 20 consent to any resulting delay. The state asserts that conduct that "implie[s] a willingness 21 to submit to a particular course of action" is consent and that, in this case, "defendants' 22 7 conduct entitled the trial courts to conclude that they consented to an indefinitely delayed 1 trial." Additionally, the state argues that, even if defendants' failures to appear were not 2 consent to the resulting delays, their conduct in not attending a hearing for which they 3 were legally required to attend renders any delay caused by their failures to appear 4 reasonable. 5 II. ANALYSIS 6 As this court explained in State v. Davids, 339 Or 96, 100-01, 116 P3d 894 7 (2005), review of a trial court's decision on a motion to dismiss brought under ORS 8 135.747 entails a two-step analysis. First, we must determine the relevant amount of 9 delay by subtracting from the total delay any periods of delay that defendant requested or 10 consented to. Second, we then determine whether that delay is reasonable. In this case, 11 the parties' arguments implicate both of those analytical steps, namely, whether a failure 12 to appear at a hearing that a defendant is required to attend amounts to "consent" to a 13 postponement within the meaning of ORS 135.747; and second, if not, whether delay 14 occasioned by such a failure to appear renders any delay that results reasonable within the 15 meaning of that statute. 16 A. Consent 17 We necessarily begin with the issue of consent, because it determines the 18 amount of delay that is then subject to the reasonableness analysis that the statute 19 requires. The issue is one of statutory interpretation. As such, we strive to ascertain the 20 meaning of the statute most likely intended by the legislature that adopted it, by 21 examining the statute's text, in context, and where appropriate, relevant legislative history 22 8 and canons of statutory construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 1 (2009). 2 What is now ORS 135.747 had its genesis in the territorial code, which 3 provided: 4 "If a defendant indicted for a public offen[s]e, whose trial has not 5 been postponed upon his application, be not brought to trial at the next term 6 of the court in which the indictment is triable, after it is found, the court 7 shall order the indictment to be dismissed, unless good cause to the 8 contrary be shown." 9 The Laws of the Territory of Oregon, ch XXXVI, § 29 (1854). The wording of the 10 provision was most likely based on the nearly identical Iowa speedy trial statute, Iowa 11 Code of 1851, ch 200, § 3249. See Charles H. Carey, General History of Oregon 475-77 12 (3rd ed 1971). 13 As originally framed, Oregon's territorial speedy trial statute required a case 14 to be brought to trial at the next term of court -- at the time, trial courts did not sit 15 continuously, but in limited terms -- subject to two exceptions: first, if the failure to 16 bring defendant to trial was caused by his "application" that the case be "postponed"; 17 second, if the failure to bring the case to trial within the next term was occasioned by 18 delays other than defendant's application for a postponement, but that were nevertheless 19 justified by "good cause." The territorial speedy trial statute said nothing about a 20 defendant's consent to delays in bringing a case to trial. 21 The matter of consent was first introduced to the statute in 1864, when the 22 legislature adopted the Deady Code. As amended, the speedy trial statute provided, with 23 the relevant new wording in italics: 24 9 "If a defendant, indicted for a crime, whose trial has not been 1 postponed upon his application or by his consent, be not brought to trial at 2 the next term of the court in which the indictment is triable, after it is 3 found, the court must order the indictment to be dismissed, unless good 4 cause to the contrary be shown." 5 General Laws of Oregon, Crim Code, ch XXXI, § 320, p 496 (Deady 1845-1864) 6 (emphasis added). 7 There is no direct evidence of what the legislature intended by its decision 8 to insert the words "or by his consent" into the statute. The placement of the additional 9 words in a phrase set off by commas -- "whose trial has not been postponed upon his 10 application or by his consent" -- suggests that a defendant's consent relates to an 11 application for postponement; that is, the wording suggests that the failure to hold a trial 12 within the next term is occasioned either by a defendant's own application for a 13 postponement or by defendant's consent to an application made by someone else, 14 presumably, the state. 15 That suggestion is consistent with the meaning of the noun "consent" as it 16 most likely would have been understood at the time. Webster's defined consent as 17 "Agreement of the mind to what is proposed or stated by another ; 18 accord ; hence, a yielding of the mind or will to that which is proposed[.] 19 "We generally use this word in cases where power, rights and claims 20 are concerned. We give consent, when we yield that which we have a right 21 to withhold[.] * * * Consent often amounts to permission." 22 Noah Webster, 1 An American Dictionary of the English Language (1828) (reprint 1970) 23 (emphasis in original). "Consent" is thus generally part of a bilateral sequence of events 24 in which there is a response "to what is proposed or stated by another." Id. Bouvier's 25 10 dictionary similarly defined "consent" as "[a]n agreement to something proposed, and 1 differs from assent." John Bouvier, 1 A Law Dictionary Adapted to the Constitution and 2 Laws of the United States of America 277 (9th ed 1860). Again, the definition refers to 3 consent as a response to a proposal. In the context of the original version of ORS 4 135.747, the only relevant proposal to which a defendant would consent would be an 5 application for a postponement filed by the state. 6 That reading of the statute is consistent with other, related provisions. Also 7 part of the original Deady Code were statutes detailing the procedure for obtaining a 8 postponement of trial. What is now ORS 136.070 provided: 9 "When an indictment is at issue upon a question of fact, and before 10 the same is called for trial, the court may, upon sufficient cause shown by 11 the affidavit of the defendant, or the statement of the district attorney, direct 12 the trial to be postponed to another day in the same term or to another 13 term[.]" 14 General Laws of Oregon, Crim Code, ch XIV, § 145, p 465 (Deady 1845-1864). 15 Correspondingly, what is now ORS 136.080 provided: 16 "When an application is made for the postponement of a trial, the 17 court may, in its discretion and in the furtherance of justice, require as a 18 condition precedent to granting the same, that the party applying therefor 19 consent that the deposition of a witness or witnesses may be taken and read 20 on the trial of the case, and unless such consent be given, may refuse to 21 allow such postponement for any cause." 22 General Laws of Oregon, Crim Code, ch XIV, § 146, p 465 (Deady 1845-1864). 23 Consistently with what we have suggested is most likely the intended meaning of ORS 24 135.747, those two statutes contemplate either the state or the defendant making "an 25 application" for the proceedings to be "postponed" to "another term." In that context, it 26 11 becomes likely that, when the legislature referred to a defendant's "consent" in ORS 1 135.747, it meant consent to an application for postponement filed by the state. 2 That reading of ORS 135.747 appears to be borne out by the case law 3 construing it. From early on, this court's cases refer to "consent" in reference to a 4 defendant's express agreement to a state's application for a postponement, while other 5 considerations such as a defendant's failure to appear are taken into account in 6 determining whether there was "good cause" for the failure to bring a case to trial in the 7 time required. In treating failure to appear in that fashion, the Oregon cases aligned with 8 case law construing the statutes on which the Oregon law was based. See, e.g., The State 9 of Iowa v. Arthur, 21 Iowa 322, 324 (1866) (holding that the court had "no doubt" that 10 "good cause" was shown to justify delays that resulted from the defendant's failure to 11 appear). 12 In State v. Moss, 92 Or 449, 460-61, 181 P 347 (1919), for example, the 13 court drew a distinction between delays occasioned "with the express consent and 14 approval of the defendant" and those caused when defendant "absented himself from 15 court and stayed away." Similarly, in State v. Swain, 147 Or 207, 211, 31 P2d 745, on 16 reh'g, 32 P2d 773 (1934), the defendant was charged by information with the unlawful 17 sale of securities. He was shortly after extradited to California, where he was charged 18 and convicted of other offenses. Id. After completing his sentence in California, he 19 simply remained there for over a year before returning to Oregon, where he was promptly 20 arrested and tried on the pending charge. He moved to dismiss the charges on statutory 21 speedy trial grounds. The trial court found that the defendant's failure to return to the 22 12 state apparently for the purpose of avoiding prosecution amounted to good cause for the 1 delay in bringing the case to trial. Id. at 213-14. This court affirmed, explaining that 2 "[d]elays, due to the defendant's fault, as, for instance, his absence from the state in order 3 to escape trial, afford no basis for dismissal of the charge" under the speedy trial statute. 4 Id. at 214. The court did not mention the subject of consent. 5 In contrast, in State v. Chadwick, 150 Or 645, 650, 47 P2d 232 (1935), the 6 court directly addressed the meaning of the reference to "consent" in the speedy trial 7 statute, and concluded that it referred to express agreement to a proposed postponement. 8 In that case, the defendant was indicted but not tried until four terms of court had passed. 9 Id. at 647. Two terms passed because of the defendant's own motions for continuances. 10 Id. The other two terms, however, passed without a motion "for continuance nor did the 11 defendant expressly consent to a continuance at that time." Id. The trial court held that, 12 during those two terms, the defendant had given "tacit consent" to the delays because he 13 had not objected to them. Id. at 650. This court rejected the trial court's reasoning, 14 explaining that, "where the statute refers to the consent of defendant, it means his express 15 consent." Id. To similar effect is State of Oregon v. Kuhnhausen, 201 Or 478, 494, 266 16 P2d 698, on reh'g, 272 P2d 225 (1954), in which this court explained that, "[w]hen 17 'consent' of a defendant to a continuance for trial is claimed, an express consent, as 18 distinguished from an implied consent, must be shown." 19 By the mid-twentieth century, trial courts no longer sat in limited terms 20 and, instead, operated continuously. In response to that development in court 21 administration, in 1959, the legislature amended the speedy trial statute to eliminate the 22 13 requirement that a defendant be brought to trial "at the next term of the court" unless 1 "good cause" is shown and substituted the requirement that trial occur "within a 2 reasonable period of time." Nothing in the text or the legislative history of those 3 amendments suggests that the legislature intended to alter the substance of the speedy 4 trial guarantee. See generally State v. Johnson, 339 Or 69, 80-81 & n 7, 116 P3d 879 5 (2005) ("[T]he legislature's clear overall purpose in enacting the [1959] amendments was 6 to remove references to term-based scheduling. There is no hint anywhere in the statute 7 that the legislature had any other purpose in mind."). 8 Consistently with that reading of the 1959 amendments, this court's more 9 recent cases have continued to interpret the reference to a defendant's "consent" under 10 ORS 135.747 as the pre-amendment cases had done; that is, the court has continued to 11 conclude that the statute requires express consent to a request for a postponement. State 12 v. Adams, 339 Or 104, 116 P3d 898 (2005), is exemplary. In that case, the state argued 13 that the defendant had consented to the state's request for a five-month postponement by 14 not objecting to the state's request. Id. at 109. Indeed, in Adams, the state advanced 15 precisely the same argument that it puts forth in this case, namely, that "a defendant who 16 fails to appear, fails to object to delay, and objects to acceleration of his trial date, 17 implicitly consents to delay" under ORS 135.747. Brief on the Merits of Petitioner on 18 Review at 23, Adams, 339 Or 104 (S51598). The court, citing Chadwick, rejected that 19 argument, explaining: 20 "Before this court, the state continues to press its theory that, for 21 purposes of ORS 135.747, 'consent' includes a mere failure to object. This 22 court's cases are, however, contrary to that position. See, e.g., State v. 23 14 Chadwick, 150 Or 645, 650, 47 P2d 232 (1935) ("where the statute refers to 1 the consent of defendant, it means his express consent"). 2 "* * * In cases like the present one, a lack of objection is just (and 3 only) that: a lack of objection. It conveys no message that the defendant 4 either joins in the motion or waives any rights that he has that are affected 5 by the motion. * * * [A] recital by the state that defense counsel has 'no 6 objection' is insufficient to place a defendant's express consent on the 7 record, as Chadwick requires." 8 Adams, 339 Or at 109. 9 In this case, the state reprises its contention from Adams that "consent" to 10 postponement under ORS 135.747 should not be limited to express consent in response to 11 a request for postponement and, instead, should be understood to embrace implicit 12 consent to delays on the basis of a defendant's conduct, such as a failure to appear. In 13 support, the state marshals two arguments not advanced in Adams, one based on what it 14 suggests is the ordinary meaning of the statute's terms and the other based on this court's 15 prior cases. 16 The state's textual argument is that the ordinary meaning of the term 17 "consent," as it would have been understood in 1864, embraces implied consent based on 18 a person's conduct. The state relies on Samuel Johnson's 1765 dictionary, which defines 19 the verb "consent" to mean, among other things, "to allow." Samuel Johnson, 1 A 20 Dictionary of the English Language (3d ed 1765). The state then notes that Johnson 21 defines the verb "allow" to mean, among other things, "to permit." Id. Because one may 22 "permit" either expressly or implicitly, the state reasons, it follows that consent under the 23 speedy trial statute may be inferred by conduct such as failing to appear at a hearing. 24 We are not persuaded. Assuming for the sake of argument the relevance of 25 15 a mid-eighteenth century dictionary of British English, the fact is that the state ignores 1 the definitions of the noun "consent" that is used in ORS 135.747 and instead focuses on 2 definitions of the verb term of the word "consent." As we explained in State v. Bray, 342 3 Or 711, 719 n 6, 160 P3d 983 (2007), when consulting dictionaries for the ordinary 4 meanings of statutory terms, it is important to examine the definition of the part of speech 5 actually used in the statute at issue. Moreover, the state is unduly selective in list of 6 definitions. Johnson, for example, defined "consent" to mean not just "to allow," but also 7 "to agree," which he then defined to mean, among other things, "to grant; to yield to," 8 which -- necessarily entailing a proposition to which another grants or yields -- is more in 9 keeping with the interpretation that this court has employed. Johnson, 1 A Dictionary of 10 the English Language. But most important, statutes are not interpreted by culling 11 dictionaries for favorable definitions. As we recently explained in State v. Cloutier, 351 12 Or 68, 96, ___ P3d ___ (2011), "[i]n construing statutes, we do not simply consult 13 dictionaries and interpret words in a vacuum. Dictionaries, after all, do not tell us what 14 words mean, only what words can mean, depending on their context and the particular 15 manner in which they are used." (Emphasis in original.) 16 In the alternative, the state suggests that, at least by 1959, when the 17 legislature amended ORS 135.747, "consent" would have been understood to embrace 18 both express and implied acquiescence. In support of that contention, the state 19 principally relies on the Oxford English Dictionary, the 1933 edition of which defined the 20 term to refer to, among other things, "acquiescence in what another * * * desires." 2 The 21 Oxford English Dictionary 851 (James A. H. Murray et al eds., 1933). The state then 22 16 notes that the same dictionary defines the term "acquiescence" to include "silent or 1 passive assent to, or compliance with, * * * measures." 1 The Oxford English Dictionary 2 at 85. 3 Again, the state's textual argument is not persuasive. To begin with, the 4 1959 legislature's intentions are not controlling. As we have noted, it was the 1864 5 legislature that introduced the phrasing at issue in this case, and the 1959 amendments 6 did not alter that phrasing. Cf. Mastriano v. Board of Parole, 342 Or 684, 693-96, 159 7 P3d 1151 (2007) (stating that, when amendments to a statute worked no change to 8 wording at issue, legislative views about the portions not amended are not pertinent). 9 Indeed, as this court explained in Johnson, those 1959 amendments were intended only to 10 eliminate references to term-based scheduling. 339 Or at 80-81. 11 Aside from that -- and, again, assuming the relevance of a dictionary of 12 British usage as evidence of what the Oregon legislature most likely intended -- the fact 13 is that there is more to the definitions than what the state quotes. The state omits from its 14 quotations of the definitions of "consent" and "acquiescence" important qualifiers, 15 substituting ellipses in their place. The definition of "consent" actually is "voluntary 16 agreement to or acquiescence in what another proposes or desires; compliance, 17 concurrence, permission." 2 The Oxford English Dictionary at 851 (emphasis added). 18 Similarly, the definition of "acquiescence" is "silent or passive assent to, or compliance 19 with, proposals or measures." 1 The Oxford English Dictionary at 85 (emphasis added). 20 Thus, even assuming that "consent" could be understood to include implicit 21 acquiescence, it refers to such acquiescence to something that someone else proposes or 22 17 desires. In the context of ORS 135.747, then, consent would refer to acquiescence in 1 what another party -- the state -- has requested; that is, a postponement. 2 The state also claims support from three of this court's decisions: State v. 3 Crosby, 217 Or 393, 342 P2d 831 (1959); State v. Robinson, 217 Or 612, 343 P2d 886 4 (1959); and State v. Jackson, 228 Or 371, 365 P2d 294 (1961). The state reads those 5 decisions to embody the broad proposition that -- notwithstanding the holdings in 6 Chadwick, Kuhnhausen, and Adams to the contrary -- "consent" under ORS 135.747 does 7 not necessarily require express consent to a requested delay. To the contrary, the state 8 contends, those later cases show that a defendant may implicitly consent to delays that 9 necessarily result from his or her conduct, such as failing to appear at a scheduled 10 hearing. As a result, the state concludes, Chadwick, Kuhnhausen, and Adams should be 11 confined to their particular facts, if not overruled. 12 There is, we must acknowledge, wording in at least one of the three cases 13 that is not entirely consistent with the definition of "consent" that this court adopted in 14 Chadwick and later cases. Even so, none of the cases on which the state relies can fairly 15 be read to stand for the broader proposition that it claims from them. 16 In Crosby, the defendant filed a demurrer, which the trial court then 17 delayed 10 terms of court to decide. 217 Or at 395-96. When the trial court overruled 18 the demurrer and set the case for trial, the defendant moved to dismiss under the speedy 19 trial statute. The trial court denied the motion, and this court reversed. The court 20 explained that, by filing the demurrer, "the defendant, in effect, consented to a 21 postponement." Id. at 404. The court hastened to add that not all of the delay that 22 18 followed the filing of the motion could be attributed to the defendant and then concluded 1 that, under the circumstances, 10 terms was unreasonable. Id. at 405. 2 The court's use of the term "consent" is not precisely consistent with what it 3 had held in Chadwick, that is, express consent to a requested postponement. It is clear, 4 however, that the court did not believe that it was retreating from its earlier holding in 5 Chadwick. The court, in fact, mentioned Chadwick and discussed it. Crosby, 217 Or at 6 397-99. The court said nothing about "consent" under the speedy trial statute referring to 7 a defendant's agreement to delays implicit in the defendant's conduct. It merely stated 8 that, when a defendant expressly asks the court to rule on a motion that necessarily entails 9 some delay, that express request is, "in effect," express consent to that delay. Id. at 404. 10 What the court likely meant was that filing a motion that necessarily entails delay is, "in 11 effect," a request for postponement for a reasonable period of time to rule on the motion. 12 But, at all events, the decision cannot fairly be read to stand for the broad proposition that 13 consent may embrace acquiescence to an open-ended postponement implied from a 14 defendant's conduct. 15 Robinson also involved a defendant who filed a demurrer against the 16 indictment, resulting in the trial's postponement until the following term of court. 217 Or 17 at 620. The defendant argued that the indictment should have been dismissed on 18 statutory speedy trial grounds. This court disagreed, noting that, by expressly asking the 19 court to stop proceedings to consider and rule on his motion, "[t]he delay thus created 20 falls within the term of [ORS 135.747] which is, 'has not been postponed upon his 21 application or by his consent.'" Id. at 623-24. Thus, Robinson could be read to suggest 22 19 that, by requesting the court to rule on the demurrer, defendant, in effect, applied for a 1 postponement for a reasonable period of time to rule on the motion. Or, it could be read 2 to mean, as the court suggested in Crosby, that the filing of the demurrer amounted to 3 express consent to such a delay. Either way, however, the decision cannot fairly be read 4 to have retreated from Chadwick and announced in its place an interpretation of the 5 speedy trial statute that recognized that consent to delays could be implied from his or her 6 conduct. 7 Jackson did not involve the issue of consent at all. In that case, the 8 defendant's repeated requests for new counsel resulted in significant delays in setting the 9 case for trial. 228 Or at 378-81. When he moved to dismiss on statutory speedy trial 10 grounds, the trial court denied the motion, and this court affirmed. Id. at 375-76. The 11 court explained that the controlling question was whether the delay in bringing the 12 defendant to trial was "reasonable" within the meaning of the speedy trial statute. Id. at 13 377. "[T]he question of reasonable time," the court stated, "cannot be determined without 14 inquiring into the question whether there was good cause for delay." Id. In response to 15 that question, the court said that the delay was substantially a product of the defendant's 16 own repeated requests for the appointment of new counsel; that, the court concluded, 17 amounted to good cause for the delays. Id. at 381. Jackson thus provides no support for 18 the state's suggestion that a defendant's conduct may give rise to an inference that the 19 defendant consented to any delay that was a product of that conduct. Under Jackson, 20 such conduct is simply taken into account in determining whether there was good cause 21 for the delay. 22 20 In asserting the contrary, the state characterizes Jackson as stating that 1 whether the delay resulting from the defendant's conduct "was 'reasonable' was 'not the 2 question.'" What Jackson actually said, however, was that whether the delay that resulted 3 from the defendant's requests "would be considered a reasonable time under other 4 circumstances than those which the record discloses is not the question," which is an 5 entirely different point. 228 Or at 378 (emphasis added). 6 In summary, based on the text, context, and historical origins of ORS 7 135.747, we hold that a defendant gives "consent" to a delay only when the defendant 8 expressly agrees to a postponement requested by the state or the court. Returning to the 9 facts of this case, it is clear that the delays at issue were not a product of postponements 10 that defendants requested or postponements that the state or the court requested and to 11 which defendants agreed. That conclusion, however, is not the end of the matter. Even 12 if, as in this case, defendants did not apply for or consent to the delays in question, 13 dismissal is required only if the state fails to bring defendants to trial "within a reasonable 14 period of time." ORS 135.747. 15 B. Reasonableness of Delay 16 We turn to the question whether the delays in bringing defendants to trial in 17 the cases before us were reasonable within the meaning of ORS 135.747. In Johnson, 18 this court explained that whether a time period is "reasonable" under that statute requires 19 an examination of "all the attendant circumstances" of the delay. 339 Or at 88. In 20 particular, "the circumstances that cause the delay generally will determine whether the 21 delay (and thus, the overall time period for bringing the defendant to trial) is reasonable." 22 21 Id. (emphasis added). We review the question whether the delay in bringing a defendant 1 to trial was "reasonable" within the meaning of ORS 135.747 as a matter of law. Id. at 2 87. 3 As our previous discussion of the case law makes clear, from very early on, 4 this court has concluded that delays occasioned by a defendant's failure to appear 5 constitute good cause for the delays. See, e.g., State v. Thompson, 240 Or 468, 470, 402 6 P2d 243 (1965) (because the defendant "was continuously absent from the state," his 7 argument that he was denied a speedy trial due to the resulting delay was "without 8 merit"); Swain, 147 Or at 214-15 ("Delays, due to the defendant's fault, as, for instance, 9 his absence from the state in order to escape trial, afford no basis for dismissal of the 10 charge [under the speedy trial statute.]"); Moss, 92 Or at 460-61 (dismissal not required 11 when the defendant "absented himself from court and stayed away for the remainder of 12 the term"). 13 In this case, there is no question but that both defendants caused the delays 14 in bringing their cases to trial by their failures to appear. Both had notice that they were 15 legally obligated to appear. Moreover, both were informed -- defendant Glushko in the 16 order requiring personal appearance and defendant Little in his release agreement -- that 17 failure to appear would result in a warrant for their arrest being issued. With knowledge 18 of the legal requirement to appear and the consequences that would result from failure to 19 appear, both defendants did not attend their respective hearings. As a result of their 20 failures to appear, the state suspended the prosecutions, the court issued warrants for their 21 arrest, and the cases were not tried until more than eight years later. 22 22 Defendants assert that, notwithstanding their failures to appear, the delays 1 in their cases were unreasonable because the state could have made a greater effort to 2 locate them and return them to custody. Specifically, defendant Glushko asserts that, 3 because he was on probation for two other charges for at least six months after he failed 4 to appear at the hearing, the state easily could have executed the warrant for his arrest, 5 because he was still in the "constructive custody" of the state. Defendant Little, for his 6 part, argues that the state could have tracked him down by using the contact information 7 he provided on his release agreement or, a few years later, when he applied for and 8 received an Oregon identification card. 9 The fact that the state may or may not have been able to take additional 10 steps to track down defendants is not the point when, as in this case, defendants were 11 entirely in control of the amount of delay that followed their failures to appear. Cf. 12 Johnson, 339 Or at 88-89 (state-caused delay, such as resource deficiencies and trial 13 court scheduling decisions, is relevant to reasonableness analysis under ORS 135.747). 14 Both knew about their obligations to appear, as we have noted, and both knew that failing 15 to do so would result in the issuance of warrants for their arrests. Both were well aware 16 of the fact that their failures to appear delayed the prosecution of the cases against them. 17 As this court explained in Jackson, a court is not required to dismiss a case when a 18 defendant, "by his conduct bring[s] about the very delay in the prosecution of a criminal 19 case which he afterwards claims to be a violation of his right to a speedy trial." 228 Or at 20 381. 21 In summary, we conclude that, although defendants did not consent to the 22 23 delays that occurred in each of their cases as a result of their failures to appear, the delays 1 were nonetheless reasonable. The trial court therefore did not err in denying defendants' 2 motions to dismiss on statutory speedy trial grounds. 3 The decisions of the Court of Appeals and the judgments of the circuit 4 courts are affirmed. 5

3587f93a677bd4b6ffd97d667ae8d349c41e032f9b3ff4388311ec49623f2dc8

2011-11-10T00:00:00Z

981c90fb-657b-4fe4-aaef-21f28cc69342

Oregon v. Cazares-Mendez

S058554, S058406

oregon

Oregon Supreme Court

1 Filed: July 8, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. JOSE GUADALUPE CAZARES-MENDEZ, aka Leonardo Cruz-Casarez, Respondent on Review. (CC C052532CR; CA A136094; SC S058406 (Control)) ________________________________________________________________ STATE OF OREGON, Petitioner on Review, v. JORGE REYES-SANCHEZ, Respondent on Review. (CC C052531CR; CA A136062; SC S058554) (Consolidated for argument and opinion) En Banc On review from the Court of Appeals.* Argued and submitted January 13, 2011. Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Daniel J. Casey, Portland, argued the cause and filed the briefs for respondent on review Jose Guadalupe Cazares-Mendez. 2 Robin A. Jones, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review Jorge Reyes-Sanchez. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. BALMER, J. The decisions of the Court of Appeals are affirmed. The judgments of the circuit court in State v. Cazares-Mendez, case no. C052532CR, and in State v. Reyes-Sanchez, case no. C052531CR, are reversed, and the matters are remanded to the circuit court for further proceedings. *Appeals from Washington County Circuit Court, Mark Gardner, Judge. 233 Or App 310, 227 P3d 172 (2010); 234 Or App 102, 227 P3d 1217 (2010). 3 BALMER, J. 1 Defendants José Guadalupe Cazares-Mendez and Jorge Reyes-Sanchez 2 were convicted of aggravated murder in the death of Jessie Valero. During their separate 3 trials, the court refused to allow them to present hearsay evidence from four different 4 witnesses that another person, Tiffany Scherer, had stated that she had committed the 5 murder. The Court of Appeals held that the trial court had erred in excluding the hearsay 6 testimony. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010); State v. 7 Reyes-Sanchez, 234 Or App 102, 227 P3d 1217 (2010). This court allowed the state's 8 petitions for review. On review, we agree with the Court of Appeals and remand both 9 cases for a new trial. 10 FACTUAL BACKGROUND 11 As noted, defendants were tried separately before different juries, although 12 the same trial judge presided over both cases. For that reason, we describe the evidence 13 that was introduced in both trials; we generally omit details that are not common to both 14 cases. Some of those details were favorable to the defense, while other details were 15 favorable to the state.1 Most of those details are minor, however, and they do not affect 16 1 For example, during the Reyes-Sanchez trial, defendant elicited that one witness to the hearsay statements, Jessica Callahan, had multiple prior convictions for the manufacture, distribution, and possession of methamphetamine. Those prior convictions were not brought out during the Cazares-Mendez trial. On the other hand, Callahan was questioned during the Reyes-Sanchez trial about Scherer's state when she described stabbing an unidentified woman. Callahan testified that Scherer was "excited" and that she had a "scary," "psycho" look. No similar testimony was presented in the Cazares- Mendez trial. 4 our final disposition of the case. In presenting an overview of the crime, we will set out 1 the evidence in the light most favorable to the state, because it was the prevailing party 2 before the jury in each case. See State v. Thoma, 313 Or 268, 270, 834 P2d 1020 (1992) 3 (stating standard). 4 The victim, Jessie Valero, was found dead in her Hillsboro apartment on 5 the morning of March 17, 2005. She had died from approximately 29 stab wounds. The 6 apartment contained a red bicycle that Valero did not own, and the contents of her 7 jewelry box had been emptied on the bed. 8 A key element in the cases against both defendants was the testimony of a 9 third defendant, José Lugardo-Madero, who was himself facing murder charges for 10 Valero's death. He testified that on March 15, 2005, he and both defendants had 11 unsuccessfully attempted to get methamphetamine. Later, he went with both defendants 12 to Valero's apartment complex. Defendants intended to break into Valero's apartment 13 and steal her jewelry. Defendant Reyes-Sanchez had with him the red bicycle later found 14 in the victim's apartment. Lugardo-Madero refused to go into the apartment and waited 15 outside. After a while, Lugardo-Madero approached the apartment, heard noises, and 16 fled. 17 Roughly two hours later, defendant Cazares-Mendez arrived at the 18 apartment where Lugardo-Madero was staying. He went in the bathroom, washed his 19 clothes, and bathed. Approximately two hours after that, defendant Reyes-Sanchez 20 arrived. Both defendants then left. 21 Lugardo-Madero testified that he saw defendant Cazares-Mendez roughly a 22 5 week later. Cazares-Mendez admitted that he and Reyes-Sanchez had murdered Valero. 1 He threatened to kill Lugardo-Madero if he told anyone. 2 Both Reyes-Sanchez and Cazares-Mendez later were indicted for two 3 counts of aggravated murder, three counts of murder, one count of first-degree robbery, 4 and one count of first-degree burglary. Reyes-Sanchez was tried first, beginning in 5 January 2007. Cazares-Mendez was tried shortly afterward, beginning in late February 6 2007. 7 During their respective trials, both defendants attempted to offer evidence 8 that another person, Tiffany Scherer, had confessed to the crime. Specifically, they 9 offered testimony that Scherer had admitted committing the murder to four different 10 witnesses on four separate occasions. Because the testimony was hearsay, both 11 defendants attempted to introduce the evidence under exceptions to the hearsay rule. 12 Defendant Cazares-Mendez sought to introduce the evidence under the "statement against 13 penal interest" exception, OEC 804(3)(c). Defendant Reyes-Sanchez sought to introduce 14 the evidence under the residual hearsay exception of OEC 803(28)(a). (We quote both of 15 those hearsay exceptions and discuss them in detail below.) What follows is a summary 16 of the testimony of the four witnesses as presented through defendants' offers of proof. 17 Connie Torres had known Scherer for five years and considered her a 18 friend; she also had known Scherer's mother for 10-15 years. Torres also had known 19 Valero. Approximately one week after Valero's death had been reported in the news, 20 Torres found Scherer sitting under a friend's truck (the truck had a very high clearance), 21 listening to music and rocking back and forth, "acting like a little kid." Torres coaxed 22 6 Scherer out, at which point Scherer broke down and confessed that she had stabbed a 1 woman, although Scherer did not identify the person she had stabbed. Scherer stated that 2 she and the woman had been arguing and then started fighting, at which point Scherer 3 stabbed her. Scherer said that, once she started stabbing her, "she couldn't stop." 4 Afterward, Scherer stated, she had attempted to make it look like a burglary. 5 Torres did not tell the police or defense investigators about Scherer's 6 statements until January 2007. Torres admitted being an acquaintance of defendant 7 Reyes-Sanchez, but there is no evidence in the record that she knew defendant Cazares- 8 Mendez. Torres previously has been convicted of forgery. Both she and Scherer used 9 methamphetamine, but Torres denied that they were using it when Scherer told her about 10 the killing. 11 Naomi Rivera was a friend of both Scherer and defendant Cazares-Mendez. 12 She was also an "acquaintance" of defendant Reyes-Sanchez. Rivera and Scherer 13 sometimes used methamphetamine together. At some point after Rivera learned that 14 Valero had been killed, Scherer told Rivera that she had stabbed a "bitch" who had been 15 "coming at" Scherer.2 Scherer did not name the woman who had been stabbed. Both 16 Scherer and Rivera were using methamphetamine at the time that Scherer made the 17 statements. There was a significant delay before Rivera reported the conversation to 18 anyone. 19 2 In the Cazares-Mendez trial only, Rivera asserted that Scherer had stated that "she stabbed her over and over again." 7 Jessica Callahan was using methamphetamine when she met Scherer 1 sometime around March 2005. Callahan did not know either Valero or defendant Reyes- 2 Sanchez; the record is silent as to whether she had any connection with defendant 3 Cazares-Mendez. When they met in March, Callahan testified, Scherer stated that she 4 was hiding from the police because she had stabbed a lady after the lady had "jumped" 5 her. Scherer made stabbing motions when she described this. Scherer gave no further 6 details about who was stabbed, when, or where. Callahan did not connect the incident 7 with Valero's murder until others had said that Scherer had stabbed the victim. Callahan 8 also delayed a substantial time before disclosing the statements to investigators, first 9 doing so around November 2006. 10 Lisa Ann Smith had known Scherer for all of Scherer's life; she also had 11 known Scherer's mother for years. Smith described Scherer as being like family to her, 12 and said that Scherer called Smith her "Aunt Lisa." Smith did not know defendant 13 Reyes-Sanchez; the record is silent as to whether she knew defendant Cazares-Mendez. 14 Smith did not know Valero, but she learned of her death in the newspaper. 15 A couple of months afterward, on hearing rumors that Scherer had been involved in 16 causing the victim's death, Smith asked Scherer if she had killed Valero. Scherer stated 17 that she had been at a bar with Valero and that she and Valero went back to Valero's 18 place. Scherer indicated that she had stabbed Valero about 22 times. Scherer also told 19 8 Smith that she had later sent someone back to rob the place.3 1 One particular point of Smith's testimony is worth emphasizing. She 2 testified that Scherer had described Valero as having a seizure during the stabbing. 3 Defense counsel offered evidence that Valero had epilepsy. 4 In both cases, the testimony of all four witnesses -- Torres, Rivera, 5 Callahan, and Smith -- was not necessarily clear as to exactly when the witnesses gave 6 the information to investigators or the police (except as already noted). Nevertheless, 7 neither defendant appears to dispute that none of the four witnesses contacted police or 8 investigators promptly, and a substantial amount of time elapsed before they revealed 9 Scherer's statements. 10 Scherer testified in both trials in connection with defendants' offers of 11 proof. She admitted that she was using methamphetamine during the period when the 12 crime occurred. She also admitted knowing Torres, Rivera, and Smith. She denied 13 knowing Callahan or Valero. She denied stabbing Valero, and she denied telling any of 14 the witnesses that she had stabbed Valero. 15 3 Although Smith testified in the second trial less than two months after she testified in the first, her memory became dramatically worse for the later trial. During the Reyes-Sanchez trial, Smith directly referred only once to problems with remembering things. During the Cazares-Mendez trial, however, Smith repeatedly stated that she was having difficulty remembering what had happened ("I'm having a hard time remembering everything right now"; "My mind is not real clear right now"; "I'm having a really hard time right now [remembering]"). She attributed this variously to "a bunch of traumatic things [that] happen[ed] with one of my kids" and "some counseling that's bringing up a lot of stuff in my life." Defense counsel had to refresh Smith's recollection with an investigator's report that related to her prior statements. 9 During the Cazares-Mendez trial only, defendant offered additional 1 testimony from two other witnesses. First, Benilde Torres testified that, within two days 2 of hearing about Valero's death, she saw Scherer with an inch-long scratch on the right 3 side of her neck. Scherer claimed that it was a hickey,4 but it did not look like a hickey to 4 Torres. Second, Detective Patrick Brady testified that Hillsboro had no other murders in 5 March 2005 that involved a female victim stabbed multiple times. 6 The trial court refused to allow either defendant to put on the hearsay 7 testimony that Scherer had admitted killing Valero. We will consider the trial court 8 rulings out of chronological order, because the court's ruling in Cazares-Mendez provides 9 useful context to understand its earlier ruling in Reyes-Sanchez. 10 As mentioned, defendant Cazares-Mendez contended that the witnesses' 11 testimony as to the statements by Scherer met almost all of the requirements of the 12 "statement against penal interest" exception, OEC 804(3)(c). That rule provides, in part: 13 "The following are not excluded by ORS 40.455 [OEC 802, 14 generally excluding hearsay] if the declarant is unavailable as a witness: 15 "* * * * * 16 "(c) A statement which * * * at the time of its making * * * so far 17 tended to subject the declarant to civil or criminal liability, * * * that a 18 reasonable person in the declarant’s position would not have made the 19 statement unless the person believed it to be true. A statement tending to 20 expose the declarant to criminal liability and offered to exculpate the 21 accused is not admissible unless corroborating circumstances clearly 22 indicate the trustworthiness of the statement." 23 4 A "hickey" is "a temporary red mark on the skin (as one produced by biting and sucking)." Merriam-Webster's Collegiate Dictionary 546 (10th ed 1993). 10 Cazares-Mendez asserted that there were corroborating circumstances that clearly 1 indicated the trustworthiness of the witnesses' testimony: Scherer had confessed to four 2 separate witnesses that she had murdered a woman by stabbing her, to one witness that 3 Valero was the victim, and to two witnesses that she had sent someone back to steal from 4 the crime scene. Defendant admitted that one requirement of OEC 804(3)(c) was not 5 met, because the declarant, Scherer, was available to testify as a witness (and had done 6 so). Defendant asserted, however, that the Due Process Clause of the Fourteenth 7 Amendment to the United States Constitution superseded the unavailability requirement, 8 because it was an "artificial" restriction that was not rational under the circumstances. 9 See Chambers v. Mississippi, 410 US 284, 93 S Ct 1038, 35 L Ed 2d 297 (1973) 10 (violation of due process to use state evidentiary rule to exclude hearsay testimony that 11 another person had admitted committing the crime, when there was considerable 12 evidence of reliability of statements). The state countered that, in any event, the 13 proffered evidence lacked the required trustworthiness. 14 The trial court agreed with the state, concluding that the "corroborating 15 circumstances" did not clearly indicate the trustworthiness of the statements attributed to 16 Scherer. The court stated: 17 "Well, first taking the Tiffany Scherer evidence. They don't meet the 18 evidence code requirement for statements against penal interest. * * * 19 [W]here she basically says that she killed someone or stabbed someone, 20 that would be a crime. But it's not clear that it's Jessie Valero that she's 21 talking about. And, you know, Tiffany Scherer is not unavailable. And 22 there's a reason for the rules of unavailability in terms of a threshold for 23 admissibility. 24 "Secondly, the only two facts, independent facts, that have been 25 11 brought out in this trial that would even potentially be corroborative of, you 1 know, the fact that this, in fact, occurred were the statements of Anita 2 Valero [sic] that her mother basically suffered from epilepsy, and in one of 3 the statements that Tiffany Scherer is alleged to have made, there is 4 reference to someone going into a seizure. 5 "* * * * * 6 "* * * Benilde Torres indicated that some period of time around the 7 time of the murder, might have been three or four, maybe even five days 8 later, she saw something that appeared to be a scratch on Tiffany Scherer's 9 neck, and Tiffany Scherer said that it wasn't a scratch. It was a hickey. 10 And she didn't think that it was. That's the sum total of corroboration that's 11 outside of the other statements. 12 "You know, except for, I guess, the negative that nobody else -- no 13 other woman was stabbed, which really doesn't indicate necessarily the 14 truth of the statement that somebody was stabbed. And for those reasons 15 the offer of proof is not allowed on that point." 16 In his trial, defendant Reyes-Sanchez asserted that the testimony should be 17 admitted under the residual hearsay exception, OEC 803(28). That rule provides, in part: 18 "The following are not excluded by ORS 40.455 [OEC 802], even 19 though the declarant is available as a witness: 20 "* * * * * 21 "(28)(a) A statement not specifically covered by any of the foregoing 22 exceptions but having equivalent circumstantial guarantees of 23 trustworthiness, if the court determines that: 24 "(A) The statement is relevant; 25 "(B) The statement is more probative on the point for which it is 26 offered than any other evidence that the proponent can procure through 27 reasonable efforts; and 28 "(C) The general purposes of the Oregon Evidence Code and the 29 interests of justice will best be served by admission of the statement into 30 evidence." 31 Defendant Reyes-Sanchez argued that the testimony about Scherer's statements was 32 12 relevant and more probative than anything else he could procure through reasonable 1 efforts, and that admitting the testimony would serve the general purposes of the Oregon 2 Evidence Code and the interests of justice. Furthermore, defendant contended that the 3 testimony of the witnesses contained the required circumstantial guarantees of 4 trustworthiness. As in Cazares-Mendez, and largely for the same reasons, the state 5 asserted that the testimony lacked the required circumstantial guarantees of 6 trustworthiness. 7 Again, the trial court agreed with the state. The court began by noting that 8 the testimony did not meet the requirements of the statement against penal interest 9 exception, OEC 804(3)(c), because Scherer was available. The court then elaborated on 10 its conclusion that the "statement against penal interest" exception did not apply, building 11 from there to the conclusion that the residual hearsay exception did not apply either: 12 "[E]ven if Tiffany Scherer were unavailable, the first two witnesses would 13 not have qualified as a statement against penal interest because we're not 14 even clear, in those statements, whether she's talking about Jessie Valero. 15 Jessie Valero was never identified. You know, they -- the statements were 16 made to -- in both cases, when not only was the declarant under the 17 influence, but so was the hearer of the statement, the witness who would be 18 testifying as to the declarant. 19 "And, under those circumstances, you know, it -- it wouldn't even 20 meet the -- the indicia of reliability and trustworthiness or even relevance in 21 the sense that we would be knowing that we were talking about the same 22 situation because it is possible that Tiffany Scherer stabbed somebody else, 23 some other location, some other time and she wasn't even referring to Jessie 24 Valero. 25 "So, you know, those two statements clearly, you know, under even 26 the exception against penal interest standard and certainly the residual 27 exception standard do not meet the test. It's a little bit muddier in terms of 28 the statements to Lisa Ann Smith and Connie Jo Torres * * *. 29 13 "But, you know, these statements do not have the indicia of 1 reliability such that they would qualify under [OEC 803(28)]. They -- even 2 if the statements were made, there's no trustworthiness that they're not the 3 product of Tiffany Scherer -- even if they were made, that they're not the 4 product of Tiffany Scherer's drug-induced hallucinations. Because in all 5 the situations here, she was acting in the manner that -- that basically was 6 indicative of somebody [who] was under the influence and in at least two or 7 maybe three of the occasions it's clear that that was what her state was. 8 "And there's nothing else, other than the statements, that tied her to 9 the scene or to the crime. There's no -- just as there's nothing that ties your 10 clients in terms of the forensics, there's nothing that ties her to that." 11 At the conclusion of each trial, each defendant was convicted on all counts. 12 The jury declined to impose the death penalty, and defendants each were sentenced to life 13 in prison without the possibility of parole. 14 Both defendants appealed to the Court of Appeals, which reversed in both 15 cases. The court ruled first in Cazares-Mendez. As in the trial court, defendant Cazares- 16 Mendez asserted that the testimony met all the requirements of the "statement against 17 penal interest" exception to the hearsay rule, OEC 804(3)(c), except the unavailability 18 requirement. Defendant contended, however, that it would violate due process under the 19 United States Constitution to prohibit him from presenting trustworthy evidence merely 20 because the declarant, Scherer, was available. 233 Or App at 320. 21 The Court of Appeals agreed. The court first held that the corroboration 22 requirement of OEC 804(3)(c) was "a screening device designed to frustrate fabrication 23 either by declarants seeking to falsely exculpate a criminal defendant or by witnesses 24 who, by way of hearsay, falsely ascribe inculpatory statements to purported declarants." 25 233 Or App at 325. The Court of Appeals concluded that corroborating circumstances 26 14 did clearly indicate the trustworthiness of the statements attributed to Scherer, for five 1 reasons. First, Scherer had confessed to stabbing a female victim to death on four 2 separate occasions to four different witnesses. Id. at 326. Second, neither Scherer nor 3 the witnesses had any motivation to lie; Scherer had no reason to falsely claim to have 4 killed Valero, and three of the four witnesses had no reason to falsely implicate Scherer 5 in the murder. Id. at 326-28. Third, Scherer's statements to the witnesses were 6 essentially consistent, and in some places included details that were peculiar to this 7 murder. Id. at 328-29. In particular, the court noted that Valero had been stabbed 29 8 times: Smith testified that Scherer had stated that she had stabbed the victim 22 times, 9 while both Torres and Rivera (Rivera only in the Cazares-Mendez case) described 10 Scherer as stating that she had stabbed a woman repeatedly. Id. at 328. Furthermore, 11 Valero had epilepsy, and Scherer had told Smith that Valero had had a seizure. Id. 12 Finally, the crime scene showed evidence of a burglary, and both Torres and Smith 13 reported that Scherer had stated that she had attempted to cover up the murder by making 14 it look like a burglary or robbery. Id. 15 The Court of Appeals rejected the state's arguments that other evidence 16 undermined the trustworthiness of the hearsay evidence. Among other reasons, the court 17 was unpersuaded by the fact that the witnesses and the declarant, Scherer, were all 18 methamphetamine users who, at the time of several of the statements by Scherer, were 19 under the influence when the statements were made. Id. at 330. 20 Nevertheless, although the court concluded that the testimony met the 21 trustworthiness requirement of OEC 804(3)(c), the court recognized that the rule did not 22 15 apply, because the declarant, Scherer, was available to testify. That did not end the 1 matter, however. In Chambers, the United States Supreme Court held that a state court 2 had violated a criminal defendant's due process rights when (among other things) it 3 refused to allow three witnesses to testify that another person had admitted committing 4 the crime to them. See 233 Or App at 331-33 (discussing Chambers). The Supreme 5 Court had concluded that the statements had "'considerable assurance of their reliability,'" 6 because the declarant had made them to close acquaintances near the time of the crime, 7 because the confessions were corroborated by other evidence, and because the multiple 8 confessions effectively corroborated each other. 233 Or App at 332-33 (quoting 9 Chambers, 410 US at 300). The Court of Appeals concluded that the testimony in 10 Cazares-Mendez met the requirements of Chambers, and so the trial court had erred in 11 excluding it. 233 Or App at 336. Furthermore, the Court of Appeals determined that the 12 error was not harmless. Accordingly, it reversed and remanded for a new trial. 13 In Reyes-Sanchez, the Court of Appeals wrote a briefer opinion, relying 14 significantly on its opinion in Cazares-Mendez. The court noted that defendant Reyes- 15 Sanchez had not preserved a due process argument or cited Chambers in the trial court. 16 234 Or App at 105. Nevertheless, the court concluded that the convictions should be 17 reversed because there was error apparent on the face of the record under ORAP 5.45(1) 18 (although an appellate court ordinarily will not consider unpreserved errors, "the 19 appellate court may consider an error of law apparent on the face of the record"). Not 20 only were the issues "factually and legally indistinguishable" from Cazares-Mendez, but 21 granting a new trial to Reyes-Sanchez was the only way to prevent the "fundamental 22 16 unfairness" of having him remain convicted of murdering Valero when his codefendant 1 obtained a new trial that might lead to an acquittal. 234 Or App at 105. 2 The state sought review in both cases, and we allowed both petitions. 3 OVERVIEW OF HEARSAY RULE 4 Before we turn to the particular issues in this case, it may be useful to 5 provide some background regarding the admissibility of hearsay at trial. Hearsay has 6 long been defined as an out-of-court statement offered to prove the truth of the matter 7 asserted. See 2 McCormick on Evidence § 244 (Kenneth S. Broun ed., 6th ed 2006) 8 (reviewing history of rule); id. § 246, at 129 (restating definition of hearsay in Federal 9 Rule of Evidence 801 as "an out-of-court assertion, offered to prove the truth of the 10 matter asserted"); John Henry Wigmore, 5 Evidence in Trials at Common Law § 1364 11 (James H. Chadbourn rev 1974) (reviewing history of the hearsay rule, defined as "that 12 rule which prohibits the use of a person's assertion, as equivalent to testimony to the fact 13 asserted, unless the assertor is brought to testify in the court on the stand"). That 14 common-law definition today is codified in OEC 801(3): "'Hearsay' is a statement, other 15 than one made by the declarant while testifying at the trial or hearing, offered in evidence 16 to prove the truth of the matter asserted." In general, hearsay statements are not 17 admissible. See OEC 802 ("Hearsay is not admissible except as provided in ORS 40.450 18 [OEC 801] to 40.475 [OEC 806] or as otherwise provided by law."). 19 The reason for the exclusion is that hearsay statements are generally 20 considered to be untrustworthy. Chambers, 410 US at 298 ("The hearsay rule, which has 21 long been recognized and respected by virtually every State, is based on experience and 22 17 grounded in the notion that untrustworthy evidence should not be presented to the triers 1 of fact."); Sheedy v. Stall, 255 Or 594, 596, 468 P2d 529 (1970) ("Hearsay evidence is 2 excluded because of its untrustworthiness."). Because hearsay statements, by definition, 3 have been made out of court, they lack 4 "conventional indicia of reliability: they are usually not made under oath or 5 other circumstances that impress the speaker with the solemnity of his 6 statements; the declarant's word is not subject to cross-examination; and he 7 is not available in order that his demeanor and credibility may be assessed 8 by the jury." 9 Chambers, 410 US at 298; see State v. Kendrick, 239 Or 512, 515, 398 P2d 471 (1965) 10 ("The ground for the exclusion of hearsay is that the opposing party has no opportunity to 11 confront in court the person making the statement and test his veracity and accuracy by 12 cross examination." (Citation omitted.)). 13 The rule against the admission of hearsay statements, however, is not 14 absolute, and there are a number of recognized exceptions to the rule. Those exceptions 15 generally involve a statement that is "made under circumstances calculated to give some 16 special trustworthiness to it." Kendrick, 239 Or at 515. OEC 803 and 804 list numerous 17 examples of such exceptions. 18 That emphasis on trustworthiness is directly reflected in the text of the two 19 hearsay exceptions at issue in this case. The ruled relied on by defendant Cazares- 20 Mendez, OEC 804(3)(c), permits the introduction of statements against penal interest 21 only if "corroborating circumstances clearly indicate the trustworthiness of the 22 statement." The rule relied on by defendant Reyes-Sanchez, OEC 803(28)(a), authorizes 23 the introduction of hearsay statements that do not fall within the enumerated exceptions 24 18 only if they have "equivalent circumstantial guarantees of trustworthiness" (and meet 1 other requirements). 2 TRUSTWORTHINESS AND WITNESS CREDIBILITY 3 The critical issue on review revolves around what those rules mean by 4 "trustworthiness." The state asserts that courts can and should consider the credibility of 5 the witnesses -- Torres, Rivera, Callahan, and Smith -- in determining whether the 6 hearsay statements are trustworthy. The state notes that most of those witnesses have 7 prior felony convictions, that they admitted to using methamphetamine during the period 8 at issue (in some cases even being under the influence at the time of the statements), and 9 that each witness had waited for "years" before disclosing the statements by Scherer to 10 authorities. Furthermore, Scherer testified and denied making the statements. The state 11 asserts that, as a factual matter, the trial court was entitled to conclude that the witnesses 12 were not credible and that Scherer, the declarant, was. 13 We believe, however, that the state's argument misunderstands the nature of 14 the trustworthiness at issue in hearsay cases. The relevant "trustworthiness" is not that of 15 the witnesses who testify that the statement was made; it refers to whether the statement 16 by the declarant has sufficient indicia of reliability. In considering "trustworthiness" for 17 purposes of determining whether a hearsay exception applies, the credibility of the 18 relating witnesses -- the individuals who testify as to what the declarant said -- is not the 19 issue. 20 That conclusion follows from the text of the rules themselves. OEC 21 804(3)(c) refers to the "trustworthiness of the statement," while 803(28)(a) applies to a 22 19 "statement * * * having equivalent circumstantial guarantees of trustworthiness." 1 (Emphases added.) The "statement" is the statement by the declarant, not the testimony 2 of the witness. See OEC 801(2) (defining "declarant" as "a person who makes a 3 statement"); OEC 801(3) (defining "hearsay" as a "statement * * * offered in evidence to 4 prove the truth of the matter asserted"). 5 Furthermore, this court's case law confirms that a relating witness's 6 credibility is not part of the court's determination of whether a hearsay statement is 7 trustworthy. Both before and after the adoption of the Oregon Evidence Code in 1981, 8 this court explained that the hearsay rule and its exceptions turn on the trustworthiness of 9 the declarant's statement, not the credibility of the witness to the statement. Witness 10 credibility, of course, is always critical. But just as credibility is for the jury to determine 11 when the issue is what the witness saw, so too is credibility for the jury to determine 12 when the issue is what the witness heard. As this court explained in Sheedy, a pre-OEC 13 case: 14 "Hearsay evidence is excluded because of its untrustworthiness. The 15 declarant's accuracy and veracity cannot be tested by cross-examination. It 16 is not the untrustworthiness of the testimony of the witness on the stand 17 who is asked to testify to what the declarant said that causes the exclusion 18 of hearsay testimony. The credibility of the witness can be tested by cross- 19 examination. The problem of the trustworthiness of the witness in the 20 courtroom is the same whether the witness is testifying to another's conduct 21 or to another's words. It is the untrustworthiness of the declarant's 22 statement that causes hearsay testimony to be excluded." 23 255 Or at 596-97 (citation omitted). See also State v. Mendez, 308 Or 9, 18-19, 774 P2d 24 1082 (1989) (post-OEC case quoting Sheedy to the same effect). 25 The very nature of hearsay demonstrates that the threshold 26 20 "trustworthiness" inquiry made by the court before ruling on admissibility does not 1 depend on the credibility of the testifying witness. Hearsay does not exclude all 2 testimony as to out-of-court statements, but only those statements offered to prove the 3 truth of the matter asserted. Thus, as long as the declarant's statement is not offered to 4 prove the truth of the matter asserted, a witness may testify to any out-of-court statement 5 without running afoul of the prohibition against hearsay -- even though that witness's 6 credibility remains an issue. See Sheedy, 255 Or at 597 (so noting). 7 Perhaps the best illustration of the concept that trial courts should not 8 consider the credibility of the witness in evaluating whether a hearsay statement is 9 trustworthy came in Wright v. Swann, 261 Or 440, 493 P2d 148 (1972). The plaintiff, an 10 eight-year-old girl, brought a civil action against the defendant for having struck her with 11 his car while she was in a crosswalk. The defendant asserted that the plaintiff had run 12 into the side of his car. The defendant was allowed to testify that an unidentified 13 bystander had said, in an excited utterance, "'Oh, God * * * it wasn't your fault. She 14 darted out in front of me and ran into the side of your car.'" Id. at 442. 15 In upholding the trial court's decision to allow the testimony, the court 16 recognized that allowing interested parties to offer hearsay statements from unidentified 17 witnesses "carries with it the risk of perjured testimony of statements by so-called 18 'phantom witnesses.'" Id. at 450. The court quoted Sheedy, however, for the proposition 19 that the untrustworthiness of the witness has nothing to do with whether a statement is 20 hearsay. 261 Or at 451. The court confirmed that it is for the jury to decide whether the 21 witness to the hearsay statement was credible: 22 21 "[U]nder the established rules of evidence, including the rules relating to 1 'spontaneous statements,' the risk of perjured testimony by an interested 2 party is not an independent ground for the exclusion of testimony that 3 would be admissible if given by an uninterested third party. Instead, this is 4 a matter which goes to the credibility, rather than the admissibility, of such 5 testimony. As such, it is for the jury to consider the source of such 6 testimony, among other circumstances, in deciding whether to believe the 7 testimony and the fact that it was given by an interested party does not 8 provide an independent ground upon which a trial court may properly 9 exclude such testimony from consideration by the jury." 10 Id. at 450-51. 11 If witness credibility were part of the trustworthiness of the hearsay 12 statement, then one could hardly find more compelling facts for considering it than 13 existed in Wright, where the witness was an interested party offering self-serving hearsay 14 testimony. Nevertheless, this court held that witness credibility was purely an issue for 15 the jury. As the court explained in Sheedy, unlike the declarant's statement, the witness's 16 testimony is made under oath and is subject to cross-examination.5 17 5 We add one note about legislative history that is relevant only to OEC 804(3)(c). In interpreting a statute, the parties may present legislative history to the court, and the court will give it the weight that it deems appropriate. See ORS 174.020(1)(b), (3) (so stating); State v. Gaines, 346 Or 160, 165-73, 206 P3d 1042 (2009) (analyzing ORS 174.020). In this case, none of the parties offered any legislative history. Nevertheless, our research discloses one potentially countervailing piece of legislative history applicable to OEC 804(3)(c). The commentary to that rule states: "The common law refused to concede the adequacy of penal interest in large part because it distrusted evidence of confessions by third persons offered to exculpate the accused. This reflected the suspicion that either the fact or the contents of the confession were fabricated, enhanced in either case by the required unavailability of the declarant. * * * The trial court should construe the corroboration requirement in a manner that effectuates its purpose to circumvent fabrication." 22 In light of our conclusion that, under OEC 804(3)(c) and OEC 803(28)(a), 1 trial courts are not to evaluate the credibility of the witness to the hearsay statement, we 2 necessarily reject the state's primary arguments against the introduction of the testimony 3 at issue here. Most of the state's contentions are irrelevant for purposes of determining 4 whether the evidence is admissible (although they would be relevant to the jury's 5 credibility determination). For admissibility purposes, a witness's delay in reporting the 6 statements to the police is irrelevant, as is a witness's use of methamphetamine, or 7 Smith's repeated assertions during the Cazares-Mendez trial that she was having memory 8 OEC 804 Commentary (1981) (emphasis added). Based on that statement in the commentary, Professor Kirkpatrick has written: "In light of these expressions of legislative intent, it would seem appropriate for courts to consider the trustworthiness of the witness as well as of the declarant in determining whether the corroboration requirement is satisfied." Laird C. Kirkpatrick, Oregon Evidence § 804.04[5], at 848 (5th ed 2007). See State v. Lytsell, 187 Or App 169, 178, 67 P3d 955 (2003) (reaching the same conclusion). We believe that that conclusion reads too much into the legislative history. As we have noted, both the text of the OEC and the context of this court's prior case law demonstrate that the credibility of a relating witness is not relevant to whether a hearsay statement is trustworthy. The commentary is not to the contrary. It does not direct courts to consider the credibility of the witness, but to interpret the corroboration requirement to prevent fabrication. Courts adequately address the risk of fabrication when they require that there be "corroborating circumstances [that] clearly indicate the trustworthiness of the statement." Many of the same circumstances that corroborate the trustworthiness of the hearsay statement will also serve to minimize any risk that "the fact or the contents of the confession were fabricated." These cases offer a good example: Defendants demonstrated (among other things) that the declarant confessed to four different witnesses on four different occasions, in several cases giving distinctive details about the crime. One confession might be fabricated, but four is less likely, particularly when the declarant's statements include details about the crime. If the legislature had intended for trial courts to make credibility determinations counter to the ordinary rules of evidence that govern hearsay, we believe it would have done so more specifically. 23 problems. And the state's largely speculative assertions that the witnesses were biased 1 (because they were part of "a larger, inter-connected, local group of methamphetamine 2 abusers and dealers with connections to defendants") are also irrelevant. Even the fact 3 that Scherer took the stand and denied making the statements is irrelevant to the trial 4 court's determination of trustworthiness for purposes of admissibility. The credibility of 5 Scherer's testimony at trial, and that of the other witnesses, was a matter for the jury. To 6 the extent that the trial court may have relied on any or all of those considerations, it 7 erred. 8 Having determined what may and may not be considered in evaluating 9 "trustworthiness" under OEC 804(3)(c) or OEC 803(28)(a), we return to the facts of this 10 case. We review preliminary findings of fact by the trial court for whether any evidence 11 in the record supports them, but we review the "ultimate legal conclusion[] as to whether 12 the hearsay statement is admissible under an exception to the hearsay rule" for errors of 13 law. State v. Cook, 340 Or 530, 537, 135 P3d 260 (2006). 14 In analyzing the issues, we ordinarily begin with statutory arguments before 15 proceeding to constitutional questions. See State v. Barrett, 350 Or 390, 397-98, __ P3d 16 __ (2011) (citing cases). In this context, as this court specifically held in Thoma, the due 17 process analysis articulated in Chambers applies only if the evidence could not be 18 admitted under any provision of state law. 313 Or at 282-83 ("[T]o be admissible under 19 the due process rule of Chambers, the evidence must be inadmissible under the Oregon 20 Evidence Code."). In other words, state law does not violate due process if it offers any 21 avenue by which the evidence may be introduced, regardless of whether defense counsel 22 24 identified that avenue in a particular trial. Although the state agrees with defendant 1 Cazares-Mendez that the evidence is not admissible under any other provision of the 2 Oregon Evidence Code, defendant Reyes-Sanchez asserts that the evidence is admissible 3 under the residual hearsay exception of OEC 803(28)(a). Accordingly, we begin by 4 considering that statutory basis for admissibility of the proffered evidence. 5 REYES-SANCHEZ 6 As noted, defendant Reyes-Sanchez contends that the hearsay testimony in 7 his case is admissible under the residual hearsay exception, OEC 803(28)(a). The state 8 argues, however, that OEC 803(28)(a) does not apply on the facts of this case. As we 9 will explain, we agree with the state on that point. 10 For convenience, we repeat the relevant portions of OEC 803(28)(a): 11 "The following are not excluded by ORS 40.455 [OEC 802], even 12 though the declarant is available as a witness: 13 "* * * * * 14 "(28)(a) A statement not specifically covered by any of the foregoing 15 exceptions but having equivalent circumstantial guarantees of 16 trustworthiness, if the court determines that: 17 "(A) The statement is relevant; 18 "(B) The statement is more probative on the point for which it is 19 offered than any other evidence that the proponent can procure through 20 reasonable efforts; and 21 "(C) The general purposes of the Oregon Evidence Code and the 22 interests of justice will best be served by admission of the statement into 23 evidence." 24 This court explained the scope of that residual hearsay exception in State v. 25 Campbell, 299 Or 633, 705 P2d 694 (1985). The defendant in that case had been 26 25 convicted of sexually abusing a three-year-old child. The trial court had allowed the 1 child's mother to offer hearsay testimony about the child's statements regarding the 2 incidents, concluding that they fell under the residual hearsay exception of OEC 3 803(28)(a) (at that time numbered OEC 803(24)). This court rejected that conclusion, 4 although a majority held that the evidence nevertheless might be admissible under a 5 different hearsay exception. 6 In analyzing the residual hearsay exception, this court observed that the 7 commentary to that rule "clarifies the purpose and scope of the residual hearsay exception 8 in Oregon." Id. at 638. That commentary stated that the legislature 9 "'intends that these provisions be used very rarely, and only in situations 10 where application of the hearsay rule and its other exceptions would result 11 in injustice. These rules are not a broad grant of authority to trial judges to 12 admit hearsay statements.'" 13 Id. at 639 (quoting OEC 803 Commentary (1981)). Relying on that commentary, this 14 court then explained that the residual hearsay exception is narrow: 15 "The passage above reserved to the legislature the authority to 16 fashion new exceptions to the hearsay rule and expressly circumscribed the 17 authority of the judicial system to create categories of hearsay which will 18 be admissible under the residual exception. The authority of trial courts is 19 limited to admitting hearsay very rarely in exceptional cases where the 20 particular circumstances of the declarant and the out-of-court statement are 21 demonstrably trustworthy." 22 Id. (footnote omitted). 23 This court went on to conclude that the residual hearsay exception does not 24 apply to those categories of evidence addressed by specific hearsay exceptions. Id.; see 25 also 299 Or at 661 (Campbell, J., dissenting) (agreeing with majority that residual 26 26 hearsay exception does not permit courts to create new "classes" of exceptions to hearsay 1 rule). The court noted that there was a specific hearsay exception for complaints of 2 sexual misconduct, OEC 803(18a). Because "the legislature made a conscious decision 3 to restrict unexcited hearsay declarations of sexual misconduct by enacting OEC 4 803(18a)," the trial court had erred in allowing hearsay testimony of sexual misconduct 5 under the residual hearsay exception. 299 Or at 640. Only after determining that the 6 residual hearsay exception relied on by the trial court did not apply did this court consider 7 whether the hearsay testimony was admissible under the specific requirements of OEC 8 803(18a). 299 Or at 640-46 (explaining the limitations on the testimony).6 9 Campbell demonstrates that the residual hearsay exception cannot be used 10 to rescue hearsay statements that fall within a specific category of hearsay exception, but 11 that fail to meet the conditions for admissibility imposed by the specific exception. In 12 this case, the hearsay testimony that defendant Reyes-Sanchez sought to introduce falls 13 within a specifically defined hearsay exception -- the statement against penal interest 14 exception of OEC 804(3)(c). The requirements of that specific exception control over the 15 general terms of the residual hearsay exception. See ORS 174.020(2) ("When a general 16 6 The majority in Campbell went on to hold that the disputed evidence could be admissible under OEC 803(18a), depending on the outcome of a competency hearing before the trial court. Three members of the court disagreed with the majority's interpretation of OEC 803(18a), asserting that the hearsay evidence was not admissible under that exception. 299 Or at 653 (Campbell, J., dissenting). As to the issue relevant to this case, however -- the interpretation of the residual hearsay exception as limited to "very rare and exceptional cases" -- the dissent's views were identical to those of the majority. See id. at 661 (Campbell, J., dissenting). 27 and particular provision are inconsistent, the latter is paramount to the former so that a 1 particular intent controls a general intent that is inconsistent with the particular intent."). 2 Because "the legislature made a conscious decision to restrict" the admission of hearsay 3 statements against penal interest, see Campbell, 299 Or at 640, the residual hearsay 4 exception of OEC 803(28)(a) does not apply. 5 Having rejected defendant Reyes-Sanchez's argument that the evidence was 6 admissible under OEC 803(28)(a), we must consider his alternative argument on review 7 -- that the hearsay statements should have been admitted for the reasons articulated by the 8 Court of Appeals. 9 As we previously noted, the Court of Appeals in Reyes-Sanchez relied on 10 its substantive conclusion in Cazares-Mendez that the evidence was admissible under the 11 statement against penal interest exception of OEC 804(3)(c) as modified by application of 12 the Due Process Clause of the United States Constitution. Reyes-Sanchez, 234 Or App at 13 104-05. In light of its holding in Cazares-Mendez that the evidence was admissible, the 14 Court of Appeals determined that the trial court's exclusion of the evidence in Reyes- 15 Sanchez constituted plain error under ORAP 5.45(1). 234 Or App at 105. 16 On review, the state does not challenge the Court of Appeals' application of 17 the plain error rule. The only remaining issue in Reyes-Sanchez, then, is the substantive 18 one presented in Cazares-Mendez: whether the hearsay statements in fact were 19 admissible under OEC 804(3)(c), as modified by the requirements of due process. We 20 turn to that question. 21 CAZARES-MENDEZ 22 28 Defendant Cazares-Mendez relies on the statement against penal interest 1 exception, OEC 804(3)(c), as modified by the requirements of due process. For 2 convenience, we repeat the relevant portions of that rule: 3 "The following are not excluded by ORS 40.455 [OEC 802] if the 4 declarant is unavailable as a witness: 5 "* * * * * 6 "(c) A statement which * * * at the time of its making * * * so far 7 tended to subject the declarant to * * * criminal liability, * * * that a 8 reasonable person in the declarant’s position would not have made the 9 statement unless the person believed it to be true. A statement tending to 10 expose the declarant to criminal liability and offered to exculpate the 11 accused is not admissible unless corroborating circumstances clearly 12 indicate the trustworthiness of the statement." 13 Defendant Cazares-Mendez asserts that the trustworthiness of the hearsay 14 testimony that he proffered is clearly indicated by corroborating circumstances. We 15 agree. In this case, the jury could find that Scherer confessed on four separate occasions 16 to four different witnesses. All of the statements were identical at their core, in that 17 Scherer had admitted to stabbing to death a female victim. (To Smith, Scherer admitted 18 stabbing Valero in particular.) Those confessions were against Scherer's interest, in that 19 they could expose her to criminal liability. Scherer was not under any pressure to 20 confess, and she obtained no benefit from doing so. The statements were made shortly 21 after the murder, and (with the exception of the statements to Smith) were spontaneous. 22 Furthermore, several of the statements included additional, corroborating details about 23 the crime: three of the witnesses reported Scherer as stating that she had stabbed the 24 victim repeatedly (the victim was stabbed about 29 times); two witnesses reported 25 29 Scherer as stating that she had attempted to make the murder appear to be a robbery or 1 burglary, with one witness testifying that Scherer stated she had sent someone back to rob 2 the place; and one witness testified that Scherer had described Valero as suffering a 3 seizure during the attack, when Valero in fact had epilepsy. 4 All those considerations were relevant to determining the trustworthiness of 5 Scherer's hearsay statements. The state itself concedes as much. Yet the trial court in 6 Cazares-Mendez seemingly failed to give weight to any of them, mentioning only one 7 (the statement that Valero had had a seizure during the attack, when Valero had epilepsy). 8 The trial court erred as a matter of law in failing to evaluate those considerations in 9 determining whether the hearsay statements were trustworthy.7 10 We conclude, as did the Court of Appeals, that those corroborating 11 circumstances clearly indicate the trustworthiness of the hearsay statements offered by 12 defendant Cazares-Mendez.8 Accordingly, that aspect of OEC 804(3)(c) was met in this 13 7 On review, the state contends that other considerations negated a determination that the hearsay statements were trustworthy. In particular, the state asserts that there is no independent evidence to establish that Scherer committed the murder. Certainly, such independent evidence could constitute corroborating circumstances indicating the trustworthiness of the hearsay statement. But nothing in the text or context of OEC 804(3)(c) requires such independent evidence. Indeed, as the trial court noted in Reyes-Sanchez, when it comes to forensic evidence, nothing ties either the defendants or Scherer to the crime. The state's other considerations that allegedly negate a finding of truthfulness all relate to witness credibility. We have already explained why they cannot be considered. 8 We noted earlier that defendant Cazares-Mendez offered two other facts in 30 case. 1 It is undisputed, however, that the hearsay statements at issue are not 2 admissible under OEC 804(3)(c), because the declarant, Scherer, was available to testify. 3 As did the Court of Appeals, we now turn to the question whether due process 4 nevertheless required the trial court to admit the testimony. 5 The key case in that regard is Chambers. Briefly, the facts of that case 6 were as follows. The defendant was charged with having murdered a police officer. The 7 defendant asserted that another man was the killer. Not only had the other suspect 8 admitted to three friends in private conversations that he had killed the officer, but he had 9 also signed a written confession, although he later repudiated it. 410 US at 287-89. The 10 defendant called the other suspect to the stand and introduced the confession, but the state 11 elicited from the suspect that he had repudiated the confession, and the trial court, based 12 on state law, refused to allow the defendant to cross-examine the suspect as an adverse 13 witness. Id. at 291-92. The defendant also sought to introduce the testimony of the three 14 witnesses to whom the suspect had confessed, but the trial court excluded the testimony 15 as inadmissible hearsay -- state law did not recognize a hearsay exception for statements 16 support of the trustworthiness of the hearsay statements: the absence of any other stabbing murder of a female during the time period, and the presence of a scratch on Scherer's neck shortly after the murder. While those facts do provide additional support for the trustworthiness of the hearsay statements, they are not essential to our determination that the hearsay statements were trustworthy. We state that conclusion expressly because we are also considering the trustworthiness of the hearsay statements in Reyes-Sanchez, and those additional facts do not appear to have been introduced during that trial. 31 against penal interest. Id. at 292-93, 299.9 1 The United States Supreme Court concluded that the defendant had been 2 denied "a trial in accord with traditional and fundamental standards of due process." Id. 3 at 302. Besides concluding that the trial court had erred in refusing to allow the 4 defendant to cross-examine the other suspect, the Court also held that, under the 5 circumstances, due process required the trial court to admit the hearsay testimony by the 6 three witnesses. The Court explained that the testimony of the three witnesses was 7 offered "under circumstances that provided considerable assurance of their reliability." 8 Id. at 300. Specifically: 9 "First, each of [the other suspect's] confessions was made spontaneously to 10 a close acquaintance shortly after the murder had occurred. Second, each 11 one was corroborated by some other [independent] evidence in the 12 case * * *. The sheer number of independent confessions provided 13 additional corroboration for each. Third, whatever may be the parameters 14 of the penal-interest rationale, each confession here was in a very real sense 15 self-incriminatory and unquestionably against interest. [The other suspect] 16 stood to benefit nothing by disclosing his role in the shooting to any of his 17 9 In Chambers, the state evidentiary rule prevented the defendant from introducing evidence of the other suspect's confession to the crime, either as substantive evidence (through the hearsay testimony of the witnesses who heard him confess) or as impeachment evidence challenging his denial of any confession. Chambers, 410 US at 294. Here, in contrast, the state suggests that it might have been possible for defendants to have called Scherer as their witness and, if she denied making the statements at issue, attempted to introduce her hearsay statements as impeachment evidence. But see Cazares-Mendez, 233 Or App at 336 n 20 (concluding that the evidence would not have been admissible for purposes of impeachment, because the primary purpose would have been to expose the jury to otherwise inadmissible testimony). Defendants did not attempt to call Scherer, other than during their offer of proof, and we express no opinion whether, as the Court of Appeals concluded, defendants could not have called Scherer for the primary purpose of impeaching her. 32 three friends, and he must have been aware of the possibility that disclosure 1 would lead to criminal prosecution. * * * Finally, if there was any question 2 about the truthfulness of the extrajudicial statements, [the other suspect] 3 was present in the courtroom and was under oath. He could have been 4 cross-examined by the State, and his demeanor and responses weighed by 5 the jury." 6 Id. at 300-01 (citations and footnotes omitted). Because the hearsay statements were 7 trustworthy and were central to the defendant's' defense, the Court concluded, due 8 process required that the testimony be admitted: 9 "Although perhaps no rule of evidence has been more respected or more 10 frequently applied in jury trials than that applicable to the exclusion of 11 hearsay, exceptions tailored to allow the introduction of evidence which in 12 fact, is likely to be trustworthy have long existed. The testimony rejected 13 by the trial court here bore persuasive assurances of trustworthiness, and 14 thus was well within the basic rationale of the exception for declarations 15 against interest. That testimony also was critical to [the defendant's] 16 defense. In these circumstances, where constitutional rights directly 17 affecting the ascertainment of guilt are implicated, the hearsay rule may 18 not be applied mechanistically to defeat the ends of justice." 19 Id. at 302 (emphasis added). 20 Chambers remains good law. The United States Supreme Court recently 21 reaffirmed the holding of Chambers in Holmes v. South Carolina, 547 US 319, 325-26, 22 126 S Ct 1727, 164 L Ed 2d 503 (2006), where the Court unanimously concluded that the 23 trial court erred in preventing a defendant from introducing hearsay testimony that 24 another person had admitted committing the crime. Other courts have recently relied on 25 Chambers to conclude that state laws restricting the introduction of trustworthy hearsay 26 evidence violated due process, where the evidence was that another person had 27 committed the crime. E.g., Lunbery v. Hornbeak, 605 F3d 754, 760-62 (9th Cir), cert 28 den, __ US __, 131 S Ct 798, 178 L Ed 2d 545 (2010) (relying on Chambers, the court 29 33 held that the petitioner was entitled to federal habeas corpus relief when the state trial 1 court had excluded hearsay testimony that another person had admitted committing the 2 murder at issue); Chia v. Cambra, 360 F3d 997, 1003-08 (9th Cir 2004), cert den, 544 3 US 919 (2005) (relying on Chambers, the court held that the petitioner was entitled to 4 federal habeas corpus relief when the state trial court had excluded hearsay testimony that 5 one of the murderers had exculpated petitioner while admitting his own guilt). 6 We have already concluded that the "corroborating circumstances clearly 7 indicate the trustworthiness" of the hearsay statements at issue here. We see no 8 meaningful distinction between that standard and Chambers' requirement that the hearsay 9 statements have "persuasive assurances of trustworthiness." Id. at 302. Nor does the 10 state assert that any difference exists. 11 The state contends, however, that due process is not violated here, because 12 the unavailability requirement of OEC 804(3)(c) reflects a rational and reasonable policy 13 preference for live testimony by the declarant, rather than hearsay testimony by 14 witnesses. As the United States Supreme Court has explained, a criminal defendant's 15 right to a "meaningful opportunity to present a complete defense" is violated by 16 "evidence rules that infring[e] upon a weighty interest of the accused and are arbitrary or 17 disproportionate to the purposes they are designed to serve." Holmes, 547 US at 324 18 (alteration in original; internal quotation marks and citations omitted) (trial court erred 19 when it prohibited criminal defendant from offering hearsay testimony that another 20 person had confessed to the crime; the trial court had improperly relied on the strength of 21 the prosecution's case, not the probative value of the defendant's evidence). Holmes cited 22 34 Chambers as an example of such an arbitrary or disproportionate rule. 547 US at 325-26. 1 The state contends that OEC 804(3)(c)'s requirement that the declarant be unavailable is 2 not arbitrary or disproportionate; it instead reflects a sensible preference that the 3 declarant, when available, should be called to the stand and directly examined in the 4 presence of the jury, rather than permit a defendant to present less reliable hearsay 5 testimony. 6 Defendant Cazares-Mendez asserts -- and we agree -- that, where the 7 unavailability requirement is used, as here, to exclude otherwise trustworthy evidence 8 that, if believed, shows that a person other than defendant committed the crime, that 9 requirement is arbitrary and disproportionate to the purpose that the evidentiary rule is 10 designed to serve. As defendant correctly points out, the unavailability of a declarant 11 who has allegedly confessed to the crime would not make her hearsay testimony more 12 reliable -- it would make it less reliable. If the hearsay declarant is available, as here, the 13 declarant can take the stand and clarify or refute the confession that he or she allegedly 14 made. If the declarant is unavailable, however, no such opportunity exists. Indeed, the 15 unavailability of the declarant actually would help witnesses concoct falsified 16 "confessions" by absent third parties, because they would know that the missing declarant 17 will not be around to deny their claims. Accordingly, we conclude that the Due Process 18 Clause, as interpreted in Chambers and similar cases, required the trial court to disregard 19 the "unavailability" requirement of OEC 804(3)(c) and permit the testimony of Torres, 20 Rivera, Callahan, and Smith. 21 The Court of Appeals also concluded that the error was not harmless. 233 22 35 Or App at 337. The court noted that the hearsay testimony was central to defendant's 1 claim that another person committed the crime, and it was "sufficiently substantiated as 2 trustworthy by corroborating circumstances." Id. Although the state presented 3 substantial evidence of defendant's guilt, there was no forensic evidence directly linking 4 defendant to the crime. Id. at 337-38. The state does not challenge the Court of Appeals' 5 determination that, if the trial court erred, the error was prejudicial. 6 We conclude that the trial court erred in Cazares-Mendez and that that error 7 requires reversal. In determining whether "corroborating circumstances clearly indicate 8 the trustworthiness of the statement" under OEC 804(3)(c), the trial court erred as a 9 matter of law in failing to consider all the relevant circumstances. Moreover, while 10 Scherer's availability to testify meant that the hearsay statements were not admissible 11 under OEC 804(3)(c), due process nevertheless required that the hearsay testimony be 12 admitted. We agree with the Court of Appeals that the case must be remanded for a new 13 trial. 14 CONCLUSION 15 In summary, we conclude that courts evaluating "trustworthiness" under the 16 hearsay exceptions should not consider the credibility of the witnesses testifying to the 17 hearsay statements, but rather should focus on whether the declarant's statements are 18 sufficiently corroborated. We conclude in both Cazares-Mendez and Reyes-Sanchez that 19 the hearsay statements met the requirements for admission as statements against penal 20 interest under OEC 804(3)(c), but for the fact that the declarant was available to testify. 21 Further, we conclude that barring the admission of hearsay statements that another person 22 36 had confessed to the crimes with which defendants were charged on the ground that the 1 declarant was available to testify was, on the facts here, a violation of each defendant's 2 rights under the Due Process Clause. 3 The decisions of the Court of Appeals are affirmed. The judgments of the 4 circuit court in State v. Cazares-Mendez, case no. C052532CR, and in State v. Reyes- 5 Sanchez, case no. C052531CR, are reversed, and the matters are remanded to the circuit 6 court for further proceedings. 7

22e87002ff9f023ef50703e6c3a2aa7b9eab300b73a4109c672acefce27772c2

2011-07-08T00:00:00Z

d9d778a4-b2c8-4367-93c0-9e7a905b6ba4

Stuart v. Pittman

S058536

oregon

Oregon Supreme Court

Filed: June 3, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON JOHN STUART, Petitioner on Review, v. RONALD PITTMAN,an individual, Defendant, and COUNTRY MUTUAL INSURANCE COMPANY,dba Country Insurance and Financial Services, Inc.,an Indiana corporation, Respondent on Review. (CC CV050384; CA A134858; SC S058536) On review from the Court of Appeals.* Argued and submitted March 3, 2011, at the Willamette University College of Law, Salem, Oregon. William F. Gary, Harrang Long Gary Rudnick, P.C., Portland, argued the cause for petitioner on review. With him on the brief were Jona J. Maukonen and Arden J. Olson. R. Daniel Lindahl, Lindahl Law Firm, Portland, argued the cause for respondent on review. With him on the brief was John A. Bennett, Bullivant Houser Bailey, PC, Portland. Cody Hoesly, Larkins Vacura LLP, Portland, filed briefs on behalf of amicus curiae Oregon Trial Lawyers Association. Before, De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** DE MUNIZ, C. J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. *Appeal from Yamhill County Circuit Court John L. Collins, Judge. 235 Or App 196, 230 P3d 958 (2010). **Landau, J., did not participate in the consideration or decision of this case. DE MUNIZ, C. J. Plaintiff entered into an oral course-of-construction insurance binder(1) with Country Mutual Insurance Company (defendant) through its agent, Ronald Pittman. Before receiving the written policy, plaintiff's partially built home was damaged by inclement weather. After defendant denied plaintiff's insurance claim, citing exclusions in the written policy, plaintiff filed an action against defendant. At trial, defendant moved for a directed verdict on plaintiff's breach of contract claim. The trial court denied defendant's motion and a jury found for plaintiff. The trial court subsequently awarded plaintiff his attorney fees and costs. On appeal, the Court of Appeals, relying on ORS 742.043(1),(2) concluded that the trial court had erred in submitting the case to the jury, reasoning that there was no evidence from which a jury could have found that Pittman had agreed to definite, explicit, and unambiguous terms that superseded the usual policy terms. Stuart v. Pittman, 235 Or App 196, 230 P3d 958 (2010). We allowed plaintiff's petition for review to determine whether there was sufficient evidence from which the jury could have found for plaintiff and, if so, whether plaintiff was entitled to an award of attorney fees under ORS 742.061. For the reasons that follow, we reverse the decision of the Court of Appeals and affirm the trial court's judgment. Because the jury returned a verdict in plaintiff's favor, we state the facts in the light most favorable to the plaintiff. See Jensen v. Medley, 336 Or 222, 226, 82 P3d 149 (2003) (facts stated in light most favorable to plaintiff, because plaintiff was prevailing party before jury). Plaintiff decided to build a new house on a small farm in Yamhill County. In March 2003, plaintiff met with Pittman, defendant's agent, and told him that he wanted course-of-construction insurance to cover the house while it was being built. Plaintiff was unfamiliar with the form and content of traditional course-of-construction policies. However, Pittman had been an insurance agent for 19 years and was well experienced with such policies. During their meeting, plaintiff and Pittman discussed, at length, the scope of coverage that the policy would provide -- coverage from the start of construction to its finish and coverage beyond what normally would be covered in a homeowner's policy. Plaintiff told Pittman that he wanted coverage that would provide "safety net," or "catch basin" coverage "in all instances that something goes wrong during construction." Plaintiff wanted coverage that would include loss resulting from weather, injury, faulty work, and the builder's failure to perform. Pittman agreed to provide coverage and did not communicate to plaintiff any coverage limitations. Relying on Pittman's oral assurance of coverage, plaintiff did not require the builder to carry a performance bond or liability insurance, which plaintiff could have required of the builder under the provisions of the construction contract. In August 2003, plaintiff met with Pittman and notified him that he had signed a construction contract and that course-of-construction insurance needed to be in effect at the beginning of September 2003. Pittman agreed to provide course-of-construction insurance effective September 1, 2003. The builder started construction later that month. In October 2003, plaintiff notified Pittman that he had not received the written policy and Pittman told plaintiff that he would receive the policy soon. By December 2003, however, plaintiff had received only a premium statement from defendant. An ice storm struck the Willamette Valley in January 2004. Because the builder had left the partially completed house open to the weather, snow, ice, and water accumulated inside the house. As a result the interior sheathing split, water accumulated in the crawl space, and mold grew. Shortly thereafter, plaintiff contacted Pittman to inform him of the damage and to initiate an insurance claim. Pittman told plaintiff that damage caused by wind, rain, flood, and water would be covered and that mold damage also might be covered. Plaintiff still had not received his written policy. In March 2004, plaintiff received a declaration page from defendant showing that coverage for a "dwelling under construction" had been added to plaintiff's existing policy. Pittman told plaintiff that the addition provided the coverage for the new construction previously discussed. However, the policy that defendant issued contained provisions requiring direct physical loss, as well as exclusions for the perils of faulty workmanship, mold, and damage caused by water backup from sewer drains. Defendant later denied plaintiff's insurance claim based on those exclusions. Plaintiff brought an action against defendant for breach of the oral binder and, alternatively, for failing to deliver a copy of the written policy within a reasonable time. Plaintiff also sought attorney fees under ORS 742.061. At the conclusion of the trial's evidentiary phase, defendant moved for a directed verdict, arguing that plaintiff had failed to establish that the oral binder provided coverage beyond that expressed in the written policy and that plaintiff had failed to establish that he had been damaged by defendant's failure to deliver the policy in a timely manner. The trial court denied defendant's motion. A jury subsequently returned a verdict finding that Pittman had entered into an oral contract of insurance on behalf of defendant that eliminated both the requirement for direct physical loss and the exclusions for mold, water damage, and damage by faulty workmanship or construction and further finding that defendant had failed to deliver the written policy within a reasonable period of time. The jury awarded plaintiff damages in the amount of $268,417. The trial court entered a supplemental judgment awarding plaintiff attorney fees and costs. On appeal, defendant raised multiple assignments of error. The Court of Appeals, however, reached only defendant's challenge to the trial court's denial of defendant's motion for directed verdict on plaintiff's contract claims under the oral binder and for defendant's failure to provide a written policy within a reasonable period of time. On the first issue, the Court of Appeals concluded that there was no evidence from which a jury could have found that Pittman agreed to terms that clearly and expressly waived or superseded the usual policy terms or exclusions. The court reasoned that, even assuming that Pittman agreed to provide "safety net" or "catch basin" coverage "in all instances that something goes wrong during construction," those terms were too vague to satisfy ORS 742.043(1), which provides that an oral binder is deemed to include "all the usual terms of the policy * * * except as superseded by the clear and express terms of the binder." Stuart, 235 Or App at 204. As to plaintiff's claim that defendant had failed to provide a written policy within a reasonable time, the Court of Appeals concluded that there was no evidence from which a jury could have found that plaintiff had been damaged because defendant had failed to deliver the written policy in a reasonable time. Based on the foregoing, the Court of Appeals reversed the trial court's judgment.(3) On review, plaintiff argues that the Court of Appeals incorrectly construed ORS 742.043(1) by requiring plaintiff to show that the usual exclusions of the written policy had been "definitely, explicitly, and unambiguously" superseded by the binder. Plaintiff further argues that the Court of Appeals erred in concluding that he had not proven that he was damaged by defendant's failure to timely deliver the written policy. For its part, defendant maintains that (1) the Court of Appeals correctly held that the "usual terms of the policy" are superseded only when the parties have agreed to "clear and express" terms -- definite, express, and unambiguous -- that are different from the usual policy terms; and (2) there was no evidence plaintiff was damaged by defendant's failure to timely deliver the policy. According to defendant, the trial court erred in denying its motion for directed verdict and in submitting the case to the jury. Defendant also argues that plaintiff is not entitled to attorney fees, because an oral binder is not a "written policy" as required by ORS 742.061. At the outset, we observe that defendant concedes that Pittman entered into an oral binder for course-of-construction insurance covering plaintiff's new residence, and that the binder remained in place at all times relevant to this litigation.(4) Because the jury rendered a verdict in plaintiff's favor, "we do not weigh the evidence; we consider the evidence, including inferences, in the light most favorable to plaintiff." Brown v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984). A jury verdict can be set aside only if this court concludes that there was no evidence from which the jury could have found for the plaintiff. Id. Furthermore, this court reviews a trial court's denial of a motion for directed verdict for any evidence to support the verdict in plaintiff's favor. Woodbury v. CH2M Hill, Inc., 335 Or 154, 159, 61 P3d 918 (2003) (describing standard). The answer to the parties' contentions regarding the trial court's denial of defendant's directed verdict motion turns on the proper interpretation of ORS 742.043(1). ORS 742.043 provides, in part: "(1) Binders or other contracts for temporary insurance may be made orally or in writing, and shall be deemed to include all the usual terms of the policy as to which the binder was given together with such applicable indorsements as are designated in the binder, except as superseded by the clear and express terms of the binder. "(2) Except as provided in subsection (3) of this section and ORS 746.195, within 90 days after issue of a binder a policy shall be issued in lieu thereof, including within its terms the identical insurance bound under the binder and the premium therefor." (Emphasis added.) In interpreting a statute, our paramount goal is to discern the legislature's intent, and the statute's own words are the most persuasive evidence of that intent. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). The text of ORS 742.043(1) provides that the binder "shall be deemed to include all the usual terms of the policy * * *, except as superseded by the clear and express terms of the binder." That highlighted text modifies "all the usual terms of the policy" and makes the binder's clear and express terms controlling over those contained in the usual policy.(5) That reading of the statute also gives effect to the text in subsection (2), which provides that the written policy issued as a result must "include within its terms the identical terms bound under the binder." See Sanders v. Oregon Pacific States Ins. Co., 314 Or 521, 527, 840 P2d 87 (1992) (provisions of statute must be read, where possible, as giving effect to all). The question remains, however, what the legislature meant by the terms "clear and express." The Court of Appeals concluded that the terms "clear and express" meant that the oral binder terms must "definitely, explicitly, and unambiguously supersede the terms [in the written policy]." Stuart, 235 Or App at 204. The Court of Appeals assumed, because of the jury verdict in plaintiff's favor, that Pittman had agreed to "provide plaintiff with a 'safety net' of coverage 'in all instances that something goes wrong' and that he even agreed that defendant could provide some type of coverage in the event of 'faulty work[.]'" Id. Nevertheless, the Court of Appeals concluded that the terms "safety net" and coverage "in all instances that something goes wrong" were too vague and obscure to satisfy the "clear and express" requirements of ORS 742.043(1). Id. For the reasons that follow, we disagree. Words of common usage, such as "clear" and "express," should be given their plain and ordinary meaning. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). We agree with the Court of Appeals that, as used in the statute, the term "clear" means "easily understood" and the term "express" means "directly and distinctly stated, rather than implied or left to inference." 235 Or App at 203. Those definitions lead to the unremarkable conclusion that the "clear and express" requirement in ORS 742.043(1) means that those binder terms that are easily understood and expressed, as opposed to implied, will ordinarily be sufficient to supersede the usual or contrary terms in a policy. As noted above, there is evidence that plaintiff requested insurance that provided "catch basin" or "safety net" coverage in "all instances that something goes wrong during construction," in essence an "all risk" policy. Those words were expressed by plaintiff to Pittman, not implied, and the request for coverage "in all instances [where] something goes wrong during construction" is easily understood as meaning exactly what it says. Further, Pittman was aware that plaintiff wanted a policy that covered perils beyond those usually covered by a traditional homeowner's policy -- the policy needed to cover loss resulting from weather, injury, faulty work, and builder's failure to perform. Pittman subsequently indicated that defendant's policy "covered those things." Pittman's promise, which contained no exception or qualifications, left no room for an exclusion for faulty work or water- or mold-caused damage. Moreover, after the damage to plaintiff's house, Pittman told plaintiff that damage caused by wind, rain, flood, water, and mold would likely be covered. Contrary to the Court of Appeals, we conclude that the terms "safety net" or "catch basin" or coverage "in all instances that something goes wrong during construction" were not vague or obscure. Rather, those terms, in the context in which they were used, were easily understood and were not implied or left to inference, and thus were sufficient under the "clear and express" requirement in ORS 742.043(1). Accordingly, there was evidence in the record from which the jury reasonably could conclude that Pittman agreed to coverage that was different from that expressed in the written policy -- eliminating the requirement for direct physical loss and the exclusions for mold, water damage, and faulty workmanship or construction.(6) Under Article VII (Amended), section 3, of the Oregon Constitution, we are required to sustain the jury's verdict on plaintiff's claim. The Court of Appeals erred in reaching a contrary conclusion.(7) Finally, we consider whether attorney fees were properly awarded by the trial court.(8) Here, plaintiff seeks attorney fees under ORS 742.061, which provides, in part: "Except as otherwise provided in subsections (2) and (3) of this section, if settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff's recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon." (Emphasis added.) Defendant argues that ORS 742.061 does not apply to oral binders of insurance, because the statute uses the term "policy of insurance" and ORS 731.122 defines "policy" as: "[T]he written contract or written agreement for or effecting insurance, by whatever name called, and includes all clauses, riders, indorsements and papers which are a part thereof and annuities." Defendant asserts that, because an oral binder is not a written policy, the trial court should not have awarded plaintiff his attorney fees under ORS 742.061. We disagree. ORS 742.043(2) provides that the policy issued will "include[] within its terms the identical insurance bound under the binder and the premium therefor[.]" The jury's findings that plaintiff and defendant entered into an enforceable oral binder of insurance means that, as a matter of law, the written policy of insurance issued by defendant is deemed to include all the terms of the oral binder. This court has previously allowed attorney fees under the predecessor to ORS 742.061,(9) based on an agent's oral representation of a policy's term of coverage. In Farley v. United Pacific Ins. Co., 269 Or 549, 525 P2d 1003 (1974), the defendant's agent entered into an oral binder of insurance in which the agent represented that a policy term covered the type of risk that subsequently caused plaintiff's damages. This court concluded in Farley that the insurer was estopped -- by its agent's representation of coverage -- from denying coverage based on the express terms of the policy. The court indicated that a "policy" for purposes of the attorney fee statute included agreements for temporary insurance: "Defendant's contention that attorney fees should not be allowed if an estoppel is the basis for plaintiff's recovery is not well taken. Because defendant is estopped to assert that the provisions of the policy differ from its agent's interpretation of those terms, [] the recovery [is] no less a recovery on an agreement to insure." Id. at 563. Moreover, our case law has long recognized that, where the insured is entitled to a recovery under an insurance binder, the insured is entitled to attorney fees under ORS 742.061. For example, in Hartford v. Aetna/Mt. Hood Radio, 270 Or 226, 527 P2d 406 (1974), two insurance companies (Hartford and Western) entered into insurance binders with the insured, Mt. Hood, to cover the loss of a television tower. The insurers argued that there was no enforceable binder of insurance and that no attorney fees should be allowed, because the case was brought as a declaratory judgment between the insurance companies. In concluding that the insured, Mt. Hood, was entitled to attorney fees, this court observed that: "If Hartford and Western had merely refused to pay and Mt. Hood had sued and recovered on the Hartford and Western binders it would clearly have been entitled to attorney fees under [ORS 742.061]." Id. at 236. Our case law establishes that a recovery under an enforceable insurance binder can support an award of attorney fees pursuant to ORS 742.061. The trial court did not err in awarding plaintiff his attorney fees. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. 1. "A binder ordinarily evidences a contract for temporary insurance until such time as issuance of permanent insurance is approved or disapproved or some other temporary impediment is removed." United Pac. Ins. v. Truck Ins. Exch., 273 Or 283, 289-90, 541 P2d 448 (1975). 2. We set out the text of the relevant statutes later in this opinion. 3. The Court of Appeals dismissed plaintiff's cross-appeal seeking expert witness fees and expenses on mootness grounds. On review, the parties do not raise that issue, and we express no opinion in that regard. 4. This court has held that an enforceable oral binder is created when the parties have agreed to: (1) the property to be insured; (2) the risk to be insured against; (3) the amount of coverage; (4) the duration of coverage; and (5) the premium to be paid. Cleveland Oil Co. v. Ins. Society, 34 Or 228, 234, 55 P 435 (1898). Defendant argues that the trial court erred in failing to instruct the jury that plaintiff was required to prove the existence and the terms of an oral insurance binder by clear and convincing evidence. The Court of Appeals' disposition of the case did not require that it reach the issue. Because defendant conceded the existence of the oral binder, we need not address whether the trial court erred in failing to instruct the jury regarding the heightened standard of proof. The dispute before the jury concerned the terms of the binder. As to that issue, the trial court correctly instructed the jury on plaintiff's burden of proof. See Dodd v. Home Mutual Insurance Co., 22 Or 3, 7, 28 P 881 (1892) (whether plaintiff sustained his allegations in oral insurance contract dispute examined under preponderance of the evidence standard). 5. Courts in other jurisdictions have addressed similar statutes providing that the clear and express terms of a binder control over the usual policy provisions. See, e.g., Hilt Truck Lines, Inc. v. Riggins, 756 F2d 676, 678-79 (8th Cir 1985) (applying an Arkansas statute identical to ORS 742.043(1) where agent made an oral binder of insurance covering "all risks" related to a shipping business, insurance company was required to provide coverage for shipping of liquor despite the fact that the written policy excluded liquor); Int'l Indemnity Co. v. McKeever, 331 SE2d 909, 910 (Ga App 1985) (interpreting an identical statute to ORS 742.043(1) "[i]f clear and express terms have been agreed upon, they must be considered as controlling over the usual policy provisions"). 6. The jury was presented with an interrogatory verdict form that the jury answered as follows: "1. Did Country Mutual's agent enter into an oral contract of insurance different than the policy later issued by Country Mutual? "Yes   x   "No ___ "At least nine of you must agree to the answer. If your answer to this question is "No", proceed to question 4. If your answer to this question is "Yes", proceed to question 2. "2. Did the oral contract of insurance: "A. Eliminate the requirement of direct physical loss? "Yes   x   "No ___ "B. Eliminate the exclusion for damage by mold? "Yes   x   "No ___ "C. Eliminate the exclusion for damage by water which backs up through drains? "Yes   x   "No ___ "D. Eliminate the exclusion for damage by water other than water which backs up through drains? "Yes   x   "No ___ "E. Eliminate the exclusion of damage by faulty worksmanship or construction? "Yes   x   "No ___" The jury found that defendant had entered into an oral binder that was different than the later issued policy by defendant. A finding for plaintiff on any one of the above specifications under question 2 was sufficient to support the verdict for plaintiff. See Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 61 P3d 928 (2003) (jury verdict sustained where at least one valid specification supported by evidence). 7. Because we resolve this case by determining that there was sufficient evidence for a jury to find for plaintiff on the breach of oral binder claim, we do not decide whether a failure to deliver the written policy within a reasonable period of time also gave rise to a separate cause of action for damages. 8. Although not reached by the Court of Appeals, we decide this question for the benefit of the bench and bar and to promote judicial efficiency. See State v. Kuznetsov, 345 Or 479, 486-87, 199 P3d 311 (2008) (when issue was introduced at the Court of Appeals and fully briefed on review, this court may address the argument for the benefit of bench and bar and to promote judicial efficiency). 9. Former ORS 743.114 renumbered as ORS 742.061 (1989).

0faa40cf055bf370f7f481dccf626cd218f656988e3cf40b569ee3df228bb7dd

2011-06-03T00:00:00Z

8aa7c31d-ef8a-443b-8af8-d2ae226c4140

Oregon v. Speedis

oregon

Oregon Supreme Court

Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. ROYCE FRANCIS SPEEDIS, Petitioner on Review. (CC CF070533; CA A138616; SC S058310) On review from the Court of Appeals.* Argued and submitted November 8, 2010. Meredith Allen, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Doug M. Petrina, 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 Mary H. Williams, Solicitor General. Jesse W. Barton, Salem, filed the brief for amicus curiae Pacific Sentencing Initiative, LLC. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** KISTLER, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Umatilla County Circuit Court, Daniel J. Hill, Judge. 233 Or App 297, 225 P3d 152 (2010). **Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. Landau, J., did not participate in the consideration or decision of this case. KISTLER, J. Trial courts may impose enhanced sentences in criminal cases when an aggravating factor provides a substantial and compelling reason for doing so. OAR 213-008-0001. The sentencing guidelines list some aggravating factors that trial courts may consider. See OAR 213-008-0002(1). Trial courts, however, also may rely on aggravating factors that are not listed (nonenumerated aggravating factors) to impose an enhanced sentence. See id. Defendant has argued throughout this litigation that, to the extent the sentencing guidelines permit the use of nonenumerated aggravating factors, they either violate the separation of powers provision of the Oregon Constitution or are vague in violation of the Oregon and the United States Constitutions. The trial court disagreed and imposed an enhanced sentence based on nonenumerated aggravating factors. The Court of Appeals affirmed the trial court's judgment without opinion. State v. Speedis, 233 Or App 297, 225 P3d 152 (2010). We allowed defendant's petition for review to consider this recurring issue and now affirm the Court of Appeals decision and the trial court's judgment. As a matter of state law, three related sets of statutes govern sentencing. See State v. Dilts, 336 Or 158, 161-63, 82 P3d 593 (2003) (Dilts I) (explaining state sentencing statutes).(1) The first statute establishes maximum indeterminate sentences for felonies. See ORS 161.605. That statute provides, for example, that the maximum sentence for a Class B felony is 10 years. Id. Before 1989, if a defendant was convicted of a Class B felony, the trial court was free to set the defendant's sentence anywhere within that 10-year range. The evidence that a trial court could consider in selecting the appropriate sentence within that range was broad, and the trial court had wide latitude to determine the appropriate sentence based on the seriousness of the offense and the character of the offender. See State v. Stewart/Billings, 321 Or 1, 9, 892 P2d 1013 (1995) (describing pre-1989 sentencing); State v. Scott, 237 Or 390, 399-400, 390 P2d 328 (1964) (identifying the seriousness of the offense and the character of the offender as the relevant criteria at sentencing). That latitude sometimes led to disparate sentences for similarly situated defendants, and, in 1985, the Oregon legislature created what is now known as the Oregon Criminal Justice Commission to develop recommendations for providing greater uniformity in sentencing. Dilts I, 336 Or at 161. In 1989, the commission adopted rules (sentencing guidelines) that set presumptive sentences for crimes based on the general seriousness of the offense and the specific offender's criminal history. Id. at 161-62.(2) The presumptive sentence for each crime falls within the range set by the maximum indeterminate sentence for that crime.(3) For example, the maximum indeterminate sentence for second-degree assault (one of the crimes for which defendant was convicted) is 10 years. ORS 161.605(2). The sentencing guidelines provide that, for a person with defendant's criminal history, the presumptive sentence for that crime is 37 to 38 months. See OAR 213-004-0001 (App 1). The presumptive sentence sets a target sentence within the range that the indeterminate sentencing statutes permit, and trial courts retain "'discretion to deviate [from the presumptive sentence] for substantial and compelling reasons.'" Dilts I, 336 Or at 172 (emphasis omitted; quoting OAR 213-002-0001(2)). That is, although the guidelines start from the premise that the presumptive sentence ordinarily will be the appropriate sentence, they recognize that the two factors that go into the presumptive sentence -- the general seriousness of the offense and the specific offender's criminal history -- may not always capture either the seriousness of a particular offense or all the relevant aspects of an offender's character. See Oregon Criminal Justice Council, Oregon Sentencing Guidelines Implementation Manual 123-25 (1989) (so stating). Accordingly, the guidelines list nine mitigating and 12 aggravating factors that will justify imposing either a lesser or a greater sentence than the presumptive sentence. OAR 213-008-0002(1). Some of those mitigating and aggravating factors go to the seriousness of the offense. For example, if the harm or loss attributable to a particular offense is either significantly less or significantly greater than is typical, the guidelines permit a court to impose either a downward or an upward departure sentence. See OAR 213-008-0002(1)(a)(G) (downward departure); OAR 213-008-0002(1)(b)(J) (upward departure). Other factors go to the character or culpability of the specific offender. For example, if a defendant acted with a diminished mental capacity, a court may impose a lesser sentence. OAR 213-008-0002(1)(a)(C). Conversely, if a defendant has been "[p]ersistent[ly] involv[ed] in similar offenses or repetitive assaults," a court may impose a greater sentence than the presumptive sentence. OAR 213-008-0002(1)(b)(D). The guidelines recognize that, in that case, a more severe sentence may be necessary both to deter the defendant and to protect society. Finally, the guidelines provide that the list of specific mitigating and aggravating factors is "nonexclusive." OAR 213-008-0002(1). That is, the guidelines recognize that case-specific factors may arise in individual cases that bear on either the seriousness of the offense or the character of the offender that the Criminal Justice Commission did not anticipate. The guidelines accordingly permit trial courts to consider whether nonenumerated, case-specific mitigating or aggravating factors exist that provide a substantial and compelling reason for imposing either a downward or an upward departure sentence. See id. In 2005, the legislature enacted a third set of statutes that establish procedures for determining whether, in a particular case, an aggravating factor exists that will warrant an enhanced sentence. See ORS 136.760 to 136.792. Under that law, the prosecutor must identify any aggravating factor (enumerated or nonenumerated) that provides a basis for seeking an upward departure sentence and give the defendant reasonable written notice of that factor. See ORS 136.765. The defendant may elect to have a jury find whether that factor is present. See ORS 136.770 (governing aggravating factors that "relat[e] to an offense charged in the accusatory instrument"); ORS 136.773 (governing aggravating factors that "relat[e] to the defendant").(4) If the trier of fact finds beyond a reasonable doubt that an aggravating factor that the prosecutor has identified exists, then the trial court may enhance a defendant's sentence if it concludes that that aggravating factor provides a substantial and compelling reason for doing so. See State v. Upton, 339 Or 673, 679, 125 P3d 713 (2005). In this case, the jury convicted defendant of three crimes: first-degree burglary, second-degree assault, and third-degree assault. Before the jury returned its verdict, the prosecutor notified defendant that, in the state's view, eight aggravating factors applied in this case. Of those eight aggravating factors, the jury was ultimately asked to determine whether four of them were present: (1) defendant was on supervision when he committed the current crimes; (2) prior criminal justice sanctions had failed to deter defendant from committing crimes; (3) defendant committed this crime while on release status with other criminal charges pending; and (4) defendant had demonstrated a disregard for laws and rules, making successful probation unlikely. Each of those factors is a nonenumerated aggravating factor. After considering additional evidence at a separate sentencing hearing, the jury found that the state had proved beyond a reasonable doubt each of those four aggravating factors. The trial court then determined that each aggravating factor, standing alone, provided a substantial and compelling reason for imposing enhanced sentences on defendant's convictions for first-degree burglary and second-degree assault. The trial court sentenced defendant to 72 months in prison rather than the presumptive sentence of 37 to 38 months on the second-degree assault conviction. It also sentenced him to 72 months in prison rather than the presumptive sentence of 37 to 38 months on the first-degree burglary conviction and ordered that those sentences would run concurrently.(5) The court did not impose a sentence on defendant's conviction for third-degree assault but ruled that defendant's sentence for that offense merged into his sentence for second-degree assault.(6) Throughout this litigation, defendant has argued that a trial court may not rely on nonenumerated aggravating factors to impose an enhanced sentence. Doing so, he reasons, violates the separation of powers provision of the Oregon Constitution. See Or Const Art III, § 1 (allocating governmental power among the legislative, executive, and judicial departments). Additionally, defendant contends that, to the extent the sentencing guidelines permit prosecutors to base a request for an enhanced sentence on nonenumerated aggravating factors, the guidelines are vague in violation of Article I, sections 20 and 21, of the Oregon Constitution and the Due Process Clause of the United States Constitution. We begin with defendant's separation of powers argument. Article III, section 1, of the Oregon Constitution provides: "The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided." A separation of powers claim under this section may turn on one of two issues. MacPherson v. DAS, 340 Or 117, 134, 130 P3d 308 (2006). The first issue is "whether one department of government has 'unduly burdened' the actions of another department" in carrying out its core functions. Id. The second issue is "whether one department has performed functions that the constitution commits to another department." Id. Defendant does not contend that, in relying on nonenumerated aggravating factors, the judiciary has unduly burdened the legislature's ability to carry out its core functions. Rather, defendant argues that, in determining whether nonenumerated aggravating factors provide substantial and compelling reasons for imposing an enhanced sentence, the judiciary is exercising a power that the constitution has entrusted to the legislature. Defendant's argument fails to distinguish two related but separate lines of authority. This court has recognized that "[d]etermining the range of possible sentences for particular crimes historically has been a legislative, rather than a judicial, function." State ex rel Huddleston v. Sawyer, 324 Or 597, 615, 932 P2d 1145 (1997). Consistently with that principle, the court has explained that, "[w]hen a court acts beyond the bounds of its sentencing authority, it infringes upon the power of the legislature to determine the manner of punishment." State v. Leathers, 271 Or 236, 240, 531 P2d 901 (1975). Conversely, this court has recognized that determining where within a legislatively prescribed range a particular defendant's sentence falls historically has been a judicial function. See Stewart/Billings, 321 Or at 9 (explaining that sentencing courts traditionally have considered a range of case-specific factors that bear on both the offense and the offender in determining the appropriate sentence within legislative limits); Scott, 237 Or at 399-400 (same).(7) In relying on nonenumerated sentencing factors to decide whether to impose an upward or downward departure sentence, a trial court is not acting "beyond the bounds of its sentencing authority" and thus is not infringing on the legislature's authority to set sentencing limits. Cf. Leathers, 271 Or at 240. Rather, it is acting within the limits that the legislature has set, Dilts I, 336 Or at 171, and it is exercising a trial court's traditional authority to determine, within statutory limits, the specific facts and circumstances that will result in a sentence designed to fit both the offense and the offender. If trial courts historically had broad discretion to determine the appropriate sentence within the wide range that indeterminate sentencing statutes permitted, it is difficult to see why a trial court's exercise of that same discretion within the narrower range that the sentencing guidelines permit constitutes an unconstitutional exercise of legislative authority.(8) Defendant's contrary argument, as we understand it, rests on the assumption that a presumptive sentence establishes, as a matter of state law, the maximum sentence that a trial court can impose. It follows, defendant contends, that a trial court may not depart from a presumptive sentence unless the legislature either has specified the terms on which a court may depart or has delegated the authority to trial courts to identify those terms. And defendant focuses the majority of his separation of powers argument on the claim that, in authorizing the use of nonenumerated sentencing factors, the legislature has failed to provide a constitutionally sufficient delegative standard. One problem with defendant's separation of powers argument is the assumption that underlies it. As this court explained in Dilts I, the legislature did not intend that presumptive sentences would mark the outer limits of a trial court's sentencing authority. 336 Or at 171. Rather, the court held that, as a matter of state law, "neither the wording nor the structure of the sentencing guidelines or the related statutes support [the] defendant's assertion that the legislature intended the presumptive sentences in the sentencing guidelines to constitute the statutory maximum sentences for the offenses to which they apply." Id.(9) Not only does a presumptive sentence not define the outer boundaries of a trial court's sentencing authority, as defendant's argument assumes, but the sentencing guidelines expressly authorize trial courts to decide whether nonenumerated aggravating and mitigating factors warrant imposing a greater or a lesser sentence than a presumptive sentence. Id. at 175-76. In imposing a departure sentence based on nonenumerated aggravating factors, a trial court is not acting beyond the bounds of its sentencing authority * * *." Cf. Leathers, 271 Or at 240. Rather, it is acting within the limits that the legislature has set. See Dilts I, 336 Or at 171, 175. Defendant's separation of powers argument provides no reason for holding the trial court's use of nonenumerated sentencing factors unconstitutional. Defendant argues alternatively that, to the extent the guidelines permit reliance on nonenumerated aggravating factors in deciding whether to impose an enhanced sentence, the guidelines are vague in violation of Article I, sections 20 and 21, of the Oregon Constitution and the Due Process Clause of the Fourteenth Amendment. Specifically, defendant argues that nonenumerated aggravating factors: (1) do not provide fair notice to defendants of the circumstances that will result in a greater sentence, and (2) give prosecutors unfettered discretion to decide, after the fact, the circumstances that will result in a greater sentence. Before turning to defendant's arguments, it is helpful to put them in context. The jury found beyond a reasonable doubt that each of the four nonenumerated aggravating factors that the prosecutor had identified was present, and defendant does not contend that the record does not support the jury's findings. Nor does defendant challenge the trial court's conclusion that each of those factors, standing alone, provided a substantial and compelling reason to impose an enhanced sentence.(10) Finally, defendant does not dispute that, before he committed the crimes that resulted in his burglary and assault convictions, the Oregon Court of Appeals had recognized that each of the four nonenumerated aggravating factors that the prosecutor identified in this case provided a basis for imposing an enhanced sentence; that is, even though the sentencing guidelines do not specifically list those four factors, the Court of Appeals had recognized before defendant committed the burglary and assaults that each factor was an aggravating factor within the meaning of the guidelines.(11) With that background in mind, we turn to defendant's argument that the sentencing guidelines are vague in violation of Article I, sections 20 and 21, because they do not give defendants "fair notice" of the circumstances that will result in an enhanced sentence. We note, at the outset, that this court's cases have not always looked in the same direction on the question whether "fair notice" is a component of a state constitutional vagueness analysis. In State v. Graves, 299 Or 189, 197, 700 P2d 244 (1985), the court held that the statute prohibiting first-degree burglary was vague in violation of Article I, sections 20 and 21, of the Oregon Constitution because it failed to give defendants fair notice of the conduct that it prohibited. Later, in State v. Chakerian, 325 Or 370, 382-84, 938 P2d 756 (1997), the court reaffirmed that fair notice of the elements of a crime is a state constitutional vagueness concern, although the court did not find the statute in that case unconstitutionally vague. More recently, however, the court explained in Delgado v. Souders, 334 Or 122, 144 n 12, 46 P3d 729 (2002), that, in referring to fair notice in Graves, the court had incorrectly imported federal due process concerns into state constitutional vagueness analysis. And the court's holding expressly rested on the proposition that "fair notice" is not an aspect of vagueness analysis under Article I, section 20, of the Oregon Constitution. Id. at 146-47.(12) Later, the court reaffirmed in State v. Illig-Renn, 341 Or 228, 239 n 4, 142 P3d 62 (2006), that "[t]he 'fair notice' component of the vagueness analysis is not an issue under the Oregon Constitution." Defendant argues that the discussions of fair notice in Delgado and Illig-Renn were dicta and that we should follow the holding in Graves rather than the dicta in those cases. We read Delgado and Illig-Renn differently. In each case, the court's holding turned on the conclusion that "fair notice" is not an aspect of a state constitutional vagueness analysis; specifically, in each case, the court declined to analyze the defendant's state constitutional vagueness claim to determine whether the challenged statutes provided fair notice of the conduct that they prohibited. Illig-Renn, 341 Or at 239-40; Delgado, 334 Or at 146-47. Rather, the only issue that the court identified as encompassed within a state constitutional vagueness claim was whether a statute or rule gave the police, the prosecutor, or the court either "uncontrolled discretion" or "unbridled discretion * * * to decide what is prohibited in a given case." Illig-Renn, 341 Or at 239 (quoting Graves, 299 Or at 195). Contrary to defendant's argument, we cannot dismiss the reasoning in Delgado and Illig-Renn as dicta.(13) It follows that, in deciding defendant's state constitutional vagueness claim in this case, we consider only whether the sentencing guidelines provide an ascertainable standard that guided the prosecutor in identifying which nonenumerated sentencing factors warranted imposition of a departure sentence. See Illig-Renn, 341 Or at 240 (identifying that standard). We refer to the prosecutor's exercise of discretion because, once the prosecutor notified defendant of the specific aggravating facts on which the state intended to rely, the jury and the trial court had a limited role to play. The question for the jury was whether the state had proved beyond a reasonable doubt the specific aggravating factors that the prosecutor had identified. Once the jury found that the state had proved those factors, then the question for the trial court was whether those factors, individually or collectively, provided a substantial and compelling reason for imposing an upward departure sentence. The trial court had no discretion to decide whether other aggravating factors (either enumerated or nonenumerated) might apply. See ORS 136.765 (providing that only the aggravating factors of which the prosecutor has provided notice to the defendant may be used to enhance a sentence). To be sure, in deciding whether the aggravating factors that the jury found provided a substantial and compelling reason for imposing an enhanced sentence, the trial court exercised a limited measure of discretion. See Upton, 339 Or at 680 (explaining that, "even if the jury finds that an aggravating or enhancing factor was proved, the court is not required to order a sentencing departure based on that finding"). But we do not understand defendant to argue that that exercise of discretion injected an element of vagueness into the exercise. Rather, as we understand defendant's argument, he contends that the sentencing guidelines are vague in violation of the state constitution because they do not sufficiently limit the prosecutor's discretion to identify, in the first instance, the nonenumerated aggravating circumstances that can result in an enhanced sentence. We turn to that issue. More than 50 years ago, this court rejected a vagueness challenge to an indeterminate sentencing statute. Smallman v. Gladden, 206 Or 262, 276-77, 291 P2d 749 (1956). As explained above, indeterminate sentencing statutes gave trial courts broad discretion to sentence defendants within a wide statutory range (in Oregon, anywhere within a 10-year range for Class B felonies and within a 20-year range for Class A felonies). Although Oregon's indeterminate sentencing statutes did not specifically identify any criteria to guide a trial court's exercise of its discretion, this court's cases made clear that two criteria applied: the seriousness of the offense and the character or status of the offender. See, e.g., State v. Biles, 287 Or 63, 72, 597 P2d 808 (1979); Scott, 237 Or at 399-400. As explained above, the sentencing guidelines incorporate those same criteria. Not only is the presumptive sentence a product of the seriousness of the offense and the offender's criminal history (one indicator of an offender's character), but the enumerated aggravating and mitigating factors are further specifications of those two criteria. It follows, we think, that those same criteria provide guidance for prosecutors and courts in determining which nonenumerated aggravating or mitigating factors will warrant a departure sentence. Cf. State v. Kurtz, 350 Or 65, 74, 249 P3d 1271 (2011) (explaining that, when a general term is accompanied by a "nonexclusive list of examples," the specific examples shed light on the meaning of the general term). Put differently, the same criteria that informed a sentencing court's exercise of its discretion under the indeterminate sentencing statutes apply with equal force to the identification of nonenumerated aggravating and mitigating factors under the sentencing guidelines. If those criteria were sufficient to defeat a vagueness challenge to indeterminate sentencing statutes, we cannot say that those same criteria are not a sufficient check on the prosecutor's discretion to identify nonenumerated aggravating factors. That is particularly true since the sentencing guidelines place further limitations on the exercise of sentencing discretion. They require that any nonenumerated factor provide substantial and compelling reasons for imposing a departure sentence, OAR 213-008-0001, and they prohibit the use of nonenumerated aggravating factors that merely duplicate elements of the offense, that are used to rank the seriousness of the crime in setting the presumptive sentence, or that are a necessary element of a mandatory sentence, OAR 213-008-0002(2) and (3). The discretion that the sentencing guidelines give prosecutors to identify and courts to determine nonenumerated aggravating factors is neither standardless nor unfettered. That aspect of the sentencing guidelines is not vague in violation of Article I, sections 20 and 21, of the Oregon Constitution,(14) and we turn to defendant's federal vagueness argument. Under the Due Process Clause of the Fourteenth Amendment, a criminal statute will be unconstitutionally vague if it fails to provide "fair warning" of the acts that will expose a person to criminal penalties; that is, a statute must "give [a] person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he [or she] may act accordingly." Illig-Renn, 341 Or at 241 (quoting Grayned v. City of Rockford, 408 US 104, 108, 92 S Ct 2294, 33 L Ed 2d 222 (1972)). As the United States Supreme Court has explained, however, even if an "otherwise uncertain statute," standing alone, would fail to provide constitutionally adequate notice of the acts that expose a person to criminal liability, the statute will satisfy due process if "[a] prior judicial decision has fairly disclosed [the charged conduct] to be within [the statute's] scope." United States v. Lanier, 520 US 259, 266, 117 S Ct 1219, 137 L Ed 2d 432 (1997); accord Rogers v. Tennessee, 532 US 451, 459, 121 S Ct 1693, 149 L Ed 2d 697 (2001) (acknowledging that rule). As explained above, before defendant committed the crimes that gave rise to his burglary and assault convictions, the Court of Appeals had identified each of the four nonenumerated aggravating factors at issue in this case as permissible grounds for imposing an enhanced sentence under the sentencing guidelines. Even if the sentencing guidelines, standing alone, would not provide sufficient notice that those factors would justify an enhanced sentence, those appellate decisions did and, in doing so, satisfied due process. See Lanier, 520 US at 266.(15) If those cases provided sufficient notice to defendants under the Due Process Clause, we think that they also provided sufficient guidance to prosecutors in identifying those aggravating factors that would support the imposition of an enhanced sentence.(16) The trial court and the Court of Appeals correctly rejected defendant's state and federal constitutional challenges to the use of nonenumerated aggravating factors. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. In Dilts I, this court explained how Oregon's sentencing statutes work as a matter of state law and concluded that those statutes, as the court had interpreted them, complied with the Sixth and Fourteenth Amendments to the United States Constitution. The defendant in Dilts I petitioned for certiorari. The United States Supreme Court granted his petition, vacated this court's judgment, and remanded the case for further proceedings in light of its decision in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). Dilts v. Oregon, 542 US 934, 124 S Ct 2906, 159 L Ed 2d 809 (2004). Following Blakely, this court held on remand that the Sixth and Fourteenth Amendments gave defendants the right to have a jury find aggravating sentencing factors beyond a reasonable doubt. State v. Dilts, 337 Or 645, 652, 103 P3d 95 (2004) (Dilts II). Even though this court's understanding of federal law in Dilts I is no longer valid in light of Blakely, see Dilts II, 337 Or at 652, this court's explanation in Dilts I of how Oregon's sentencing statutes work as a matter of state law remains good law. 2. Although the commission adopted the sentencing guidelines as rules, the legislature later enacted the sentencing guidelines as statutes. Dilts I, 336 Or at 162. 3. For some crimes, the Oregon statutes also provide mandatory minimum sentences. See, e.g., ORS 137.700 (setting mandatory minimum sentences for certain crimes). When a court imposes a mandatory minimum sentence, that sentence sets the floor below which the presumptive sentence may not go. See State ex rel Huddleston v. Sawyer, 324 Or 597, 603-04, 932 P2d 1145 (1997) (explaining the relationship between mandatory minimum sentences and presumptive sentences). 4. Whether an aggravating factor relates to the offense or the offender affects whether the factor may be tried in the guilt phase of the trial or in a separate sentencing phase. ORS 136.770(1); ORS 136.773(1). 5. Because second-degree assault is a Measure 11 crime, the court imposed a 70-month mandatory minimum sentence on that conviction. See ORS 137.700(2)(a)(G). Because of that mandatory minimum sentence and the trial court's decision that the sentences on the burglary and second-degree assault convictions would run concurrently, the net effect of imposing upward departure sentences in this case is that defendant's sentence is two months longer than it otherwise would have been. 6. Defendant does not argue that merging the sentences, as opposed to merging the convictions for second- and third-degree assault, is inconsistent with State v. White, 341 Or 624, 147 P3d 313 (2006), and we do not address that issue. 7. To describe that authority solely as a judicial function is not entirely accurate. Historically, prosecutors identified and submitted the facts at a sentencing hearing that the trial courts then considered in deciding whether the seriousness of the offense and the character of the offender warranted a greater or lesser sentence within the range permitted by sentencing statutes. See Scott, 237 Or at 396-97 (discussing practice under the Deady Code). A prosecutor's ability (discussed above) to identify the aggravating factors that may result in an enhanced sentence is consistent with that historical allocation of authority. Cf. Huddleston, 324 Or at 616 (explaining that a prosecutor's ability to charge crimes carrying a mandatory minimum sentence did not violate separation of powers principles). 8. As our reasoning makes clear, our resolution of defendant's separation of powers argument focuses on and is limited to sentencing issues. 9. We recognize, of course, that, under Blakely, a presumptive sentence is a maximum sentence for purposes of the Sixth and Fourteenth Amendment. See Dilts II, 337 Or at 652. A presumptive sentence, however, is not a maximum sentence for the purposes of state law; that is, for the purposes of analyzing defendant's state constitutional separation of powers argument, a presumptive sentence does not set the outer boundary beyond which a trial court may not go. See Dilts I, 336 Or at 171. 10. Such an argument would be difficult to make. Each of the four aggravating factors on which the state relied in this case concerns a defendant's character or status. Each factor concerns, in one way or another, whether current or prior judicial sanctions have failed to deter defendant from continuing to commit crimes and, if they have failed, whether an enhanced sentence is appropriate. 11. See State v. Williams, 133 Or App 191, 195 n 2, 891 P2d 3, rev den, 321 Or 512 (1995) (crime committed while the defendant was on supervision); State v. Nelson, 119 Or App 84, 86-87, 849 P2d 1147 (1993) (on release with other criminal charges pending); State v. Zavala-Ramos, 116 Or App 220, 223, 840 P2d 1314 (1992) (disregard for laws and rules, making successful probation unlikely); State v. Hill, 112 Or App 213, 214, 827 P2d 951 (1992) (prior criminal judicial sanctions failed to deter). 12. Because the defendant in Delgado claimed that a civil statute was vague, only Article I, section 20 applied. 334 Or at 145. That case did not require the court to decide whether the statute was vague in violation of the ex post facto clause of Article I, section 21, which applies only to criminal statutes. Id. 13. Defendant has not argued that Delgado and lllig-Renn should be overruled because they were "wrongly considered or wrongly decided." See Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000) (explaining when this court will consider overruling a state constitutional holding). Accordingly, we leave for another day whether those cases correctly held that "fair notice" is not a component of a state constitutional vagueness analysis. 14. Our state constitutional vagueness holding is limited to sentencing and, within that context, to sentencing factors that bear on a defendant's character. We have no occasion to consider whether greater specificity would be required either for a statute defining the elements of an offense or for sentencing factors that relate to the offense rather than the offender. Cf. State v. Ice, 343 Or 248, 257-60, 170 P3d 1049 (2007) (distinguishing, for the purpose of Article I, section 11, between sentencing factors that relate to the offense and those that relate to a defendant's character or status), rev'd on other grounds, Oregon v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009). 15. The Court held in Lanier that a decision need not be from a court of last resort to provide fair notice; an intermediate appellate decision will suffice. 520 US at 268-69. 16. It may be that the prior Court of Appeals decisions recognizing specific nonenumerated aggravating factors would be a complete answer to defendant's state vagueness claims, as well as to his federal vagueness claims. However, having resolved defendant's state vagueness claims on different grounds, we need not decide that issue.

5bcfcb684b0f2753b036831694ac417dc3a4d7fc87aaad97c6518487e2005879

2011-06-30T00:00:00Z

85ff8e5c-da26-4954-9ab7-c8df32b49fd1

Rasmussen v. Kroger

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED August 12, 2011 Rasmussen v. Kroger (S059360). Having received no timely filed objections, the court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative Petition No. 14 (2012), ORS 250.085(9).

c0fd65183581f802ab0d8f9ad57308113755f98735167846d0a9179acbdd6fcc

2011-08-12T00:00:00Z

e57bc305-0f8c-49b2-b4f2-27af84151cc2

Rasmussen v. Kroger

oregon

Oregon Supreme Court

Filed: May 5, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON GAIL RASMUSSENand BETHANNE DARBY, Petitioners, v. JOHN R. KROGER,Attorney General,State of Oregon, Respondent. (S059261) En Banc On petition to review ballot title filed March 10, 2011; considered and under advisement April 12, 2011. Aruna A. Masih, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the petition and reply memoranda for petitioners. Judy C. Lucas, Senior Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the answering memorandum were John R. Kroger, Attorney General, and Mary H . Williams, Solicitor General. LANDAU, J. The ballot title is referred to the Attorney General for modification. LANDAU, J. Petitioners seek review of the Attorney General's certified ballot title for Initiative Petition 10 (2012), arguing that the ballot title does not satisfy the requirements of ORS 250.035(2). See ORS 250.085(2) (specifying requirements for seeking review of certified ballot titles). This court reviews a certified ballot title to determine whether it substantially complies with those statutory requirements. See ORS 250.085(5) (stating standard of review). For the reasons that follow, we refer the ballot title to the Attorney General for modification. Initiative Petition 10, a copy of which is attached as an appendix to this opinion, would amend Article IV, section 6, of the Oregon Constitution, which sets out the method of reapportioning -- also known as "redistricting" -- state legislative districts following the completion of the decennial United States census. Under current law, the Legislative Assembly is assigned the responsibility of reapportionment, at the first regular legislative session following the completion of the national census. Or Const, Art IV, § 6(1). If the Legislative Assembly fails to enact a reapportionment of legislative districts by a specified deadline, the responsibility for the reapportionment falls to the Secretary of State. Id. § 6(3)(a). Any elector of the state is authorized to petition the Oregon Supreme Court to review a reapportionment created by the legislature or the Secretary of State. Id. §§ 6(2)(a), 6(3)(b). Initiative Petition 10 would change the reapportionment process by removing responsibility for the task from the Legislative Assembly and the Secretary of State and placing it instead with a commission of retired circuit court judges, one from each of the then-current congressional districts, appointed by the Chief Justice of the Oregon Supreme Court. The commission would create a reapportionment plan every ten years, during the year following the United States census, based on those census results. If the commission were to fail to create a redistricting plan by September 1 of the relevant year, the Oregon Supreme Court would create a final, nonreviewable plan. Initiative Petition 10 also would alter the criteria that must be applied in determining the boundaries of the new legislative districts. The commission or the Supreme Court would be required to "use only the following criterion when apportioning the state into legislative districts: each district shall be geographically maximally compact."(1) Initiative Petition 10 also provides that a "Fresh Start Apportionment shall be conducted in the year 2013, regardless of any apportionment plan adopted in 2011" under existing reapportionment law. Thus, in 2013, the commission of retired judges would be required to adopt a new reapportionment plan, based on the results of the 2010 census, which would repeal and replace any existing plan based on that same census. The Attorney General certified the following ballot title for Initiative Petition 10: "Amends Constitution: Repeals legislative redistricting by Legislative Assembly; starting 2013, appointed commission of retired judges conducts redistricting "Result of 'Yes' Vote: 'Yes' vote replaces legislative redistricting by legislature or Secretary of State with redistricting by appointed commission of retired judges or Supreme Court, beginning in 2013. "Result of 'No' Vote: 'No' vote retains process of legislative redistricting by Legislative Assembly after each census; if legislature fails to complete redistricting plan, Secretary of State conducts redistricting. "Summary: Amends Constitution. Currently, Legislative Assembly reapportions state's legislative districts based on population every ten years, after federal census, using statutory criteria. If legislature fails to complete redistricting, Secretary of State redraws districts after public hearing, testimony, evidence. Redistricting plan may be challenged in Oregon Supreme Court. Measure replaces current process with redistricting by commission of retired circuit court judges, appointed by Chief Justice. Commission takes public comment, holds hearing throughout state. Each district must be geographically 'maximally compact' (defined). Legislature may not restrict or direct commission; substantially hinder commission in performing its work independently; or repeal, amend or refer plan to voters. If commission defaults, Supreme Court provides final, unreviewable plan by year's end. Commission redistricts in 2013, overturning any 2011 redistricting plan. Other provisions." (Boldface in original.) Petitioners contend that the ballot title is deficient in a number of different respects pertaining to the caption, the "yes" vote result statement, and the summary. We begin with petitioners' contentions concerning the caption. ORS 250.035(2)(a) provides that a ballot title caption for a proposed constitutional amendment must begin with the words "Amends Constitution," followed by a statement of not more than 15 words that "reasonably identifies the subject matter" of the measure. To comply with that statutory standard, case law requires that the caption "state or describe the proposed measure's subject matter 'accurately, and in terms that will not confuse or mislead potential petition signers and voters.'" Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004) (quoting Greene v. Kulongoski, 322 Or 169, 174-75, 903 P2d 366 (1995)). For purposes of this court's review, the "subject matter" of a ballot title is "the 'actual major effect' of a measure or, if the measure has more than one major effect, all such effects (to the limit of the available words)." Whitsett v. Kroger, 348 Or 243, 247, 230 P3d 545 (2010). To identify the "actual major effect" of a measure, this court examines the text of the proposed measure to determine the changes that the proposed measure would enact in the context of existing law and then examines the caption to determine whether the caption reasonably identifies those effects. Kain/Waller, 337 Or at 41. In this case, petitioners contend that the caption in the Attorney General's certified ballot title does not substantially comply with the foregoing requirements in that it understates the scope of the changes that adoption of the measure would require and, thus, is misleading. Specifically, petitioners complain that the caption does not notify voters that a major effect of adopting Initiative Petition 10 would be to repeal and replace any reapportionment plan that the Legislative Assembly or the Secretary of State adopts in 2011. The Attorney General responds that the "Fresh Start Apportionment" that would occur in 2013 is simply not a "major effect" of Initiative Petition 10. We agree with petitioners that the caption fails to identify the major effects of adopting Initiative Petition 10. As we have noted, the adoption of the measure would not merely replace the existing reapportionment process, but also would require that the new process be applied in 2013 to replace the existing reapportionment. That is not a minor, incidental effect. It is, in fact, the only effect that adoption of the measure would accomplish before the year 2021. There are thus at least two major effects of adopting Initiative Petition 10, and the caption in the Attorney General's certified ballot title identifies only one of them. It is true that the caption uses the phrase "starting 2013" in describing the effect of the measure. The phrase is at best ambiguous, however. It could mean that Initiative Petition 10 is effective in 2013, but only prospectively, that is, without affecting any reapportionment approved in 2011. Or, it could mean that its adoption would require the repeal and replacement of any existing reapportionment. Without more, the caption in the Attorney General's certified ballot title does not substantially comply with the statutory requirement that it reasonably identify the subject matter of the measure within the 15-word limit. We believe it is possible to do so and, therefore, refer the caption to the Attorney General for revision. We turn to petitioners' contention that the "yes" vote result statement is legally insufficient. ORS 250.035(2)(b) provides that a result statement must be a "simple and understandable statement of not more than 25 words that describes the result if the state measure is approved." This court stated in Novick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004), that "the result of a proposed measure's enactment that belongs in the 'yes' vote result statement is that outcome that is the most significant and immediate, or that carries the greatest consequence, for the general public." In this case, petitioners contend that the "yes" vote result statement in the Attorney General's certified ballot title suffers from the same deficiency as the caption in that it fails to inform the voters that a significant result of adopting the measure is the repeal and replacement of the existing reapportionment. The Attorney General argues that the inclusion of the phrase, "beginning in 2013," adequately informs the voters of the effect of adopting the measure. As we previously noted, the "Fresh Start Apportionment" is the most immediate effect of Initiative Petition 10; it is, in fact, the only significant effect until 2021. The "yes" vote result statement does not inform the voters of that effect. The phrase "beginning in 2013" is no less ambiguous than the phrase "starting 2013" that is used in the caption. Therefore, we also refer the "yes" vote result statement to the Attorney General to modify that statement in a way that clarifies the effect of the "Fresh Start Apportionment" provision of Initiative Petition 10. Petitioners contend that the Attorney General's certified ballot title is deficient in several other ways. We reject those contentions without discussion. The ballot title is referred to the Attorney General for modification. APPENDIX "In order to establish an independent, non-partisan commission to carry out reapportionment of legislative districts and to avoid partisan, self-interested action by legislators in drawing legislative district lines, the Constitution of the State of Oregon is amended by repealing section 6, Article IV, and by adopting the following new section 6 in lieu thereof: "SECTION 6. (1) In each year ending in the number one, Senators and Representatives shall be apportioned among legislative districts according to population and a redistricting plan adopted in the manner provided in this Section. A senatorial district shall consist of two representative districts. Any senator whose term continues through the next regular legislative session after the operative date of the redistricting plan shall be specifically assigned to a senatorial district. The ratio of senators and representatives, respectively, to population shall be determined by dividing the total population of the state by the number of senators and by the number of representatives. "(2) Not later than January 31 of each year ending in the number one, a Redistricting Commission shall be established to provide for the redistricting of state legislative districts. "(3)(a) The Commission shall be composed of one Senior Circuit Court Judge from each of the then-existing congressional districts. "(b) Each Commission member shall be chosen by the Chief Justice of the Oregon Supreme Court, subject to the approval of the majority of the members of the Supreme Court, from among the Senior Circuit Court Judges who reside in each congressional district. The appointments shall be subject to the following limitations: "(A) No more than one Commission member may reside in any one county. "(B) No Commission member may have served: "(i) In a partisan government elective office, or have served in a political party elective office as an officer (other than precinct committee person), during the 20 years previous to the person's appointment to the Commission; or "(ii) On a previous Commission. "(c) Any vacancy on the Commission shall be filled by the Chief Justice, subject to the approval of a majority of the members of the Supreme Court, from the congressional district in which the vacating Commissioner resided. "(d) As used in this section, 'Senior Circuit Court Judge' means a person who has retired from the full-time office of Circuit Court Judge, but has continued in part-time judicial service, under the direction of the Oregon Supreme Court, within a retirement plan for judges. "(4)(a) The Commission is a part of the Judicial Department of state government for budgeting and administrative purposes. "(b) Notwithstanding paragraph (a) of this subsection, the Commission shall comply with all laws on the disclosure of records and the openness of meetings that apply to the Executive Department of state government. "(c) The Commission shall elect a chair from among its own members. The chair shall preside over the proceedings of the Commission and shall, subject to the approval of the Commission, select an executive director to assist the Commission in the execution of its duties. All additional staff support and services for the Commission shall be provided for by the Office of the Secretary of State, provided that such staff support and services shall be under the direction of the Commission, its chair, and its executive director. "(5) An affirmative vote of a majority of Commission members is necessary for the adoption of any Preliminary or Final Redistricting Plan. In all other respects, the Commission may establish its own rules and procedures as necessary to accomplish its work. The Commission shall not be subject to statutory restrictions or directives affecting its decisions. "(6)(a) The Commission or the Supreme Court, whichever is applicable, shall use only the following criterion when apportioning the state into legislative districts: each district shall be geographically maximally compact. 'Maximally compact' means the sum of the perimeters of all districts is the smallest number possible using undivided census blocks to create each district, as nearly as practicable. If in the future the United States Census Bureau develops smaller geographic units than census blocks, then those units will be substituted for census blocks. "(b) No district shall be drawn for the purpose of favoring any political party, incumbent legislator or other person. "(c) No district shall be drawn for the purpose of affecting the voting strength of any language or ethnic minority group. "(d) Two representative districts shall be wholly included within a single senatorial district. The senatorial districts will be drawn by combining pairs of adjoining representative districts so that the senatorial districts are maximally compact. "(7) The Commission shall adopt a Preliminary Redistricting Plan as soon as practicable following the enumeration of the inhabitants of this state by the United States government, but not later than June 1. Upon adoption of the Preliminary Redistricting Plan, the Commission shall receive public comment and shall conduct at least one public hearing in each congressional district to receive public testimony regarding the Preliminary Redistricting Plan. "(8) After conducting public hearings, the Commission shall adopt a Final Redistricting Plan no later than September 1. "(9) Original jurisdiction is vested in the Oregon Supreme Court, upon the petition of any 15 electors of the state filed with the Supreme Court on or before October 1 of the year in which the Final Redistricting Plan is adopted, to review the Final Redistricting Plan. "(10) If, upon challenge properly filed with the Supreme Court, the Court determines that the Final Redistricting Plan conforms to the requirements of the United States Constitution and the Oregon Constitution, it shall dismiss the challenge and approve the plan. No error or errors by the Commission shall be grounds for modification of the Final Redistricting Plan unless the error or errors constitute a violation of this Constitution or of the United States Constitution. If any such violation is found, the Supreme Court may itself correct the Final Redistricting Plan, or take such other action as it deems necessary to remedy the violation. The Supreme Court shall render its final decision as to any challenge no later than December 31 of the same year the Final Redistricting Plan was adopted by the Commission. "(11) If the Commission does not adopt a Final Redistricting Plan by September 1, then the Commission shall be disbanded and the Supreme Court shall prepare the Final Redistricting Plan by December 31 of the same year the plan was due from the Commission. The Supreme Court may appoint one or more Senior Circuit Court Judges as special masters to assist with the Final Redistricting Plan. The Supreme Court shall conduct a hearing on the reapportionment at which the public may submit evidence, views and argument. "(12) A Final Redistricting Plan that is approved or prepared by the Supreme Court or for which no challenge is timely filed is not subject to revision by any Act of the Legislative Assembly. "(13) The reapportionment shall be operative on December 31 of the same year the plan was due from the Commission. Upon completion of this reapportionment process, the Commission shall be disbanded. "(14)(a) Any reapportionment that becomes operative as provided in this section is a law of the state, but is not subject to amendment or repeal by the Legislative Assembly or to the referendum power reserved to the people. The people may amend or repeal a plan through the initiative. "(b) The Legislative Assembly shall arrange for publication of the approved Final Redistricting Plan with the session laws of the Legislative Assembly that meets in the same year as the commission. "(15) Notwithstanding section 18, Article II of this Constitution, after the convening of the next regular legislative session following the reapportionment, a Senator whose term continues through that legislative session is subject to recall by the electors of the district to which the Senator is assigned and not by the electors of the district existing before the latest reapportionment. The number of signatures required on the recall petition is 15 percent of the total votes cast for all candidates for Governor at the most recent election at which a candidate for Governor was elected to a full term in the two representative districts comprising the senatorial district to which the Senator was assigned. "(16) Members of the legislative assembly have an inherent conflict of interest relating to the redistricting process. Accordingly, the legislative assembly shall not enact any legislation which substantially hinders the Redistricting Commission in the independent performance of its work. The legislative assembly shall not require any additional redistricting standard which has the effect of gerrymandering districts. "(17) A Fresh Start Apportionment shall be conducted in the year 2013, regardless of any apportionment plan adopted in 2011 under the process which preexisted the adoption of this amendment. The Fresh Start Apportionment shall be based on the 2010 census and shall be conducted as if this amendment became effective in December 2010 but with the deadlines adjusted for a process beginning in January 2013, instead of January 2011. This provision shall be given a common-sense interpretation and is intended to give Oregonians a Fresh Start on nonpartisan apportionment as soon as practicably possible. Once the Fresh Start Apportionment is complete, future apportionments shall be conducted on the original base cycle (each year ending with the number one). 1. No party raises the issue whether the alteration of the criteria for determining legislative districts is a major effect that must be expressed in the ballot title, and we do not address the matter.

78b1a8ab13463e823379e8646a59b493fa0330d3c9a4c25e13d379a253856a4e

2011-05-05T00:00:00Z

d2e0aeba-90b3-4429-a504-38e68ca39daf

Rasmussen v. Kroger

oregon

Oregon Supreme Court

Filed: July 28, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON GAIL RASMUSSEN and BETHANNE DARBY, Petitioners, v. JOHN R. KROGER, Attorney General, State of Oregon, Respondent. (SC S059360) En Banc On petition to review ballot title filed April 12, 2011, considered and under advisement June 22, 2011. Thomas K. Doyle of Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the petition and reply memorandum for petitioners. Samuel A. Kubernick, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. BALMER, J. The ballot title is referred to the Attorney General for modification. 1 BALMER, J. 1 Petitioners seek review of the Attorney General's certified ballot title for 2 Initiative Petition 14 (2012). See ORS 250.085(2) (specifying requirements for seeking 3 review of certified ballot title). This court reviews the certified ballot title to determine 4 whether it substantially complies with ORS 250.035(2) (stating requirements for ballot 5 titles). For the reasons explained below, we refer the ballot title to the Attorney General 6 for modification. 7 Initiative Petition 14, if enacted, would amend the Oregon Constitution to 8 prohibit the state (and any political subdivision) from imposing any inheritance tax, estate 9 tax, or tax on the transfer of property "where the transfer is the result of the death of a 10 person." The proposed measure excludes from its prohibition certain fees related to 11 transactions that may follow a person's death, such as fees for processing death 12 certificates and for probate proceedings. 13 The Attorney General certified the following ballot title for Initiative 14 Petition 14: 15 "Amends Constitution: Prohibits any inheritance or estate taxes on 16 property transferred in connection with a person's death 17 "Result of 'Yes' Vote: 'Yes' vote prohibits state, political 18 subdivisions, from imposing any estate or inheritance taxes on decedent's 19 property transferred in connection with decedent's death; reduces state 20 revenues. 21 "Result of 'No' Vote: 'No' vote retains current one-time state estate 22 tax on inherited property for estates of certain value; rejects constitutional 23 amendment prohibiting imposition of such taxes. 24 "Summary: Amends constitution. Current state law imposes one- 25 2 time tax on estate of person dying on or after January 1, 2006, if estate's 1 gross value determined by federal tax law as of December 31, 2000 -- is $1 2 million or more. Measure prohibits state and its political subdivisions from 3 imposing any estate, inheritance, or other tax on transfer of a person's 4 property, 'where the transfer is the result of the death of a person.' Measure 5 allows state to cooperate with other states, territories and federal 6 government in processing and collecting those entities' estate and 7 inheritance taxes; permits state to impose some fees in connection with 8 probate proceedings and other transactions which may occur following a 9 person's death. Measure reduces state revenues, provides no replacement. 10 Other provisions." 11 (Boldface in original.) 12 Petitioners are electors who timely submitted written comments to the 13 Secretary of State concerning the content of the Attorney General's draft ballot title and 14 who therefore are entitled to seek review of the resulting certified ballot title in this court. 15 See ORS 250.085(2) (stating that requirement). Petitioners challenge the caption and the 16 "yes" and "no" vote result statements. 17 Petitioners first assert that the certified caption fails to "reasonably 18 identif[y] the subject matter" of the proposed measure, as required by ORS 250.035(2)(a), 19 because it fails to state that, under current law, only estates with a gross value in excess 20 of $1 million are subject to estate taxes. They argue that the caption is misleading 21 because it incorrectly suggests that a tax is imposed on all estates and paid by individual 22 taxpayers when they die, when, in fact, the measure "has no effect on any voter whose 23 estate would be less than" $1 million. The Attorney General responds that the caption 24 accurately informs voters that the measure would "constitutionally prohibit[ ] the 25 imposition of any inheritance and estate taxes" and that the caption does not suggest that 26 all voters currently are subject to such taxes. 27 3 We agree with the Attorney General. Nothing in the certified caption 1 suggests that all persons currently are subject to estate or inheritance taxes. Rather, the 2 caption accurately identifies the subject matter of the measure as a constitutional 3 prohibition on the imposition of an estate or inheritance tax on the transfer of a decedent's 4 property in connection with that person's death. Contrary to petitioners' assertion, the 5 adoption of such a prohibition would have an effect on Oregon residents, including those 6 with estates of less than $1 million, because it would place in the constitution a bar on 7 any law that imposed such a tax. It is true, as petitioners point out, that Oregon law 8 currently imposes no tax on estates of less than $1 million. And, as discussed below, we 9 agree with petitioners that the elimination of that existing tax would be a "result" of the 10 approval of the measure and should be described in the "no" vote result statement. But 11 the Attorney General's identification of the subject matter of the measure as amending the 12 constitution to prohibit estate taxes is accurate and substantially complies with ORS 13 250.035(2)(a). 14 Petitioners also argue that the caption is deficient because it fails to inform 15 voters that one effect of the measure "would be to reduce revenue, without replacing that 16 revenue." Petitioners claim that Novick v. Myers, 333 Or 12, 35 P3d 1017 (2001), stands 17 for the proposition that when a measure would result in a reduction in state general funds, 18 without some offsetting increase in revenues, that fact should be included in the ballot 19 title. 20 We disagree with petitioners' claim that the caption is deficient for not 21 stating that state revenues would be reduced if the measure passed. ORS 250.035(2)(a) 22 4 requires that the caption "identif[y] the subject matter" of the measure, while a different 1 part of the ballot title statute, ORS 250.035(2)(b), requires a statement of the "result if the 2 * * * measure is approved." (Emphasis added.) The Attorney General's certified caption, 3 quoted above, complies with the statutory mandate for the caption. Moreover, the 4 Attorney General describes the effect identified by petitioners in the certified "yes" vote 5 result statement for Initiative Petition 14. Here, that aspect is a "result" of the adoption of 6 the measure, and the Attorney General describes that result in an appropriate part of the 7 ballot title. Additionally, petitioners' reliance on Novick is misplaced, because that 8 decision did not require the ballot title caption to state that the measure at issue there 9 would reduce general fund revenues, but rather held that, under the circumstances in that 10 case, that result must be described in the "yes" vote result statement. 333 Or at 17.1 11 We turn to petitioners' challenge to the "yes" and "no" vote result 12 statements. The "yes" vote result statement, as noted, is to consist of "a simple and 13 understandable statement * * * that describes the result if the * * * measure is approved." 14 ORS 250.035(2)(b). The "no" vote result statement is "a simple and understandable 15 statement * * * that describes the result if the * * * measure is rejected." ORS 16 250.035(2)(c). Petitioners argue that the certified "yes" and "no" vote result statements 17 do not comply with the applicable statutes because neither statement informs voters of 18 the "limited reach" of the estate tax, which currently is imposed only on estates in excess 19 1 Petitioners argue that the caption is deficient for one additional reason. We reject that argument without discussion. 5 of $1 million.2 For that reason, petitioners argue, those statements do not accurately 1 describe the "result" if the measure is approved or if it is rejected. The Attorney General 2 responds that the "yes" and "no" vote result statements should be read together and that, 3 although neither one explicitly states that the measure will result in the elimination of 4 estate taxes only on estates in excess of $1 million (because only estates of that amount 5 are subject to that tax), the reference in the "no" vote result statement to the fact that 6 estate taxes currently apply only to "estates of a certain value" informs voters that not all 7 estates are subject to the estate tax. That reference, the Attorney General maintains, 8 sufficiently describes the "result" of the approval or rejection of the measure. 9 We agree with the Attorney General that the "yes" and "no" vote result 10 statements should be read together, Potter v. Kulongoski, 322 Or 575, 582, 910 P2d 377 11 (1996), but even when read together, those statements are insufficient. The "yes" vote 12 result statement adequately describes the prohibition on any estate or inheritance taxes 13 and the reduction of state revenue that would "result if the * * * measure is approved." 14 The "no" vote result statement, however, is an inadequate description of the result if the 15 measure is rejected -- that is, if current law remains in effect. The parties agree that, 16 under current law, only estates in excess of $1 million are subject to estate or inheritance 17 taxes, yet the "no" vote result statement states only that "estates of a certain value" are 18 2 Petitioners make one additional argument that the "yes" and "no" vote result statements do not comply with ORS 250.035(2)(b) and (c). We reject that argument without discussion. 6 subject to such taxes. That vague and indefinite reference does not adequately inform 1 voters which estates are now subject to estate or inheritance taxes and thus would 2 continue to be subject to such taxes if the measure is rejected.3 3 In a memorandum of additional authorities, respondents bring to our 4 attention recently passed legislation that makes one part of the certified ballot title 5 summary inaccurate. Specifically, House Bill (HB) 2541 (2011), signed by the governor 6 on June 28, 2011, would amend ORS 118.007 (2009) to change certain references to the 7 federal tax code from the code as in effect on December 31, 2000, to the code as in effect 8 on December 31, 2010. That change makes inaccurate the statement in the summary that 9 refers to the valuation of an estate based on "federal law as of December 31, 2000." 10 Petitioners, of course, did not challenge that aspect (or, indeed, any aspect) of the 11 summary in this proceeding. However, because we refer the ballot to the Attorney 12 General for modification for other reasons, we invite the Attorney General to make 13 changes necessary to correct the inaccuracy in the summary that results from the passage 14 of HB 2541. 15 The ballot title is referred to the Attorney General for modification. 16 3 We also note that the second part of the "no" vote result statement -- "rejects constitutional amendment prohibiting imposition of such taxes" -- may be confusing to voters in that it uses a double negative and essentially mirrors the first part of the "yes" vote result statement. Although petitioners did not specifically challenge that portion of the statement, on referral the Attorney General may wish to revise the statement to address those matters.

3ff2f4e6befb7b931d8017e570e85c8e0e6df20b1e52bd4ed0ca9a6cd72bb170

2011-07-28T00:00:00Z

b64e9b4d-5d2f-46ef-b924-f38879c2afdb

State v. Foster

S058240

oregon

Oregon Supreme Court

Filed: April 7, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. STEVEN MICHAEL FOSTER, Petitioner on Review. (CC CR060302; CA A135857; SC S058240) On review from the Court of Appeals.* Argued and submitted May 7, 2010, at Portland State University, Portland, Oregon. Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. Karla Ferrall, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** LINDER, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Yamhill County Circuit Court, Ronald W. Stone, Judge. 233 Or App 135, 225 P3d 830 (2010). **Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. Landau, J., did not participate in the consideration or decision of this case. LINDER, J. After a lawful stop of defendant's car, police searched the car based on an alert by an officer's drug-detection dog. The search recovered a pipe with drug residue on it, which resulted in defendant's arrest and prosecution for possession of methamphetamine. At trial, defendant moved to suppress evidence of the seized pipe, arguing that the dog alert was insufficiently reliable to provide probable cause to search his car. After a hearing, the trial court denied defendant's motion and, following a bench trial, the trial court found defendant guilty. On appeal, defendant challenged the denial of his motion to suppress, renewing his argument that the dog alert was unreliable. The Court of Appeals affirmed. State v. Foster, 233 Or App 135, 225 P3d 830 (2010). We allowed review to consider the issue of whether, and under what circumstances, an alert by a drug-detection dog provides probable cause to search. As we will explain, we hold that an alert by a properly trained and reliable drug-detection dog can be a basis for probable cause to search. Whether a particular alert by a particular dog provides probable cause is an issue that requires an individualized inquiry, based on the totality of the circumstances known to police, which typically will include such considerations as the dog's and its handler's training, certification, and performance. In this case, we conclude that the drug-detection dog's alert to defendant's car provided officers with probable cause to search, and we affirm the decision of the Court of Appeals and the judgment of the circuit court. I. BACKGROUND Because neither party questions the accuracy of the facts recounted by the Court of Appeals, we draw from that court's description, which, based on our own review of the record, is an accurate and thorough overview of the pertinent facts. See id. at 137 (describing the facts of the case). Officer Ray, who was familiar with defendant and suspected that defendant was involved in dealing methamphetamine, saw defendant talking to a person who was a suspected drug user.(1) Ray then observed defendant get into his car and drive away without wearing a seat belt, which is a traffic violation. ORS 811.210(4). Ray, and another officer with him, then stopped defendant for that violation. Because of his suspicion that defendant had just engaged in drug activity, Ray called for a canine unit. Officer Hulke, along with his drug-detection dog, Benny, responded. With defendant out of the car, Hulke had Benny smell the car's exterior as Ray finished writing defendant a ticket. Benny "alerted" -- i.e., indicated the presence of a drug scent -- at the driver's side door handle. After Ray advised defendant of Benny's alert, defendant denied that the car contained drugs or related paraphernalia, but said that Benny might have alerted because a relative might have smoked marijuana in the car earlier. Ray asked defendant if he would consent to a search of the car, and defendant refused. Ray then searched the car and found methamphetamine residue on a pipe that was inside a fanny pack on the seat of the car. As described, defendant moved to suppress the pipe, contending that Ray lacked probable cause to search his car because Benny's alert was not a reliable basis for a belief that seizable evidence of drugs was probably in defendant's car at the time of the search. At the hearing, the state presented testimony from Hulke describing Benny's training and certification, his field performance, and his later recertification. The state also presented testimony from Officer Fyfe, a master dog trainer who tests and certifies drug-detection dogs for the Oregon Police Canine Association (OPCA), which is the organization that certified Benny as a drug-detection dog. The OPCA is a private organization that, as the record shows and the trial court found, currently is the only organization in Oregon that certifies drug-detection dogs. Using the so-called "play-reward" method of training, the OPCA certifies dogs and their handler-officers as a team, and encourages the officers to maintain records of on going training and field deployments. The certification is purely private; no Oregon statutes or regulations set standards for or otherwise govern drug-detection dog training and certification or record-keeping. To rebut the state's evidence, defendant presented expert testimony from a chemist, Woodford, who discussed the "science" of drug odor detection by dogs and who has expertise in the general area of the methods used to train drug-detection dogs. Woodford did not offer an opinion as to Benny's reliability specifically; he instead offered his opinion as to the reliability generally of dogs trained through the play-reward method and other methods. Because of the importance of the expert testimony to the issue before us, we quote the Court of Appeals' description of it, which began by summarizing the "play-reward" method used to train Benny and most drug-detection dogs used by police in the United States: "According to Hulke and Fyfe, a police officer and master dog trainer who certifies dogs for OPCA, the 'play reward' system of training dogs to detect drugs involves pairing a dog with a specific handler. The dogs are trained to detect heroin, cocaine, methamphetamine, and marijuana. Initially, the handler exposes the dog to a training aid such as a tennis ball that has been submerged in the drug and familiarizes the dog with the odor by playing with it. Then the trainer hides the ball, and the dog learns to sniff it out. Next, the trainer hides the drug rather than a tennis ball. When the dog finds the drug, it is rewarded by being allowed to play with a favorite toy. After the dog and the handler have worked together for a significant period of time, they are eligible for testing by the OPCA. As described by Fyfe, the test involves [testing the dog's ability to detect the presence of drug-scented items in two rooms, three vehicles, seven packages, and an open area. To prevent handler cuing and to force the teams to perform under stress, the handler does not know how many items, if any, the dog should alert to on each deployment.] Each environment may have up to three drug packages hidden in it, or may have none at all. The environments also have distracters, such as dirty clothing and urine. [To pass the portion of the test in rooms and vehicles, a dog must have at least a 90 percent accuracy rate. For the packages and open area, the dog must be 100 percent accurate.] Approximately 25 percent of the dogs fail the test. If a dog passes the test, it is certified for one year and must complete the test again to be recertified. "Defendant provided expert testimony from Woodford, a chemist who had patented a pseudo-scent, methyl benzolate, which is the scent dogs detect from cocaine. He testified that he has consulted with various federal agencies and the military concerning dogs that are trained to detect drugs and explosives. He indicated that the 'highest level' of training involves 'imprinting' a dog and using food rewards. This method takes three to four months and involves taking dogs into clean rooms in which cans with odors inside them, including drug odors and distractor odors, are placed on wheels. The dogs do not work with handlers at that point. Eventually, when a dog becomes 'imprinted' to alerting to the drug odors, it is ready to work with a handler. Woodford testified that all drug-detection dogs have high rates of false positives, because the scents that they detect in the drugs also are detectable in a number of legal substances, including foods and perfumes. He further testified that dogs trained in this manner cost $10,000 to $15,000. He concluded that the imprinting method was 'generally accepted' as 'the scientifically based way to do it.' "[Woodford] criticized the 'play reward' system of training dogs, suggesting that simply choosing dogs from an animal shelter (which is where Hulke obtained Benny) was inappropriate, because a psychological profile of a dog should be done before it is selected for imprinting. He suggested that the play-reward system was 'okay' and that it works to 'a certain extent' but not as well as imprinting, because the incidence of false positives cannot be accurately tracked. He suggested that a major flaw with the play-reward system is that the dog may simply be detecting the scent of the handler who handled the drugs when they were hidden, or may be picking up on subtle cues from the handler, such as changes in heart rate or breathing patterns when the dog is near the place where the handler has hidden the drugs. As for the method used by the [OPCA] to certify the dogs, Woodford asserted that it likely was flawed because the dog would simply track the scent of the person who placed the drug, which would lead the dog to the drug. "In rebuttal, Fyfe testified that during play-reward testing, a dog's handlers do not place the drugs in the environments. Moreover, the people who do place the drugs in the environments handle the drug packages with gloves and also go to various points in the environments and disturb the environments, so that 'our dogs are able to go out there and not alert to skin, crushed grass, disturbed earth where we bury the drug training aid[.]' Fyfe also testified that the play-reward system is the only system in general use in the United States for training drug-detection dogs." Foster, 233 Or App at 144-45. The experts also described a dog's generally superior sense of smell and the fact that a dog is capable of detecting trace amounts and residual odors of a drug that may remain after the odor-emanating drug is no longer present, or that may be carried by an object or a person who had contact with drugs in another location. On deployments in the field, when a dog alerts to a location and a subsequent search of that location does not result in the seizure of drugs or drug paraphernalia, there is no way to determine whether the dog alerted to a residual odor or whether the alert was a result of dog or handler error. Regarding Benny and his particular training, Hulke explained that he obtained Benny from the Oregon Humane Society shelter in 2004, after Fyfe first selected Benny from the available dogs at the shelter. Hulke initially trained Benny for approximately 70 hours, using the play-reward method. Hulke described Benny's initial training (using a scented tennis ball, hiding the ball, etc.) in a variety of settings, such as vehicles, schools, and wineries, where he introduced distractions, such as other animals or animal feces. Someone other than Hulke sometimes hid the training aid to avoid cuing Benny to the aid with his own scent. Hulke was assisted in some of his training by a "master trainer" certified by the OPCA. After their initial 70 training hours, Benny and Hulke passed the OPCA certification test on their second try. After passing the test, Hulke trained Benny for about 230 additional hours before beginning to use him on patrol in October 2004. Hulke continued Benny's training after October 2004, with assistance from the master trainer from OPCA. Hulke and Benny were recertified on April 11, 2006, approximately two weeks before the alert at issue here. Hulke deploys Benny only when he or other officers have "corroborating evidence or information" that narcotics may be present. Hulke described that information as including, for example, if "the vehicle has come from a known drug house, if the driver is associated with narcotics, if an officer had seen some drug paraphernalia inside the vehicle, if the passengers are known drug users, anything of that nature." On vehicle deployments, Hulke has a set routine in which he walks Benny twice around a vehicle, first smelling low along the perimeter of the vehicle, and smelling higher on the second pass. Consistent with Benny's training, Hulke rewards Benny by playing with him immediately after an alert. That positive reinforcement follows an alert, regardless of whether a subsequent search recovers drugs or other seizable evidence, on the theory that a properly trained drug-detection dog has done what it is trained to do -- i.e., alert to the odor of an illegal drug -- even if the odor turns out to have been a residual one. According to Hulke's records of Benny's deployments in the field, between October 2004 and December 2006, 66 percent of Benny's alerts resulted in searches that led police to seizable evidence of a drug-related crime. In the other 34 percent, Benny's alert could have been a false one -- that is, Benny could have alerted without having smelled the odor of any of the drugs he was trained to detect. If, however, Benny was alerting consistently with his training, the alerts in situations that did not result in the seizure of drug evidence would have been to a residual odor that remained after illegal drugs were removed from the area of the alert, or were carried by an object or person that had been in contact with illegal drugs.(2) II. ANALYSIS With that background, we turn to the issue that this case presents. Stated in broad terms, the issue is whether, and under what circumstances, an alert by a drug-detection dog provides probable cause to search. Stated in more specific terms, the issue is whether, in this particular instance, Benny's alert to the door handle of defendant's car provided the officers with probable cause to search for evidence of drugs. The general legal principles that apply to resolve the issue presented are both familiar and settled. An officer may lawfully search a stopped vehicle and its contents without a warrant or consent if the vehicle was mobile when it was stopped and if the officer had probable cause to believe that seizable items would be found. State v. Brown, 301 Or 268, 274-76, 721 P2d 1357 (1986).(3) The probable cause analysis for a warrantless search is the same as for a warranted one. Id. (officers constitutionally may search a lawfully stopped vehicle if "a magistrate could issue a constitutionally sound search warrant based on the probable cause articulated by the officers"). Probable cause exists if the facts on which the officers relied would "lead a reasonable person to believe that seizable things will probably be found in the location to be searched." State v. Anspach, 298 Or 375, 381, 692 P2d 602 (1984). The standard is one of probability, not certainty. Id. at 380-81. In assessing probable cause, a court must consider the "totality of the circumstances, including the officer's training and experience." State v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d 193 (2009). In addition, the facts articulated in support of probable cause must be assessed in a commonsense and realistic fashion. State v. Coffey, 309 Or 342, 346, 88 P2d 424 (1990); State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983). Because the state must establish the validity of a warrantless search, ORS 133.693(4), it is the state's burden to show that the search was supported by probable cause. The parties generally agree on how those legal principles apply in assessing whether an alert by a drug-detection dog provides probable cause to search. Implicitly, the parties endorse what appears to be the universally accepted proposition that an alert by a properly trained and reliable drug-detection dog can provide probable cause for a search. See, e.g., State v. Smith, 327 Or 366, 369, 963 P2d 642 (1998) (description in application for warrant of drug-detection dog's alert to storage facility contributed to probable cause to search); see generally Wayne R. LaFave, 1 Search and Seizure § 2.2(g), 526-27 (4th ed 2004) ("In light of the careful training which [drug-detection dogs] receive, an alert by a dog is deemed to constitute probable cause for an arrest or search if a sufficient showing is made as to the reliability of the particular dog used in detecting the presence of a particular type of contraband." (footnotes omitted)).(4) Explicitly, the parties further agree that whether, in any particular instance, a particular dog's alert does provide probable cause to search calls for an individualized inquiry into that dog's reliability. The parties further concur that, in assessing whether the alert gave rise to probable cause, a court must consider the totality of the circumstances known to the officers, which typically will include such things as the dog's training, certification, continued training and recertification, and performance in the field.(5) We agree with the parties that, in determining whether police had probable cause to search based on the alert of a drug-detection dog, the analysis requires an individualized inquiry into the reliability of the particular dog involved. That is consistent with our traditional standards for assessing probable cause. Also consistent with those traditional standards is that the assessment will depend on the totality of the circumstances reasonably known and available to police, and will include a dog and handler team's training, certification, and performance. In this particular case, there is no dispute that Benny and Hulke underwent extensive training in drug detection and achieved certification as a dog-handler team. The certification program required Benny to alert to the presence of any one of the four drugs he was trained to detect, and not to alert in their absence, with a high degree of accuracy. For packages and open spaces, Benny had to be 100 percent accurate. For vehicles, rooms, and similar areas, Benny had to be 90 percent accurate. The test that Benny (with Hulke, as his handler) had to pass is sufficiently rigorous that about one fourth of the dogs fail the test on their first try, as did Benny. Benny and Hulke achieved certification when Benny went through the test a second time. After Benny and Hulke were certified as a team, Hulke continued to train Benny, and they were recertified, as OPCA requires. Their certification was current at the time of the search in this case.(6) Defendant nevertheless challenges Benny's reliability based on his training, not because Benny did not succeed in his training regimen and achieve certification, but because, according to defendant, a dog trained to alert to drugs based on their odor, rather than the actual presence of drugs, is inherently too unreliable. Defendant relies on the fact that dogs, due to their keen sense of smell, can detect residual odors of drugs, as well as drugs themselves. As a result, an odor-trained dog (which all drug-detection dogs are) potentially will alert when the odor of a drug lingers, but the actual drug is no longer there. Residual odors also can be present when odor-emanating drugs were not present in a particular area, but an object that came into contact with the drugs, and to which the odor continues to cling, is present. In such circumstances, defendant urges, the dog's alert does not signify the presence of drugs; it signifies only the presence of the odor of drugs. Because the dog's handler cannot know what has caused the dog to alert -- that is, whether the dog has detected a residual odor or an odor directly emanating from drugs present in the area of the scent -- the officer cannot have probable cause to believe drugs will be found in a search of the area to which the dog alerted.(7) That same argument has been advanced to other courts and, as other courts have concluded, the argument depends on a misconception of what probable cause requires. See generally State v. Cabral, 159 Md App 354, 375-81, 859 A2d 285 (2004) (so observing, and collecting cases from other jurisdictions drawing similar conclusions). As we earlier stated, probable cause requires an objectively reasonable belief that seizable things will probably be found in the location to be searched. Anspach, 298 Or at 381. The test is one of probability, which requires more than mere suspicion or a mere possibility. State v. Carter/Grant, 316 Or 6, 12-13, 848 P2d 599 (1993). But it does not require certainty. Neither does probable cause require that officers limit the place that they search to whatever location may offer the most promising of several possible results. Instead, when evidence is likely to be found in one of two or even several places, probable cause can exist for all of those locations. See Villagran, 294 Or at 413-14 (probable cause existed to search a certain location even though a different location was a "more likely place to find the evidence sought"). In accord with that understanding of the constitutional standard, an observation made by police that is consistent with criminal conduct does not have to eliminate any possibility of an innocent explanation to provide probable cause. See, e.g., State v. Westlund, 302 Or 225, 231, 729 P2d 541 (1986) (probable cause to search where officer, from training and experience, believed it highly likely, but not certain, that white powder visible in transparent vial was controlled substance). Probable cause depends on whether an incriminating explanation remains a probable one, when all of the pertinent facts are considered. Thus, probable cause is harder to establish based on observations or sensory perceptions that are equally or more consistent with innocent circumstances; to the extent that an innocent explanation is unlikely or a more remote possibility, probable cause is more readily established. Carter/Grant, 316 Or at 13 n 7 (probable cause is harder to establish based on observations or sensory perceptions that are equally or more consistent with innocent circumstances; where an innocent explanation is an unlikely one -- such as "for carrying around in one's wallet a transparent small bag of white powder" -- probable cause is more readily established). In this context, the possibility that a trained drug-detection dog will alert to a residual odor, rather than the actual presence of drugs, does not ipso facto render it unreasonable to believe that drugs or other seizable things are probably present. First, if the dog is properly trained and handled, the likelihood that the dog's alert indicates the presence of an illegal drug remains a substantial one. Second, and significantly, even if the odor is a residual one only, there is no substantial -- let alone equal or greater -- likelihood of a purely innocent explanation for the presence of the odor of drugs. Either illegal drugs are present, or something that was in contact with illegal drugs and carries the odor is present.(8) Thus, even when actual drugs are not present, something that carries the odor of the drug (such as drug paraphernalia, a receipt for drug sales, or another item associated with drug use or drug distribution) likely is present and may be seizable, even if it is not the drug itself. For those reasons, we conclude that probable cause to search may arise from the alert of a trained drug-detection dog despite the possibility that the alert is to a residual odor of an illegal drug rather than an odor emanating from the actual drug. Defendant makes a second argument directed at the inadequacy of the type of training that Benny underwent. Specifically, relying on Woodford's expert testimony, he argues that the imprint method of drug-detection dog training is considered more reliable by the scientific community than the play-reward method of training, and thus has greater scientific acceptance. Defendant urges that a dog trained in a method that enjoys less scientific acceptance is not sufficiently reliable to provide an officer with probable cause. Based on the record, we accept defendant's premise. The problem with defendant's argument on the basis of the premise, however, is two-fold. First, as we have discussed, probable cause requires only the reasonable belief that seizable things probably will be found in the place to be searched; it does not require an officer to rely on the best or most reliable source of information if some other, but still reliable, source provides the officer with the requisite reasonable belief. The problems that Woodford identified with play-reward did not, in our view, detract so significantly from the reliability of that training method as to mean that the alert of a dog so trained can never, as a matter of law, provide or contribute to probable cause to search. Equally important, Woodford's opinion was directed to the play-reward technique of training generally. It did not account for the fact that the training that Fyfe has designed for OPCA has been designed to avoid, or at least minimize, a major flaw that Woodford identified in play-reward training (i.e., the scent and physical cues that a handler may give to a dog when the handler is involved in hiding the drugs used in training).(9) Second, and relatedly, the kind of scientific acceptance that might be required for admissibility of drug-detection dog evidence at trial is not the standard that must be met to satisfy probable cause. As we held in Coffey, 309 Or at 348, "[i]nformation to be considered in issuing a warrant need not be admissible under the rules applicable to trial evidence[.]" And, as we have already observed, the probable cause standard for testing a warrantless search is the same as that for testing an affidavit in support of a warrant. Brown, 301 Or at 276. Thus, just as the rules of evidence would be inappropriate and impractical for testing probable cause in a search warrant application, Coffey, 309 Or at 348 (citing and quoting legislative commentary to Oregon Evidence Code), so, too, are those rules inappropriate and impractical for testing the existence of probable cause to support a warrantless search. Beyond making those broad challenges to the reliability of any dog trained, as Benny was trained, to detect odors using the play-reward method, defendant does not take direct issue with Benny's individual reliability. At most, he urges that certain aspects of Benny's performance in the field "illustrate" the problems with odor-trained drug-detection dogs more generally. In particular, defendant points to Benny's high rate of alerting on vehicle deployments, pointing out from Benny's 84 records of field deployments that 63 involved vehicles, and Benny alerted on 60 of those 63. Defendant asserts that such a high rate of alerts (95 percent) "might be attributable" to unintentional handler cues, or might reflect the pervasiveness of residual odors, or might be due to a play-reward trained dog's "Pavlovian" response to alert in order to receive a reward. Such speculation on defendant's part, however, does not undermine the reasonableness of the officer's reliance on Benny's particular alert in this case, even assuming that defendant makes the argument for that purpose. Whether it was reasonable to rely on Benny's alert depends on the information known to the officer at the time of the alert that relates directly to Benny's ability to accurately detect drug odors. Here, the record establishes that Benny and Hulke went through a thorough training regimen, one that culminated in their successful certification through the OPCA's testing process. Since then, Hulke and Benny have maintained their training and have been recertified. Benny's reliability is further reflected in his approximate 66 percent "find" rate -- that is, his field performance records show that actual drugs were found in 66 percent of the areas searched after he alerted. That find rate confirms that Benny can accurately detect the odor of drugs present in an environment, as he was trained to do.(10) And, while statistics do not control the probable cause analysis, Benny's find rate is sufficiently high that, when considered with his training and certification with Hulke, the officers could reasonably rely on Benny's alert in this case.(11) The fact that no actual drugs were found in 34 percent or so of Benny's deployments is, in the absence of other information, a neutral consideration. It is impossible to know in those circumstances whether Benny detected the residual odor of an illegal drug (a correct alert, but not one that led to the successful recovery of evidence of drugs) or whether, as defendant suggests, Benny did not alert to an odor at all, but alerted instead in response to a handler cue or a "Pavlovian" desire for a reward (a "false" alert). Thus, as at least one other court has concluded, field reports should not be the full measure -- or perhaps even the most meaningful measure -- of a dog's reliability; more telling is the dog's performance in controlled circumstances, such as those involved in testing for certification, where the dog's ability to find and signal the presence of drugs can be accurately gauged. State v. Nguyen, 2007 SD 4, 26 NW2d 871, 878 (SD 2007). In a controlled environment, as we have already discussed, Benny was able to detect the drugs that he was trained to detect with a very high rate of accuracy. In sum, we conclude that an alert by a properly trained and reliable drug-detection dog can provide probable cause to search. Whether in any particular case an alert provides probable cause requires an individualized inquiry, one that will depend on the totality of the information available to the officers. In a usual case, that information likely will include the dog-handler team's training, certification, and performance. But it can also include any other information relevant to the dog's reliability or fallibility.(12) We reject defendant's position that a dog trained to detect odors is inherently too unreliable because of the possibility that the dog will alert to residual odors, rather than the actual presence of drugs; that possibility does not defeat, as a per se matter, a reasonable belief that drugs or other seizable evidence will be found in the area of an alert by a properly trained and certified dog. We likewise reject defendant's position that dogs trained using the play-reward method are insufficiently reliable, because the imprint method of training has greater scientific acceptance. Probable cause does not require the use of the most reliable source of information, rather than a sufficiently reliable source; neither do standards for the admissibility of evidence at trial apply to the assessment of probable cause. Finally, based on the totality of the circumstances bearing on Benny's particular reliability in this case, we conclude that Benny's alert to defendant's car gave the officers probable cause to search it for illegal drugs or other seizable evidence of illegal drug activity. Accordingly, the trial court correctly denied defendant's motion to suppress, and the Court of Appeals correctly affirmed that ruling. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. Some of Ray's suspicions were based on tips provided by two confidential informants. At trial and in the Court of Appeals, defendant challenged whether those tips should be considered in determining whether probable cause existed for the search. The Court of Appeals concluded that one tip was sufficiently recent to be given "some weight," while the other was so old that it should have "little weight," and in the Court of Appeals' analysis it appeared to give the older tip no weight at all. Foster, 233 Or App at 143. Defendant did not raise any issue about the Court of Appeals' consideration of the tip in his petition for review to this court, but in his brief on the merits, he urges us to review that issue. Because we conclude that the dog's alert in this particular case was sufficient to provide probable cause to search, we need not and do not address whether either or both of the tips by the informants were entitled to no, little, some, or greater weight. 2. We later analyze the significance to the probable cause analysis of a drug-detection dog's potential to alert to residual odors. 3. The search in this case arose under the so-called "automobile" exception to the warrant requirement of Article I, section 9, of the Oregon Constitution and the parallel warrant requirement of the Fourth Amendment to the United States Constitution. See generally Brown, 301 Or at 274-76 (describing exception). No issue has been raised in this case as to the existence or scope of that exception. The only issue is whether, as the exception requires, police had probable cause to search without a warrant. 4. Cases so holding are too numerous for citation, but illustrative cases containing what we view as a thoughtful discussion of the issue include State v. Nguyen, 2007 SD 4, 726 NW2d 871, 875-78 (2007); State v. Yeoumans, 144 Idaho 871, 875, 172 P3d 1146 (2007); and State v. Cabral, 159 Md App 354, 380-81, 859 A2d 285 (2004). Defendant has identified no case -- nor has our research disclosed one -- holding that trained drug-detection dogs are inherently unreliable and can never provide probable cause to search. 5. Defendant, in acknowledging that probable cause requires consideration of the totality of the information known to the searching officers, invites us to adopt a "four factor" test based on a dog-handler team's (1) training regimen; (2) certification program; (3) maintenance regimen; and (4) field performance records. We agree with the state, however, that as for any other probable cause analysis, the assessment is not limited to a fixed list of factors, but instead turns on the information known to officers in relying on a drug-detection dog's alert. A dog-handler team's training, certification, maintenance, and performance records likely will be usual considerations in the analysis. But articulating a static list of factors is unnecessary; the existing probable cause analysis provides ample structure to guide the inquiry. 6. The state does not rely on the bare fact that Benny was "certified" as establishing, even as a prima facie matter, Benny's reliability. Instead, the state acknowledges the lack of any statutory standards for or official state oversight of the certification process. To meet its burden to establish probable cause, the state thus had to produce evidence of Benny's training and OPCA's certification program. 7. Defendant appears also to assert that there are ways of training dogs so that they alert to the presence of drugs only, and never to residual odors. For that, he relies on a law review article in which the author describes the training of federal customs dogs based on a telephone interview of a single federal customs agent. See Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 65 Ky LJ 405, 414 (1996). We do not agree that the author's observations support the existence of a training method that results in the level of accuracy that defendant describes. In all events, the record that defendant made in this case refutes that assertion. Defendant's own expert did not suggest the existence of any training method superior to the imprinting method, and his testimony was that all drug-detection dogs are fallible in detecting the presence of actual drugs because their heightened sense of smell permits them to detect residual odors. 8. In his petition for review, defendant urged that Benny, and all drug-detection dogs similarly trained to alert to drug odors, have a high likelihood of alerting to residual odors, rather than odors emanating from drugs, given studies reporting that as much as 90 percent of the currency in circulation in this country is contaminated by cocaine. In his brief on the merits, defendant does not continue to press that point, except to argue that it might be "fair to assert with the appropriate record" that dogs trained as Benny has been trained should have a very high rate of alerting in the field. Although some older cases have concluded that alerts to currency were unreliable because of the contaminated currency problem, defendant candidly notes that courts more recently have been disabused of those concerns by studies showing that the particular chemical from cocaine that dogs detect does not remain in currency for an extended time under normal circumstances. Compare, e.g., U.S. v. $5,000 in U.S. Currency, 40 F3d 846, 849-50 (6th Cir 1994) (alert to currency was insufficient to establish probable cause due to contamination problem) with U.S. v. Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670.00), 403 F3d 448, 461 (7th Cir 2005) (finding, because of more recent studies, that dog alerts to currency should be entitled to probative value). More significantly, in this case, the record affirmatively establishes that Benny, although exposed to currency in general circulation, does not alert to it. Thus, in this case, whatever the studies show about the contamination of public currency, there is no basis to conclude that such contamination affected Benny's accuracy in the field. 9. Notably, Woodford's opinion was directed to the general play-reward versus imprinting methods of drug-detection dog training. It was not dog specific or otherwise directed specifically to Benny's reliability or the particular training that Benny had received. 10. Defendant suggests, at one point in his brief, that Benny's 66 percent rate of alerting where actual drugs are later found is misleading, because Hulke typically deploys Benny only when officers already suspect illegal activity and have other information that may tend to corroborate their suspicions. According to defendant, Benny's "find" rate would be more meaningful if it were in response to a random sample of the population. Defendant's argument disregards that Hulke's training with Benny was designed to avoid cuing or other influences that might cause Benny to falsely alert. At least on this record, Benny's "find" rate of 66 percent is just that -- a "find" rate of 66 percent. It is, therefore, a fact that supports the officers' reasonable belief based on Benny's alert that illegal drugs or other seizable evidence probably will be found in the place to be searched. 11. 1The collective knowledge doctrine "focuses on the shared knowledge of the police as a unit rather than merely on the knowledge of the officer who acts." State v. Soldahl, 331 Or 420, 427, 15 P3d 564 (2000). In this context, the doctrine permits officers performing the search to rely on the knowledge of the officer deploying a drug-detection dog about the dog's training, certification, performance, and other knowledge that contributes to the handler-officer's belief that the dog's alert was reliable. 12. For example, in this case, Hulke was asked whether Benny has ever been injured or been on any medication for any reason. The answer was no. But on a proper record, a handler's awareness of a medical condition or other infirmity that could affect the dog's reliability would be relevant to the probable cause analysis.

db55b4d62aada97fafb8087f15a3abcf1d63d0c21eae655fbf7c5d325fd3cae8

2011-04-07T00:00:00Z

f4f3058e-281c-4757-b273-47fc4766ed32

Rasmussen v. Kroger

S059262

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS BALLOT TITLE CERTIFIED April 21, 2011 Rasmussen v. Kroger (S059262). Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 11 (2012) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure.

24c1e05aa04765c873950b2be0f2b6aa7ee395381fda9e6d702fa8e0bb2ce5ae

2011-04-21T00:00:00Z